Earlier this year the Senate failed to pass my proposal for confidential document discovery. The stoush currently underway between Senator Braggs’ Committee of Inquiry into ASIC and ASIC themselves confirms the need for confidential document discovery. Had this been available, the Committee would have the information they are after already.
Public officials have an obligation to allow scrutiny of their performance and the Senate must allow agencies due process. I am not convinced either is happening the right way in this stoush between ASIC and Senator Bragg.
Having said that, Senator Bragg’s diligence in trying to introduce accountability to Australia’s corporate watchdog, the Australian Securities and Investment Commission (ASIC), is much appreciated. The Senate serves the people and this Inquiry which began last October came about as a result of complaints about ASIC from everyday Australians, and is on behalf of the people of Australia, including investors and small business.
As I outline in this video, there are broad community concerns and systemic issues with ASIC’s investigations and enforcement capabilities.
Unfortunately, not only has ASIC has refused to cooperate with the Senate, displaying contempt for the process of review, Freedom of Information documents reveal ASIC was in contact with unknown people within parliament in an attempt to secure a watering down of terms of reference and to try to block disclosure.
In seeking to squash this inquiry into itself ASIC has this government using public interest immunity. This government is also showing contempt for the people of Australia.
The Albanese government is setting a world record for how fast they broke their promise of accountability and transparency.
Transcript
As a servant to the many different people who make up our one Queensland community, I thank Senator Bragg very much for his hard work trying to introduce accountability to Australia’s corporate watchdog, the Australian Securities and Investments Commission. I’ve watched his diligence, his patience, his commitment and his determination, and I admire and acknowledge all of that.
Last October the Senate referred an inquiry to the Economics References Committee into the capacity and capability of the Australian Securities and Investments Commission, ASIC, in particular to answer the question: did ASIC meet the expectations of government, business and the community with respect to regulatory action and enforcement? A simple question.
This inquiry was prompted by complaints from everyday Australians and small business that ASIC was not doing its job. ASIC’s job is to ensure a level playing field and, where a company has engaged in corrupt conduct, ensure prosecutions occur. The evidence received has indicated that there are broad community concerns and systemic issues with ASIC’s investigation and enforcement capabilities. That mirrors what I have perceived. The committee has sought information surrounding a small number of closed investigations in order to understand how ASIC conducts investigations and understand its prosecution approach. The closed cases concern Nuix, ALS, super insider trading and Magnus, where there were serious allegations of commercial misconduct. Unfortunately, ASIC have shown contempt for the committee process, making public interest immunity claims to get out of handing over this information. ASIC were given one last chance to comply with this order, and here we are now. ASIC have again refused to cooperate with the Senate.
This should not be the end of the matter. The Constitution gives the Senate extreme powers of investigation and penalty on individuals for refusing to follow the instructions of the Senate. I’ll say it again: the Constitution gives the Senate extreme powers of investigation and penalty on individuals for refusing to follow the instruction of the Senate. That reflects the Constitution’s intent in making sure that the Senate serves the people, and I remind everyone that is the case. These powers should be considered in this case.
To say that ASIC have been dragged kicking and screaming into this inquiry is an understatement. Freedom-of-information documents obtained by Adams Economics reveal ASIC were in contact with unknown persons within the parliament to secure a watering down of the terms of reference or to deny the numbers entirely, to squash the inquiry. This is why we are here. How dare ASIC interfere to avoid review by the house of review on behalf of the people of Australia! One Nation rejected ASIC’s public interest immunity claims over materials concerning closed investigations into misconduct. ASIC’s reliance on public interest immunity claims to block disclosure has been an ongoing issue obstructing the committee’s ability to conduct a proper investigation on behalf of the people of Australia—this is not the Senate; this is on behalf of the people of Australia—the people who pay ASIC’s salaries, the people whom ASIC is supposed to serve. Public interest immunity is being used by a government that has nothing but contempt for openness and transparency.
Only today I discovered, by chance, that the industry groups the government are showing their new IR bill to are being required to sign a confidentiality agreement so that they can’t say what is in the bill. That shows contempt from this government for the people of this country. What sorts of nefarious provisions are in that bill that they require a cloak of secrecy? Every government is elected with a promise of transparency, and every government then breaks that promise. The Albanese government is, however, setting a world record for how fast they broke their promise and setting a world record for arrogance towards the people of Australia. This request from the Senate goes to a small number of closed cases. They cannot possibly effect an ongoing investigation. There’s no down side to revealing this information other than embarrassment, or worse, for ASIC management and the responsible minister.
I have received a report from a third party regarding ASIC senior executives using private phones for official business, and I look forward to further information around that issue. If a Commonwealth government agency spends $200,000 of taxpayers’ money on a secret investigation into allegations against ASIC’s deputy chair, the Senate has a right and a duty to ask what that was about. It’s our role as a Senate to do that, and we would be deficient in our duties to the people of Australia if we did not do so. This matter places the career interests of bureaucrats against the sworn duties of a senator and of the whole Senate. One Nation is betting on the Senate ultimately discharging its duties without fear or favour. ASIC has refused to disclose its correspondence in relation to public interest immunity claims with the minister. The committee has formed a view that ASIC’s refusal to provide the information sought is obstructing the committee’s ability to conduct this inquiry. That, by the way, is an offence. ASIC appear to be all lawyers. Let me say: you should know better, ASIC.
I’ve got some notes in front of me that I’ll divert to briefly. We are inquiring through the committee into the ability and, indirectly, the intent behind ASIC’s behaviours—the intent. The government is digging a deeper hole when it comes to the intent, because as Senator Brockman and Senator Bragg have pointed out in detail, the government is covering up, and that makes it even worse. If it was innocent, the government should welcome the disclosure. If it had something to hide or something to protect in ASIC, then it would shut down, and that’s what we see. I’ll go to the terms of reference:
… whether ASIC is meeting the expectations of government, business and the community with respect to regulatory action and enforcement …
It’s also not meeting the expectations of parliament. ASIC has failed persistently to enforce the law and investigate complaints of misconduct. Small business and consumers across Australia, who are tired of ASIC’s persistent failure to enforce the law and investigate complaints of misconduct, are the customers we serve. They’re the customers ASIC serves. The evidence received so far has indicated that there are broad community concerns and systemic issues with ASIC’s investigation and enforcement capabilities, and my personal concerns are similar.
The committee has sought information surrounding a small number of closed investigations. I’ve listed them, as have Senator Bragg and Senator Brockman. The government has a choice: release the documents and remove suspicions if you have nothing to hide, or, if you have something to hide, hide and stoke the suspicions. A private briefing is not adequate because that would be just ASIC giving selective disclosure. The executive government should support an inquiry to end white-collar crime in Australia and strengthen inquiry in our financial sector. Instead, the Labor government has defended ASIC at the expense of the work of the Senate, arrogantly keeping people in the dark. I ask the question: is ASIC protecting criminals or is it protecting its own incompetence or its own lack of intent to hold criminals accountable? Who watches over the regulator? We, the Senate, do, and the people watch over us. I call on the minister to stop obstructing the Senate, and I call on ASIC to rethink their obstruction to this inquiry.
