Unexecuted amending Deed with Blanked Out Pages

The request was successful.

Phillip Sweeney

Dear Australian Prudential Regulation Authority,

I refer to my FOI Requested of 6 April 2021.

Attached to an FOI response from Owen Brailsford (APRA) dated 21 March 2011 was a copy of an unexecuted draft copy of a document titled “Foster’s Group Superannuation – Amending Deed – {Replacing the Rules relating to the Fund in their entirety}”

The footer of this unsigned document was dated 30 March 2006.
The “Fund” means the Foster’s Group Superannuation Fund established under the Deed.
The “Deed” means the Deed dated 23 December 1913 as amended from time to under which the Fund was established.

APRA makes mention of a version dated 29 March 2006 – this may have been the executed version that had not been provided to APRA on 6 April 2006.

What is notable is that in the version dated 30 March 2006, pages 1 and 2 had been blanked out so that no recitals and Clause 1 were provided to APRA.

Why was it thought necessary to provide an unexecuted version {with banked out pages) of the purported amending Deed that purported to replace the Rules in their entirety on 6 April 2006 if an executed version existed before 6 April 2006?

The recitals that had been blanked out would have made reference to an Act of the Parliament of South Australia that amended the founding Trust Deed and which made reference to the Power of Amendment {Regulation 50) reserved in the founding Trust Deed.

Regulation 50 conferred an amending power {Power of Amendment} on the natural person directors of the sponsoring employer (but not on the company which has a separate legal personality).

A Power of Consent was conferred on the natural person trustees and a Deed was prescribed as the amending instrument.

Even if the redacted draft copy provided to APRA had been executed it would have been executed by the wrong parties – by the company and not by a majority of the natural person directors and by a corporate trustee and not by a majority of the natural person trustees.

The draft document makes reference to an alien Power of Amendment and an alien Power of Concent.in purported Rule 1.22.1.

“The Trustee may by resolution or by deed, with the consent of the Principal Employer, at any time alter modify or ass to the Rules ……..”

It required an Act of the Parliament of South Australia to amend the Power of Amendment previously to confer the Power of Amendment on the natural person directors of the company that had acquired the original Principal Employer.
APRA granted fund registration number R1004830 based on the documents lodged by Nicholas Brookes.

I refer to Sections 136.1, 137.1 and 137.2 of the Criminal Code Act 1995 (Cth).
136.1 False or misleading statements in applications
137.1 False or misleading information
137.2 False or misleading documents

The incumbent Trustee of this Defined Benefit fund is NULIS Nominees (Aust) Ltd and the directors have paid benefits since 1 July 2016 based on this invalid purported amending Deed that purported to replace the previous Rules or Regulations.

Although APRA has provided me with a paper version of the unexecuted draft version dated 30 March 2006 in the footer, the document I seek is an electronic version of this redacted draft document that I can provide to the following NULIS Trustee Directors:

- Beth Veronica McConnel (appointed 4 December 2019)
- Steven John Schubert (appointed 4 December 2019)
- Kathryn Ann Watt (appointed 4 December 2019)
- Karina Wai Yee Kwan (appointed 4 December 2019)
- Peter John Promnitz (appointed 7 December 2017)
- Andrew Crawfurd Gale (appointed 26 October 2016)
- Terry Colin McCredden (appointed 28 May 2014)

The directors then cannot claim that I have doctored the paper copy of the draft version provided to APRA by Nicholas Brookes in April 2006.

These directors must now ignore the purported amending Deed executed around 29 or 30 March 2006 and pay benefits in accordance with the 1913 founding Trust Deed and all legally valid amending Deeds.

That is these directors must now pay a life pension to qualifying male fund members and a survivorship pension to their widows instead of a token lump sum benefit with no benefit for widows.

A separate fund was established to pay benefits to current and former female staff as confirmed by two Acts of the Parliament of South Australia.

APRA should support the ruling of the Federal Court commenting on the rights of members of regulated superannuation funds in Commissioner of Taxation v Commercial Nominees of Australia Ltd [1999] FCA 1455 stated at [41].

* the right to require the Trustee and the Principal Employer to administer the Fund in accordance with the rules;
* the right to require that the provisions of the Original Trust Deed not be amended except in accordance with the amendment provisions contained in the Deed;
* an entitlement, subject to the matters referred to made below, to whatever benefits the rules provided on the death, retirement, resignation, retrenchment, disability or illness at the time such event occurred to the member;

The Determination of the Federal Court was affirmed by the High Court of Australia in Commissioner of Taxation v Commercial Nominees of Australia Limited [2001] HCA 33; (2001) 179 ALR 655.

Yours faithfully,

Phillip Sweeney

Freedom of Information, Australian Prudential Regulation Authority

Dear Mr Sweeney,

I acknowledge receipt of your FOI request dated 8 May 2021. We are processing your request and will respond soon.

Regards,

FOI OFFICER
T 02 9210 3000 | E [APRA request email]

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
1 Martin Place (Level 12), Sydney, NSW 2000 GPO Box 9836, Sydney, NSW 2001 T 02 9210 3000 | W www.apra.gov.au

show quoted sections

Freedom of Information, Australian Prudential Regulation Authority

Dear Mr Sweeney,

APRA is currently considering your FOI request.

APRA is requesting your consent to an extension of the processing period for your FOI request by 30 days under section 15AA(a) of the FOI Act.

APRA is due to decide your request by 7 June 2021. However, we require an extension of time to continue consultations and would appreciate your agreement to extending the processing period for your request. If you agree to the requested 30-day extension, APRA will decide your request by 7 July 2021.

Please advise in writing if you consent to this extension of time.

Kind regards,

FOI OFFICER
T 02 9210 3000 | E [APRA request email]

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
1 Martin Place (Level 12), Sydney, NSW 2000 GPO Box 9836, Sydney, NSW 2001 T 02 9210 3000 | W www.apra.gov.au

show quoted sections

Dear Freedom of Information,
I agree to the extension

Yours sincerely,

Phillip Sweeney

Freedom of Information, Australian Prudential Regulation Authority

2 Attachments

  • Attachment

    FOI 21 66 Notice of Decision.pdf

    501K Download View as HTML

  • Attachment

    Unexecuted Foster s Group Superannuation Amending Deed Replacing the Rules Relating to the Fund in their Entirety.pdf

    9.6M Download View as HTML

Dear Mr Sweeney,

Please find attached APRA's Notice of Decision dated 1 July 2021.

Regards,

FOI OFFICER
T 02 9210 3000 | E [APRA request email]

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
1 Martin Place (Level 12), Sydney, NSW 2000 GPO Box 9836, Sydney, NSW 2001 T 02 9210 3000 | W www.apra.gov.au

show quoted sections