The employee benefit trust established on the 23 December 1913 is a pension fund as confirmed by the Elder Simth & Co Limited Provident Funds Act 1963 (SA) as well by a Select Committee of the Legislative Council of South Australia.
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 terminate with death and not with the termination of the Contract of Employment.
When a member of the Fund who had complete 38 years of service contacted Senator John Williams about being denied access to the genuine Deeds of the occupational pension fund established on the 23 December 1913 that would confirm his entitlement to a life pension of 64% of his final average salary as well as a survivorship pension for his wife.
This is the response that ASIC Officer , Warren Day, sent to Senator Williams:
Mr Day makes the representation to Senator Williams that a person who has completed 38 years of service may not be “a concerned person” in his own superannuation fund, and then Mr Day states:
“and if the trust deed is not relevant to determining the members interest in the superannuation fund”.
Now Mr Day would know that Senator Williams has no legal qualifications and therefore could be easily bluffed by a representation that a “trust deed is not relevant to determining a fund members benefit“.
However its is trite law that a trust must obey the original Trust Deed that establishes a trust as lawfully amended.
It is complete legal nonsense for Mr Day to claim that a Trust Deed would have no relevance in determining a beneficiaries entitlement under the trust.
If the original Trust Deed made no provision for a Power or Amendment, the original Trust Deed would be the only document of any relevance.
Mr Day also dishonestly misrepresents the jurisdiction of the Superannuation Complaints Tribunal to Senator Williams who may not be familiar with the Separation of Powers doctrine derived by the High Court of Australia from the Australia Constitution co-drafted by Sir John Downer , who also drafted the original Trust Deed of The Provident Fund (aka Elders IXL Superannuation Fund).