Footnotes

Chapter 1 - Introduction

[1]        Journals of the Senate, 2010–13, no. 150 (20 June 2013), p. 4110.

Chapter 2 - ASIC's role in context

[1]        Estimated resident population as at 30 September 2013. ABS, cat. 3101.0.

[2]        Based on 2012 gross domestic product. See http://data.worldbank.org/data-catalog/GDP-ranking-table.

[3]        ASX, 'Corporate Overview', www.asx.com.au/about/corporate-overview.htm (accessed 13 May 2014).

[4]        Australian Financial Markets Association, 2013 Australian Financial Markets Report, p. 2.

[5]        APRA, Statistics: Quarterly Superannuation Performance, December 2013
(issued 20 February 2014).

[6]        Diana Beal, 'Overview of financial services post-deregulation', www.reconciliation.org.au/getfile?id=81&file=diana_beal.doc (accessed 2 May 2014).

[7]        Demutualisations and privatisations in the 1990s were summarised in: Reserve Bank of Australia, 'Demutualisation in Australia', RBA Bulletin, January 1999, www.rba.gov.au/
publications/bulletin/1999/jan/pdf/bu-0199-1.pdf (accessed 30 April 2014).

[8]        ASX, 2006 Australian Share Ownership Study, 2007, www.asx.com.au (accessed 1 May 2014), p. 7.

[9]        ASX, 2012 Australian Share Ownership Study, May 2013, www.asx.com.au (accessed 1 May 2014), p. 29.

[10]      As at May 2014. The composition of the S&P 20 index is revised regularly and as a result companies can move in and out of the index over time.

[11]      ASX 200, www.asx200list.com (accessed 8 May 2014).

[12]      Deloitte, Dynamics of the Australian Superannuation System—The next 20 years: 2013 – 2033, September 2013, www.deloitte.com (accessed 4 June 2014), p. 7.

[13]      Rodney Maddock, 'Superannuation asset allocations and growth projections', Paper prepared for the Financial Services Council, 17 February 2014, www.fsc.org.au/downloads/uploaded/
2014_0226_140226- FSC Maddock- Capital Flows Report FINAL_2d88.pdf
(accessed 11 May 2014), p. 25.

[14]      See, for example, submissions made to the Financial System Inquiry by the Australian Bankers' Association, Association of Superannuation Funds of Australia and the Financial Services Council: www.fsi.gov.au.

Chapter 3 - Overview of ASIC

[1]        That is, an Australian government body established by legislation and empowered to perform its key functions independently of the government.

[2]        The Australian Securities Commission was renamed ASIC on 1 July 1998 when it became responsible for consumer protection in the areas of superannuation, insurance and deposit taking. The Australian Securities Commission's predecessor was the National Companies and Securities Commission (with functions also performed by state and territory agencies).

[3]        ASIC, Annual Report 2012–13, pp. 152.

[4]        ASIC, Submission 45.2, p. 9; and ASIC, correspondence dated 23 December 2013, p. 1.

[6]        Australian Securities and Investments Commission Act 2001, s. 1(2).

[7]        ASIC, Submission 45.2, p. 6.

[8]        Explanatory Memorandum, Australian Securities Commission Bill 1988, p. 2.

[9]        Jeffrey Lucy AM, Acting Chairman, ASIC, Address to the Institute of Chartered Accountants in Australia Queensland 2004 CA Business Forum, Sanctuary Cove, Queensland, 13 March 2004, www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/ICAA_speech_130304.pdf/$file/
ICAA_speech_130304.pdf (accessed 5 September 2013), p. 2.

[10]      ASIC, ASIC's compulsory information-gathering powers, Information Sheet 145, September 2011, p. 6.

[11]      During the hearing ASIC must observe the rules of natural justice. Australian Securities and Investments Commission Act 2001, s. 59(2)(c).

[12]      The corporations legislation consists of the Corporations Act, the ASIC Act and rules of court made or applied by specified courts, such as the Federal Court and state supreme courts. See Corporations Act 2001, s. 9.

[13]      Members of the commission are appointed by the Governor‑General acting on the advice of the minister. The Commonwealth is also required to consult the Legislative and Governance Forum for Corporations (a council of COAG previously known as the Ministerial Council on Corporations) on the making of appointments to the commission. See Corporations Agreement 2002, as amended, 16 November 2005, subclause 601(1).

[14]      ASIC, Annual Report 2012–13, p. 19.

[15]      Australian Government, Portfolio Budget Statement: Treasury Portfolio, 2013–14 Budget, p. 156.

[16]      Australian Government, 2012–13 Mid-Year Economic and Fiscal Outlook, pp. 276–77.

[17]      Australian Government, 2012–13 Budget: Budget Paper No. 2, pp. 277–78.

[18]      Australian Government, 2011–12 Mid-Year Economic and Fiscal Outlook, pp. 287–88.

[19]      Australian Government, 2011–12 Budget: Budget Paper No. 2, p. 318.

[20]      Australian Government, 2010–11 Budget: Budget Paper No. 2, pp. 276 and 299.

[21]      The efficiency dividend is an annual reduction in funding for Commonwealth departments and agencies that receive government appropriations. The efficiency dividend generally targets departmental appropriations rather than administered appropriations. Since the 2011–12 Budget, however, the efficiency dividend has been applied at the portfolio level rather than to each agency. N Horne, The Commonwealth efficiency dividend: an overview, Background Note, Australian Parliamentary Library, 13 December 2012, pp. 8–9, 38.

Chapter 4 - Regulatory theories and their application to ASIC

[1]        Other strategies such as self-regulation are not examined in this chapter, but are noted elsewhere in the report.

[2]        Financial System Inquiry, Final Report, March 1997, pp. 177–78.

[3]        Julia Black, 'Paradoxes and Failures: "New Governance" Techniques and the Financial Crisis', Modern Law Review 75:6 (2012), p. 1039 (footnotes omitted).

[4]        Australian Government, Review of Sanctions for Breaches of Corporate Law: Consultation Paper, March 2007, pp. 4–5.

[5]        Australian Government, Review of Sanctions for Breaches of Corporate Law: Consultation Paper, March 2007, p. 5 (footnotes omitted).

[6]        Julia Black, 'Paradoxes and Failures', p. 1043.

[7]        Julia Black, 'Paradoxes and Failures', p. 1043.

[8]        Professor Justin O'Brien, Proof Committee Hansard, 19 February 2014, p. 54.

[9]        Martin Wheatley, Financial Conduct Authority, 'The institutionalisation of customer service', Address to the Chartered Institute for Securities & Investment, 12 March 2013, www.fca.org.uk  (accessed 4 March 2014). Mr Wheatley also referred to a 2012 report by consulting firm Oliver Wyman which discussed 'firms' "obsession" with compliance; their tendency to follow the letter of the law rather than its spirit'.

[10]      Professor Justin O'Brien, Proof Committee Hansard, 19 February 2014, p. 54.

[11]      As Dr Vicky Comino notes, responsive regulation and strategic regulation theory are terms often used interchangeably. These theories are intended to apply to various regulatory environments, not just corporate law. See Vicky Comino, 'Towards better corporate regulation in Australia', Australian Journal of Corporate Law 26:1 (2011), p. 7.

[12]      Vicky Comino, 'Towards better corporate regulation in Australia', p. 7.

[13]      The concept of an enforcement pyramid was first outlined in John Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety (Albany, NY: State University of New York Press, 1985). Responsive regulation was expanded on in Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York: Oxford University Press, 1992). For an outline of the history of responsive regulation theory, see Vicky Comino, 'Towards better corporate regulation in Australia', p. 7.

[14]      Vicky Comino, 'Towards better corporate regulation in Australia', p. 7. Ayres and Braithwaite argued that 'for the responsive regulator, there are no optimal or best regulatory solutions, just solutions that respond better than others to the plural configurations of support and opposition that exist at a particular moment in history'. Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York: Oxford University Press, 1992), p. 5; cited in Dimity Kingsford Smith, 'A Harder Nut to Crack? Responsive Regulation in the Financial Services Sector', University of British Columbia Law Review 44:3 (September 2011), p. 700.

[15]      Australian Government, Review of Sanctions for Breaches of Corporate Law: Consultation Paper, March 2007, p. 6.

[16]      Aakash Desai and Ian Ramsay, 'The Use of Infringement Notices by ASIC for Alleged Continuous Disclosure Contraventions: Trends and Analysis', University of Melbourne Legal Studies Research Paper, no. 547 (2011), pp. 22–23 (footnotes omitted); Dr Marina Nehme, Submission 140, p. 5.

[17]      Dimity Kingsford Smith, 'A Harder Nut to Crack? Responsive Regulation in the Financial Services Sector', University of British Columbia Law Review 44:3 (September 2011), p. 711.

[18]      Dimity Kingsford Smith, 'A Harder Nut to Crack?', p. 717.

[19]      This approach is not unique to corporations and financial services law; other Australian regulators such as the ACCC also have powers based on an enforcement pyramid model.

[20]      ASIC, 'ASIC's approach to enforcement', Information Sheet 151, September 2013.

[21]      Australian Government, Review of Sanctions for Breaches of Corporate Law: Consultation Paper, March 2007, p. 9.

[22]      Vicky Comino, 'Towards better corporate regulation in Australia', p. 9.

[23]      Julia Black and Robert Baldwin, 'Really Responsive Risk-Based Regulation', University of Denver Law & Policy 32:2 (April 2010), p. 184.

[24]      Julia Black and Robert Baldwin, 'Really Responsive Risk-Based Regulation', p. 185.

[25]      Robert Baldwin and Julia Black, 'Really Responsive Regulation', Modern Law Review 71:1 (2008), pp. 59, 66–67; cited in Vicky Comino, 'Towards better corporate regulation in Australia', p. 10.

[26]      Australian Government, The Australian Government Guide to Regulation, March 2014, p. 28.

[27]      Julia Black, 'Paradoxes and Failures', p. 1048.

[28]      For example, international accounting standards developed by the International Accounting Standards Board. Julia Black, 'Paradoxes and Failures, pp. 1050–51.

[29]      ASIC's chairman, Mr Greg Medcraft, has described gatekeepers as a 'cornerstone' of the system, along with ASIC and the Corporations Act. See Senate Economics Legislation Committee Hansard, Estimates, 31 May 2011, pp. 83, 96.

[30]      Examples cited in support of this argument include auditors in corporate collapses such as Enron and what the global financial crisis revealed about credit rating agencies. Julia Black, 'Paradoxes and Failures', p. 1049.

[31]      Parliamentary Joint Committee on Corporations and Financial Service, Inquiry into the collapse of Trio Capital, May 2012, Parliamentary Paper No. 138/2012, pp. 111–12.

[32]      Julia Black, 'Paradoxes and Failures, p. 1049.

[33]      Dimity Kingsford Smith, 'A Harder Nut to Crack?', p. 698.

[34]      Vicky Comino, 'Towards better corporate regulation in Australia', p. 36.

[35]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 7.

[36]      Mr Greg Medcraft, Chairman, ASIC, PJCCFS Hansard, Oversight of the Australian Securities and Investments Commission, 12 September 2012, pp. 14–15.

[37]      Dimity Kingsford Smith, 'A Harder Nut to Crack?', p. 724.

[38]      Dimity Kingsford Smith, 'A Harder Nut to Crack?', p. 695.

[39]      Dimity Kingsford Smith, 'A Harder Nut to Crack?', 735. Professor Kingsford Smith also suggested other 'minimally sufficient, but cheap to implement' strategies that ASIC could apply, including allocating a key officer to each regulated entity and requiring regulated firms to report to ASIC events that are not breaches of the Corporations Act, but which indicate changes in the firm's circumstances. See Dimity Kingsford Smith, 'A Harder Nut to Crack?', pp. 736–37.

[40]      Mr Alex Malley, Chief Executive Officer, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 42.

[41]      Mr Alex Malley, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 42.

[42]      Mr Alex Malley, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 49.

[43]      Mr Lee White, Chief Executive Officer, Institute of Chartered Accountants Australia, Proof Committee Hansard, 19 February 2014, p. 49.

[44]      For a list of references see Roman Tomasic, 'The Challenge of Corporate Law Enforcement: Future Directions for Corporations Law in Australia', University of Western Sydney Law Review 10 (2006), pp. 9, 11.

[45]      Vicky Comino, 'Towards better corporate regulation in Australia', p. 18.

[46]      Dimity Kingsford Smith, 'A Harder Nut to Crack?', p. 697 (footnotes omitted).

[47]      Dimity Kingsford Smith, 'A Harder Nut to Crack?', p. 725 (footnotes omitted).

[48]      Mr Alex Malley, Chief Executive Officer, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 42.

[49]      Evan Jones, 'The Crisis and the Australian Financial Sector', Journal of Australian Political Economy no. 64 (Summer 2009), pp. 91, 110.

[50]      Really responsive risk-based regulation is 'a strategy of applying a variety of regulatory instruments in a manner that is flexible and sensitive to a series of key factors'. The theory arises from the need for risk-based regulators to 'attune the logics of risk analyses to the complex problems and the dynamics of real-life regulatory scenarios'. See Julia Black and Robert Baldwin, 'Really Responsive Risk-Based Regulation', p. 182.

[51]      Julia Black and Robert Baldwin, 'Really Responsive Risk-Based Regulation', p. 199. A similar point was made by Professor Kingsford Smith who suggested that '[f]irms turn to their lawyers, not to the regulator for a negotiation about how the complaint might be resolved' and that 'the ensuing conversation will likely concentrate entirely on the particular complaint and not on deeper difficulties—which might be better diagnosed if firms understood that through regular visits the regulator intended at least initially to be reasonable, and to persuade and support rather than prosecute'. Dimity Kingsford Smith, 'A Harder Nut to Crack?', p. 734.

[52]      This is one of the regulatory tasks that Robert Baldwin and Julia Black suggest a really responsive regulator would consider. See Robert Baldwin and Julia Black, 'Really Responsive Regulation', Modern Law Review 71:1 (2008); cited in Julia Black and Robert Baldwin, 'Really Responsive Risk‑Based Regulation', p. 183.

[53]      Julia Black and Robert Baldwin, 'Really Responsive Risk‑Based Regulation', p. 200.

[54]      Senate Economics Legislation Committee Hansard, Estimates, 4 June 2013, pp. 115–117.

[55]      ASIC, Submission 45, p. 16.

[56]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 1.

[57]      ASIC, Submission 45.2, p. 137.

[58]      The Hon Joe Hockey MP (Treasurer), 'Financial System Inquiry', Media Release, 20 December 2013.

[59]      ASIC, Submission 45.2, p. 49.

[60]      Dimity Kingsford Smith, 'ASIC regulation for the investor as consumer', Company and Securities Law Journal 29:5 (2011), p. 334.

[61]      Financial System Inquiry, Final Report, March 1997, p. 186.

[62]      The Wallis Inquiry also recognised that financial safety regulation, that is, prudential regulation, has a role in some areas of the financial system. The Wallis Inquiry concluded that this type of regulation 'should be the greatest where the intensity of financial promises and hence risks of market failure are greatest'. Financial System Inquiry, Final Report, March 1997, p. 175.

[63]      Financial System Inquiry, Final Report, March 1997, p. 191.

[64]      Richard Sandlant, 'Consumer financial protection: future directions', Finsia Journal of Applied Finance, no. 4 of 2011, p. 42.

[65]      Financial System Inquiry, Final Report, March 1997, p. 251.

[66]      Financial System Inquiry, Final Report, March 1997, p. 192.

[67]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 2.

[68]      ASIC, Submission 45.2, p. 51.

[69]      The report of the 2010 Review of the Governance, Efficiency, Structure and Operation of Australia's Superannuation System (the Super System Review, or Cooper Review) disagreed with the Wallis Inquiry's conclusion that superannuation fund members should be treated as rational and informed investors protected by disclosure and conduct requirements: Final Report, part 1, June 2010, p. 8. One of the review panel members outlined how developments in behavioural economics thought have 'pointed to some of the flaws of standard economics in modelling behaviour' and reveal that some of the assumed behaviours outlined by the Wallis report 'do not apply unequivocally': David Gruen and Tim Wong, 'MySuper—Thinking Seriously about the Default Option', Address to the Australian Conference of Economists, 28 September 2010, www.treasury.gov.au (accessed 26 August 2013).

[70]      Tony D'Aloisio, 'Regulatory Response to the Financial Crisis', address to the Asia Securities Forum, Sydney, 12 October 2009, www.asic.gov.au (accessed 28 August 2013), p. 11.

[71]      Professor Dimity Kingsford Smith also argued that the Westpoint cases 'showed how relatively easy it was in a country with compulsory superannuation, for comparatively modestly wealthy clients to be financially eligible for "sophisticated client" products, which they did not understand'. Submission 153, p. 18.

[72]      During a previous inquiry by this committee Professor Stephen King noted that regulations in the financial sector have been built on the assumption that there is no deposit insurance in Australia. A deposit guarantee was introduced by the government in response to the global financial crisis. See Committee Hansard, Inquiry into competition in the Australian banking sector, 21 January 2011, p. 105. In 2010 Professor Ian Harper, one of the members of the Wallis Inquiry committee, also suggested that certain assumptions need to be reviewed and outcomes revealed by the crisis considered, such as the pervasiveness of systemic risk and how it afflicts financial markets. ASIC, Securities and investments regulation beyond the crisis, ASIC Summer School 2010 Report, www.asic.gov.au (accessed 27 August 2013) pp. 33–34.

[73]      ASIC, Submission 45.2, p. 55.

[74]      ASIC, Submission 45.2, p. 47. Despite recent developments, however, the Wallis Inquiry remains influential. For example, in a 2012 newspaper opinion article Mr Medcraft wrote that the Wallis Inquiry discussed 'vital ideas', such as adopting a flexible approach to regulation, which remain relevant to ASIC's surveillance and its risk-based regulatory approach'. Greg Medcraft, 'Surveillance doesn’t remove the risk factor', Australian Financial Review, 17 September 2012, www.afr.com (accessed 10 July 2013).

[75]      ASIC, Submission 45.2, pp. 52–53.

Chapter 5 - ASIC's role and credit providers

[1]        See for example, Consumer Credit Legal Centre (NSW) Inc, A report to ASIC on the finance and mortgage broker industry, March 2003, p. 39; ASIC, Protecting wealth in the family home: An examination of refinancing in response to mortgage stress, March 2008, p. 4; and ASIC, Submission 45.1, p. 6.

[2]        Dr Guy Debelle, 'The State of the Mortgage Market', Address to the Mortgage Innovation Conference, Sydney, 30 March 2010, p. 6.

[3]        Dr Guy Debelle, 'The State of the Mortgage Market', p. 5.

[4]        Consumer Credit Legal Centre (NSW) Inc, Submission 194, p. 13.

[5]        Anoulack Chanthivong, Anthony D. F. Coleman and Neil Esho, Report on Broker-originated Lending, Results of a survey of authorised deposit-taking intuitions, undertaken by the Australian Prudential Regulation Authority, January 2003, pp. 4, 5. The survey recorded that the total dollar value of broker-originated housing loans was $76.3 billion, which represented roughly 23% of all housing loans made by ADIs. Broker-introduced housing loans accounted for 23% of banking industry housing loans, 2% of credit union housing loans, and 35% of building society housing loans.

[6]        Chanthivong et al, Report on Broker-originated Lending, p. 7.

[7]        Chanthivong et al, Report on Broker-originated Lending, p. 9.

[8]        Consumer Credit Legal Centre (NSW) Inc, Submission 194, p. 13.

[9]        Consumer Credit Legal Centre (NSW) Inc, A report to ASIC on the finance and mortgage broker industry, March 2003, www.asic.gov.au, p. 5.

[10]      CCLC, A report to ASIC on the finance and mortgage broker industry, March 2003, pp. 6–7.

[11]      CCLC, A report to ASIC on the finance and mortgage broker industry, March 2003, pp. 8, 11.

[12]      CCLC, A report to ASIC on the finance and mortgage broker industry, March 2003, p. 30.

[13]      CCLC, A report to ASIC on the finance and mortgage broker industry, March 2003, p. 29.

[14]      CCLC, A report to ASIC on the finance and mortgage broker industry, March 2003, p. 29.

[15]      CCLC, A report to ASIC on the finance and mortgage broker industry, March 2003, p. 34.

[16]      CCLC, A report to ASIC on the finance and mortgage broker industry, March 2003, pp. 34–35.

[17]      CCLC, A report to ASIC on the finance and mortgage broker industry, March 2003, p. 66.

[18]      APRA, Proposed Changes to the Risk-Weighting of Residential Mortgage lending, Discussion paper, November 2003, p. 2.

[19]      A loan that requires less financial documentation than that required for other loans. Primarily for borrowers who do not meet the standard loan application criteria, such as the self-employed and other borrowers whose income could not be readily verified.

[20]      APRA, Proposed Changes to the Risk-Weighting of Residential Mortgage lending, p. 4.

[21]      Reserve Bank of Australia, Financial Stability Review, September 2004, pp. 39–40.

[22]      Reserve Bank of Australia, Financial Stability Review, September 2004, p. 40.

[23]      See House of Representatives Standing Committee on Economics, Finance and Public Administration. Home loan lending, Inquiry into home loan lending practices and the processes used to deal with people in financial difficulty, September 2007, Parliamentary Paper No. 191/2007, p. 24.

[24]      Productivity Commission, Review of Australia's Consumer Policy Framework, Vol. 1, No. 45, 30 April 2008, p. 28.

[25]      Senate Economics References Committee, The post-GFC banking sector, November 2012, Parliamentary Paper No. 448/2012, p. 102.

[26]      Senate Economics References Committee, The post-GFC banking sector, pp. 105 and 107–108.

[27]      ASIC, Submission 45.1, pp. 28–29.

[28]      ASIC, Submission 45.1, p. 29.

[29]      Banking and Finance Consumers Support Association Inc, Submission 156, p. 5.

[30]      Ms Ann Marie Delamere, Submission 3, p. 1.

[31]      Name withheld, Submission 27.

[32]      See also Submissions 19, 25, 27, 103, 178 and 265.

[33]      Mr and Mrs Graeme and Nat Powell, Submission 8, p. 1.

[34]      Name withheld, Submission 55, p. 1.

[35]      Submission 67 (Confidential).

[36]      Submission 67 (Confidential).

[37]      Name withheld, Submission 93, p. 1.

[38]      Welcome Australia, Submission 230, p. 3.

[39]      Name withheld, Submission 46, p. 1.

[40]      Name withheld, Submission 158, p. 3.

[41]      Ms Kirsty Torrens, Submission 180, p. 4.

[42]      Name withheld, Submission 16.

[43]      Submissions 52 (Confidential) and 183.

[44]      Name withheld, Submission 29, p. 1.

[45]      Ms Hifumi Robbie, Submission 15, p. 1.

[46]      Name withheld, Submission 158, p. 3.

[47]      Submissions 15 and 52.

[48]      Many submissions used their own experiences which taken together provided some sense of the nature and extent of the practice. For example, see Submissions 3, 5, 7, 9, 12, 13, 14, 15, 16, 17, 19, 20, 21, 23, 24, 26, 27, 28, 32, 39, 48, 51, 52, 58, 64, 66, 68, 69, 71, 72, 93, 101, 104, 105, 131, 158, 171, 177, 183, 185, 195, 207, 218, 220, 221, 317, 320, 322, 351, 353, 378, 380, 381, 382 and 401.

[49]      Name withheld, Submission 14, pp. 1–2.

[50]      Name withheld, Submission 14, p. 2.

[51]      Name withheld, Submission 60, p. 1.

[52]      Name withheld, Submission 60, p. 2.

[53]      Name withheld, Submission 27, p. 1. See also, Submissions 28, 36, 52, 66, 67 and 72.

[54]      Submissions 68 and 69.

[55]      Name withheld, Submission 66, p. 1.

[56]      Submission 52 (Confidential). See also Submissions 67, 75 and 101.

[57]      Name withheld, Submission 29, p. 1.

[58]      Name withheld, Submission 72, p. 1. See also Mr Edmund Schmidt and Ms Cynthia Lawrence, Submission 265.

[59]      Mrs Karen Cox, Coordinator, CCLC, Proof Committee Hansard, 20 February 2014, p. 42.

[60]      Name withheld, Submission 226, p. 3.

[61]      Name withheld, Submission 344, p. 1.

[62]      Name withheld, Submission 46, p. 1.

[63]      See for example, Submission 29.

[64]      Name withheld, Submission 21, p. 2. See also Submission 27.

[65]      Name withheld, Submission 60, p. 2.

[66]      Name withheld, Submission 43, p. 1.

[67]      Name withheld, Submission 39, p. 1.

[68]      Mr Spencer Murray, Submission 23, p. 1.

[69]      See for example, Submission 71.

[70]      Mr Timothy Chapleo, Submission 7, p. 1.

[71]      Name withheld, Submission 12, p. 2. See also Financial Ombudsman Service, Determination: Case number 323234, 17 December 2013, p. 3.

[72]      Submissions 27, 28 and 29.

[73]      Submissions 36 and 68.

[74]      Name withheld, Submission 72.

[75]      Australian Bankers' Association, Code of Banking Practice 2003, subsection 25.1.

[76]      Submission 67 (Confidential).

[77]      Proof Committee Hansard, 20 February 2014, p. 46.

[78]      ASIC, Submission 45.1, p. 29.

[79]      Parliamentary Joint Committee on Corporations and Financial Services, Inquiry into financial products and services in Australia, November 2009, Parliamentary Paper No. 321/2009, p. 35.

[80]      ASIC, Submission 45.1, p. 7.

[81]      ASIC, Submission 45.1, p. 6.

[82]      See ASIC, 'ASIC intervenes in low doc loan proceedings', Media Release, no. 09-39AD, 6 March 2009.

[83]      ASIC, Submission 45.1, p. 6.

[84]      ASIC, Submission 45.1, p. 26.

[85]      Ms Rosie Cornell, Submission 285.

[86]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 4.

[87]      ASIC, Submission 45.1, p. 26.

[88]      ASIC, Submission 45.1, p. 6.

[89]      ASIC, Submission 45.1, p. 26.

[90]      ASIC, Submission 45.1, p. 26.

[91]      ASIC, Submission 45.1, p. 8.

[92]      See paragraph 5.56.

[93]      CCLC, Submission 194, p. 16.

[94]      Mrs Karen Cox, Coordinator, CCLC, Proof Committee Hansard, 20 February 2014, p. 43.

[95]      CCLC, Submission 194, p. 15.

[96]      CCLC, Submission 194, p. 16.

Chapter 6 - New credit laws

[1]        Parliamentary Joint Committee on Corporations and Financial Services, Inquiry into financial products and services in Australia, November 2009, Parliamentary Paper No. 321/2009, p. 23.

[2]        PJCCFS, Inquiry into financial products and services in Australia, November 2009, p. 28.

[3]        PJCCFS, Inquiry into financial products and services in Australia, November 2009, p. 90 and ASIC, Submission 378, pp. 87–88.

[4]        Productivity Commission, Review of Australia's Consumer Policy Framework, Inquiry report no. 45, vol. 1, 30 April 2008, p. 9.

[5]        Productivity Commission, Review of Australia's Consumer Policy Framework, vol. 1, 30 April 2008, p. 66.

[6]        The Hon Chris Bowen MP, Second Reading Speech, National Consumer Credit Protection Bill 2009, House of Representatives Hansard, no. 10, 2009 (25 June), p. 7148.

[7]        ASIC, Credit licensing: Responsible lending conduct, Regulatory Guide 209, September 2013, p. 4.

[8]        Consumer Action Law Centre, Additional Information 8, p. 1.

[9]        Mr Philip Field, Lead Ombudsman, Banking and Finance, Financial Ombudsman Service, Proof Committee Hansard, 20 February 2014, p. 24.

[10]      Proof Committee Hansard, 20 February 2014, p. 18.

[11]      Mr Philip Field, FOS, Proof Committee Hansard, 20 February 2014, p. 24.

[12]      Mr Gerard Brody, Chief Executive Officer, Consumer Action Law Centre, Proof Committee Hansard, 20 February 2014, p. 42.

[13]      Mrs Karen Cox, Coordinator, CCLC, Proof Committee Hansard, 20 February 2014, pp. 41–42.

[14]      Mrs Karen Cox, CCLC, Proof Committee Hansard, 20 February 2014, p. 42.

[15]      Mr Philip Field, FOS, Proof Committee Hansard, 20 February 2014, Proof Committee Hansard, 20 February 2014, p. 24.

[16]      Ms Denise Brailey, President, BFCSA, Proof Committee Hansard, 20 February 2014, p. 47.

[17]      Ms Denise Brailey, BFCSA, Proof Committee Hansard, 20 February 2014, p. 49.

[18]      Ms Denise Brailey, BFCSA, Proof Committee Hansard, 20 February 2014, p. 50.

[19]      Mrs Karen Cox, CCLC, Proof Committee Hansard, 20 February 2014, p. 42. ASIC also made it clear that the National Credit Act does not apply to all borrowings by SMEs or to borrowings for investment purposes, other than investment in residential property. ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 2.

[20]      Mrs Karen Cox, CCLC, Proof Committee Hansard, 20 February 2014, pp. 41–42.

[21]      CCLC, Submission 194, p. 19.

[22]      Treasury, Regulation Impact Statement: Credit for investment purposes, December 2012, p. 1.

[23]      Mr Gerard Brody, Consumer Action Law Centre, Proof Committee Hansard,
20 February 2014, p. 42.

[24]      Consumer Action Law Centre, Additional Information 8, pp. 1–2. The report cited is Parliament of Victoria, Law Reform Committee, Inquiry into property investment advisers and marketeers, Final report, April 2008 www.parliament.vic.gov.au/images/stories/committees/lawrefrom/
property_investment/final_report.pdf. One recommendation called for the Victorian Government to propose to the Ministerial Council on Consumer Affairs that the Australian government amend the ASIC Act and chapter 7 of the Corporations Act so advice about direct property investment is included in the financial services regime.

[25]      Proof Committee Hansard, 20 February 2014, p. 43.

[26]      Proof Committee Hansard, 20 February 2014, p. 40.

[27]      Proof Committee Hansard, 20 February 2014, p. 44.

[28]      Proof Committee Hansard, 20 February 2014, p. 43.

[29]      Proof Committee Hansard, 20 February 2014, p. 44.

[30]      Mrs Karen Cox, CCLC, Proof Committee Hansard, 20 February 2014, pp. 44–45.

[31]      Proof Committee Hansard, 20 February 2014, pp. 44–45.

[32]      Proof Committee Hansard, 20 February 2014, p. 44.

[33]      Proof Committee Hansard, 20 February 2014, p. 45.

[34]      Proof Committee Hansard, 20 February 2014, p. 42.

[35]      Proof Committee Hansard, 20 February 2014, pp. 40–41.

[36]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 1.

[37]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 3.

[38]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 3.

[39]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 1.

[40]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 3.

Chapter 7 - Financial Ombudsman Service and the Credit Ombudsman Service

[1]        See for example, Submissions 26 and 84.

[2]        See for example, Name withheld, Submission 35, p. 1.

[3]        Consumer Credit Legal Centre (NSW) Inc, Submission 194, p. 17.

[4]        See ASIC, Regulation Impact Statement, Dispute resolution requirements for consumer credit and margin lending', May 2010, paragraph 42.

[5]        The current regulatory architecture of the financial services complaints resolution system has its origins in the 1997 Wallis Inquiry, which identified the need for low-cost means to resolve disputes. See Financial Ombudsman Service, Submission 193, p. 3.

[6]        See ASIC, Regulation Impact Statement: Dispute resolution requirements for consumer credit and margin lending, May 2010, paragraph 57 and ASIC, Submission 45.1, p. 27.

[7]        COSL, Submission 418, p. 1.

[8]        Mr Raj Venga, Chief Executive Officer and Ombudsman, COSL, Proof Committee Hansard, 20 February 2014, p. 17

[9]        Consumer Action Law Centre, Submission 120, p. 9.

[10]      Mr Gerard Brody, Chief Executive Officer, Consumer Action Law Centre,
Proof Committee Hansard, 20 February 2014, pp. 42–43.

[11]      Mrs Karen Cox, Coordinator, CCLC, Proof Committee Hansard, 20 February 2014, p. 43.

[12]      FOS, www.fos.org.au/members/search-for-members (accessed 31 January 2014).

[13]      FOS, www.fos.org.au/members/search-for-members (accessed 31 January 2014).

[14]      See for example, COSL, Submission 418.

[15]      See for example, Submission 43.

[16]      Name withheld, Submission 26, p. 1.

[17]      Name withheld, Submission 184, p. 5.

[18]      See Submissions 12, 23, 32, 179, 184 and 295.

[19]      Name withheld, Submission 217, p. 1.

[20]      Mr Gerard Brody, Consumer Action Law Centre, Proof Committee Hansard,
20 February 2014, pp. 42–43.

[21]      Mr Shane Tregillis, FOS, Proof Committee Hansard, 20 February 2014, p. 17.

[22]      FOS, Submission 193, p. 1.

[23]      Mr Shane Tregillis, FOS, Proof Committee Hansard, 20 February 2014, p. 26.

[24]      COSL, Submission 418, p. 8.

[25]      COSL, Submission 418, p. 8.

[26]      Mrs Karen Cox, Coordinator, CCLC, Proof Committee Hansard, 20 February 2014, p. 43.

[27]      Name withheld, Submission 35. See also Submissions 48, 156 and Dr Evan Jones,
Submission 295.

[28]      Name withheld, Submission 77.

[29]      See Submissions 76, 77, 184, 217 and 259.

[30]      FOS, Submission 193, p. 10.

[31]      Mr Shane Tregillis, FOS, Proof Committee Hansard, 20 February 2014, p. 28.

[32]      Mr Shane Tregillis, FOS, Proof Committee Hansard, 20 February 2014, p. 28.

[33]      COSL, Submission 418, p. 6.

[34]      Name withheld, Submission 43.

[35]      Mr Neville Ledger, Submission 347.

[36]      Submission 193, p. 10 and FOS, www.fos.org.au/about-us/our-board (accessed 15 May 2014).

[37]      Submission 418, p. 6.

[38]      Submission 418, p. 7.

[39]      ASIC, Approval and oversight of external dispute resolution schemes, Regulatory Guide 139, June 2013, paragraphs 139.89 and 139.94.

[40]      Name withheld, Submission 192.

[41]      Mr Peter Mair, Submission 2, p. 2.

[42]      ASIC, Regulatory Guide 139, June 2013, paragraph RG139.110.

[43]      COSL, Submission 418, p. 7.

[44]      Mr Shane Tregillis, FOS, Proof Committee Hansard, 20 February 2014, p. 25.

[45]      Mr Shane Tregillis, FOS, Proof Committee Hansard, 20 February 2014, p. 26.

[46]      Mr Shane Tregillis, FOS, Proof Committee Hansard, 20 February 2014, p. 26.

[47]      Mr Gerard Brody, Consumer Action Law Centre, Proof Committee Hansard,
20 February 2014, pp. 42–43.

[48]      Submission 473 (Confidential).

[49]      ASIC, Regulatory Guide 139, June 2013, paragraph RG139.124.

[50]      ASIC, Regulatory Guide 139, June 2013, paragraph RG139.119.

[51]      ASIC, Regulatory Guide 139, June 2013, paragraph RG139.137.

[52]      COSL, Submission 418, p. 8.

[53]      COSL, Submission 418, p. 8.

[54]      COSL, Submission 418, p. 8

[55]      ASIC, Regulatory Guide 139, June 2013, paragraph RG139.116 and FOS, Submission 193, p. 10.

[56]      Mr Philip Field, Lead Ombudsman, Banking and Finance, FOS, Proof Committee Hansard, 20 February 2014, p. 21.

[57]      Mr Raj Venga, COSL, Proof Committee Hansard, 20 February 2014, p. 21.

[58]      Submissions 11 (Confidential) and 266.

[59]      Name withheld, Submission 266, p. 2.

[60]      Banking and Finance Consumers Support Association, Submission 156, p. 23.

[61]      COSL, Submission 418, p. 4.

[62]      Name withheld, Submission 78, p. 1.

[63]      Banking and Finance Consumers Support Association, Submission 156, p. 23.

[64]      COSL, Submission 418, p. 4.

[65]      COSL, Submission 418, p. 4.

[66]      Mr Raj Venga, COSL, Proof Committee Hansard, 20 February 2014, p. 24.

[67]      COSL, Submission 418, p. 4.

[68]      ASIC, Submission 45.1, p. 26.

[69]      Mr Philip Field, FOS, Proof Committee Hansard, 20 February 2014, p. 21.

[70]      FOS, Submission 193, p. 9 and Mr Field, FOS, Proof Committee Hansard, 20 February 2014, p. 21.

[71]      See Submissions 79, 153, 156 and 285.

[72]      Name withheld, Submission 184. See also Mr Errol Opie, Submission 259, who stated that cases which are closed and thrown out by FOS and COSL just because they exceeded the scheme's jurisdictional limit, must be re-opened and thoroughly investigated as they contain fraud.

[73]      COSL, Submission 418, p. 5.

[74]      Mr Philip Field, FOS, Proof Committee Hansard, 20 February 2014, p. 18.

[75]      Mr Raj Venga, COSL, Proof Committee Hansard, 20 February 2014, p. 25.

[76]      Mr Philip Field, FOS, Proof Committee Hansard, 20 February 2014, p. 25

[77]      COSL, Submission 418, p. 5.

[78]      COSL, Submission 418, p. 5.

[79]      Mr Philip Field, FOS, Proof Committee Hansard, 20 February 2014, p. 18.

[80]      Mr Philip Field, FOS, Proof Committee Hansard, 20 February 2014, p. 18.

[81]      COSL, Submission 418, p. 6.

[82]      COSL, Submission 418, pp. 5–6

[83]      Mr Raj Venga, COSL, Proof Committee Hansard, 20 February 2014, p. 25.

[84]      ASIC, Approval and oversight of external dispute resolution schemes, Regulatory Guide 139, paragraph 139.110.

[85]      FOS, Determination: Case number 286455, 19 November 2013, p. 16.

[86]      FOS, Determination: Case number 254056, 25 September 2013, p. 8.

[87]      FOS, Determination: Case number 254056, 25 September 2013, p. 9. See also FOS, Determination: Case number 286455, 16 November 2013, p. 6

[88]      FOS, Determination: Case number 233936, 29 April 2013, pp. 6–7.

[89]      FOS, Determination: Case number 227019, 29 May 2013, p. 14.

[90]      FOS, Determination: Case number 227019, 29 May 2013, p. 15.

[91]      FOS, Determination: Case number 233936, 29 April 2013 (involving loans taken out in 2008); FOS, Determination: Case number 227019, 29 May 2013, (involving loans taken out in 2006).

[92]      FOS, Determination: Case number 233936, 29 April 2013, p. 7.

[93]      FOS, Determination: Case number 254056, 25 September 2013, p. 13.

[94]      FOS, Determination: Case number 227019, 29 May 2013, pp. 15–16. See also FOS, Determination: Case number 254056, 25 September 2013, p. 13.

[95]      CCLC, Submission 194, p. 15.

[96]      FOS, Determination: Case number 323234, 17 December 2013, p. 5.

[97]      FOS, Determination: Case number 323234, 17 December 2013, p. 5.

[98]      COSL, Submission 418, p. 6.

[99]      COSL, Submission 418, pp. 5–6.

[100]    See paragraph 7.58.

[101]    ASIC, Submission 45.1, p. 26.

Chapter 8 - Commonwealth Financial Planning Limited: What went wrong at CFPL and why?

[1]        Mr Jeffrey Morris, Submission 421 (and supplementary submissions). Mr Morris appeared before the committee in Canberra on 10 April 2014.

[2]        On Mr Baker see ASIC, 'ASIC accepts enforceable undertaking from former Commonwealth Financial Planning adviser', Media Release, no. 12-63AD, 4 April 2012; on Mr Zaicew see ASIC, 'ASIC bans former Commonwealth Financial Planning adviser from financial services and credit activities', Media Release, no. 14-068MR, 4 April 2014.

[3]        Mr Jeffrey Morris, Submission 421, p. 3.

[4]        ASIC, Submission 45, p. 12.

[5]        ASIC's submission, which was provided to the committee in August 2013, indicated that ASIC had taken enforcement action against seven CFPL advisers. An eighth former CFPL adviser, Mr Jade Zaicew, was banned by ASIC for seven years on 4 April 2014.

[6]        ASIC, 'Clients of Commonwealth Financial Planning compensated and ASIC bans former financial adviser for seven years', Media Release, no. 11-42AD, 10 March 2011.

[7]        ASIC, Submission 45, pp. 12–13.

[8]        Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 45.

[9]        Mr John Berrill, Lawyer and Principal, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 17.

[10]      Mr John Berrill, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 13. 

[11]      ASIC, letter to Commonwealth Financial Planning Limited and Financial Wisdom Limited, 29 February 2008, Additional Information 7, p. 4.

[12]      ABC, Four Corners, 'Banking Bad', 5 May 2014, and supporting document at www.abc.net.au/
4corners/documents/2014/BANKING/Nguyen_CBA_Internal_Review_2006.pdf.

[13]      Mr Jeffrey Morris, Submission 421, p. 4 (italics in source).

[14]      Mrs Janice Braund, Proof Committee Hansard, 10 April 2014, p. 8.

[15]      Mrs Janice Braund, Proof Committee Hansard, 10 April 2014, p. 2.

[16]      Mr David Cohen, General Counsel and Group Executive, Group Corporate Affairs, Commonwealth Bank of Australia, Proof Committee Hansard, 10 April 2014, p. 23.

[17]      CBA, answer to question on notice, 24 April 2014, pp. 2–3.

[18]      CBA, answer to question on notice, 24 April 2014, p. 3.

[19]      CBA, answer to question on notice, 24 April 2014, pp. 4–5.

[20]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, p. 38.

[21]      Mr Greg Kirk, Senior Executive Leader, Deposit Takers, Credit and Insurance Providers, ASIC, Proof Committee Hansard, 10 April 2014, p. 75.

[22]      Mrs Janice Braund, Proof Committee Hansard, 10 April 2014, p. 2.

[23]      Mr Tim Mullaly, Senior Executive Leader, Financial Services Enforcement, ASIC, Proof Committee Hansard, 10 April 2014, p. 83.

[24]      Mr Jeffrey Morris, Submission 421, p. 8.

[25]      A copy of this memo, dated 25 November 2009, is attached to Submission 421.5. Elsewhere, the CBA has stated that Mr Nguyen was suspended in September (rather than August) 2008.

[26]      Mr Jeffrey Morris, Submission 421, pp. 11–12.

[27]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 47.

[28]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, pp. 9–11.

[29]      ABC, Four Corners, 'Banking Bad', 5 May 2014, www.abc.net.au/4corners/stories/2014/05/05/
3995954.htm.

[30]      A copy of the compliance note, dated 24 November 2008, is attached to Submission 421.6.

[31]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, p. 24.

[32]      Ms Merilyn Swan, Submission 395, pp. 7–8,

[33]      Adele Ferguson and Chris Vedalgo, 'Bank tried to hide documents from victims of banned planner', Sydney Morning Herald, 14 June 2013, p. 1.

[34]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, pp. 23–24.

[35]      Mr Jeffrey Morris, Submission 421, p. 15.

[36]      Mr Jeffrey Morris, Submission 421, p. 14.

[37]      Mr Jeffrey Morris, Submission 421, p. 15.

[38]      Mr Jeffrey Morris, Submission 421, pp. 17–18.

[39]      Mr Jeffrey Morris, Submission 421, p. 21 (italics in source).

[40]      A copy of Mr Nguyen's letter of resignation is attached to Submission 421.6.

[41]      Mr Jeffrey Morris, Submission 421, p. 25.

[42]      Ms Marianne Perkovic, Executive General Manager, Wealth Management Advice, CBA, Proof Committee Hansard, 10 April 2014, p. 22.

[43]      ASIC, Submission 45, p. 9.

[44]      A copy of the breach report is attached to Submission 421.5.

[45]      CBA, Submission 261, p. 3.

[46]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, p. 20.

[47]      Proof Committee Hansard, 10 April 2014, p. 21. Mr Turner is quoted speaking at the CBA annual general meeting in Clancy Yeates, 'Rogue planner behaviour "shocking": CBA', Sydney Morning Herald, 8 November 2013.

[48]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, p. 21.

[49]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, p. 21.

[50]      In addition to the submission from Mr and Mrs Blanch, their experience is outlined in a submission from their daughter, Ms Merilyn Swan, Submission 395. Ms Swan also gave evidence at a public hearing on 10 April 2014.

[51]      Mr and Mrs Merv and Robyn Blanch, Submission 300, p. 1.

[52]      Mrs Janice Braund, Proof Committee Hansard, 10 April 2014, pp. 2–3.

[53]      Mr Frazer McLennan, Submission 127, p. 2.

Chapter 9 - Commonwealth Financial Planning Limited: ASIC's investigations of misconduct at CFPL

[1]        ASIC, Submission 45, p. 6.

[2]        ASIC, Submission 45, p. 6.

[3]        ASIC, Submission 45, p. 6.

[4]        Adele Ferguson and Mario Christodoulou, 'Rollo Sherriff and Meridien Wealth: How a rock‑solid institution backed the wrong planner', Sydney Morning Herald, 3 May 2014, Business News, p. 1.

[5]        ASIC, Submission 45.8.

[6]        ASIC, letter to Commonwealth Financial Planning Limited and Financial Wisdom Limited, 29 February 2008, Additional Information 7, pp. 1–5.

[7]        ASIC, letter to CFPL and FWL, 29 February 2008, Additional Information 7, p. 4.

[8]        ASIC, letter to CFPL and FWL, 29 February 2008, Additional Information 7, p. 5.

[9]        ASIC, letter to CFPL and FWL, 29 February 2008, Additional Information 7, p. 5.

[10]      ASIC, Submission 45, p. 6.

[11]      Mr Greg Kirk, Senior Executive Leader, Deposit Takers, Credit and Insurance Providers, ASIC, Proof Committee Hansard, 10 April 2014, p. 74.

[12]      Ms Merilyn Swan, Submission 395, p. 18.

[13]      Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 10 April 2014, p. 68.

[14]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 44.

[15]      Mr Jeffrey Morris, Submission 337, p. 2.

[16]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 44.

[17]      ASIC, Submission 45, p. 6.

[18]      CBA, answer to question on notice, no. 9 (received 24 April 2014), p. 6.

[19]      Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 10 April 2014, p. 68.

[20]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 67.

[21]      Mr David Cohen, General Counsel and Group Executive, Group Corporate Affairs, CBA, Proof Committee Hansard, 10 April 2014, p. 31.

[22]      ASIC, answer to question on notice, Senate Economics Legislation Committee, Estimates,
4–6 June 2013, no. 180 (received 17 October 2013).

[23]      Of the three whistleblowers, only Mr Morris's identity has been revealed publicly. Mr Morris reports that one of the whistleblowers passed away at the age of 35; the other has elected to remain anonymous. Mr Jeffrey Morris, Submission 421, p. 31.

[24]      Mr Jeffrey Morris, Submission 421, p. 13.

[25]      Mr Jeffrey Morris, Submission 421, p. 14.

[26]      ASIC, Submission 45, p. 8.

[27]      ASIC, Submission 45, p. 8.

[28]      Mr Jeffrey Morris, Submission 421.3, p. 1.

[29]      Mr Jeffrey Morris, Submission 421, p. 27.

[30]      Mr Jeffrey Morris, Submission 421, p. 27.

[31]      Mr Jeffrey Morris, Submission 421, p. 28.

[32]      Mr Jeffrey Morris, Submission 421, p. 28.

[33]      Mr John Berrill, Lawyer and Principal, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 17.

[34]      ASIC, Submission 45, p. 10.

[35]      ASIC, answer to question on notice, Senate Economics Legislation Committee, Estimates,
4–6 June 2013, no. 200(f) and 200(g) (received 17 October 2013). 

[36]      Mr Jeffrey Morris, Submission 421.6, p. 3

[37]      ASIC, Submission 45, pp. 10, 13.

[38]      ASIC, Submission 45, p. 10.

[39]      Rule of Law Institute, Submission 211, p. 6. 

[40]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 68.

[41]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 69.

[42]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, pp. 68–69.

[43]      Mr Jeffrey Morris, Submission 421, p. 1.

[44]      Mrs Merilyn Swan, Proof Committee Hansard, 10 April 2014, p. 4. 

Chapter 10 - Commonwealth Financial Planning Limited: ASIC's enforcement action

[1]        Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 10 April 2014, pp. 76–77.

[2]        Mr David Cohen, General Counsel and Group Executive, Group Corporate Affairs, CBA,
Proof Committee Hansard, 10 April 2014, p. 37.

[3]        CBA, Submission 261, p. 6.

[4]        Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, p. 35.

[5]        CBA, Submission 261, pp. 6–7.

[6]        ASIC, 'ASIC accepts enforceable undertaking from Commonwealth Financial Planning', Media Release, no. 11-229MR, 26 October 2011.

[7]        Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, p. 20.

[8]        Ms Marianne Perkovic, Executive General Manager, Wealth Management Advice, CBA,
Proof Committee Hansard, 10 April 2014, p. 34.

[9]        Ms Annabel Spring, Group Executive, Wealth Management, CBA, Proof Committee Hansard, 10 April 2014, p. 39.

[10]      Ms Annabel Spring, CBA, Proof Committee Hansard, 10 April 2014, p. 39.

[11]      Ms Annabel Spring, CBA, Proof Committee Hansard, 10 April 2014, p. 38.

[12]      Ms Annabel Spring, CBA, Proof Committee Hansard, 10 April 2014, p. 38.

[13]      Ms Annabel Spring, CBA, Proof Committee Hansard, 10 April 2014, p. 38.

[14]      Ms Annabel Spring, CBA, Proof Committee Hansard, 10 April 2014, pp. 35, 38.

[15]      Ms Annabel Spring, CBA, Proof Committee Hansard, 10 April 2014, p. 38.

[16]      CBA, answer to question on notice, no. 9 (received 24 April 2014), p. 11.

[17]      Name withheld, Submission 374, p. 1.

[18]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 49.

[19]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 48.

[20]      Mr Jeffrey Morris, Submission 421, p. 1.

[21]      Mr Greg Kirk, Senior Executive Leader, Deposit Takers, Credit and Insurance Providers, ASIC, Proof Committee Hansard, 10 April 2014, pp. 69-70.

[22]      Mr Peter Kell, ASIC, Proof Committee Hansard, 10 April 2014, p. 77.

[23]      Mr Peter Kell, ASIC, Proof Committee Hansard, 10 April 2014, p. 77.

[24]      CBA, Submission 261, p. 15.

[25]      Mr Peter Kell, ASIC, Proof Committee Hansard, 10 April 2014, p. 76.

[26]      Mr Peter Kell, ASIC, Proof Committee Hansard, 10 April 2014, p. 84.

[27]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, pp. 35–36.

[28]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, pp. 32–33.

[29]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 88.

[30]      Mr Greg Medcraft and Mr Peter Kell, ASIC, Proof Committee Hansard, 10 April 2014, p. 88.

[31]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, p. 32.

[32]      Mr Greg Medcraft, Mr Peter Kell and Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, pp. 70–71.

Chapter 11 - Commonwealth Financial Planning Limited: The file reconstruction and compensation process

[1]        A more detailed explanation is available in ASIC, Submission 45.3, pp. 13–14.

[2]        ASIC, Submission 45, pp. 10–13.

[3]        ASIC, Submission 45.3, p. 12.

[4]        ASIC, Submission 45.3, p. 13.

[5]        ASIC, Submission 45.3, p. 12.

[6]        ASIC, Submission 45.3, p. 12.

[7]        Maurice Blackburn, Submission 200, p. 2.

[8]        Maurice Blackburn, Submission 200, p. 2.

[9]        Maurice Blackburn, Submission 200, pp. 2–3.

[10]      Mr John Berrill, Lawyer and Principal, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 15.

[11]      Mr John Berrill, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 13.

[12]      Mr John Berrill, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 14.

[13]      Mr John Berrill, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 14.

[14]      Mr John Berrill, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 16.

[15]      Mrs Janice Braund, Proof Committee Hansard, 10 April 2014, p. 6.

[16]      Mrs Merilyn Swan, Proof Committee Hansard, 10 April 2014, p. 1.

[17]      Mrs Merilyn Swan, Proof Committee Hansard, 10 April 2014, p. 1.

[18]      Mrs Merilyn Swan, Proof Committee Hansard, 10 April 2014, p. 1.

[19]      Mrs Merilyn Swan, Proof Committee Hansard, 10 April 2014, p. 4. Copies of these documents were tabled by Mrs Swan during her appearance before the committee.

[20]      Mrs Merilyn Swan, Proof Committee Hansard, 10 April 2014, p. 3.

[21]      Mrs Merilyn Swan, Proof Committee Hansard, 10 April 2014, p. 5.

[22]      Mrs Merilyn Swan, Proof Committee Hansard, 10 April 2014, pp. 5–6.

[23]      Mrs Merilyn Swan, Proof Committee Hansard, 10 April 2014, p. 1.

[24]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 49.

[25]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 40.

[26]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 43.

[27]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 49.

[28]      CBA, answer to question on notice, no. 9 (received 24 April 2014), p. 8.

[29]      CBA, answer to question on notice, no. 9 (received 24 April 2014), p. 8.

[30]      Mr David Cohen, General Counsel and Group Executive, Group Corporate Affairs, Commonwealth Bank of Australia, Proof Committee Hansard, 10 April 2014, p. 20.

[31]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, pp. 36.

[32]      Ms Marianne Perkovic, Executive General Manager, Wealth Management Advice, CBA, Proof Committee Hansard, 10 April 2014, p. 27.

[33]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, p. 28.

[34]      Mr David Cohen, CBA, Proof Committee Hansard, 10 April 2014, p. 28.

[35]      Ms Marianne Perkovic, CBA, Proof Committee Hansard, 10 April 2014, p. 30.

[36]      Ms Marianne Perkovic, CBA, Proof Committee Hansard, 10 April 2014, p. 30.

[37]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 77.

[38]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 77.

[39]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 77.

[40]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 82.

[41]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 79.

[42]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 78.

[43]      ASIC, answer to question on notice, no. 11 (received 21 May 2014), p. 6.

[44]      ASIC, Submission 45.3, p. 14.

[45]      Mr Peter Kell, ASIC, Proof Committee Hansard, 10 April 2014, p. 79.

[46]      ASIC, answer to question on notice, no. 11 (received 21 May 2014), pp. 8, 9.

[47]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 78.

[48]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 84.

[49]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 84. Mr Kell also noted that one of the tasks of the independent expert was to track down clients who were difficult to contact. Mr Peter Kell, ASIC, Proof Committee Hansard, p. 84.

[50]      Mr Greg Kirk, Mr Peter Kell and Mr Greg Medcraft, ASIC, Proof Committee Hansard, 10 April 2014, pp. 84–85.

[51]      CBA, Submission 261, p. 9.

[52]      Mrs Merilyn Swan, Proof Committee Hansard, 10 April 2014, p. 5.

[53]      Mr John Berrill, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 15. 

[54]      Mr John Berrill, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 15.

[55]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 51.

[56]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 52.

[57]      Submission 471, (Confidential).

[58]      ASIC, Submission 45, pp. 13–14.

[59]      Name withheld, Submission 374, p. 6.

[60]      Name withheld, Submission 374, pp. 6–7.

[61]      Name withheld, Submission 374, p. 7.

[62]      Name withheld, Submission 374, p. 8.

[63]      Name withheld, Submission 374, p. 10.

[64]      Submission 469 (Confidential).

[65]      Name withheld, Submission 127, p. 1.

[66]      Mr Frazer McLennan, Submission 127, p. 1.

[67]      Correspondence to committee (name withheld).

Chapter 12 - Commonwealth Financial Planning Limited: Recent developments and committee conclusions

[1]        ASIC, letter to Commonwealth Financial Planning Limited and Financial Wisdom Limited, 29 February 2008, Additional Information 7.

[2]        ASIC, Submission 45, pp. 12–13.

[3]        ASIC, Submission 45.8, p. 1.

[4]        CBA, Additional Information 10.

[5]        CBA, Additional Information 10.

[6]        ASIC, Submission 45.6, p. 5.

[7]        See paragraph 11.4.

[8]        ASIC, Submission 45.6, p. 5.

[9]        CBA, answer to question on notice, no. 18, p. 13.

[10]      CBA, answer to question on notice, no. 18, p. 7.

[11]      CBA, answer to question on notice, no. 18, p. 15.

[12]      Mr John Berrill, Maurice Blackburn Lawyers, Proof Committee Hansard, 10 April 2014, p. 16.

[13]      ASIC, Submission 45.6, p. 5.

Chapter 13 - Internal control systems

[1]        By compliance risk, the committee means the potential for a company to fail to comply with all applicable laws, regulations and codes of practice.

[2]        Thomson Reuters, Special Report: ASIC: The Outlook for Enforcement 2012–13, p. 5.

[3]        Governance Institute of Australia, Submission 137, p. 4.

[4]        See for example, Enforceable Undertaking from Commonwealth Financial Planning Limited, accepted by ASIC on 25 October 2011.

[5]        ASIC, letter to Commonwealth Financial Planning Limited and Financial Wisdom Limited, 29 February 2008, Additional Information 7, p. 1.

[6]        ASIC, letter to CFPL and FWL, 29 February 2008, Additional Information 7, p. 2.

[7]        ASIC, letter to CFPL and FWL, 29 February 2008, Additional Information 7, p. 3.

[8]        ASIC, letter to CFPL and FWL, 29 February 2008, Additional Information 7, p. 5.

[9]        Mr Greg Kirk, Senior Executive Leader, Deposit Takers, Credit and Insurance Providers, ASIC, Proof Committee Hansard, 10 April 2014, p. 67.

[10]      Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 10 April 2014, p. 68.

[11]      Mr Greg Kirk, ASIC, Proof Committee Hansard, 10 April 2014, p. 79.

[12]      ASIC, 'ASIC accepts enforceable undertaking from Commonwealth Financial Planning', Media Release, no. 11–229, 26 October 2011.

[13]      CBA, Additional Information 10. See also paragraphs 10.24–10.25.

[14]      Enforceable Undertaking from Macquarie Equities Limited, accepted by ASIC on 29 January 2013, paragraph 2.17.

[15]      Enforceable Undertaking from Macquarie Equities Limited, accepted by ASIC on 29 January 2013, paragraphs 2.6–2.10.

[16]      ASIC, 'ASIC accepts enforceable undertaking from Macquarie Equities Ltd', Media Release, 13-010MR, 29 January 2013.

[17]      Mr Peter Kell, Deputy Chairman, ASIC, Parliamentary Joint Committee on Corporations and Financial Services Hansard, Oversight of the Australian Securities and Investments Commission, 15 March 2013, pp. 15–16.

[18]      Mr Peter Kell, ASIC, PJCCFS Hansard, Oversight of ASIC, 15 March 2013, p. 16.

[19]      Mr John Price, ASIC, PJCCFS Hansard, Oversight of ASIC, 15 March 2013, p. 13.

[20]      Ms Joanna Bird, Senior Executive Leader, Financial Advisers, ASIC, Proof Committee Hansard, 10 April 2014, p. 95.

[21]      Mr Greg Medcraft, Chairman, ASIC, PJCCFS Committee Hansard, Oversight of ASIC, 15 March 2013, p. 16.

[22]      Enforceable Undertaking from Australia and New Zealand Banking Group Limited and ANZ Nominees Limited, accepted by ASIC on 6 March 2009; and Enforceable Undertaking from UBS Wealth Management Australia Ltd, accepted by ASIC on 17 March 2011.

[23]      Professor Justin O'Brien and Dr George Gilligan, Submission 121, p. 3.

[24]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), pp. 5–6.

[25]      ASIC, Review of financial advice industry practice, Report 251, September 2011.

[26]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 6.

[27]      ASIC, Review of financial advice industry practice: Phase 2, Report 362, July 2013.

[28]      These include Regulatory Guide 104, Licensing: Meeting the general obligations; Regulatory Guide 105, Licensing: Organisational competence; and Regulatory Guide 165, Licensing: Internal and external dispute resolution.

[29]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 7.

[30]      ASIC, answer to question on notice, no. 8 (received 21 May 2014), p. 7.

[31]      Mr Shane Tregillis, Chief Ombudsman, FOS, Proof Committee Hansard, 20 February 2014, p. 26.

[32]      ASX Corporate Governance Council, Corporate Governance Principles and Recommendations, 3rd Edition, Principle 3.

[33]      See ASIC, Breach reporting by AFS licensees, Regulatory Guide 78, February 2014, paragraph RG 78.32.

[34]      Ms Joanna Bird, ASIC, Proof Committee Hansard, 10 April 2014, p. 95.

Chapter 14 - Corporate whistleblowing: ASIC's performance and issues with the current protections

[1]        ASIC's handling of the information received from the CFPL whistleblowers was examined in Chapter 8.

[2]        Professor AJ Brown, Submission 343, p. 2. 

[3]        ASIC, Submission 45.2, p. 135.

[4]        Cited in Dr Peter Bowden, Submission 412.1, p. 2.

[5]        Dr Peter Bowden, Submission 412, p. 1.

[6]        Blueprint for Free Speech, Submission 165, p. 3.

[7]        CPA Australia, Submission 209, pp. 5–6.

[8]        Dr Peter Bowden, Submission 412.1, p. 5.

[9]        ASIC, 'Protection for whistleblowers', www.asic.gov.au.

[10]      ASIC, Submission 45.2, p. 134. The protections are also summarised in Treasury, Submission 154, pp. 10–11.

[11]      Disclosure of this information to ASIC, APRA, a member of the Australian Federal Police or disclosure with the whistleblower's consent is allowed.

[12]      Corporations Act 2001, s. 1317AA(1)(a).

[13]      Corporations Act 2001, s. 1317AA(1)(b).

[14]      Corporations Act 2001, ss. 1317AA(1)(d)–(e). As ASIC notes in its main submission, similar protections 'are available to a whistleblower in possession of information relating to contraventions of banking, insurance and superannuation legislation, under the Banking Act 1959, the Insurance Act 1973, the Life Insurance Act 1995 and the [Superannuation Industry (Supervision) Act 1993'. ASIC, Submission 45.2, p. 135.

[15]      ASIC, Submission 45.2, pp. 136–37.

[16]      ASIC, Submission 45.2, p. 135.

[17]      ASIC, Submission 45.2, p. 136.

[18]      ASIC, Submission 45.2, p. 135.

[19]      ASIC, Submission 45.2, p. 136.

[20]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 150, p. 7.

[21]      Rule of Law Institute, Submission 211, p. 6.

[22]      CPA Australia, Submission 209, p. 6.

[23]      Professor AJ Brown, Proof Committee Hansard, 10 April 2014, p. 53.

[24]      Professor AJ Brown, Submission 343, p. 2.

[25]      Professor AJ Brown, Submission 343, p. 2.

[26]      Dr Peter Bowden, Submission 412, pp. 1–2; Professor AJ Brown, Proof Committee Hansard, 10 April 2014, p. 51.

[27]      Governance Institute of Australia, Submission 137, p. 3.

[28]      Governance Institute of Australia, Submission 137, p. 3.

[29]      Mr Douglas Gration, Director, Governance Institute of Australia, Proof Committee Hansard, 10 April 2014, pp. 62-63.

[30]      Parliamentary Joint Committee on Corporations and Financial Services, CLERP (Audit Reform and Corporate Disclosure) Bill 2003, Part 1: Enforcement, executive remuneration, continuous disclosure, shareholder participation and related matters, June 2004, Parliamentary Paper No. 122/2004, p. xxii.

[31]      PJCCFS, CLERP 9 Bill, June 2004, p. 29.

[32]      PJCCFS, CLERP 9 Bill, June 2004, p. xxii.

[33]      Professor AJ Brown, Submission 343, p. 3.

[34]      Dr Peter Bowden, Proof Committee Hansard, 10 April 2014, p. 52.

[35]      Treasury, Improving protections for corporate whistleblowers: options paper, October 2009, http://archive.treasury.gov.au/documents/1620/PDF/whistleblower_options_papers.pdf, p. iv.

[36]      Treasury, Submission 154, p. 11.

[37]      Blueprint for Free Speech, Submission 165, p. 4.

[38]      Blueprint for Free Speech, Submission 165, pp. 4-5

[39]      Dr Sulette Lombard, Proof Committee Hansard, 10 April 2014, p. 52.

[40]      Professor AJ Brown, Proof Committee Hansard, 10 April 2014, p. 52.

[41]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 24.

[42]      ASIC, Submission 45.2, p. 137.

[43]      ASIC, Submission 45.2, p. 137. Also see Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 2.

[44]      Professor AJ Brown, Submission 343, p. 2.

[45]      Professor AJ Brown, Proof Committee Hansard, 10 April 2014, p. 50.

[46]      Mr Douglas Gration, Director, Governance Institute of Australia, Proof Committee Hansard, 10 April 2014, pp. 62–63.

[47]      Professor AJ Brown, Submission 343, p. 5.

[48]      PJCCFS, CLERP 9 Bill, June 2004, p. xxix.

[49]      Australian Government response to Parliamentary Joint Committee on Corporations and Financial Services, CLERP (Audit Reform and Corporate Disclosure) Bill 2003 [hereafter Government response to PJCCFS CLERP 9 report], March 2005, p. 4.

[50]      Professor AJ Brown, Submission 343, p. 4.

[51]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 41.

[52]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 41.

[53]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 21.

[54]      PJCCFS, CLERP 9 Bill, June 2004, p. 21.

[55]      Government response to PJCCFS CLERP 9 report, March 2005, pp. 3–4.

[56]      Professor AJ Brown, Submission 343, p. 4.

[57]      Professor AJ Brown, Submission 343, p. 4.

[58]      Professor AJ Brown, Submission 343, p. 4.

[59]      Blueprint for Free Speech, Submission 165, p. 3.

[60]      Dr Peter Bowden, Proof Committee Hansard, 10 April 2014, p. 54.

[61]      Dr Sulette Lombard, Proof Committee Hansard, 10 April 2014, p. 54.

[62]      Professor AJ Brown, Proof Committee Hansard, 10 April 2014, p. 55.

[63]      Professor AJ Brown, Proof Committee Hansard, 10 April 2014, p. 55.

[64]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 22.

[65]      Professor AJ Brown, Submission 343, p. 9.

[66]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 21.

[67]      PJCCFS, CLERP 9 Bill, June 2004, p. xxii.

[68]      PJCCFS, CLERP 9 Bill, June 2004, p. 12.

[69]      Government response to PJCCFS CLERP 9 report, March 2005, p. 2.

[70]      Professor AJ Brown, Proof Committee Hansard, 10 April 2014, p. 59.

[71]      Professor AJ Brown, Submission 343, pp. 5–6.

[72]      Professor AJ Brown, Proof Committee Hansard, 10 April 2014, p. 59.

[73]      Dr Vivienne Brand and Dr Sulette Lombard, Submission 419, pp. 1–2.

[74]      Dr Vivienne Brand and Dr Sulette Lombard, Submission 419, p. 2.

[75]      Dr Vivienne Brand, Proof Committee Hansard, 10 April 2014, p. 56.

[76]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 22.

[77]      Professor AJ Brown, Submission 343, p. 7.

[78]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 42.

[79]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 43.

[80]      Professor Bob Baxt AO, Proof Committee Hansard, 21 February 2014, p. 15.

[81]      Professor Bob Baxt AO, Proof Committee Hansard, 21 February 2014, p. 16. Professor Baxt also made this point in his written submission: Submission 189, p. 6.

[82]      Professor AJ Brown, Submission 343, p. 9.

[83]      Professor AJ Brown, Submission 343, p. 9.

[84]      Dr Peter Bowden, Submission 412, p. 2.

[85]      Dr Peter Bowden, Submission 412, p. 2.

[86]      Blueprint for Free Speech, Submission 165, p. 5.

[87]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 25. Whether the current penalty amounts and approach to corporate penalties should be reviewed is examined in Chapter 23.

[88]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 25. See also ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 23.

[89]      ASIC, Submission 45.2, p. 136.

[90]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 24.

[91]      Mr Jeffrey Morris, Submission 421, p. 28.

[92]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 41.

[93]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, p. 41.

[94]      Adele Ferguson, 'ASIC "asleep on the job" over CBA', Sydney Morning Herald, 6 August 2013.

[95]      PJCCFS, CLERP 9 Bill, June 2004, p. 27.

[96]      PJCCFS, CLERP 9 Bill, June 2004, p. 28.

[97]      Government response to PJCCFS CLERP 9 report, March 2005, p. 5.

[98]      Professor AJ Brown, Submission 343, pp. 11–13.

[99]      Professor AJ Brown, Proof Committee Hansard, 10 April 2014, p. 57.

[100]    Professor AJ Brown, Proof Committee Hansard, 10 April 2014, p. 58.

[101]    Professor AJ Brown, Submission 343, p. 8.

[102]    Mr Jeffrey Morris, Proof Committee Hansard 10 April 2014, p. 43.

[103]    Blueprint for Free Speech, Submission 165, p. 3.

[104]    Dr Vivienne Brand and Dr Sulette Lombard, Submission 419, pp. 2–3.

[105]    ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 23.

Chapter 15 - Early intervention

[1]        Mr Greg Medcraft, Chairman, ASIC, Parliamentary Joint Committee on Corporations and Financial Services Hansard, Statutory Oversight of the Australian Securities and Investments Commission, 22 June 2012, p. 13.

[2]        Submissions 130, 132, 136, 140, 141, 156 and 160.

[3]        Banking and Finance Consumers Support Association, Submission 156, p. 8.

[4]        Mr Frazer McLennan, Submission 127, p. 1.

[5]        Mr Paul Drum, CPA Australia, Parliamentary Joint Committee on Corporations and Financial Services Hansard, Inquiry into Financial Products and Services in Australia, 26 August 2009, p. 68.

[6]        Q Invest, Submission 374 to the PJCCFS's Inquiry into Financial Products and Services in Australia, p. ii.

[7]        Mr John Brogden, Investment and Financial Services Association, PJCCFS Hansard, Inquiry into Financial Products and Services in Australia, 28 August 2009, p. 50.

[8]        Mr Bruce Keenan, Submission 197, p. 5.

[9]        Institute of Chartered Accountants Australia, Submission 203, p. 4.

[10]      Australian Shareholders' Association, Submission 151, p. 2.

[11]      See also Submissions 99, 100, 240 and 279.

[12]      Consumer Credit Legal Centre (NSW) Inc, Submission 194, p. 21.

[13]      Consumer Action Law Centre, Submission 120, p. 7.

[14]      Consumer Action Law Centre, Submission 120, pp. 5–6.

[15]      Consumer Action Law Centre, Submission 120, pp. 5–6.

[16]      Commonwealth Ombudsman, Submission 188, p. 6.

[17]      See for example, Mr Ben Burgess, Submission 190 and Institute of Chartered Accountants Australia, Submission 203.

[18]      Submissions 40, 42, 99, 223, 239, 240, 246, 260, 279, 324, 326, 330 and 376.

[19]      Mr Lindsay Johnston, Submission 130, p. 2.

[20]      Ms Anne Lampe, Submission 106, p. 2.

[21]      Ms Anne Lampe, Submission 106, p. 3.

[22]      Ms Anne Lampe, Submission 106, pp. 3–4.

[23]      Mr Robert Bennetts, Submission 393, p. 2.

[24]      Dr Peter Brandson, Submission 232, p. 7.

[25]      See for example, Submissions 40, 94 and 132. 

[26]      Submission 326 (Confidential).

[27]      Submission 326 (Confidential).

[28]      Mr Peter Leech, Submission 132, p. 1.

[29]      Name withheld, Submission 81.

[30]      Mr Roger Cooper, Submission 40, p. 2.

[31]      Mr Roger Cooper, Submission 94, p. 2.

[32]      Mr Roger Cooper, Submission 94, p. 2.

[33]      Mr Roger Cooper, Submission 94, p. 4.

[34]      Mr Roger Cooper, Submission 94, p. 4.

[35]      Mr Roger Cooper, Submission 94, p. 4.

[36]      Advisers' Committee for Investors, Submission 170, p. 5.

[37]      Advisers' Committee for Investors, Submission 170, p. 1.

[38]      Advisers' Committee for Investors, Submission 170, p. 6.

[39]      Advisers' Committee for Investors, Submission 170, p. 6.

[40]      Advisers' Committee for Investors, Submission 170, p. 6.

[41]      Advisers' Committee for Investors, Submission 170, p. 7.

[42]      Advisers' Committee for Investors, Submission 170, p. 7.

[43]      Association of ARP Unitholders Inc, Submission 173, p. 1.

[44]      Burke Bond Financial Pty Ltd, Submission 98, p. 2.

[45]      Submission 100 (Confidential).

[46]      Mr David Pemberton, Submission 279, p. 3.

[47]      Mr David Pemberton, Submission 279, p. 3.

[48]      Mr David Pemberton, Submission 279, p. 3.

[49]      Mr David Pemberton, Submission 279, p. 6.

[50]      Mr Ben Burgess, Submission 190, p. 2.

[51]      Mr Ben Burgess, Submission 190, p. 1.

[52]      See for example, The Auditor-General, ASIC's Processes for Receiving and Referring for Investigation Statutory Reports of Suspected Breaches of the Corporations Act 2001, Audit Report No. 18 of 2006–07, pp. 13–14.

[53]      BDO Australia, Submission 163, p. 1.

[54]      BDO Australia, Submission 163, p. 1.

[55]      BDO Australia, Submission 163, p. 2.

[56]      Submission 328 (Confidential).

[57]      Submission 328 (Confidential).

[58]      Submission 328 (Confidential).

[59]      Mr Peter Murray, Submission 164, p. 11.

[60]      Mr Peter Murray, Submission 164, p. 5.

[61]      Section 533 (for liquidators); section 422 (for receivers); and section 438D (for voluntary administrators). See ASIC, Insolvency statistics: External administrators' reports (July 2012 to June 2013), Report 372, October 2013, paragraph 4.

[62]      Corporations Act 2001, section 533(2).

[63]      ASIC, Insolvency statistics: External administrators' reports (July 2012 to June 2013), Report 372, October 2013, paragraph 32.

[64]      ASIC, Insolvency Statistics, Report 372, October 2013, paragraph 40.

[65]      ASIC, Insolvency Statistics, Report 372, October 2013, paragraph 41.

[66]      ASIC, Insolvency Statistics, Report 372, October 2013, paragraph 41.

[67]      The Auditor-General, ASIC's Processes for Receiving and Referring for Investigation Statutory Reports of Suspected Breaches of the Corporations Act 2001, Audit Report No. 18, 2006–07, Australian National Audit Office, 2007, paragraph 23.

[68]      The Auditor-General, Audit Report No. 18, 2006–07, paragraph 24.

[69]      The Auditor-General, Audit Report No. 18, 2006–07, paragraph 24.

[70]      The Auditor-General, Audit Report No. 18, 2006–07, paragraph 26.

[71]      Mr David Lombe, President, Australian Restructuring Insolvency and Turnaround Association, Proof Committee Hansard, 2 April 2014, p. 35.

[72]      Mr David Lombe, ARITA, Proof Committee Hansard, 2 April 2014, p. 30.

[73]      Mr David Lombe, ARITA, Proof Committee Hansard, 2 April 2014, p. 31.

[74]      Mr David Lombe, ARITA, Proof Committee Hansard, 2 April 2014, p. 34.

[75]      ARITA, Submission 202.1, p. 2.

[76]      ARITA, Submission 202.1, p. 2.

Chapter 16 - ASIC's response to reports or other indications of wrongdoing

[1]        Governance Institute of Australia, Submission 137.

[2]        Submission 211. ASIC's investigation powers are listed in Chapter 3.

[3]        Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 2.

[4]        Helen Anderson, 'Corporate insolvency and the protection of lost employee entitlements: issues in enforcement', Australian Journal of Labour Law, 26:1 (2013): 82.

[5]        Rule of Law Institute of Australia, Submission 211, p. 3.

[6]        Rule of Law Institute of Australia, Submission 211, p. 4.

[7]        Proof Committee Hansard, 20 February 2014, p. 38.

[8]        Submission 45.2, p. 89. It is a national team that has 90 full-time equivalent staff from a diverse range of backgrounds, including law, arts, accounting, economics, mathematics and business.

[9]        Proof Committee Hansard, 20 February 2014, p. 38.

[10]      Proof Committee Hansard, 20 February 2014, p. 38.

[11]      Proof Committee Hansard, 19 February 2014, p. 40.

[12]      A number of submitters provided correspondence from ASIC as attachments to their submission, which contain an explanation of section 13 of the ASIC Act and ASIC's discretion in determining whether further enquiries or investigations are warranted.

[13]      ASIC, Submission 45.2, p. 87.

[14]      Submission 194, p. 16.

[15]      Submission 45, p. 87.

[16]      Mrs Karen Cox, Coordinator, CCLC, Proof Committee Hansard, 20 February 2014, p. 40.

[17]      Mr Gerard Brody, Chief Executive Officer, Consumer Action Law Centre, Proof Committee Hansard, 20 February 2014, p. 41.

[18]      Consumer Action Law Centre, Submission 120, p. 5.

[19]      Governance Institute of Australia, Submission 137, p. 4.

[20]      Governance Institute of Australia, Submission 137, p. 4.

[21]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 150, p. 5.

[22]      Submission 150, p. 5.

[23]      Ms Robbie Campo, Deputy Chief Executive, Industry Super Australia, Proof Committee Hansard, 20 February 2014, p. 34.

[24]      Mr David Haynes, Executive Manager, Policy and Research, Australian Institute of Superannuation Trustees, Proof Committee Hansard, 20 February 2014, p. 34.

[25]      Mr David Haynes, Australian Institute of Superannuation Trustees, Proof Committee Hansard, 20 February 2014, p. 34

[26]      Mr David Haynes, Australian Institute of Superannuation Trustees, Proof Committee Hansard, 20 February 2014, p. 34.

[27]      Mr David Haynes, Australian Institute of Superannuation Trustees, Proof Committee Hansard, 20 February 2014, p. 34.

[28]      Mr Lee White, Chief Executive Officer, Institute of Chartered Accountants Australia, Proof Committee Hansard, 19 February 2014, p. 47.

[29]      Mr Alex Malley, Chief Executive Officer, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 49.

[30]      Mr David Pemberton, Submission 279, p. 6.

[31]      Mr Justin Brand, Submission 129, p. 2.

[32]      Mr Ben Burgess, Submission 190, p. 1.

[33]      Mr Colin Neave, Commonwealth Ombudsman, Proof Committee Hansard, 20 February 2014, p. 12.

[34]      Mr Colin Neave, Proof Committee Hansard, 20 February 2014, p. 12.

[35]      Mr Colin Neave, Proof Committee Hansard, 20 February 2014, p. 12.

[36]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 1.

[37]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 4.

[38]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 2.

[39]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 1.

[40]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 1.

[41]      Mr Justin Brand, Submission 129, p. 2.

[42]      Mr Peter Murray, Submission 164, p. 5.

[43]      Association of Financial Advisers, Submission 117, p. 3.

Chapter 17 - ASIC's enforcement decisions

[1]        These statistics are only publicly available from 1 July 2011 onwards, following the first biannual enforcement report released by ASIC in March 2012.

[2]        Such an outcome has been suggested about other regulators—soon after he commenced in the role, the current ACCC chairman, Mr Rod Sims, observed that the ACCC's success rate in first instance litigation of almost 100 per cent 'is frankly too high'. Mr Sims suggested that the ACCC may have been too risk averse and should 'take on more cases where we see the wrong but court success is less assured'. Rod Sims, 'ACCC: Future Directions', Address to the Law Council Competition and Consumer Workshop 2011, 28 August 2011, www.accc.gov.au/speech/accc-future-directions, pp. 5, 6 (accessed 2 September 2013).

[3]        Legal Services Directions 2005, schedule 1, part 4.

[4]        With the exception of 'some minor regulatory offences'. ASIC, ASIC's approach to enforcement, Information Sheet 151, February 2012, p. 5.

[5]        See www.cdpp.gov.au/Publications/ProsecutionPolicy.

[6]        ASIC and CDPP, Memorandum of Understanding, 1 March 2006, www.asic.gov.au (accessed 17 October 2013), paragraph 4.1.

[7]        Kirby v Centro Properties Ltd (2008) 253 ALR 65; [2008] FCA 1505 at [8] citing Bateman Eichler, Hill Richards Inc v Berner 472 US 299, 310 (1985) and J I Case Co v Borack 377 US 426, 432 (1964); cited in Jason Harris and Michael Legg, 'What price investor protection? Class actions vs corporate rescue', Insolvency Law Journal 17:4 (2009): 190.

[8]        Mr Ian Painter, Submission 167, p. [8].

[9]        Ms Anne Lampe, Submission 106, p. [2].

[10]      Proof Committee Hansard, 10 April 2014, p. 70.

[11]      Wellington Capital Ltd v Australian Securities & Investments Commission, S275/2013.

[12]      See Mr Dennis Chapman, Submission 249.

[13]      Submissions 18, 41, 42, 44, 82, 84, 87, 88, 90, 106, 149, 172, 236, 256, 278, 301 and 387.

[14]      Mr Lucas Vogel, Submission 41, p. 4.

[15]      Name withheld, Submission 18, p. 1.

[16]      Mr Peter Dunell, Submission 90, p. 1.

[17]      Name withheld, Submission 88, p. 4.

[18]      Ms Dianne Mead, Submission 240, p. 2.

[19]      Mr David Pemberton, Submission 279.

[20]      On 7 January 2013, Mr Jonathan Moylan distributed a fake media release purported to be from the ANZ. The media release was titled 'ANZ divests from Maules Creek Project' and advised that the bank had withdrawn a $1.2 billion loan from Whitehaven Coal. On 9 January 2013 it was reported that ASIC had seized Mr Moylan's computer and mobile phone. On 25 January 2013 the Australian Financial Review reported that ASIC had interviewed Mr Moylan. See Jake Mitchell, 'ASIC questions Whitehaven hoaxer', Australian Financial Review, 25 January 2013, p. 10.

[21]      Ms Anne Lampe, Submission 106, pp. [4]–[5].

[22]      Rule of Law Institute of Australia, Submission 211, p. 4.

[23]      Mr Alex Malley, Chief Executive Officer, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 43.

[24]      Professor Bob Baxt AO, Proof Committee Hansard, 21 February 2014, p. 10.

[25]      Professor Baxt criticised the infringement notice powers available to regulators such as ASIC and the ACCC. Although infringement notices do not involve an admission of liability, in his view they create a perception of guilt that can only be disproven when prosecuted by the regulator. Professor Baxt outlined his objection to infringement notices in detail: see Submission 189, pp. 1–3 and Proof Committee Hansard, 21 February 2014, pp. 10–11.

[26]      Professor Bob Baxt AO, Proof Committee Hansard, 21 February 2014, p. 9.

[27]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 2.

[28]      Ms Anne Lampe, Submission 106, p. [2].

[29]      Proof Committee Hansard, 10 April 2014, pp. 78–79.

[30]      Professor Justin O'Brien and Dr George Gilligan, Submission 121, p. [3] (emphasis omitted).

[31]      ASIC, 'ASIC accepts enforceable undertaking from Commonwealth Bank', Media release, no. 12-40, 7 March 2012.

[32]      Professor Justin O'Brien and Dr George Gilligan, Submission 121, p. [6].

[33]      Professor Kingsford Smith noted that the Leighton Holdings enforceable undertaking followed 'a $40 million kickback, and breaches of continuous disclosure obligations (in conjunction with three infringement notices amounting to total fines $300,000; 0.00075% of the bribe amount)'. Professor Kingsford Smith added that 'no compensatory obligations were imposed for the $907 million reduction in market share value, though this may be because there is a class action in progress'. Professor Dimity Kingsford Smith, Submission 153, p. 17.

[34]      Professor Dimity Kingsford Smith, Submission 153, p. 17.

[35]      Professor Justin O'Brien and Dr George Gilligan, Submission 121, pp. [6]–[7].

[36]      Professor Justin O'Brien and Dr George Gilligan, Submission 121, pp. [6]–[7].

[37]      Mr Jeffrey Morris, Proof Committee Hansard, 10 April 2014, pp. 48–49.

[38]      Proof Committee Hansard, 10 April 2014, p. 88.

[39]      Dr Suzanne Le Mire, Associate Professor David Brown, Associate Professor Christopher Symes and Ms Karen Gross, Submission 152, p. 2. The enforcement pyramid was outlined in Chapter 4.

[40]      Dr Suzanne Le Mire et al, Submission 152, p. 4.

[41]      Mr Lee White, Chief Executive Officer, Institute of Chartered Accountants Australia, Proof Committee Hansard, 19 February 2014, p. 48.

[42]      Institute of Chartered Accountants Australia, Submission 203, p. 2.

[43]      Mr Greg Kirk, Senior Executive Leader, Deposit Takers, Credit and Insurance Providers, ASIC, Proof Committee Hansard, 10 April 2014, p. 70.

[44]      Proof Committee Hansard, 10 April 2014, p. 70.

[45]      Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 10 April 2014, p. 71.

[46]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 28.

[47]      A special account is an appropriation mechanism that notionally sets aside an amount of consolidated revenue to be expended for specified purposes. The enforcement special account was established to 'give ASIC the flexibility to conduct major investigations into, and bring legal and/or administrative proceedings against individuals and corporations in relation to, possible corporate or financial services misconduct when required, without the need to seek additional Budget funding'. It was intended that the investigations and proceedings 'would typically relate to matters for which ASIC could not absorb the costs without significantly prejudicing its existing general enforcement role, and/or those matters which are critical to continued public confidence in the corporate regulatory framework'. Mr Medcraft explained that once operational expenditure on a case goes above a certain level, ASIC can apply to government to move funding out of the enforcement special account. Explanatory Statement, Financial Management and Accountability Act 1997: Determination 2006/31 to establish a Special Account, pp. 1–2; Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 28.

[48]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 28.

[49]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 28.

[50]      Levitt Robinson Solicitors, Submission 276, p. 11. The figures are based on the Attorney‑General's Department's Legal Services Expenditure Report 2011–2012.

[51]      Dr Suzanne Le Mire et al, Submission 152, p. 2.

[52]      The Briginshaw standard refers to principles related to the civil standard of proof (on the balance of probabilities) expressed in the decision of the High Court in Briginshaw v Briginshaw. The Briginshaw standard is a general rule that as the gravity of the allegations increase, greater proof is required for the plaintiff to meet the civil standard of proof based on the balance of probabilities. In Briginshaw, Dixon J stated: 'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences'. Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).

[53]      Dr Suzanne Le Mire et al, Submission 152, pp. 2–3.

[54]      Dr Suzanne Le Mire et al, Submission 152, p. 4.

[55]      Professor Bob Baxt AO, Proof Committee Hansard, 21 February 2014, p. 13.

[56]      ASIC, Submission 45.2, p. 129.

[57]      ASIC, Submission 45.2, p. 129.

[58]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 39.

[59]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, pp. 2, 4.

[60]      ASIC, 'Former Kleenmaid directors ordered to stand trial', Media Release, no. 14-064, 1 April 2014.

[61]      Dr George Gilligan, Proof Committee Hansard, 19 February 2014, p. 55.

[62]      Mr Graeme Davidson, Deputy Director, Commonwealth Director of Public Prosecutions, Proof Committee Hansard, 2 April 2014, p. 12.

[63]      Mr Graeme Davidson, Proof Committee Hansard, 2 April 2014, p. 12. See also Mr Robert Bromwich SC, Director of Public Prosecutions, Senate Legal and Constitutional Affairs Legislation Committee Hansard, Estimates, 24 February 2014, p. 94.

[64]      Mr Graeme Davidson, Proof Committee Hansard, 2 April 2014, pp. 15–16.

[65]      The Auditor‑General, ASIC's Processes for Receiving and Referring for Investigation Statutory Reports of Suspected Breaches of the Corporations Act 2001, Audit Report No. 18 2006–07, p. 19.

[66]      On this issue, Mr Davidson advised that the CDPP seeks to assist the courts as far as it can. Mr Graeme Davidson, Proof Committee Hansard, 2 April 2014, p. 16. 

[67]      For example, ASIC's chairman noted in late 2012 that ASIC 'has observed board engagement with disclosure has improved' as a result of the widespread publicity associated the James Hardie case.

Chapter 18 - ASIC's handling of enforcement matters

[1]        Mr Bromwich also stated that he accepts the decision of the Criminal Court of Appeal (CCA), however, he added that it is important to note 'that the CCA's observations about the Crown's submissions on appeal are not a criticism of the manner in which the prosecution ran its case at trial' and that '[i]n respect of the criminal proceedings no court has held that the case against Dr Fysh was fundamentally misconceived or that there was no evidence of an element of the offences charged'. Mr Robert Bromwich SC, Commonwealth Director of Public Prosecutions, answer to question on notice, no. 14 (received 22 April 2014), pp. 5, 8 and 9.

[2]        Dr Stuart Fysh, Submission 128, p. 3.

[3]        Dr Stuart Fysh, Submission 128, p. 3.

[4]        Dr Stuart Fysh, Submission 128, pp. 2–3.

[5]        Dr Stuart Fysh, Submission 128, p. 4.

[6]        Dr Stuart Fysh, Submission 128, p. 1.

[7]        Dr Stuart Fysh, Submission 128, p. 3.

[8]        Dr Stuart Fysh, Submission 128, p. 4.

[9]        Dr Stuart Fysh, Submission 128, p. 5.

[10]      ASIC, Public comment, Information Sheet 152, February 2012, p. 1.

[11]      Dr Stuart Fysh, Proof Committee Hansard, 2 April 2014, p. 1.

[12]      Dr Stuart Fysh, Submission 128.1, p. 1.

[13]      ASIC, 'Former BG executives insider trading conviction quashed', Media Release, no. 14-042, 11 March 2014. The text of the media release simply stated: 'Dr Stuart Alfred Fysh's 2012 conviction for insider trading was quashed by the NSW Court of Criminal Appeal in 2013' and contained a link to the court's reasons with limited background information attached.

[14]      Dr Fysh advised that he wrote to ASIC 'and said, "Come on, guys. You have seen what I have written to the Senate committee. I am really unhappy. Could you not at least acknowledge this on your website—you have a dozen headings up there that I am a crook. That is all that anyone who ever wants to deal with me is going to see." ASIC has put something up on their website. I suggested, "Why don't you put a link through to the findings of the Court of Criminal Appeal." Blow me down, they have done it. But let us not kid ourselves that they did it because little Dr Fysh wrote to them'. Dr Fysh suggested that ASIC acted because the committee or someone influential 'has said something'. Proof Committee Hansard, 2 April 2014, p. 3.

[15]      ASIC, Submission 45.4, p. 3.

[16]      ASIC, Submission 45.4, pp. 3–4.

[17]      Professor Bob Baxt AO, Proof Committee Hansard, 21 February 2014, p. 9.

[18]      Professor Bob Baxt AO, Proof Committee Hansard, 21 February 2014, p. 9.

[19]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 150, p. 5.

[20]      Mr John Keeves, Chairman, Business Law Section, Law Council of Australia, Proof Committee Hansard, 20 February 2014, p. 2.

[21]      Professor Justin O'Brien, Proof Committee Hansard, 19 February 2014, p. 61.

[22]      Professor Dimity Kingsford Smith, Proof Committee Hansard, 19 February 2014, p. 62.

[23]      In this regard, ASIC may wish to consider the approach taken by the Australian Taxation Office, which publishes clear warnings designed to capture the reader's attention when legislative changes affect the interpretation of particular provisions of the tax law. For an example, see www.ato.gov.au/Business/Research-and-development-tax-concession/In-detail/Making-a-claim/175--Premium-research-and-development-tax-concession/.

[24]      For example, on 7 August 2013, ASIC issued a media release announcing that charges against a certain individual (named in the media release) had been discontinued. However, the editor's notes at the bottom of the 6 June 2012 media release announcing the charges do not reflect this—at the time of writing, the last entry in the editor's notes on the 6 June 2012 media release noted that the individual had been committed to stand trial. This is significant as the first result of an internet search on the individual was the 6 June 2012 media release, followed by media articles on the charges.

[25]      Name withheld, Submission 145, p. 1.

[26]      Mr Robert Catena, Submission 241, p. 1 (emphasis in original).

[27]      ASIC, answer to question on notice, no. 10 (received 19 May 2014), p. 5.

[28]      ASIC, 'Statement on ASIC action', Media Release, no. 13-105, 14 May 2013.

[29]      Rule of Law Institute of Australia, Submission 211, pp. 7–8.

[30]      Mr Robert Catena, Submission 241, p. 3.

[31]      Dr Stuart Fysh, Submission 128.1, p. 4.

[32]      Professor Robert Baxt AO, Submission 189, p. 7.

[33]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 2.

[34]      ASIC, 'ASIC announces results of its strategic review', Media release, no 08-93, 8 May 2008; Pamela Hanrahan, 'ASIC review should make it smarter', Australian Financial Review, 12 May 2008, p. 63.

[35]      ASIC, Annual Report 2011–12, p. 2.

[36]      US Securities and Exchange Commission, www.sec.gov/divisions.shtml (accessed 20 August 2013).

[37]      US Consumer Financial Protection Bureau, www.consumerfinance.gov/the-bureau (accessed 20 August 2013).

[38]      UK Financial Conduct Authority, www.fca.org.uk/static/fca/documents/fca-organisational-chart.pdf (accessed 20 August 2013).

[39]      Mr Alistair Waters, Deputy National President; Mr David Mawson, ASIC Workplace Delegate, CPSU, Proof Committee Hansard, 19 February 2014, p. 64.

[40]      Mr David Mawson, ASIC Workplace Delegate, CPSU, Proof Committee Hansard, 19 February 2014, p. 65.

[41]      Ms Anne Lampe, Submission 106, p. [2].

[42]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 2.

[43]      Ocean Financial Pty Ltd, Submission 248, p. [1].

[44]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 150, p. 2.

[45]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 6.

[46]      Dr Stuart Fysh, Proof Committee Hansard, 2 April 2014, p. 1.

[47]      Dr Stuart Fysh, Proof Committee Hansard, 2 April 2014, p. 1.

Chapter 19 - ASIC's performance: the perspective of key stakeholders

[1]        ASX, Submission 122, p. 1.

[2]        Mr David Haynes, Executive Manager, Policy and Research, Australian Institute of Superannuation Trustees, Proof Committee Hansard, 19 February 2014, p. 31.

[3]        Ms Robbie Campo, Deputy Chief Executive, Industry Super Australia, Proof Committee Hansard, 20 February 2014, p. 30.

[4]        Governance Institute of Australia, Submission 137, p. 2.

[5]        CPA Australia, Submission 209, p. 1.

[6]        CPA Australia, Submission 209, p. 1.

[7]        Mr Lee White, Chief Executive Officer, Institute of Chartered Accountants Australia, Proof Committee Hansard, 19 February 2014, p. 42.

[8]        Australian Securities and Investments Commission Act 2001, s. 12A.

[9]        Mr Lee White, Institute of Chartered Accountants Australia, Proof Committee Hansard, 19 February 2014, p. 47.

[10]      The current chair of the panel is Mark Johnson AO (chairman of Alinta Energy, former chairman of AGL Energy and deputy chairman of Macquarie Bank) and the deputy chair is Allan Moss AO (former managing director and CEO of Macquarie Group). For a current list of members, see www.asic.gov.au/asic/asic.nsf/byheadline/External+Advisory+Panel.

[11]      ASIC, Submission 45.2, p. 58; 'ASIC External Advisory Panel: Purpose, Governance and Practices Summary', March 2012, www.asic.gov.au (accessed 8 July 2013).

[12]      ASIC, Submission 45.2, p. 58.

[13]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 10 April 2014, p. 90.

[14]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 10 April 2014, p. 90.

[15]      Mr Mark Rantall, Chief Executive Officer, Financial Planning Association, Proof Committee Hansard, 19 February 2014, pp. 71–72.

[16]      Mr Brad Fox, Chief Executive Officer, Association of Financial Advisers, Proof Committee Hansard, 19 February 2014, p. 72.

[17]      Mr Bruce Dyer, Member, Corporations Committee, Business Law Section, Law Council of Australia, Proof Committee Hansard, 20 February 2014, p. 3.

[18]      Consumer Action Law Centre, Submission 120, p. 5.

[19]      Consumer Action Law Centre, Submission 120, p. 5.

[20]      CPA Australia, Submission 209, pp. 3–4.

[21]      Mr Alex Malley, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 44.

[22]      ASIC, answer to question on notice, no. 6 (received 25 March 2014), p. 15.

[23]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 23.

[24]      ASIC, answer to question on notice, no. 6 (received 25 March 2014), p. 14.

[25]      ASIC, answer to question on notice, no. 6 (received 25 March 2014), p. 14.

[26]      Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 23.

[27]      Mr David Haynes, Australian Institute of Superannuation Trustees, Proof Committee Hansard, 19 February 2014, p. 31.

[28]      Mr Paul Drum, Head of Policy, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 45.

[29]      Proof Committee Hansard, 19 February 2014, pp. 42, 44.

[30]      Mr Lee White, Institute of Chartered Accountants Australia; Mr Alex Malley, CPA Australia, Proof Committee Hansard, 19 February 2014, pp. 44–45.

[31]      Financial Services and Markets Act 2000 (UK), s. 8.

[32]      Financial Services and Markets Act 2000 (UK), ss. 9, 10.

[33]      Financial Conduct Authority, Corporate governance of the Financial Conduct Authority, April 2013, www.fca.org.uk/your-fca/documents/corporate-governance (accessed 20 March 2014), p. 4.

[34]      Mr Alex Malley, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 47.

[35]      Mr Lee White, Institute of Chartered Accountants Australia, Proof Committee Hansard, 19 February 2014, p. 47.

[36]      Institute of Chartered Accountants Australia, Submission 203, p. 2.

[37]      Professor Dimity Kingsford Smith, Proof Committee Hansard, 19 February 2014, pp. 54–55.

[38]      Professor Dimity Kingsford Smith, Proof Committee Hansard, 19 February 2014, p. 55.

[39]      Financial Planning Association of Australia, Submission 234, p. 8

[40]      Mr Brad Fox, Association of Financial Advisers, Proof Committee Hansard, 19 February 2014, p. 72.

[41]      Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 24.

[42]      Professor Justin O'Brien, Proof Committee Hansard, 19 February 2014, p. 60.

[43]      Professor Justin O'Brien, Proof Committee Hansard, 19 February 2014, p. 58.

[44]      Industry Super Australia, Submission 201, p. 13.

[45]      Industry Super Australia, Submission 201, p. 13.

[46]      Mr David Haynes, Australian Institute of Superannuation Trustees, Proof Committee Hansard, 20 February 2014, p. 33.

[47]      Mr Alex Malley, Chief Executive Officer, CPA Australia, Proof Committee Hansard, 19 February 2014, pp. 49–50.

[48]      The Governance Institute of Australia submitted that there 'is a lack of consistency in how ASIC staff may deal with matters, with sometimes variable approaches adopted in interpreting even the most basic processes. For example, when applying for an [AFS licence], Governance Institute of Australia members have experienced situations where different licensing conditions have been imposed for applications which are in all respects identical'. The Governance Institute also advised that company secretaries rely on advice or information from ASIC staff, however, 'there can be gaps between the advice being put forward and the reality of corporate governance practice' and that 'advice must be able to be practically implemented to ensure good governance outcomes'. The ICAA noted that inconsistent decision making 'can often be a source of frustration for investors and consumers'. See Governance Institute of Australia, Submission 137, pp. 7–8 and Institute of Chartered Accountants Australia, Submission 203, p.3.

[49]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 150, p. 6.

[50]      Mr John Keeves, Chairman, Business Law Section, Law Council of Australia, Proof Committee Hansard, 20 February 2014, p. 8.

[51]      For example, see Mr Gus Dalle Cort, Submission 301, p. [3].

[52]      Mr James Wheeldon, Proof Committee Hansard, 2 April 2014, p. 19.

[53]      Mr James Wheeldon, Proof Committee Hansard, 2 April 2014, p. 22.

[54]      Mr James Wheeldon, Proof Committee Hansard, 2 April 2014, p. 19.

[55]      See ASIC, 'Opening statement made by ASIC at a public hearing held in Canberra on 10 April 2014', Additional Information 4, pp. 7–9 and ASIC, Submission 45.5.

[56]      ASIC, Additional Information 4, pp. 7–8 (emphasis omitted).

[57]      ASIC, Additional Information 4, p. 8.

[58]      ASIC, Submission 45.5 pp. 4, 7–8.

[59]      ASIC, Submission 45.5, pp. 11–12.

[60]      ASIC, Submission 45.5, p. 7.

[61]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), pp. 18–19.

[62]      Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 10 April 2014, pp. 91–92.

[63]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 20.

Chapter 20 - Community expectations and financial literacy

[1]        Financial Planning Association of Australia, Submission 234, p. 6.

[2]        Association of Financial Advisers, Submission 117, p. 3. See also Mr Jason Harris, Submission 116.

[3]        Corporations Committee, Business Law Section, Law Council of Australia, Submission 150, p. 4.

[4]        Submission 150, p. 4.

[5]        Australian Institute of Company Directors, Submission 119, p. 3. See also Submission 150.

[6]        Mr Jason Harris, Submission 116, pp. 1–2.

[7]        ASIC, How ASIC deals with complaints of misconduct, Information Sheet 153; cited in Commonwealth Ombudsman, Submission 188, p. 8.

[8]        Commonwealth Ombudsman, Submission 188, p. 16.

[9]        Professor Dimity Kingsford Smith, Submission 153, p. 3.

[10]      Professor Dimity Kingsford Smith, Submission 153, p. 4.

[11]      Professor Dimity Kingsford Smith, Submission 153, p. 4.

[12]      Ms Anne Lampe, Submission 106, p. 1.

[13]      ASIC Submission 378 to the PJCCFS Inquiry into Financial Products and Services in Australia, August 2009, p. 26.

[14]      Mr Spencer Murray, Submission 23, p. 1.

[15]      Mr Sean Mcardle, Submission 87, p. 1.

[16]      Submission 172 and see also Submission 18 (name withheld).

[17]      Mr Peter Rigby, Submission 364, p. 1.

[18]      Burke Bond Financial Pty Ltd, Submission 98, p. 1.

[19]      Australian Institute of Company Directors, Submission 119, p. 3.

[20]      ASIC, Submission 45.2, p. 17.

[21]      Professor Justin O'Brien and Dr George Gilligan, Submission 121, p. 15.

[22]      Mr Greg Medcraft, Chairman, ASIC, PJCCFS Hansard, Oversight of ASIC, 12 September 2012, pp. 14–15.

[23]      Mr Greg Medcraft, PJCCFS Hansard, Oversight of ASIC, 12 September 2012, p. 15.

[24]      Mr Mustaffa Abu Sedira, Submission 427, pp. 1–2.

[25]      Financial Literacy Board, submission to the Financial System Inquiry, 28 March 2014,   http://fsi.gov.au/files/2014/04/Financial_Literacy_Board.pdf.

[26]      Financial Literacy Board, submission to the Financial System Inquiry, 28 March 2014,   http://fsi.gov.au/files/2014/04/Financial_Literacy_Board.pdf.

[27]      OECD, 'The Importance of Financial Education', Policy Brief, 2006, www.oecd.org/finance/
financial-education/37087833.pdf. See also OECD, Financial Literacy and Consumer Protection: Overlooked Aspects of the Crisis, OECD Recommendation on good practices on financial education and awareness relating to credit, June 2009, www.oecd.org/finance/financial-markets/43138294.pdf.

[28]      Consumer Action Law Centre, Submission 120, p. 7.

[29]      Professor Dimity Kingsford Smith, Submission 153, pp. 7–8.

[30]      Professor Dimity Kingsford Smith, Submission 153, p. 24 (footnotes omitted).

[31]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 7.

[32]      Consumer Credit Legal Centre (NSW) Inc, Submission 194, p. 13.

[33]      Governance Institute of Australia, Submission 137, p. 8.

[34]      Governance Institute of Australia, Submission 137, p. 8.

[35]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 150, p. 4.

[36]      Consumer Action Law Centre, Submission 120, p. 12.

[37]      UK Financial Services Consumer Panel, www.fs-cp.org.uk/about_us/what_is_the_panel.shtml (accessed 12 May 2014).

[38]      Consumer Action Law Centre, Submission 120, p. 12.

Chapter 21 - Communication and complaints management

[1]        Name withheld, Submission 213, attachment 1, p. 6.

[2]        Ms Muriel McClymont, Submission 425, p. [2].

[3]        Mrs Jan Braund, Submission 244, p. 4.

[4]        Mrs M Woolnough, Submission 346, p. [3].

[5]        Consumer Credit Legal Centre (NSW) Inc, Submission 194, p. 2.

[6]        Mr Gerard Brody, Chief Executive Officer, Consumer Action Law Centre, Proof Committee Hansard, 20 February 2014, p. 39.

[7]        Proof Committee Hansard, 20 February 2014, p. 39.

[8]        Commonwealth Ombudsman, Submission 188, p. 15.

[9]        Commonwealth Ombudsman, Submission 188, p. 16.

[10]      Commonwealth Ombudsman, Submission 188, pp. 15–16.

[11]      Submission 106, p. 1.

[12]      Mr Bill Doherty, Submission 138, p. [3].

[13]      See for example, Submission 71.

[14]      Submissions 1, 21, 26, 106, 110, 213, 279, 365 and 400.

[15]      Submissions 82, 106, 131 and 138.

[16]      Name withheld, Submission 82, p. 1.

[17]      Mr Trevor Eriksson, Submission 212, p. [4].

[18]      Dr Evan Jones, Submission 295, attachment 1, p. 1.

[19]      Ms Susan Field, Submission 75, p. 2.

[20]      Mr Dan McLean, Submission 105, p. 1.

[21]      For example, see Name withheld, Submission 20.2, p. 1 and Mrs Caroline Baker, Submission 49, p. 1.

[22]      Mr Owen Salmon, Submission 368, p. 3.

[23]      Dr Peter Brandson, Submission 232, p. 7.

[24]      ASIC, Annual Report 2012–13, p. 51.

[25]      ASIC, Submission 45.2, p. 4.

[26]      ASIC, ASIC Service Charter, September 2012, p. 4.

[27]      The ACCC's service charter adds: 'We receive a lot of contact from people simply providing us with information. In those circumstances, we will record your information but we may not provide a response'. ACCC, Service Charter, www.accc.gov.au/about-us/australian-competition-consumer-commission/service-charter (accessed 10 October 2013).

[28]      APRA, 'APRA Service Charter', www.apra.gov.au/AboutAPRA/Publications/Pages/APRA-Service-Charter.aspx (accessed 10 October 2013).

[29]      UK FCA, 'Our Performance: Communications', www.fca.org.uk/about/governance/our-performance/standards/communications (accessed 10 October 2013).

[30]      AFP, 'AFP service charter for the Australian community' www.afp.gov.au/about-the-afp/service-charters/afp-service-charter.aspx (accessed 10 October 2013).

[31]      Commonwealth Ombudsman, Better Practice Guide to Complaint Handling, April 2009, p. 14.

[32]      Name withheld, Submission 263, p. 5.

[33]      ASIC, Submission 45.2, p. 88.

[34]      ASIC, 'ASIC releases new information sheets on dispute resolution and misconduct', Media Release, no. 13-181, 18 July 2013.

[35]      ASIC, Submission 45.2, p. 95.

[36]      ASIC, Submission 45.2, p. 96.

[37]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 20 February 2014, p. 2.

[38]      Commonwealth Ombudsman, Better Practice Guide to Managing Unreasonable Complainant Conduct, June 2009, p. 1.

[39]      For example, ASIC advised that just five individuals have sent it approximately 400 separate pieces of correspondence since 2009 regarding a particular complaint. Further, over 100 requests under the Freedom of Information Act 1982 have been lodged or reviews of decisions made under that Act taken place. Involved at various times in assessing the correspondence, requests and reviews were members of ASIC's Misconduct and Breach Reporting team, its Investment Managers and Superannuation stakeholder team, Chief Legal Office, and the Senior Executive Leader responsible for Stakeholder Services. ASIC's actions in this matter have also been reviewed by the Commonwealth Ombudsman. ASIC, answer to question on notice, no. 12 (received 21 May 2014), pp. 38–39.

[40]      Commonwealth Ombudsman, Submission 188, p. 5.

[41]      Commonwealth Ombudsman, Submission 188, p. 3.

[42]      Commonwealth Ombudsman, Submission 188, p. 3.

[43]      Mr Colin Neave AM, Commonwealth Ombudsman, Proof Committee Hansard, 20 February 2014, p. 12.

[44]      Commonwealth Ombudsman, Better Practice Guide to Complaint Handling, April 2009, p. 25.

[45]      Mr Colin Neave AM, Proof Committee Hansard, 20 February 2014, p. 14.

[46]      Mr Colin Neave AM, Proof Committee Hansard, 20 February 2014, p. 15.

Chapter 22 - Service delivery and access to information

[1]        Sub-Sea & Pipeline Protection International, Submission 404, pp. [1]–[2].

[2]        Sub-Sea & Pipeline Protection International, Submission 404, p. [2] (footnotes omitted).

[3]        Mr Greg Tanzer, Commissioner, ASIC, Proof Committee Hansard, 10 April 2014, p. 105.

[4]        Mr David Pemberton, Submission 279, p. 5.

[5]        Name withheld, Submission 263, p. 5.

[6]        Name withheld, Submission 263, p. 6.

[7]        Name withheld, Submission 263, p. 5.

[8]        Commonwealth Ombudsman, Submission 188, pp. 6–7.

[9]        Commonwealth Ombudsman, Submission 188, p. 14.

[10]      Commonwealth Ombudsman, Submission 188, p. 13 (footnote omitted).

[11]      Dr Suzanne Le Mire, A/Prof David Brown, A/Prof Christopher Symes and Ms Karen Gross, Submission 152, p. 5.

[12]      Dr Suzanne Le Mire et al, Submission 152, p. 6.

[13]      Dr Suzanne Le Mire et al, Submission 152, p. 6.

[14]      Mr Jason Harris, Proof Committee Hansard, 2 April 2014, pp. 25–26.

[15]      Mr Jason Harris, answer to question on notice, no. 8 (received 17 April 2014), p. 1.

[16]      Mr Jason Harris, answer to question on notice, no. 8 (received 17 April 2014), p. 2.

[17]      Mr Jason Harris, Proof Committee Hansard, 2 April 2014, p. 27.

[18]      Insolvency Practitioners Association (now ARITA), Submission 202, p. 5.

[19]      Mr Michael Murray, Legal Director, ARITA, Proof Committee Hansard, 2 April 2014, p. 40.

[20]      Mr David Lombe, President, ARITA, Proof Committee Hansard, 2 April 2014, p. 40.

[21]      Mr David Lombe, President, ARITA, Proof Committee Hansard, 2 April 2014, p. 40.

[22]      Dr Suzanne Le Mire et al, Submission 152, p. 6.

[23]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 14.

[24]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 14.

[25]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 14.

[26]      ASIC, Submission 45.2, p. 36.

[27]      Association of Superannuation Funds of Australia, Submission 155, p. 3.

[28]      State Super Financial Services Australia, Submission 126, p. 1.

[29]      Consumer Credit Legal Centre (NSW) Inc, Submission 194, pp. 3–4.

[30]      Name withheld, Submission 263, p. 5.

[31]      Name withheld, Submission 263, p. 5.

[32]      Mr Jason Harris, Proof Committee Hansard, 2 April 2014, p. 25.

[33]      Commonwealth Ombudsman, Submission 188, p. 13 (footnote omitted).

[34]      ASIC, Annual Report 2012–13, p. 50.

[35]      Corporations and Markets Advisory Committee, Issues in external administration, November 2008, p. 81.

[36]      The website of the UK's financial services regulator, the Financial Conduct Authority, provides clear links to information designed for consumers and information for firms on its homepage.

[37]      For example, consumers are often confused as to which agency has responsibility for financial services consumer protection: ASIC, APRA or the ACCC.

Chapter 23 - Options for encouraging better enforcement outcomes

[1]        Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 3.

[2]        On the maximum penalty of $200,000 available for civil proceedings, Finkelstein J wrote:
'This is despite the fact that a contravention holds great potential for profit and may cause much harm. In a criminal prosecution (and after 13 March 2000 there could be both a civil and criminal prosecution for the same conduct: see s 1317P of the Corporations Law), the maximum penalty was more severe, namely imprisonment for a period not exceeding five years plus a fine not exceeding $200,000'. Australian Securities and Investments Commission v Vizard (2005) 145 FCR 57 at 63–64 [27].

[3]        Dr Suzanne Le Mire, Associate Professor David Brown, Associate Professor Christopher Symes and Ms Karen Gross, Submission 152, pp. 2–3 (footnotes omitted).

[4]        Mr Alex Malley, Chief Executive Officer, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 48.

[5]        ASIC noted that the civil penalties were extended in 2004 to include bodies corporate, with a maximum penalty for a body corporate of $1 million. ASIC, Submission 45.2, p. 169.

[6]        ASIC, Submission 45.2, pp. 169–70.

[7]        ASIC, Submission 45.2, p. 170.

[8]        ASIC, Penalties for corporate wrongdoing, Report 387, March 2014, p. 17. The currency conversion to Australian dollars is based on the daily exchange rate published by the RBA as at 31 December 2013.

[9]        ASIC, 'ASIC reports on penalties for corporate wrongdoing', Media Release, no. 14-055, 20 March 2014; ASIC, Report 387, pp. 16–17.

[10]      ASIC, Submission 45.2, p. 171. For criminal matters, action can be taken under the Proceeds of Crime Act 2002.

[11]      ASIC, Submission 45.2, p. 169.

[12]      Mr John Keeves, Chairman, Business Law Section, Law Council of Australia, Proof Committee Hansard, 20 February 2014, p. 9.

[13]      Professor Justin O'Brien, Proof Committee Hansard, 19 February 2014, p. 61.

[14]      Professor Bob Baxt AO, Proof Committee Hansard, 21 February 2014, pp. 11, 17.

[15]      Section 127 of the ASIC Act also allows for the sharing of confidential information with the minister and specified government officers or bodies, and allows for the ASIC chairman to authorise information sharing with other Commonwealth agencies or the government or agencies of a state, territory or foreign country.

[16]      ASIC has entered into an MOU with: the Australian Charities and Not-for-profit Commission (June 2013); ACCC (December 2004); AFP (October 2013); APRA (May 2010); ASX (October 2011); ATO (May 2007); Chi-X Australia Pty Limited (October 2011); Clean Energy Regulator (1 June 2012); CDPP (September 1992); Financial Reporting Council (June 2004); Private Health Insurance Administration Council (October 2011); Members of the Council of Financial Regulators (joint MOU agreed to September 2008); and the RBA (March 2002). ASIC is also a party to the MOU on Standard Business Reporting (an MOU between various Commonwealth, state and territory departments and agencies). ASIC, www.asic.gov.au (accessed 19 September 2013).

[17]      ASIC has entered into a multilateral memorandum of understanding with IOSCO and bilateral agreements with the European Securities and Markets Authority and the securities regulatory agencies, companies registrar and/or auditing oversight bodies of 51 countries and dependent territories. See www.asic.gov.au/asic/ASIC.NSF/byHeadline/OIR%20-%20Memorandum%
20of%20Understandings.

[18]      Mr Chris Savundra, Senior Executive Leader, Markets Enforcement, ASIC, Proof Committee Hansard, 19 February 2014, p. 11.

[19]      The bribery of foreign public officials is made an offence by division 70 of the Commonwealth Criminal Code. As with other offences in the Criminal Code, extensions of criminal responsibility such as attempts to commit an office apply (division 11), as does corporate criminal responsibility (division 12).

[20]      Australian Securities and Investments Commission v Healey (2011) 196 FCR 291.

[21]      Greg Medcraft, 'Setting the record straight: ASIC, bribery and enforcement action', Address to the AmCham Business Leaders Lunch, 11 October 2013, www.asic.gov.au (accessed 14 October 2013), p. 4. The third principle expressed in the Centro decision relates to accounting knowledge.

[22]      ASIC, 'Statement on Securency International and Note Printing Australia', Media Release, no. 12-47, 12 March 2012.

[23]      ASIC, 'ASIC's response to ABC TV's Four Corners' questions', 30 September 2013, http://abc.net.au/4corners/documents/RBA2013/ASIC_response.pdf (accessed 1 October 2013), p. 1.

[24]      ASIC, 'ASIC clarification – 1 October 2013' www.asic.gov.au/asic/asic.nsf/byheadline/
ASIC+clarification+–1+October+2013?openDocument (accessed 2 October 2013).

[25]      Greg Medcraft, ABC Lateline, 11 October 2013, www.abc.net.au/lateline/content/2013/
s3867665.htm (accessed 14 October 2013).

[26]      Leighton Holdings, 'Leighton cooperating fully with AFP on possible breach of Code of Ethics', Media Release, 13 February 2012.

[27]      Nick McKenzie and Richard Baker, 'Wal King "approved Iraq bribe"', Australian Financial Review, 3 October 2013, p. 1.

[28]      Leighton Holdings, 'Response to allegations in newspaper articles in Fairfax media', Media Release, 3 October 2013, p. 1.

[29]      See, for example, Malcolm Maiden, 'ASIC must act fast on graft claims', Sydney Morning Herald, 4 October 2013, p. 28.

[30]      OECD, Phase 3 Report on implementing the OECD Anti-Bribery Convention in Australia, October 2012, www.oecd.org/daf/anti-bribery/Australiaphase3reportEN.pdf (accessed 4 October 2013), p. 5.

[31]      OECD, Phase 3 Report on implementing the OECD Anti-Bribery Convention in Australia, p. 26. However, ASIC observed that the report did not provide evidence of miscommunication. See Mr Greg Medcraft, ASIC, Senate Economics Legislation Committee Hansard, Estimates, 20 November 2013, p. 25.

[32]      OECD, Phase 3 Report on implementing the OECD Anti-Bribery Convention in Australia, p. 26.

[33]      OECD, Phase 3 Report on implementing the OECD Anti-Bribery Convention in Australia, pp. 5, 20.

[34]      Dr Kath Hall, Submission 123, p. 1.

[35]      Greg Medcraft, 'Setting the record straight: ASIC, bribery and enforcement action', Address to the AmCham Business Leaders Lunch, 11 October 2013, www.asic.gov.au (accessed 14 October 2013), p. 4.

[36]      Greg Medcraft, 'Setting the record straight', p. 3.

[37]      Greg Medcraft, 'Setting the record straight', p. 5.

[38]      Greg Medcraft, 'Setting the record straight', p. 6.

[39]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 13.

[40]      Although the proposal was generally not specifically raised in written submissions, in its submission the Governance Institute of Australia presented the committee with a list of several options that could be considered further to increase the efficacy of white collar crime investigations and prosecutions. One of these options was the formation of a separate prosecutorial body dedicated to pursuing white collar crime. Governance Institute of Australia, Submission 137, p. 5.

[41]      Mr Greg Tanzer, Commissioner, ASIC, Proof Committee Hansard, 19 February 2014, p. 12.

[42]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 13.

[43]      Mr Chris Savundra, ASIC, Proof Committee Hansard, 19 February 2014, p. 39.

[44]      Professor Dimity Kingsford Smith, Proof Committee Hansard, 19 February 2014, p. 57.

[45]      Professor Justin O'Brien, Proof Committee Hansard, 19 February 2014, p. 56.

[46]      Professor Justin O'Brien, Proof Committee Hansard, 19 February 2014, p. 56.

[47]      Justice Mark Weinberg, 'Some Recent Developments in Corporate Regulation – ASIC from a Judicial Perspective', Paper presented to the Monash University Law School Commercial CPD Seminar, Melbourne, 16 October 2013, http://assets.justice.vic.gov.au/scv/resources/8ba39daa-0868-4e5f-b9ef-8bd2469ae95a/recentdecorpregcpdseminar.pdf (accessed 15 April 2014), p. 2.

[48]      Treasury, Review of the Trio Capital Fraud and Assessment of the Regulatory Framework, 2013, p. 9.

Chapter 24 - Financial advisers and planners

[1]        ASIC, Submission 45.2, p. 142.

[2]        ASIC, Submission 45.2, p. 153.

[3]        ASIC, Submission 45.2, p. 154.

[4]        ASIC, Submission 45.2, p. 154.

[5]        ASIC, Submission 45.2, p. 154.

[6]        ASIC, Submission 45.2, p. 155.

[7]        Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, pp. 15–16.

[8]        Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 16.

[9]        Professor Dimity Kingsford Smith, Proof Committee Hansard, 19 February 2014, p. 59.

[10]      Mr Mark Rantall, Chief Executive Officer, Financial Planning Association, Proof Committee Hansard, 19 February 2014, p. 69.

[11]      Mr Alex Malley, Chief Executive Officer, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 43.

[12]      Mr Alex Malley, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 44.

[13]      Financial Planning Association, The Future of the Financial Planning Profession: White Paper of the Financial Planning Association of Australia, May 2014, http://fpa.asn.au, p. 3.

[14]      Financial Planning Association, The Future of the Financial Planning Profession: White Paper of the Financial Planning Association of Australia, May 2014, p. 4.

[15]      Mr Mark Rantall, Financial Planning Association, Proof Committee Hansard, 19 February 2014, p. 70.

[16]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 16.

[17]      Mr Greg Medcraft, Chairman; Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 16.

[18]      Or did not agree to provide feedback at all—ASIC noted that this is 'sometimes out of apprehension of liability for making defamatory statements'. ASIC, Submission 45.2, p. 156.

[19]      ASIC, Submission 45.2, p. 158.

[20]      ASIC, Submission 45.2, p. 159.

[21]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 15.

[22]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 16.

[23]      CBA, Submission 261, p. 16. As another example, Mr Mark Rantall of the Financial Planning Association stated that 'We think that having a register of advisers is important—there is not one at the moment...' Mr Mark Rantall, Chief Executive Officer, Financial Planning Association, Proof Committee Hansard, 19 February 2014, p. 69.

[24]      Financial Planning Association, Submission 234, p. 31.

[25]      Financial Planning Association, Submission 234, pp. 33, 35–37.

[26]      Financial Planning Association, Submission 234, p. 8.

[27]      Financial Planning Association, Submission 234, p. 14.

[28]      Financial Planning Association, Submission 234, pp. 14–15.

[29]      Financial Planning Association, The Future of the Financial Planning Profession: White Paper of the Financial Planning Association of Australia, May 2014, p. 4.

[30]      Replacement Explanatory Memorandum, Corporations Amendment (Simple Corporate Bonds and Other Measures) Bill 2013, paragraph 2.9.

[31]      Replacement Explanatory Memorandum, Corporations Amendment (Simple Corporate Bonds and Other Measures) Bill 2013, paragraphs 2.8, 2.11.

[32]      ASIC, Submission 45.2, pp. 164–65.

[33]      ASIC Submission 378 to the PJCCFS Inquiry into Financial Products and Services in Australia, August 2009, p. 24.

[34]      The Hon Chris Bowen MP (Minister for Financial Services, Superannuation and Corporate Law), 'Overhaul of Financial Advice', Media Release, no. 36 of 2010, 26 April 2010.

[35]      Revised Explanatory Memorandum, Corporations Amendment (Future of Financial Advice) Bill 2012, paragraph 1.26.

[36]      Revised Explanatory Memorandum, Corporations Amendment (Future of Financial Advice) Bill 2012, paragraph 1.28.

[37]      ASIC, Submission 45.2, pp. 165–66.

[38]      ASIC, Submission 45.2, p. 166.

[39]      According to ASIC, this 'would place the onus on applicants to provide ASIC with sufficient material to satisfy us that they will have appropriate people, systems and resources at their disposal in order to ensure that they will provide financial services or credit services efficiently, honestly and fairly, and otherwise comply with their obligations as licensees. This change would provide greater facility to ASIC to refuse applicants where these elements of the business are not up to standard...' ASIC, Submission 45.2, p. 166.

[40]      ASIC noted that an alternative drafting approach would be to include a catch-all discretion under the 'must grant a licence' requirement, such as 'ASIC must grant a licence if the following conditions are met...unless there is any other reason which in ASIC's reasonable opinion justifies the refusal of the application'. ASIC, Submission 45.2, p. 166.

[41]      ASIC, Submission 45.2, p. 118.

[42]      Ocean Financial Pty Ltd, Submission 248, p. 2.

[43]      Ocean Financial Pty Ltd, Submission 248, p. 2.

[44]      Mr Greg Kirk, Senior Executive Leader, Strategy Group, ASIC, Proof Committee Hansard, 19 February 2014, p. 19.

[45]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 19.

[46]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 19.

[47]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 56.

[48]      Financial Planning Association, The Future of the Financial Planning Profession: White Paper of the Financial Planning Association of Australia, May 2014, p. 19.

[49]      PJCCFS Committee Hansard, 22 June 2012, p. 8.

[50]      PJCCFS Committee Hansard, 22 June 2012, p. 7.

[51]      Professor Dimity Kingsford Smith, Submission 153, p. 8.

[52]      ASIC, Submission 45.2, p. 160 and answer to question on notice, no. 12 (received 21 May 2014), p. 13.

[53]      ASIC, Submission 45.2, p. 160.

[54]      Mr Mark Rantall, Financial Planning Association, Proof Committee Hansard, 19 February 2014, p. 69.

Chapter 25 - ASIC's responsibilities and funding: problems with the current framework and suggested changes

[1]        See Appendix 4 for a timeline of changes to ASIC's responsibilities.

[2]        ASIC, Submission 45.2, p. 11.

[3]        International Monetary Fund, Australia: Financial System Stability Assessment, IMF Country Report, no. 12/308, November 2012, pp. 25–26.

[4]        Mr Jason Harris, Submission 116, p. 1.

[5]        Professor Dimity Kingsford Smith, Submission 153, p. 5.

[6]        Governance Institute of Australia, Submission 137, p. 6.

[7]        Mr Bruce Dyer, Member, Corporations Committee, Business Law Section, Law Council of Australia, Proof Committee Hansard, 20 February 2014, p. 6.

[8]        Australian Institute of Company Directors, Submission 119, p. 2.

[9]        Industry Super Australia, Submission 201, p. 12.

[10]      Name withheld, Submission 135, p. 1.

[11]      Levitt Robinson Solicitors, which criticised various aspects of ASIC, noted that ASIC was second only to the ATO in expenditure on legal fees, with $300 million spent by ASIC between 2008 and 2012. The figures are based on the Attorney‑General's Department's Legal Services Expenditure Report 2011–2012. Levitt Robinson Solicitors, Submission 276, p. 11.

[12]      Mr Alex Malley, Chief Executive Officer, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 46.

[13]      Mr Lee White, Chief Executive Officer, Institute of Chartered Accountants Australia, Proof Committee Hansard, 19 February 2014, p. 46. In its submission, the ICAA argued that 'there are many examples where ASIC initiates a specific regulatory program that targets particular areas of focus in the marketplace, but then continues to allocate resources to the same program even when many would argue that the impact (or relevance) in the marketplace of the work that continues to be done has significantly diminished'. The ICAA used ASIC's accounts surveillance program as an example; in the ICAA's view that program 'was initially very effective in lifting the standard of financial reporting in Australia. However, many stakeholders in the capital markets would question whether ASIC's work continues to have a major impact on the quality of financial information in the marketplace, given that many of ASIC's initial objectives have now been met'. Submission 203, p. 3.

[14]      Mr Alistair Waters, CPSU, Proof Committee Hansard, 19 February 2014, pp. 63–64.

[15]      Professor Bob Baxt AO, Submission 189, pp. 6–7.

[16]      Professor Bob Baxt AO, Submission 189, pp. 6–7.

[17]      US Securities and Exchange Commission, FY 2014 Congressional Budget Justification, www.sec.gov/about/reports/secfy14congbudgjust.pdf, p. 4 (accessed 19 September 2013).

[18]      US Securities and Exchange Commission, FY 2014 Congressional Budget Justification, p. 6.

[19]      US Securities and Exchange Commission, In Brief: FY 2013 Congressional Justification, www.sec.gov/about/secfy13congbudgjust.pdf, p. 2 (accessed 19 September 2013).

[20]      Dr George Gilligan, Proof Committee Hansard, 19 February 2014, p. 52.

[21]      Governance Institute of Australia, Submission 137, p. 6.

[22]      Stuart Washington, 'ASICs powers put to the test', The Age, 5 June 2010, p. 4.

[23]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, pp. 33–34.

[24]      The registers for business names and SMSF auditors.

[25]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 38.

[26]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, pp. 33–34.

[27]      Name withheld, Submission 263, pp. 3, 8.

[28]      See Mr Jeffrey Knapp, Submission 274, pp. 3, 6, 8 and 9.

[29]      Governance Institute of Australia, Submission 137, p. 6.

[30]      Mr Alistair Waters, CPSU, Proof Committee Hansard, 19 February 2014, p. 64.

[31]      Mr Jason Harris, answer to question on notice, no. 8 (received 17 April 2014), p. 4.

[32]      Australian Government, 2014–15 Budget—Budget Paper No. 2, May 2014, p. 117.

[33]      Governance Institute of Australia, Submission 137, p. 6.

[34]      Mr Alex Malley, CPA Australia, Proof Committee Hansard, 19 February 2014, p. 51.

[35]      Proof Committee Hansard, 19 February 2014, p. 55.

[36]      Professor Justin O'Brien, Proof Committee Hansard, 19 February 2014, pp. 55–56.

[37]      For example, see Submissions 51.1, p. 1; 199, p. 1; 254, p. 1; 351, p. [3].

[38]      Mr James Wheeldon, Proof Committee Hansard, 2 April 2014, p. 23.

[39]      Financial System Inquiry, Final Report, March 1997, p. 244.

[40]      A research paper produced soon after the Wallis Inquiry report was released surveyed the arguments opposing some of the key conclusions and recommendations. See Phil Hanratty, 'The Wallis Report on the Australian Financial System: Summary and Critique', Parliamentary Library Research Paper, no. 16 1996–97, www.aph.gov.au/About_Parliament/Parliamentary_
Departments/Parliamentary_Library/pubs/rp/RP9697/97rp16 (accessed 20 August 2013) (footnotes omitted).

[41]      Productivity Commission, Review of Australia's Consumer Policy Framework, vol. 1, report no. 45 (30 April 2008), p. 24.

[42]      Allan Fels and Fred Benchley, 'Consumer watchdog tipped to get more bite as Rudd revolution gains pace', The Age, 5 April 2008, p. 2.

[43]      Fels and Benchley, 'Consumer watchdog tipped to get more bite as Rudd revolution gains pace', p. 2; 'Rudd's consumer activism over the top', Sydney Morning Herald, 21 March 2009, p. 4.

[44]      Monash Business Policy Forum, Agenda for National Competition Policy Inquiry (2013), November 2013, www.buseco.monash.edu.au/mbpf/agenda.pdf (accessed 21 November 2013), p. 18.

[45]      On 1 April 2014, responsibility for the regulation of consumer credit was transferred from the Office of Fair Trading, the UK's general consumer protection regulator, to the Financial Conduct Authority. Further, in the US, the creation of the CFPB consolidated the administration of federal consumer financial protection laws, a responsibility previously shared by various agencies such as the Federal Trade Commission.

[46]      As required by section 81 of the Constitution.

[47]      Operators of domestic licensed financial markets regulated by ASIC and some market participants are subject to an annual levy. Levies collected by the APRA and the ATO also cover some of the costs of ASIC. See APRA, Annual Report 2013, p. 81; Treasury, Submission 154, p. 4.

[48]      Treasury, Submission 154, p. 4.

[49]      For example, see Industry Super Australia, Submission 201, p. 11.

[50]      Treasury, Submission 154, p. 4.

[51]      The fees collected by the US SEC offset the appropriation it receives, and in recent years total fees have been a similar amount to the funding the SEC receives through appropriations resulting in most appropriated funds being returned. US SEC, Fiscal Year 2012 Agency Financial Report, November 2012, www.sec.gov/about/secpar/secafr2012.pdf (accessed 18 September 2013), p. 36.

[52]      The CFPB can also request from Congress discretionary appropriations if the amount received from the Federal Reserve is insufficient, however, it has not yet needed to make such a request. See US CFPB, Fiscal Year 2013: CFPB budget in brief, http://files.consumerfinance.gov/f/20
12/02/budget-in-brief.pdf (accessed 19 September 2013), p. 1.

[53]      These funding arrangements have been criticised by some members of Congress: see US House of Representatives Committee on Financial Services, 'CFPB Lacks Oversight and Accountability', Media Release, 18 June 2013, http://financialservices.house.gov/news/
documentsingle.aspx?DocumentID=339512 (accessed 19 September 2013).

[54]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 29.

[55]      The estimated amount required to fund the FCA's budgeted costs for the year ending 31 March 2014 is £432.1m which is the figure used when determining the fees that will be charged. FCA, Business Plan 2013/14, www.fca.org.uk/static/documents/business-plan/bp-2013-14.pdf, pp. 53, 55 (accessed 17 September 2013). The New Zealand Financial Markets Authority is funded by a mixture of cost recovery fees and direct government funding. NZ Financial Markets Authority, 'How we are funded', www.fma.govt.nz/about-us/who-we-are/how-we-are-funded (accessed 24 March 2014).

[56]      See Proof Committee Hansard, 19 February 2014, p. 33 and ASIC, Submission 45.7, p. 8.

[57]      Professor Justin O'Brien, Proof Committee Hansard, 19 February 2014, p. 53.

[58]      Ms Robbie Campo, Deputy Chief Executive, Industry Super Australia, Proof Committee Hansard, 20 February 2014, p. 32.

[59]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, pp. 29, 30.

[60]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, pp. 31–32.

[61]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 33.

[62]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 29.

[63]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, pp. 31–32.

[64]      ASIC, Submission 45.7, p. 4.

[65]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 32.

[66]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 31.

[67]      For example, ASIC envisaged that for financial advisers, the cost of regulatory activities would be recovered 'as part of an AFS licence sector levy based on the size of financial adviser groups as determined by the number of authorised and employee representatives. Tiered models would be used to distribute the industry levy between industry participants'. ASIC, Submission 45.7, pp. 6–7.

[68]      Dr Suzanne Le Mire, Proof Committee Hansard, 19 February 2014, p. 53.

[69]      Dr George Gilligan, Proof Committee Hansard, 19 February 2014, p. 52.

[70]      Professor Dimity Kingsford Smith, Proof Committee Hansard, 19 February 2014, p. 53.

Chapter 26 - Accountability and governance structure

[1]        Professor Dimity Kingsford Smith, Submission 153, p. 11.

[2]        Currently, the Assistant Treasurer is responsible for the administration of ASIC.

[3]        ASIC's chairperson, deputy chairperson and commissioners are appointed by the Governor‑General on the advice of the minister: Australian Securities and Investments Commission Act 2001, ss. 9, 10.

[4]        The excluded provisions are section 12A and division 2 of part 2 of the ASIC Act. Section 12A outlines ASIC's other functions and powers, including ASIC's functions and powers under legislation other than the ASIC Act and the Corporations Act (e.g. the Insurance Contracts Act 1984) and its monitoring and promoting market integrity and consumer protection functions in relation to the Australian financial system and the payments system. Division 2 of part 2 deals with unconscionable conduct and consumer protection in relation to financial services. Australian Securities and Investments Commission Act 2001, s. 5.

[5]        Australian Securities and Investments Commission Act 2001, ss. 11(2)(b), 12A(5).

[6]        Section 12 directions relate to policies that ASIC should pursue or priorities it should follow in performing or exercising any of its functions or powers under the corporations legislation (other than the excluded provisions). Section 14 directions may be given where, in the minister's opinion, it is in the public interest that particular matters be investigated (although the minister cannot give a direction about a particular case). See Australian Securities and Investments Commission Act 2001, s. 14(2). Only one ministerial direction has been given to ASIC—in 1992 a direction was given regarding collaboration and consultation between ASIC and the CDPP. International Monetary Fund, Australia: IOSCO Objectives and Principles of Securities Regulation—Detailed Assessment of Implementation, IMF Country Report, no. 12/314, November 2012, p. 33; Australian Government, 'Statement of Expectations for the Australian Securities and Investments Commission', 20 February 2007, p. [5].

[7]        On 1 July 2014, the Public Governance, Performance and Accountability Act 2013 will replace the FMA Act.

[8]        Financial Management and Accountability Act 1997, s. 44.

[9]        Financial Management and Accountability Act 1997, s. 44A.

[10]      In its submission, the ANAO outlined the financial and performance audits of ASIC it has undertaken, advising that ASIC has been involved in seven performance audits since 2005 (five were cross-agency and two related specifically to ASIC). The ANAO is currently conducting a performance audit of the administration of the business name register which includes ASIC and will be tabled in late 2013–14. ANAO, Submission 114, p. 2.

[11]      In a submission to a parliamentary committee considering the Australian Securities Commission Bill 1988, the National Companies and Securities Commission (NCSC), which was subsequently replaced by the ASC and then ASIC, advised that 'the main rationale for making specific statutory provision for such a Parliamentary Committee can be found in the extensive nature of the legislation, the established need for frequent amendment of it, the powers of the ASC to modify or suspend the impact of the legislation on individuals or classes and the implications of the adjudicative decisions of these bodies so far as future legislation is concerned'. Joint Select Committee on Corporations Legislation, Report, April 1989, p. 71.

[12]      Joint Select Committee on Corporations Legislation, Report, April 1989, Parliamentary Paper No. 117/1989, p. 72.

[13]      Australian Securities and Investments Commission Act 2001, s. 243(a)(i) and (b).

[14]      In recent years, ASIC has been called up to four times a year to give evidence.

[15]      The Takeovers Panel may review decision made by ASIC to exempt a person from the provisions of chapter 6 of the Corporations Act, or modify the application of that chapter to that person. During a takeover bid, the Takeovers Panel may also consider decisions by ASIC under chapter 6C. Chapter 6 contains the takeover provisions of the Corporations Act and chapter 6C requires information to be provided about the ownership of listed companies and managed investment schemes. ASIC's regulatory guidance states that the discretionary power is intended to address cases where a proposed acquisition does not fall within the terms of the exceptions already provided for in the Corporations Act. ASIC, Takeovers: Exceptions to the general prohibition, Regulatory Guide 6, June 2013, p. 7.

[16]      Appendix F of the Legal Services Directions 2005 specifies that an FMA Act agency may use only approved providers of Commonwealth legal work. The approved list (the Legal Services Multi-use List), of external legal providers is determined by the Office of Legal Services Coordination within the Attorney-General's Department.

[17]      These are outlined in sections 10 and 13 of the Public Service Act 1999. Under section 14, agency heads and statutory office holders (subject to any regulations) are bound by the code of conduct in the same way as APS employees.

[18]      See Parliamentary Joint Committee on the Australian Commission for Law Enforcement, 'Inquiry into the jurisdiction of the Australian Commission for Law Enforcement Integrity: Terms of Reference', www.aph.gov.au/Parliamentary_Business/Committees/Joint/Australian_
Commission_for_Law_Enforcement_Integrity/Jurisdiction_of_ACLEI/Terms_of_Reference (accessed 11 March 2014).

[19]      Parliamentary Joint Committee on Law Enforcement, Inquiry into the gathering and use of criminal intelligence, May 2013, Parliamentary Paper No. 119/2013, p. 93.

[20]      Mr Stephen Tyrrell, Submission 179, p. 1.

[21]      Dr Evan Jones, Submission 295, p. 5 (footnote omitted).

[22]      Mr Adrian Cox, Submission 91.3, p. 4.

[23]      Association of Financial Advisers, Submission 117, p. 2.

[24]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 150, p. 7.

[25]      Australian Shareholders' Association, Submission 151, p. 1.

[26]      Dr Marina Nehme, Submission 140, p. 9.

[27]      ASIC, Submission 45.2, p. 57.

[28]      Dr Marina Nehme, Submission 140, p. 9; CPA Australia, Submission 209, p. 1.

[29]      CPA Australia, Submission 209, pp. 1–2.

[30]      The April 2014 statement of expectations can be viewed here: www.asic.gov.au/asic/asic.nsf/
byheadline/Statement-of-expectations--April-2014?openDocument.

[31]      ASIC, Submission 45.2, p. 14.

[32]      ASIC, Submission 45.2, p. 14.

[33]      ASIC, Annual Report 2012–13, p. 142.

[34]      Internal bodies include the Enforcement Committee, Emerging Risk Committee and the Regulatory Policy Group. External bodies include the External Advisory Panel, Consumer Advisory Panel, ASIC's Audit Committee, Market Supervision Advisory Panel and the Registry and Licensing Business Advisory Committee. The external panels were discussed in Chapter 19. ASIC, Submission 45.2, p. 58; 'ASIC External Advisory Panel: Purpose, Governance and Practices Summary, March 2012', www.asic.gov.au (accessed 8 July 2013).

[35]      Australian Securities and Investments Commission Act 2001, ss. 123, 124.

[36]      See www.accc.gov.au/system/files/Code%20of%20Conduct%20for%20Commission%20
Members%20and%20Associate%20Members%202012.pdf.

[37]      ACCC, 'Decision making processes', www.accc.gov.au/about-us/australian-competition-consumer-commission/decision-making-processes (accessed 23 April 2014).

[38]      See Mr Rod Sims, Chairman, ACCC, Senate Economics Legislation Committee Hansard, Estimates, 26 February 2014, p. 74.

[39]      APRA, 'APRA's governance', www.apra.gov.au/AboutAPRA/Pages/Governance.aspx (accessed 23 April 2014).

[40]      Demonstrating this, the committee received several submissions opposed to the composition of the boards that govern FOS and COSL because the boards include directors with financial services industry backgrounds. For example, see Submission 26.

[41]      Mr and Mrs Neil and Deb Toplis, Submission 6.1, p. 1.

[42]      Levitt Robinson Solicitors, Submission 276, p. 1.

[43]      Professor Dimity Kingsford Smith, Submission 153, p. 5.

[44]      Professor Dimity Kingsford Smith, Submission 153, p. 5.

[45]      Mr Douglas Gration, Director, Governance Institute of Australia, Proof Committee Hansard, 10 April 2014, p. 64.

[46]      Mr Douglas Gration, Proof Committee Hansard, 10 April 2014, p. 64.

[47]      Mr Douglas Gration, Proof Committee Hansard, 10 April 2014, p. 64.

[48]      Dr Stuart Fysh, Proof Committee Hansard, 2 April 2014, p. 4.

[49]      Dr Stuart Fysh, Proof Committee Hansard, 2 April 2014, pp. 3–4.

[50]      Dr Stuart Fysh, Proof Committee Hansard, 2 April 2014, p. 5.

[51]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 10 April 2014, p. 89.

[52]      Mr Greg Tanzer, Commissioner, ASIC, Proof Committee Hansard, 10 April 2014, p. 89.

[53]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 33.

Chapter 27 - Unresolved matters

[1]        Consumer Action Law Centre, Submission 120, p. 7.

[2]        Financial Planning Association of Australia, Submission 234, p. 26.

[3]        Australian Shareholders' Association, Submission 151, p. 2.

[4]        Australian Shareholders' Association, Submission 151, p. 2.

[5]        Mr David Haynes, Executive Manager, Policy and Research, Australian Institute of Superannuation Trustees, Proof Committee Hansard, 20 February 2014, p. 25.

[6]        Mr David Haynes, Proof Committee Hansard, 20 February 2014, p. 35.

[7]        Mrs Karen Cox, Coordinator, Consumer Credit Legal Centre (NSW) Inc, Proof Committee Hansard, 20 February 2014, p. 41.

[8]        Mrs Karen Cox, Proof Committee Hansard, 20 February 2014, p. 40.

[9]        Mr Gerard Brody, Chief Executive Officer, Consumer Action Law Centre, Proof Committee Hansard, 20 February 2014, p. 41.

[10]      Proof Committee Hansard, 20 February 2014, p. 41.

[11]      Submission 120, p. 8.

[12]      Dimity Kingsford Smith, 'ASIC regulation for the investor as consumer', Company and Securities Law Journal 29:5 (2011), p. 336.

[13]      Dimity Kingsford Smith, 'ASIC regulation for the investor as consumer', p. 336.

[14]      Professor Dimity Kingsford Smith, Submission 153, p. 8.

[15]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 150, p. 4.

[16]      Rule of Law Institute of Australia, Submission 211, p. 7.

[17]      Submission 234, p. 31.

[18]      Mr Richard St. John, Compensation arrangements for consumers of financial services, April 2012, p. 104.

[19]      Mr Richard St. John, Compensation arrangements for consumers of financial services, p. 104.

[20]      Mr Richard St. John, Compensation arrangements for consumers of financial services, p. 123.

[21]      Mr Richard St. John, Compensation arrangements for consumers of financial services,
pp. 113–14.

[22]      Proof Committee Hansard, 19 February 2014, p. 36.

[23]      Thomson Reuters, Special Report: ASIC: The Outlook for Enforcement 2012–13, p. 10.

[24]      Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 19.

[25]      Rules could apply to specific products, or a class of products, and may remain in place for 12 months. ASIC, Submission 45.2, pp. 55–56.

[26]      ASIC, Submission 45.2, p. 56.

[27]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 11.

[28]      Mr Richard St. John, Compensation arrangements for consumers of financial services, April 2012, p. 104.

[29]      Professor Dimity Kingsford Smith, Submission 153, p. 8.

[30]      Professor Dimity Kingsford Smith, Submission 153, p. 19.

[31]      Ms Joanna Bird, Senior Executive Leader, Financial Advisers, ASIC, Proof Committee Hansard, 10 April 2014, p. 97.

[32]      Stockbrokers Association of Australia, Submission 4 to the Senate Economics Legislation Committee's Inquiry into the Corporations Amendment (Streamlining of Future of Financial Advice) Bill 2014 [Provisions], p. 4.

[33]      ASIC, answer to question on notice, no. 12 (received 21 May 2014), p. 12.

[34]      Senate Economics References Committee, The regulation, registration and remuneration of insolvency practitioners in Australia: the case for a new framework, September 2010, Parliamentary Paper No. 179/2010,.

[35]      Dorman Investments Pty Ltd, Submission 246, p. [1].

[36]      Susan Bell Research, ASIC Stakeholder Survey 2013: Report to the Australian Securities and Investments Commission, September 2013, www.asic.gov.au (accessed 7 May 2014),
pp. 47–48.

[37]      Susan Bell Research, ASIC Stakeholder Survey 2013, p. 53.

[38]      ASIC, Submission 45.2, p. 43.

[39]      ASIC, Submission 45.2, pp. 29, 43, 119–120.

[40]      Insolvency Practitioners Association (now ARITA), Submission 202, p. 2.

[41]      KordaMentha, response to Submission 276, correspondence to the committee dated 10 December 2013, p. 2.

[42]      Chapter 11 refers to chapter 11 of the United States Bankruptcy Code, which provides for the reorganisation of a corporation or partnership.

[43]      Levitt Robinson Solicitors, Submission 276, p. 1.

[44]      Mr Lombe explained that ipso facto clauses in contracts can 'cause the liquidator or the voluntary administrator to lose the power to have a lease in respect of a store or a property, which then means that you cannot sell the business or restructure it'.

[45]      Mr David Lombe, President, ARITA, Proof Committee Hansard, 2 April 2014, p. 31.

[46]      Mr Greg Medcraft, Chairman, ASIC, Senate Economics Legislation Committee Hansard, Estimates, 26 February 2014, p. 30.

[47]      Mr Greg Medcraft, Chairman, ASIC, Senate Economics Legislation Committee Hansard, Estimates, 26 February 2014, p. 30.

[48]      Mr David Lombe, President, ARITA, Proof Committee Hansard, 2 April 2014, p. 32.

[49]      Mr David Lombe, President; Mr Michael Murray, Legal Director, ARITA, Proof Committee Hansard, 2 April 2014, p. 32.

[50]      Mr David Lombe, President, ARITA, Proof Committee Hansard, 2 April 2014, p. 32.

[51]      Insolvency Practitioners Association (now ARITA), Submission 202, p. 3.

[52]      Mr Greg Medcraft, Chairman, ASIC, Senate Economics Legislation Committee Hansard, Estimates, 26 February 2014, p. 31.

[53]      Mr Ian Painter, Submission 167, p. 1.

[54]      Mr Adrian Cox, Submission 91, p. 3.

[55]      Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 10 April 2014, p. 99.

[56]      Mr Tim Mullaly, Senior Executive Leader, Financial Services Enforcement, ASIC, Proof Committee Hansard, 10 April 2014, pp. 100–01.

[57]      Mr Peter Kell, ASIC, Proof Committee Hansard, 10 April 2014, p. 101.

[58]      Mr Adrian Cox, Submission 91, p. 6.

[59]      Mr Ian Painter, Submission 167, p. 3.

[60]      ASIC, answer to question on notice, no. 11, received 21 May 2014, p. 16.

[61]      Mr Ian Painter, Submission 167, p. 8.

Chapter 28 - Concluding comments

[1]        Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 10 April 2014, p. 67.

Additional Comments (Dissenting Report) by Deputy Chair, Senator David Bushby

[1]        Financial System Inquiry, http://fsi.gov.au/terms-of-reference/ (accessed 23 June 2014).

[2]        Financial System Inquiry, http://fsi.gov.au/terms-of-reference/ (accessed 23 June 2014).

[3]        Mr Greg Medcraft, Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 2.

[4]        Mr Peter Kell, Deputy Chairman, ASIC, Proof Committee Hansard, 19 February 2014, p. 25.

[5]        Commonwealth Bank of Australia Group, Submission 261, p. 4.

[6]        Commonwealth Bank of Australia Group, Submission 261, p. 9.

Additional Comments by the Australian Greens

[1]        ASIC, 'ASIC reports on penalties for corporate wrongdoing', Media Release, no. 14-055, 20 March 2014; ASIC, Report 387, pp. 16–17.

Appendix 5 - Key enforcement matters

[1]        Some particularly noteworthy historical cases outside this timeframe include: ASIC's investigation into the 2001 collapse of One.Tel and its unsuccessful court proceedings against One.Tel's former joint managing director, Mr Jodee Rich, and its former finance director, Mr Mark Silbermann; the action against Mr Rodney Adler (a former director of collapsed insurer HIH); and ASIC's unsuccessful insider trading case against Citigroup.

[2]        Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345. ASIC had considered criminal proceedings, however, it concluded that there was an insufficient basis to commence any criminal proceedings against non-executive directors, and the CDPP decided that there was an insufficient basis to commence criminal proceedings against other individuals. ASIC, 'James Hardie Group civil action', Media Release, no. 08-201, 5 September 2008.

[3]        Market announcements claimed that the compensation fund would be fully funded.

[4]        ASIC, 'Decision in James Hardie penalty proceedings', Media Release, no. 12-275, 13 November 2012.

[5]        Terence RH Cole, Report of the Inquiry into certain Australian companies in relation to the UN Oil-for-Food Programme, vol. 1, November 2006, pp. xi, lxxxi.

[6]        AFP, 'AWB Task Force investigation', Media Release, 28 August 2009.

[7]        ASIC, 'ASIC's response to ABC TV's Four Corners' questions', 30 September 2013, http://abc.net.au/4corners/documents/RBA2013/ASIC_response.pdf (accessed 1 October 2013), p. 1.

[8]        A relevant extract from the media release is as follows: 'Investigations into civil penalty proceedings was given more priority by ASIC because of the statute of limitation periods which apply to those actions and which do not apply to possible criminal proceedings (which investigations by ASIC continue). Commissioner Cole examined 27 contracts between AWB and the Iraqi Grain Board (IGB). The Corporations Act limits the time for the commencement of civil penalty proceedings to six years. The time limit had expired for 20 of the contracts when the Cole Inquiry concluded in November 2006 and two expired in February and June 2007'. ASIC, 'ASIC launches civil penalty action against former officers of AWB', Media Release, no. 07-332, 19 December 2007.

[9]        ASIC successfully appealed the amount of the penalty imposed on Mr Ingleby by the Supreme Court of Victoria. ASIC and Mr Ingleby had recommended penalties of a disqualification of 15 months and a pecuniary penalty of $40,000, however, Justice Robson set the pecuniary penalty at $10,000. On appeal, the Court of Appeal increased the penalty to $40,000. See ASIC, 'ASIC to appeal permanent stay on second AWB case', Media Release, no. 09-260, 17 December 2009; and ASIC, 'ASIC appeal upheld', Media Release, no. 13-055, 19 March 2013.

[10]      ASIC, 'Update on ASIC's proceedings against former directors and officers of AWB Limited', Media Release, no. 13-363, 23 December 2013.

[11]      Australian Securities and Investments Commission v Healey (2011) 196 FCR 291 at 297 [9].

[12]      Australian Securities and Investments Commission v Healey (2011) 196 FCR 291.

[13]      Australian Securities and Investments Commission v Healey (No 2) (2011) 196 FCR 430 at 433 [3]–[5].

[14]      ASIC, 'Former Centro auditor suspended', Media Release, no. 12-288, 19 November 2012.

[15]      Kirby v Centro Properties Ltd (No 6) [2012] FCA 650 (19 June 2012).

[16]      Tony D'Aloisio, 'Responding to the global financial crisis: the ASIC story', address to the Trans‑Tasman Business Circle, 30 November 2010, www.asic.gov.au (accessed 3 October 2013), p. 14.

[17]      The reasons for judgment stated that ASIC's statement of claim did not identify the case it sought to make 'and to do that clearly and distinctly', adding that '[t]his is no pleader's quibble. It is a point that reflects fundamental requirements for the fair trial of allegations of contravention of law'. Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 at 502 [25].

[18]      (2012) 247 CLR 486 at 503 [27]–[28].

[19]      ASIC, 'Former ABC directors charged', Media Release, no. 11-16, 28 January 2011.

[20]      ASIC, 'Former ABC director found not guilty', Media Release, no. 12-117, 5 June 2012.

[21]      ASIC, 'Former ABC directors charged', Media Release, no. 11-16, 28 January 2011.

[22]      ASIC, 'Former ABC Learning CFO charged', Media Release, no. 13-104, 10 May 2013.

[23]      ASIC, 'Former ABC Learning Centres auditor prevented from auditing companies for five years', Media Release, no. 12-186, 8 August 2012.

[24]      See, for example, James Thomson, 'ASIC and Eddy Groves: Not as easy as ABC', Business Spectator, 10 September 2012, www.businessspectator.com.au/article/2012/9/10/education/
asic-and-eddy-groves-not-easy-abc (accessed 9 October 2013); Adam Schwab, 'ASIC nails "getaway driver" in ABC Learning debacle' Crikey, 14 August 2012, www.crikey.com.au/
2012/08/14/asic-nails-getaway-driver-in-abc-learning-debacle (accessed 9 October 2013); Michael Evans, 'ASIC's move as Groves "off the hook"', Sydney Morning Herald, 9 July 2012, p. 1.

[25]      Although ASIC defended its actions: see Mr Jeffrey Lucy, Chairman, ASIC, PJCCFS Hansard, Statutory oversight of ASIC, 13 June 2006, p. 3.

[26]      The Hon Peter Costello, House of Representatives Hansard, 21 May 2007, p. 137.

[27]      ASIC, 'ASIC acts on mezzanine financing', Media Release, no. 04-157, 25 May 2004.

[28]      The Hon Peter Costello, House of Representatives Hansard, 21 May 2007, p. 139.

[29]      ASIC, 'Actions to obtain compensation for the benefit of investors', https://westpoint.asic.gov.
au/wstpoint/wstpoint.nsf/byheadline/Summary+of+claims?opendocument (accessed 2 September 2013).

[30]      ASIC, Submission 45.2, p. 118.

[31]      ASIC, 'Statement on Westpoint action', Media Release, no. 13-105, 14 May 2013.

[32]      ASIC, Submission 45.2, p. 27.

[33]      This is termed 'if not – why not' disclosure. The requirements are outlined in ASIC's Regulatory Guide 69.

[34]      The Hon Bill Shorten MP (Minister for Financial Services and Superannuation), 'Roadmap to a sustainable future for finance companies', Media Release, no. 93 of 2012 (22 December).

[35]      More detail about the collapse, see chapter 4 of Parliamentary Joint Committee on Corporations and Financial Services, Financial products and services in Australia, November 2009, Parliamentary Paper No. 321/2009.

[36]      ASIC, Submission 45.2, p. 106; ASIC, 'Opes Prime schemes of arrangement approved', Media Release, 09-135, 4 August 2009.

[37]      ASIC, Submission 45.2, p. 24.

[38]      PJCCFS, Financial products and services in Australia, November 2009, p. 64 (footnotes omitted).

[39]      Adele Ferguson, 'An inconvenient deal and a forgotten $226m', Sydney Morning Herald, 12 January 2010, p. 20.

[40]      For example, see Mr Rob Fowler, Submission 280.

[41]      See ASIC, Submission 378 to the PJCCFS inquiry into financial products and services in Australia, August 2009, p. 3.

[42]      ANZ, Submission 216, p. 5.

[43]      Australian Government, Compensation arrangements for consumers of financial services: Report by Richard St. John, April 2012, p. 55.

[44]      In its proceedings against the founder, ASIC is alleging that the Storm model provided 'one size fits all' financial advice, rather than advice related to each investor's individual financial circumstances. ASIC, 'Civil penalty proceedings against the Cassimatises', http://storm.asic.gov.au (accessed 18 March 2014).

[45]      ASIC, 'ASIC and CBA Storm Financial settlement', 8 March 2013, www.asic.gov.au (accessed 18 March 2014), p. 2.

[46]      ASIC, Submission 378 to the PJCCFS inquiry into financial products and services in Australia, August 2009, p. 16.

[47]      ASIC, response to Submission 276, received 11 December 2013, p. 2.

[48]      See http://storm.asic.gov.au.

[49]      See http://storm.asic.gov.au and ASIC, 'ASIC successful in appeal against Storm settlement deal', Media Release, no. 13-214, 12 August 2013.

[50]      ASIC, Submission 378 to the PJCCFS inquiry into financial products and services in Australia, August 2009, p. 3.

[51]      PJCCFS, Financial products and services in Australia, November 2009, p. 44.

[52]      See Submissions 18, 41, 44, 82, 84, 87, 88, 90, 172, 236, 278 and 301.

[53]      ASIC, response to Submission 276, letter dated 11 December 2013.

[54]      Senate Economics References Committee, The regulation, registration and remuneration of insolvency practitioners in Australia: the case for a new framework, September 2010, Parliamentary Paper No. 179/2010, p. 52.

[55]      Senate Economics References Committee, The regulation, registration and remuneration of insolvency practitioners in Australia, p. 70 (footnotes omitted).

[56]      Australian Government, Government response to the Senate Economics References Committee report—The regulation, registration and remuneration of insolvency practitioners in Australia: the case for a new framework, June 2011, p. 1.

[57]      PJCCFS, Inquiry into the collapse of Trio Capital, May 2012, Parliamentary Paper No. 138/2012, p. xvii.

[58]      PJCCFS, Inquiry into the collapse of Trio Capital, May 2012, p. xx.

[59]      Mr Niall Coburn, Proof Committee Hansard, 21 February 2014, p. 3.

[60]      ASIC, 'Response to ABC TV's Four Corners' questions', 30 September 2013, http://abc.net.au/
4corners/documents/RBA2013/ASIC_response.pdf (accessed 1 October 2013), p. 1.

[61]      PJCCFS, Inquiry into the collapse of Trio Capital, May 2012, p. xxi.

[62]      ASIC, 'ASIC provides update on Trio', Media Release, no. 12-116, 5 June 2012.

[63]      ASIC, 'Update on Trio investigation', Media Release, no. 13-294, 29 October 2013. See also Mr John Price, ASIC, PJCCFS Hansard, Oversight of ASIC, 15 March 2013, p. 14.