Introduction

Over the last few months we have detailed some pretty bad ASIC behaviours.

These Friday Reflections are just a few chapters from a 36 chapter ebook. It’s titled “ASIC: A study in misleading and deceptive behaviour”. This ebook details numerous examples of ASIC’s misleading and deceptive behaviour.

What’s worse is the ASIC cover up. These matters have been known to ASIC for months. The evidence is clear. Yet ASIC executives from James Shipton down have done nothing about it. Astonishing ASIC timidity.

It’s all tough talk on the outside. Nothing but a cover up on the inside.

How will ASIC deal with its own deceptive behaviours? Its staff faking evidence?

What penalties should apply?

The APSC penalty for  deceptive behaviours includes the termination of employment.

It’s hard to think of a more culpable set of circumstances. Senior ASIC executives intentionally misleading people who should be able to trust and rely on them. The Hayne Royal Commission, the financial planning community, the media, the AFA and the general public.

A corporate regulator should be beyond reproach, beyond question. The custodian of the highest moral and ethical standards. Integrity and honesty. These case studies show a deplorable state of affairs where senior ASIC executives think nothing of faking evidence about Dover and Terry McMaster given to third parties such as Treasury and the Hayne Royal Commission, or misleading and deceiving the media, industry organisations like AFA and members of  the general public like Jonathan Hayward.

Formal complaints were first made to ASIC in early 2019. Nothing significant has happened. Just a cover up by ASIC’s internal “Professional Standards Unit”. The breaches are glaring and obvious. But the cover up continues.

Senior ASIC executives have banned financial planners for life for less. So it seems breaching their APSC obligations as senior ASIC executives should merit very senior sanctions and penalties. Termination of their employment and public shaming is a minimum. It’s what they have each done to numerous financial planners, for far less culpable occurrences. It’s what should happen here.

ASIC’s views on misleading and deceptive conduct (other than its own)

ASIC is loud about the need to stamp out misleading and deceptive behaviour (other than its own).

For example ASIC’s senior executive Ms Louise Macaulay denounces misleading and deceptive behaviour by persons other than ASIC. In ASIC Media Release 18-142 17 May 2018 Louise indignantly writes:

“Providing false evidence to ASIC in an attempt to avoid scrutiny by the regulator is reprehensible and does not uphold the attributes of honesty and integrity required of a financial adviser.”

Ms Macaulay then announces ASIC had banned the offending adviser for five years.

I am sure Ms Macaulay will not hesitate to apply this standard tothe ASIC staff involved in faking the ASIC evidence against Terry McMaster and Florence Tee. And the ASIC staff who have since tried to cover the faked evidence up. Clearly reprehensible behaviour by ASIC. Clearly behaviour deserving of serious sanctions. ASIC staff cannot just make stuff up. They have to be honest and truthful. Not dishonest and untruthful.

ASIC’s Mr Daniel Crennan QC is publicly committed to stamping out misleading and deceptive behaviour. He is on the record everywhere saying he will sternly punish misleading and deceptive behaviour. What will Mr Crennan QC do when confronted with misleading and deceiving behaviour by his ASIC colleagues? Will Mr Crennan stamp it out and sternly punish the ASIC executives involved?  Or will Mr Crennan QC do nothing, become complicit and thereby perpetuate it?

Mr Daniel Crennan QC is a barrister. This means he is an officer of the court and subject to very high standards of behaviour. Mr Crennan QC’s duties to the court and the administration of justice override his duty to his employer, ASIC. It is a serious matter for a QC to be directly and indirectly involved in the falsification of evidence and other misleading and deceptive conduct, or be involved in covering up such activities. A QC is required to do better than this.

ASIC’s ex-banker Chairperson, Mr James Shipton 100% supports Daniel’s public commitment to stamping out misleading and deceptive behaviour. It’s a critical part of Mr Shipton’s “Fairness Imperative”. He is long aware that his colleagues faked evidence about Dover but so far he appears to have done nothing about it. Mr Shipton is new to his role as Chairperson. But as the months go by, fully informed of the fake evidence, Mr Shipton becomes more and more responsible for it.

ASIC Deputy Chairperson Helen Chester features in Australian Financial Review articles, with headlines like “ASIC gets serious on complaints”. She allows herself to be photographed looking suitably stern and uncompromising. But the truth is Helen has turned a blind eye to ASIC’s own transgressions. She is getting serious on complaints except complaints about her mates at ASIC. Theirs’ is a different type of complaint. No need to go hard there.

ASIC Commissioner Mr John Price is a similar sort of a guy. John lectures non-ASIC persons that the behaviour they walk past is the behaviour they accept. John implores them to raise their standards. Dover has repeatedly drawn the fake ASIC evidence issue and the deceptive behaviours issues to Mr Price’s attention. Mr Price has done nothing. Mr Price walked, ran, even sprinted, past it, without a backward glance. His own standards do not seem particularly high. His fellow ASIC Commissioners are choosing to do nothing: they are walking right past it too.

Let’s see if ASIC is fair dinkum. Let’s see if they are genuinely committed to  punishing misleading and deceptive behaviour. The sort of behaviour designed to induce an erroneous assumption about a person or a state of affairs. The sort of behaviour they ban financial planners for.

I bet they aren’t fair dinkum. I bet they will do nothing. Just hope their problem goes away. It won’t.