In a speech at the ASIC Annual Forum 2019 in Sydney, chair James Shipton justified its ‘why not litigate?’ strategy it adopted last year even before the Hayne royal commission issued its final report.
“The aim of this is to deter future misconduct and address community expectations that wrongdoing be punished and publicly denounced through the courts,” Mr Shipton said.
“This means that once ASIC is satisfied breaches of the law are more likely than not and the facts of the case show pursuing the matter would be in the public interest, then we will actively ask ourselves: why not litigate this matter?
“Our enforcement work has a core focus on deterrence, public denunciation and punishment of wrongdoing by way of litigation.”
Mr Shipton also explained its new supervisory approach, which he said is all about promoting permanent cultural and behavioural changes in institutions individually and across the financial services industry more broadly.
“Our new approach helps detect cultural, organisational and management failings that lead to conduct problems, breaches of the law and unfair outcomes,” he said.
“Supervision also adds a focus beyond current known non-compliance to look at things that create significant risk of future breaches. Importantly, we are increasingly using advanced data and market analytics in this work to detect misconduct early.”
Further, Mr Shipton said supervision has a strong focus on governance and culture, thus allowing ASIC to better understand a firm’s business models and risk management processes.
“This allows us to adjust our regulatory approaches in response to the complexity, innovations and continuous change in entities and markets,” he said.
Word is there are a lot of very nervous people at ASIC. Staff in senior positions may soon find themselves under investigation for deceptive and misleading conduct in relation to the closure of Dover.
It’s about time someone squares off with ASIC. David V Golliath…. I think any small-time financial planner would be cheering for Dover. It will be very interesting watching this play out.
This magazine should refuse to publish ASIC propaganda until James Shipton investigates the conduct of Bird, Greene, Macaulay and Mullaly on Dover.
Bird lies to the AFA to deny 410 advisers an extra month to find a new AFSL.
Why?
hey is terry thinking about a comeback ? with a newer sharper offering ?
Yes, please release the ASIC gift register for 2018.
Dear Jimmy Shipton,
You are a turkey. You talk and act like a politician on borrowed time- how about you represent the people by giving us a regulator we can trust. a regulator who leads by example and collaborates with the industry. Instead, you are acting like a snotty private school, silver spoon-fed prat who is completely out of touch and out of your league with what’s required from your organisation. To be fair, your predecessors haven’t really given you much to work with, however that was then and this is now.
UNTIL you conduct forums designed to assist AFSLs and ARs alike to understand WTF they are supposed to do, instead of striking fear into all of us, you are deliberately setting up this industry to fail….or is that your plan anyway?
STOP being bunch of self-serving public servants and START doing the right thing.
Kind regards,
Every privately owned AFSL owner
As a matter of “community expectations,” that ASIC refer to, why don’t they release the current details of their gift registers?
This is interesting. Mr Shipton is lecturing the world on corporate morality. His Fairness Imperative. ASIC’s new approach to detecting misconduct early. Mr Crennan is big on this too, saying ASIC will not tolerate false and
misleading conduct. It will not be tolerated. All transgressions will be severely punished. No exceptions.
Yet, amongst many similar matters, both Mr Shipton and Mr Crennan have been long informed that:
1 Mr Mullaly approved an ASIC lawyer’s letter dated 5 June 2018 to Dover confirming Dover had no choice but to close. The ASIC lawyer, Andrew Thomas, aggressively stressed it was not my decision to close Dover
2 despite this at 11.20am on Saturday 9 June 2018 Mr Mullaly emailed ASIC’s media team instructions to tell enquiring journalists it was my decision to close Dover
3 Gervase Green, ASIC’s national media manager, dutifully did as bid (as he does) deliberately diverting public and adviser vitriol at Terry McMaster. This is despite Gervase’s email to his colleague Andrew Williams on Monday 11 June 2018 saying:
“I spoke to Louise earlier, who was happy that we be seen to be on the frontfoot (sic). Apparently Dover were looking for the end of the year, playing for more time.
We said no.”
4 Despite this, in Phillip Kerwin’s words, when he was rung by ASIC’s Joanna Bird on Tuesday 12 June 2018, Joanna Bird told him:
“Hi Joanna, thanks for your time today, it did give me some clarity as to be honest it wasn’t completely clear and there are many rumours flying around. Our interpretation was that while Terry pulled the trigger it was at ASIC’s instigation, thus my comments to the trade media about looking to AIC or the Minister for an extension as one month is insufficient time to transition for advisers and potential licencees. We just did not know it was completely Terry McMaster’s orchestration and not merely a reaction to directions from ASIC.”
Joanna Bird said this to Phillip Kerwin to head off an attempt by the AFA to get extra time for Dover advisers to find a new AFSL, after Louie Macaulay cut it to just 4 weeks (see Gervaise Green e-mail dated 11 June 2018, as referenced above. This means Joanna’s conduct was particularly damaging for Dover advisers and their clients. About 100 Dover advisers did not find a new AFSL by 8 July 2018.
Mr Kell was fully informed of all of this.
Ms Macaulay puts out banned adviser’s media releases, that can be forever read on the internet saying things like:
“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 planner” (ASIC media release dated 17 May 2018)
ASIC then bans the adviser for five years.
I have a simple question for Mr Shipton and Mr Crennan. It is this: if an adviser who misleads ASIC in an attempt to avoid scrutiny is reprehensible, dishonest and lacks integrity and must be banned for five years, why aren’t the three senior ASIC executives responsible for regulating advisers in Australia (Mullaly, Macaulay and Bird) who misled the media, the CEO of the FPA and everyone else under the sun including, presumably, other ASIC employees and Commissioners also reprehensible, dishonest and lacking integrity? And why should they not be banned for five years too?
Fairness requires similar punishments for similar transgressions.
Why are Tim Mullaly, Louise Macaulay and Joanna Bird not being punished by ASIC for their transgressions?
Why is Gervase Greene not being punished by ASIC for his transgressions?
When Mr Shipton and Mr Crennan do this their public statements will have credibility.
Please e-mail me at tm@dover.com.au if you want copies of the documents referred to above. I obtained them under the FOI regime (despite desperate ASIC resistance) and I am more than happy to pass them to anyone who asks.
Motivation? Mr Hodge told Shipton to go to court – and Shipton said good idea. Shipton I suspect has no idea and how he ever managed to obtain and maintain his position is breathtaking.
Where do we refer clients who have complaints – complaints around the fact that they can’t pay fees in the way they wish to. Complaints because they don’t want lengthy SoAs and PDSes, FDSes. Complaints that they don’t even want to have to make sure they sign an Opt-in but want to be able to sign an Opt-out if they ever wish to stop receiving advice. Complaints because they think it’s unfair we don’t receive commissions. This is what we’re dealing with with clients in reality.
Not one investigation into industry fund advice/ or industry fund MySuper intra fund advice to see if anything is personal advice? No one will think you guys are the real deal until you start making level laws.
Band Comissions then let intra fund advice into the market which is clearly the same thing. but they are charging for fee for no advice now. where the old comission to advisers was for service not advice. all this is just to cut the advisers out stop choice and stop helping customers
Drive everyone into unlicensed advice?
Make ASIC Great Again said…………………………………… no one. EVER. Now that they’ve got a slogan, all they need is a consultation paper, reg guide and a crap load of ambiguity to keep all the punters guessing.
Happy to litigate, name and shame…but still incompetent to the point of being unwilling to put out a SoA guide/template and state publicly “include all of this at a minimum and your SoA will be acceptable to us”. They’re an over-funded, redtape-riddled, bad joke.