Is there a bigger joke in Australian regulation than the Australian Securities and Investments Commission?
Journalist Adele Ferguson’s excellent exposé of ASIC’s stunning lack of interest in detailed evidence provided by whistleblowers on misconduct within the Commonwealth Bank, which has led to a Senate inquiry into the regulator, is only the latest revelations about ASIC’s remarkable ineptitude.
Whether it’s failing to successfully prosecute references from the Australian Stock Exchange, waving through exemptions on financial reporting, a failed seven-year investigation of Offset Alpine and Trevor Kennedy, the regulator’s spectacular failures on Westpoint and Storm, its abandonment of any action against ABC’s Eddy Groves or its miserable litigation record, ASIC is a byword for incompetence.
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It is unable or unwilling to do its job of corporate regulation properly, particularly when faced with having to go after big companies that might have the gall to fight back. But it’s a different story on the internet.
Since Melbourne Free University found its website had been taken offline in early April and its provider AAPT refused point blank to even acknowledge that it had done so, ASIC has emerged as one of Australia’s primary internet censors, using the untrammelled power of section 313 of the Telecommunications Act to censor the internet in aid, it maintains, of blocking scam sites.
Melbourne Free University wasn’t a scam site; it just happened to be collateral damage in ASIC’s war on the internet, one of 1200 sites blocked by ASIC under s.313 in its quest to block one scam site. Yes, they wanted to block one site, but managed to shut down 1200.
ASIC might be utterly hopeless at presenting a case in a court of law, but it can sure as hell bring down internet sites.
Still, give ASIC some credit. When it tried to bring down another scam site in March, it brought down not 1200, not 2500, not 25,000 but 250,000 sites?—?the vast majority of which, fortunately, had “no substantive content”, although that was purely coincidental. Even so, that’s an improvement of over 20,000% in accuracy by ASIC in just a matter of weeks.
Sadly, it wasn’t enough to assure then-communications minister Stephen Conroy, who started an inquiry into the use of s.313.
ASIC is also one of the agencies that supported data retention in the recent joint committee on intelligence and security inquiry, insisting it was important that it be allowed to have access to Australians’ internet and phone records. Greens Senator Scott Ludlam asked them at estimates whether that might help fix their terrible record in prosecuting people.
If you’re online and ASIC knows you’re just an individual, without corporate resources to fight it, then it will come down very hard on you indeed.
That’s why the Whitehaven Coal hoaxer Jonathan Moylan has this week been charged by ASIC and now faces 10 years’ jail for raising awareness of the laziness of investors and journalists and Whitehaven’s potentially highly damaging CSG projects. Moylan, who was on the receiving end of a rare raid by ASIC officers after the hoax, had issued a fake media release about the company from his laptop. Moylan has been charged with breaching the Corporations Act.
If Moylan was backed by a large company, you can bet ASIC would at worst have demanded an enforceable undertaking not to do it again, or maybe instigated a multi-year investigation that quietly ends without charges.
The double standard is blatant and sickening and reminiscent of that found in the United States, where online activists and hackers have been charged and jailed for embarrassing the US government and large US companies, but not one single bank executive has gone to jail in the wake of the global financial crisis. Even admitting to acting as a vast money-laundering outfit for the world’s most violent drug gangs doesn’t see anyone in the banking sector behind bars.
Australian banks aren’t engaged in that sort of behaviour by any stretch. But rip off your financial planning clients and take their life savings, engage in dodgy and insider trading, preside over a spectacular corporate collapse or repeatedly breach industry codes of practice, and ASIC couldn’t care less. Send out a fake email that exposes the cupidity at the heart of equities markets, and ASIC goes from Keystone Cops to SWAT quick as a flash.
This article first appeared on Crikey.