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I had started on a paper looking at ASIC and the rule of law earlier in the year. ASIC lost three high-profile court cases in quick succession with damning judgements made against it.
Initiation and implementation are described as being decision management and ratification and monitoring are decision control. Looking at ASIC there is little difference between decision management and decision control. There no explicit mechanism to ensure that effective control is exercised over management decisions.
While the accounts of ASIC will be audited by the Auditor-General to ensure compliance with accounting conventions and annual reports will detail the activities of ASIC there is no mechanism to determine the value that ASIC adds, nor any mechanism to ensure effectiveness, and no mechanism to ensure on-going relevance.
As a government authority ASIC is required to answer questions at Senate estimates committee hearings.
These hearing are held three times per year and form part of the budget process. Quite understandably the committee members were somewhat concerned about the spate of court cases that ASIC had lost.
These cases were actions against directors at AWB, One. Tel and Fortescue Metals. His argument was to point out that litigation is adversarial, and in the face of a vigorous defence, the regulator may expect to lose cases from time to time.
Overall ASIC has a high success rate and is committed to learning from its mistakes. At face value this seems quite reasonable.
ASIC is properly discharging its regulatory responsibilities, that ASIC has acted, and continues to act, responsibly in the way that it selects and runs litigation and that it approaches those cases in a focused way, with considerable due diligence.
Yet the outcome of the cases suggest otherwise. ASIC initiates, ratifies, implements and monitors the outcomes of the regulatory actions it undertakes. The same people make, and ratify, and implement, and monitor decisions.
Where is the due diligence in that process? According to media reports a judge in the Victorian Supreme Court found that an action against former AWB chief executive Andrew Lindberg was an abuse of process. But it must the action against the directors of the failed Telco One.
Tel that is the most damaging to ASIC.
As it turned out four directors of One. Tel had been pursued by ASIC, two of those directors did not conduct a vigorous defence while two did. Matthew Stevens, writing in the Australian, has summed up the situation and is worth quoting in full.
What made that decision so harmful to ASIC was that Rich and Silbermann were found to have no case to answer, even though two colleagues, Brad Keeling and John Graves, had actually pleaded guilty and sought a settlement in and respectively.
Why anyone with money enough to defend themselves would not settle with ASIC is hard to imagine.
Keeling and Grave must believe they are victims of rough justice. If anything events such as this bring the law into disrepute; not to mention ASIC. Individuals who, we now know, had no case to answer settled their disputes with ASIC and have been severely penalised.
Regulators should pursue parties in the courts for alleged breaches of the major provisions of the relevant legislation. We do not support a regime under which the regulators can force parties to either pay a fine or agree to correct certain behaviour — which has not been found to be illegal by a court — if they wish to avoid court action.
This demonstrates a great inequality of legal weaponry in the regulatory process. They are unaccountable because the parliament has failed to create mechanisms to enforce accountability and the parliament itself cannot, or will not, provide sufficient oversight. Of course, rather than restrain its own agents our parliamentarians prefer to restrain the private sector and wage war on banks and the like.
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