Response to Whistleblowers

The Chairman of ASIC gave a personal commitment to the Senate Committee that ASIC would improve its Whistleblower procedures. Based on this commitment a number of victims lodged Whistleblower Complaints with the Chairman of  ASIC. A response was drafted by Warren Day who worked at the Australian Tax Office before joining ASIC. Mr Day has no expertise in trust or superannuation law. A copy of the response can be found here. In the letter of response Mr Day states:

You have referred to two trusts, which you call the Elders IXL Superannuation Fund and the Elders-GM Women’s Provident Fund. “We under understand that you believe that the trust deeds for thee trusts at various times through their history contain clauses entitling beneficiaries to generous benefits, including a pension for life and a survivorship pension for spouses. We also understand that, historically, membership of the Elders IXL Superannuation Fund was limited to male employees, and the Elders-GM Women’s Provident Fund was limited to females”

These facts can easily be confirmed by reference to the Elder Smith & Co Limited Provident Funds Act 1963 (SA) and the Elder’s Trustee and Executor Co Limited Provident Funds Act 1971 (SA). The name of The Provident Fund was changed to the Elders IXL Superannuation Fund in 1982. In 2011 this fund was renamed the AusBev Superannuation Fund. Mr Day continues:

Your most recent correspondence makes the following allegations:

  • Approximately $100 million has disappeared from the Elders IXL Superannuation Fund, and that the Elders-GM Women’s Provident Fund has disappeared
  • Fraudulent change were made to the trust deed for the trusts; and
  • Deeds of variation made in the 1980s did not comply with the requirements set out in the original trust deed to validly vary the trust, and therefore they are not effective.
  The allegations as stated by Mr Day are essentially correct except that no purported Deeds of Variation and other purported instruments of variation made from 1980 have complied with the requirements of the Power of Amendment provided in the original trust deed. Mr Day’s lack of knowledge of the law of trusts when he talks of ” a private trust, that later may have become the superannuation fund….” A “trust” is a set of legal obligations, while “the fund” is the subject matter of the trust and “the beneficiaries” are the objects of the trust. “The fund” is also referred to as the “Trust Estate” and consists of the assets held on trust for the payment of benefits to the beneficiaries. It is nonsense to talk of a set of legal obligations becoming a sum of money Mr Day makes the following representation with respect to the fund which was renamed the AusBev Superannuation Fund in 2011:

“The Fund has recently undergone a successor fund transfer into the Cartlon & United Breweries Superannuation Plan, a sub-plan of the Plum Superannuation Fund, which has PFS Nominees Pty Ltd (ACN 082 026 480) as trustee (the Trustee).}

However a legally valid “successor fund transfer” could not take place as claimed by Mr Day until the terms of the occupational pension trust established on 23 December 1913 in the State of South Australia were amended to allow an alternative means of winding-up the trust as provided by Regulation 52. In a trust, the subject matter of the trust (ie the fund) cannot be simply transferred to another party. The terms of the trust must be properly amended to allow such a transfer to lawfully take place. It would require an Act of the Parliament of South Australia to amend the terms of the trust {Regulations of the Fund} as has been confirmed by the Elder’s Trustee and Executor Co Limited Provident Funds Act 1971 (SA). There has been  no such enactment and therefore the transfer of approximately $400 million has occurred in Breach of Trust and the “NAB Trustee” is now liable to return the $400 million to the Trust Estate of the occupational pension fund established on the 23 December 1913 pursuant to the first limb of Barnes v Addy (Knowing Receipt) . This trust has not been wound-up. Furthermore APRA has not provided a formal approval for any such purported “successor fund transfer” as required by the Superannuation Industry (Supervision) Act 1993. The majority of large superannuation funds are now administered by corporate Trustees and ASIC has jurisdiction over all body corporates pursuant to the Corporations Act 2001. The Provident Fund (aka Elders IXL Superannuation Fund} has had a purported corporate Trustee since 20 December 1982. Mr Day then makes the following representation:

“ASIC does not enforce trust law nor do we regulate or register private trusts, and we have no historic records of the Elders IXL Superannuation Fund or the Elders-GM Women’s Provident Fund.”

Mr Day appears to have overlooked the fact that superannuation is compulsory in Australia and that ASIC is a “Regulator” of large superannuation fund pursuant to the Superannuation Industry (Supervision) Act 1993 and well as having jurisdiction of the conduct of the Directors of any corporate trustee. As a “Regulator” has has the power to “give directions” to a corporate Trustee to provide records to ASIC as well as to comply with superannuation law. In fact ASIC does hold records related to the Elders IXL Superannuation Fund and the two purported corporate trustees who have intermeedled with the affairs of this trust since 1982. Mr Day then makes the representation that to be a “Whistleblower” a person has to be a “current employee or office holder of the relevant trustee“. Again this is complete nonsense. The Whistleblower in the Trio Capital Superannuation Fraud is Mr John Hempton, Chief Executive Officer at Bronte Capital Management and a former Treasury official! Mr Day then states:

“ASIC has considered the information you have provided about the alleged fraud by the trustees operating these trusts occurring up to the 1980s …”

However no allegations of fraud have been made against the natural person trustees, resident in South Australia, who administered the occupational pension trust established on the 23 December 1913 until 20 December 1982. The allegations relate to a number of purported corporate Trustees, resident in Victoria, who have administered this trust since 20 December 1982. It is a provision of the Trustee Act 1936 (SA) that trustees of trusts established in South Australia must be resident in South Australia and can only be temporarily absent for 12 months unless on miiltary service Mr Day continues:

“As these earlier trusts have been replaced by or incorporated into the Fund’s current governing rules, it appears that the clauses in the earlier trust deeds are no longer in force and do not give rights as to the pension you refer to. In addition, it is unclear whether the colleagues you allege are entitled to this pension were members or beneficiaries of the trust before it became the Fund”

Here is again confirmation of the lack of knowledge by Mr Day of the laws of trusts. The “trust” has never become “the Fund“. The Fund is the subject matter of “the trust” established on the 23 December 1913. Furthermore Mr Day does not understand what documents constitute the “governing rules” of the occupational pension trust. The “governing rules” is not a single document, but a set of documents that includes, but is not limited to:
  • the original Trust Deed that established the trust
  • any instrument that purports to vary the terms of the original trust deed
  • any Act of Parliament specific to the trust, such as  the Elder Smith & Co Limited Provident Funds Act 1963 (SA)
  • any court order related to the trust
  • the relevant State Trustee Act, in this case the Trustee Act 1936 (SA)
  • any relevant Commonwealth Legislation (for example Section 1017C of the Corporations Act 2001)
A trustee cannot just “fabricate” a new version of the “governing rules” , if an earlier version is “inconvenient“. If the original Trust Deed provides a Power of Amendment then any amendments to the terms of the trust  must be made strictly in accordance with any conditions and restrictions imposed by the Power of Amendment as well as in compliance with the general law so that the value of entitlements are not reduced without the informed consent of the beneficiaries of the trust. By making a representation that :

“… it appears that the clauses in the earlier trust deeds are no longer in force and do not give rights as to the pension you refer to.”

Mr Day is construing the terms of the trust, which is something that only a Judge in a Chapter III Court can do. Mr Should obtain copies the original Trust Deed and all instruments that purport to vary the terms of the trust and apply for the Court to determine a “true construction” of the terms of the occupational pension fund established on 23 December 1913. There are documents that bear the signatures of well known white-collar criminals such as:
  • Ken Jarrett
  • John Dorman Elliott
  • Ken Biggins
  • Geoffrey Cohen
These documents should be “Red Flag” documents for any “Regulator“. ASIC does not act in isolation and regularly brings proceedings before the courts,which was the case in relation to the Trio Capital Superannuation Fraud. Mr Day should be seeking more evidence from the purported corporate Trustee, instead of making statements with the effect of “well you haven’t provided ASIC with sufficient evidence“. ASIC‘s role is to gather evidence and then to prepare a “Brief of Evidence ” for the Commonwealth Director of Public Prosecutions. Mr Day avoids the issue of the fact that the purported corporate Trustee has been criminally concealing the Genuine Deeds from the cestuis que trust (members and beneficiaries and the fact that ASIC has taken no enforcement action in relation to this criminal conduct.. Mr Day states:

“We have also considered  your allegations of fraud by the trustee occurring up to and during the 1980s”.

However no allegations of fraud have been made against the the natural person trustees, resident in South Australia,  who administered this occupational pension trust up until 20 December 1982. The allegations of fraud have been made against several corporate Trustees, resident in Victoria, who have unlawfully gained control of the occupational pension trust from 20 December 1982. Mr Day continues:

“The basis of these allegations is unclear, and the material you have provided does not evidence fraud”.

If Mr Day had some knowledge of the laws of trust then the evidence of fraud who be very clear to Mr Day. If a beneficiary of a superannuation trust complains that there has been a reduction in the value of benefits, this is prima facie evidence that there has been a “Fraud on a Power” in relation to the execution of a Deed of Variation {Amending Deed}, that warrants further investigation. That is there has been an exercise of the Power of Amendment for an ulterior motive and not to further the purpose of the trust. There have been many judicial statements made in relation to the proper and improper excise of powers, including the Power of Amendment. Refer to this link. Evidence Provided to ASIC To prove the fraudulent Breach of Trust only requires two documents and an Act of the Parliament of South Australia. These documents have now been provided to Mr Day along with relevant references to case law and the laws of trust that confirm there has in fact been a “Fraud on a Power” in relation to purported amendments to the terms of the occupational pension  trust established on the 23 December 1913.   The Public Service Act 1999 Mr Warren Day, as an Australian Public Servant, must comply with the APS Code of Conduct {Section 13 of the Public Service Act 1999}, and specifically with subsection 13(1) and subsection 13(9). 13(1)  An APS employee must  behave honestly and with integrity in connection with APS employment 13(9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment Mr Warren Day is now in possession of both the evidence and the legal principles of trust law to prove Australia’s Worst White-Collar Crime. Mr Day can no longer claim there are no documents “to evidenced fraud”nor can Mr Day plead ignorance of the law of trusts. The following document has been sent to Mr Day so that he is able to confirm the fraudulent amendment of the terms of the trust. Warren Day – Proving the Fraud