ASIC must improve their transparency, accountability, and performance. ASIC have broad powers but have complained that they lack the resources for an admittedly complex and challenging task. Difficulty doesn't justify poor transparency or poor communication though.
We, as Australians, must demand more of our corporate police; our white collar watchdogs.
Corporate Crime/White-collar crime affects all Australians. It is typically much harder and more expensive to prosecute (defendants are typically well resourced and sophisticated.)
Sadly, a litany of examples of ASIC failing Australians are available. Two egregious examples of areas where ASIC must improve their lack of any published action, investigations, or otherwise are:
1. The Australian Financial Industry:
The 2019 Banking Royal Commission’s final report revealed widespread misconduct and blatant illegality in the financial services industry. This raised legitimate questions of whether ASIC was asleep on the job or was, as some have claimed, the watchdog that no-one fears.
2. The collapse of Dick Smith Electronics:
As of 4 May 2019, ASIC have not published that they have taken any action in the collapse of Australia's oldest electronics retailer - Dick Smith Holdings 'DSH' - over three years ago on 4 January 2016.
On 18 August 2015, DSH announced the results of the previous financial year. About $1.3 billion in sales and $43.4 million in profit; both numbers increased from the year prior. DSH predicted profit for the following year of about $45 million - later reducing this to about $40 million 28 October 2015 whilst stating that 'the DSH balance sheet remained strong.'The DSH CEO had been paid $4.1 million and the DSH CFO $2.1 million in the two years prior.
About two months later (4 January 2016), DSH announced they couldn't pay their debts (voluntary administration.) Over 3,000 DSH employees lost their jobs, DSH was liquidated yet hundreds of millions are still owed to creditors.That year, DSH had paid millions in dividends (supposedly 'spare' profits) which had personally benefited the CEO about another $3 million and the CFO about another $150,000.
The circumstances above require scrutiny. At a minimum, the following alleged breaches of the Australian Corporations Act should have been (and still should be) investigated:
A. Failure to abide by continuous disclosure obligations, s 674(2) and ASX listing rule 3.1;
B. Dishonesty, s 1041G CA;
C. Inducing persons to deal s 1041F CA;
D. Misleading and Deceptive conduct s 1041H CA, s 1041E CA;
E. Breach of directors’ duties, ss 180(1), ss 181(1) CA; and
F. Insolvent trading, s 588G CA.
Plus, breaches of the Australian Consumer Law and the Australian Securities and Investments Commission Act 2001 (Cth) for the above and unconscionable conduct s 12GF are also alleged.
I also add that, without transparency, it is difficult to properly understand if ASIC are effectively using the resources that they have.