Andrew Bragg (NSW, Liberal Party) Share this | Hansard source

I present an interim report of the Economics References Committee on the Australian Securities and Investment Commission, and I move:

That the Senate adopt the recommendations contained in the report proposing orders for the production of documents.

Question agreed to.

I move:

That the Senate take note of the report.

The Economics References Committee has been undertaking an inquiry into the Australian Securities and Investments Commission, and the reason that that inquiry has been commissioned is because corporate lawlessness is a major problem in this country as is white-collar crime, and the PwC business is probably not a great surprise to many because what you see is a litany of scandals that happened across corporate financial professional services, and these issues are not addressed properly by the regulator. I would say that we have a very, very weak corporate regulator, and therefore we decided to have an inquiry into ASIC, with the support of the Greens. I note that the government opposed this inquiry. Since the inquiry was commissioned in October, there have been well over 100 submissions, and as a key component of this inquiry we have been asking questions of ASIC—109 questions to ASIC about how they were going with law enforcement on real cases.

We can sit here and talk about the regulatory architecture, we can look at twin peaks, we can go back to Wallace or Murray and the Hayne royal commission, or we can look at cases in the economy today. We could look at some of the malfeasance that has happened and we could look at the action or the inaction. As a result of those 109 questions, we have decided to take the unusual step of tabling an interim report. The reason we are tabling this interim report is that ASIC's approach has been to obfuscate and to refuse to answer questions on these key case studies. This report, which is a multipartisan report, sets out the obfuscation. It sets out that ASIC has not wanted to provide information about closed cases. I want to make a very important distinction to the Senate: I think it would be unreasonable for a Senate committee to try and unearth case files and documents from ongoing investigations because that could disrupt the work of the regulator.

But when you have closed cases, I don't understand why the Senate could not receive documents that show how ASIC has gone about its business of being a law enforcement agency. I think everyone in this parliament accepts that ASIC could do a better job. So what we've tried to do is ask questions about Nuix and insider trading allegations, ask questions about ALS and fake gold allegations, ask questions about insider trading in Magnis and insider training in superannuation funds.

We've asked all these questions. And what have we received? I remind the Senate, again, these are closed cases, not open cases. We have received public interest immunity claims. That's what we have received. The endless use of public interest immunity claims has led to a massive disruption of the Senate's work. The Senate is not able to investigate the way that the investigations have been undertaken by ASIC. We cannot see the transcripts. We cannot see the legal advice. We cannot see how decisions have been made and taken. The key decision, here, for a law enforcement agency is whether to prosecute: Should we enforce the law? Should we try and put these people in the clink? We can't get access to any of these files, even though they're closed.

As a result, we've tabled this interim report. Now the Senate has agreed to force the production of documents in relation to cases: Magnis, ALS, Nuix and Super Insider Trading. A common theme here is insider trading. I would say that if you engage in insider trading in Australia you will get away with it, because ASIC will not prosecute you. You will not go to jail. You will not face a sanction. ASIC does not want to use the criminal penalties that are available to it.

Unless we can get access to these documents we will never understand what process they go through. We know, from newspaper reports, that when insider trading is alleged to have happened and there are whistleblowers—often very brave whistleblowers—who provide information to ASIC, ASIC take the information, look into the case and say, 'Actually, there's nothing to do. We have no further role here. We're not going to enforce that part of the Corporations Act. We'll just go back to business.' And people wonder why you have problems like you see with PricewaterhouseCoopers.

The report, in conclusion, sets out three major components. It sets out the interference that ASIC drove here in this building when the Senate was considering whether to establish this committee inquiry itself. It canvasses that interference. It then canvasses our attempts to get access to closed case files. Finally, it canvasses and seeks now an order for production of documents, in relation to the interaction between ASIC and the Treasurer and the Treasurer's office, because there is a very strong possibility here that the Treasurer's office is complicit here in the mass use of public interest immunity claims.

Public interest immunity claims have been used here to obfuscate the Senate's work. So I very much thank the Senate for the opportunity to make these remarks today and for the multipartisan report, which has been tabled, that sets out in detail the mass obfuscation of the Senate's work. Unless we can get to a situation where the corporate regulator is feared and people think, 'I might go to jail if I break this law,' then we're never going to have a situation where white-collar crime is diminished in Australia. It's in everyone's interest that we have a law enforcement agency in Australia that is feared.