Whistleblowers

The clients of financial planners employed by our major banks required internal whistleblowers to expose misconduct by bank staff who provided negligent financial advice, which resulted in substantial losses.

However the situation is different when it comes to misconduct by the bank administrators of superannuation trusts (fund).

The law requires trusts to be administered on an “open book” basis so the the members and beneficiaries of a superannuation trust are able to be their own whistleblowers.

In fact the parliament of Australia has made it a criminal offence in its own right if Responsible Persons of the Trustee a regulated superannuation fund wilfully conceal non-exempt “trust documents” from the cestuis que trust (ie members and beneficiaries).

There are only a limited number of exempt documents that a Trustee is not required to disclose and these are prescribed by subsection 1017C(4) of the Corporations Act 2001.

It is also an offence under the Trustee Act 1936 (SA) for a TRustee to fail to produce prescribed trust records to beneficiaries of the trust when requested to do so.There have been a number of whistleblowers who have been involved in exposing this major fraud.

Denial of Natural Justice by ASIC

One Whistleblower to legal proceedings in the Federal Court of Australia {VID 323 of 2011} against the previous Chairman of ASIC, Tony D’Aloisio, after Fairfax Media reporter Michael West, exposed the private business dealings of Mr D’Aloisio while he was the Chairman of ASIC and responsible for the regulation of receivers.

Mr D’Aloisio purchased his own winery from a receiver in breach of the APS Code of Conduct {Section 13 of the Public Service Act 1999} and then to declare his direct pecuniary interest to two responsible Ministers as required by Section 123 of the ASIC Act 2001.

Mr D’Aloiso also made a personal decision not to investigate allegations of misconduct concerning the superannuation fund associated with Australia’ largest maker and distributor ow wine, also in breach of the APS Code of Conduct as well as Section 124 of the ASIC Act 2001.

However by the time the case was heard, Mr D’Aloisio was no longer the Chairman of ASIC, and so it was pointless to continue with the proceedings.

More details of the denial of Natural Justice by the previous Chairman of ASIC can be found here.

Governance of the Fund

Another whistleblower took proceedings against against a former purported corporate Trustee in the Supreme Court of Victoria after he was retrenched to prevent him taking a seat at the Board of the corporate Trustee.

The original Trust Deed and genuine Deeds of Variation were not discovered during these proceedings even though they were material documents of evidence.

Disciplinary action was taken against a legal practitioner who also attempted to conceal other document of evidence from the Court.

Complaints to Senators and Members of Parliament

Other Whistleblowers have made complaints to Senators and Members of Parliament and when inquiries have been made on their behalf, ASIC has simply misrepresented the law or misrepresented ASIC‘s jurisdiction.

It has been well documented how the NAB Wealth subsidiary MLC Ltd places its own lawyers into ASIC so that “regulatory outcomes” are favourable to NAB Wealth.


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