ASIC Response to Senator Williams

The “authorised purpose” of the trust established on the 23 December 1913 in the state of South Australia is the provision of “pension and benefits” to certain “male officers, their wives, widows and dependants“.

This “authorised purpose” is confirmed by the Elder Smith & Co Limited Provident Funds Act 1963 (SA).

Once a trust is properly constituted, the “authorised purpose” {or “sub-stratum of the trust“} cannot be altered by a subsequent Deed of Variation. An Act of Parliament may be used to amend the “authorised purpose” if there is a valid reason for doing so.

A Select Committee on the Legislative Council of South Australia confirmed the nature of the fund.

The Hon. G. O’H Giles M.L.C. stated in the Minutes of Evidence  for the Select Committee on the Elder Smith & Co Ltd Provident Funds Bill 1963 on 3 September 1963 following a question from the Attorney-General, the Hon Colin Rowe M.L.C.:

“ The present fund – that is, Elder’s Provident Fund – was established 50 years ago. It is one of the oldest Provident Funds in Australia. It is a pension fund, and not a Provident Fund in the lump sum sense. It provides pensions after 15 years of service. It provides death benefits, equal to three years’ salary, immediately after entry to the fund. The fund is designed to provide an attraction to people to join the company’s service, an encouragement to them to remain, and security for those officers who belong to the company and the fund”.

Mr Giles continues:

“ At present, there are 1,099 members of the fund and 106 pensioners, including two widowed pensioners. The only reason why there are only two widowed pensioners is that until comparatively recently the fund only provided a pension during the life of the officer after retirement. However, that was altered some little time ago to enable them to opt to have a survivorship pension in favour of their wife if they so wished. The fund has assets of £2,838,000”.

In a pension fund, membership of the fund terminates with death and not with the termination of the Contract of Employment as may be the case with most “Lump Sum” Superannuation Funds.

However when persons who are now longer in the service of the sponsoring employer have been denied access to the Deeds of the Fund by a purported Trustee who was not even lawfully appointed to the office of trustee, the response from ASIC to this criminal conduct has been:

“You have received a pay-out so you are no longer entitled to have access to the very “trust documents” that will confirm:
  1. The purported Trustee that made the “pay-out” was not lawfully appointed to the office of trustee, and
  2. That the payment was fraudulently made by the purported Trustee.
So get lost.”

In order to counter this dishonest conduct of several ASIC Officers and “active member” of the fund who was still in the service of the sponsoring Employer sought the assistance of Senator John Williams to intercede on his behalf.

ASIC could not uses the excuse of “you have received a pay-out, so get lost” in this case.

Fairfax Media reporter Michael West in an article titled “Planning scandal response shows banks above the law” published on 26 October 2014 reported:

“Those who followed the Senate Inquiry will be familiar with the testimony of James Wheelondon, a former lawyer at ASIC who exposed in intimate and unassailable detail how the regulator not only does favours for the big banks but even allows them to have a hand in formulating the nations laws”

It is standard operating procedure at ASIC to simply “re-write” any law enacted by the Parliament of Australia if the law is not to ASIC‘s liking.

Now it is a fundamental legal right of any person who has a beneficial interest in a trust to have access to the original trust Deed and any instruments that purport to vary the terms of the original Trust deed.

Parties to a contract exchange copies of the contract so that each party has a copy of the document that sets out their legal obligations, however in some trusts the beneficiaries are children or may even be yet to be born, so the concept of exchanging documents when someone is made a beneficiary of a trust is meaningless.

Instead the law provides a right to have access to the Deeds in the possession of the Trustee or Trustees.

However this long established principle of law has proven to be “inconvenient” to ASIC ,so ASIC just “re-writes the law” to suit the interest of ASIC and its clients – the Big End of Town financial institutions to where ASIC officers are “promoted” for acting in the interests of these financial institutions.

The essence of Australia’s Worst White-Collar Crime is the criminal concealment of the original Trust Deed, which provides much higher retrenchment and retirement benefits,  and the representation that a fraudulent “Trust Deed” executed by a well known white-collar criminal is the genuine “Trust Deed“. The purported “Trust Deed” signed by the well known white-collar criminal Ken Jarrett purports to abrogate the right of widows to receive a survivorship pension and replaces a life pension for male officers with a token lump sum benefit worth 20% or less than a life pension. The “Jarrett Deed” also purported to allow benefit payments to female employees which the Elder Smith & Co Limited Provident Funds Act 1963 (SA) confirms to be prohibited by the terms of the trust. The Elder Smith & Co Limited Provident Funds Act 1963 (SA) confirms that a separate trust was established to provide retirement benefits to female employees. In a letter dated 3 March 2014 to Senator John Williams, ASIC  officer Gerard Fitzpatrick, “re-writes” the law to protect the interests of the National Australia Bank. Mr Fitzpatrick “re-writes” the definition of “governing rules” so that ASIC will only enforce disclosure of the “current compilation‘ of the governing rules which may simply be a fraudulent document! Mr Fitzpatrick has given the “green light” to every trustee to draft a set of fraudulent “governing rules” that provide much lower benefits than the previous genuine version, and to then pocket the actuarial surplus in the fund created by the fraudulent new version of the “governing rules“!         ASIC 3 March 2014 P1     ASIC 3 March 2014 p2