How ASIC Illegally Game the Australian Court System, Yet Judges Seem None the Wiser
16 February 2016
http://www.australiannationalreview.com/asic-illegally-game-australian-court-system-judges-wiser/
A leading critic of the ASIC and several industry observers have stated that the corporate watchdog routinely and illegally game the court system, whilst judges seem none the wiser about how they are being manipulated and played by the corporate regulator.
One industry observer not wanting to be named due to ASIC’s reputation of targeting and intimidating its critics said, “the public incorrectly assume that individuals and companies are innocent until proven guilty.
“This is completely false. The truth is that individuals and companies targeted by the corporate regulator are actually guilty until they prove their innocence. To make matters worse, they remain guilty even if they prove their innocence”, he said.
Another industry observer said:
“This is how it works, the ASIC, despite is massive powers is totally incompetent. It can’t attract quality staff for long, as most see working for the ASIC as a fast track to getting a lucrative job with one of the banks or large financial planning companies (90% of the financial planning industry is owned by the banks).
“The movie “Big Short” revolving around the US property crash, which caused the GFC highlighted this with the US equivalent of ASIC- the SEC.
“Alternately, ASIC attracts those who seek a safe secure government job because they are risk averse, lack ambition, have lower levels of intelligence or abilities and/or hate entrepreneurs thus wanting to seek revenge for being picked on at school. Many of them find they can achieve this by abusing the powers provided to them by working for a less than honest, transparent and ethical regulator”.
He went on to explain:
“For starters, you have a bureaucratic, politically motivated, incompetent government department with no ethics or moral compass run by below average intelligence or incapable individuals out to seek revenge.
“Secondly, they gave up on actually doing their job long ago, so the ASIC’s primary goal is to simply appear as if they are doing their job. Perception is reality.
“So, it desperately needs to create an impression to the wider public, media and politicians that it’s doing something useful with taxpayers’ money. Therefore, its score card or effective KPIs are to get as many individuals banned annually as directors or banned from the financial services industry or put as many companies into liquidation as possible so that every year they can tell the Treasurer that they are doing something important and consequently extort money from the government.
“As a result, the ASIC don’t care if individuals or companies are innocent or not, they simply care about whether or not they can game the court system and deceive the often clueless Supreme and Federal Court Judges to add to their score card for the year”, he said.
When asked in an ANR interview about how the ASIC is gaming the court system, several industry observers and critics stated the following:
“ASIC, despite massive powers often won’t win in court, especially as many they target is for politically motivated reasons and the companies or individuals have actually not broken a single corporations law. You see it’s not like committing a crime, if you rob a bank you know you are breaking the law.
“However, with corporations law, as laws are often complex and overlap and no one, including ASIC knows the correct interpretation of many laws, most companies in Australia are in fact in a technical breach of laws daily but not aware of it. Most of them aren’t even doing anything wrong.
“So what ASIC do to win cases that are often over trivial technical matters is, they game the court system by simply making up any allegation against a company or individual, knowing full well that they never have to prove in a court of law that the company or individual has actually broken any corporations law.
“How? It’s simple. ASIC knows that once an allegation is made against a company or individual, it’s added to their website and instantly reported in the press. The individual or company is now tarnished and its reputation is in ruins.
“Has the company or individual done anything wrong? Often not, or if so, only inadvertently despite legal advice suggesting that they complied with the law.
“But ASIC know that often, even a simple allegation is enough to destroy a company or an individual’s reputation forever. Not only that, ASIC won’t even wait to go to trial in an attempt to win.
“Remember, they already know that more often than not, their case is flimsy with no real substance, as often the allegations are simply made up. Quite frequently they change their allegations when defence lawyers highlight how insubstantial their case is.
“The Fortescue case where ASIC targeted billionaire Andrew Forrest is a prime example of a case without proper legal merit. Their case had no basis in law and was hopelessly flimsy. Moreover, ASIC lost and the judge kicked the matter out of court whilst scathing at the corporate regulator”, he said.
The Onetel case against Jodie Rich was the same, and the judge caught onto ASIC trying to game the court system and booted the matter out.
However, Forrest and Rich only won and restored their reputations because they invested roughly $10-$20 million of their own money and 5-10 years of their lives.
According to industry critics, most ASIC victims or companies can’t afford this and are therefore destroyed by an over zealous and dishonest regulator, which is too lazy or conflicted to go after the banking and financial planning industry.
Another observer said:
“ASIC is a big bully when it comes to targeting smaller companies that cant afford to defend themselves. Their targets also tend to include entrepreneurs with a public profile to maximise its press coverage.
“So, ASIC will simply in most cases apply right upfront for Provisional Liquidators to be appointed to the targeted companies.
“They do this based on unproven allegations knowing full well that it won’t stand up in a trial, the hearing for which takes years to happen in the first place. Thus, ASIC win by default and upfront, without proving that the company or individual has breached a single law, as once provisional liquidators are appointed, the companies have lost the game.
“They are effectively destroyed and will never return to their rightful owners. In the process, employees get sacked, the business ceases to trade in the majority of cases, and directors are targeted for insolvent trading (they are considered insolvent because often provisional liquidators are appointed, so technically they are insolvent).
“By default ASIC have won. An innocent company is destroyed without proof that they have done anything wrong.
“Judges base a decision on ASIC’s request to appoint provisional liquidators and for the matter to be set for trial regardless of whether or not a corporations law may have been breached.
“However, the matter never gets to trial in most cases, as once provisional liquidators are appointed, ASIC have won. The business is shutdown, liquidators working for ASIC rape and pillage the company and then when the case returns to court, ASIC apply for provisional liquidators to be made official liquidators.
“The judges at this point are not deciding on whether the companies have breached any corporations law, but simply on whether or not they are insolvent. And of course, as ASIC already had provisional liquidators appointed, they are insolvent. So it’s game over for the companies. The ASIC have gamed the court system. They have destroyed innocent companies, as now it’s in the press, the Federal or Supreme Court has appointed liquidators (thus the public assume the companies have done wrong) and judges have wrongly handed ASIC a victory without a trial to see whether at all the company has actually committed a single breach of law.
“Any complaints made to politicians will simply get a response stating that: ‘It’s in the hands of the courts, so we will see what the court says when it comes to the trial’.
“Wrong. The companies are now liquidated. The liquidators work for ASIC. They are not going to spend their own money (often years) later defending the company in a trial, as their agenda is to make money and do as the ASIC want because the corporate regulator is effectively their employer.
“So, the directors and owners of the company, even if they wanted to defend their company at trial can’t because:
1. It’s no longer their company and it now belongs to the liquidators appointed by ASIC.
2.It’s too late, as the companies and their reputations are destroyed.
3. Even if the judge years later at trial ruled in the company’s favour, it’s too late. The business is long gone and the damage is done”, he said.
When asked about how often this is happening, all industry observers and ASIC critics interviewed by ANR said, “almost daily and it’s been happening for decades”.
One critic went on to explain:
“I’m not saying that many of the companies targeted may have not done anything wrong. In some cases inadvertently they have breached a corporations law, but the punishment dished out doesn’t fit the crime. It seems ASIC has agendas to target certain companies as part of its vendettas or to simply target people they don’t like.
“ASIC know full well how to game the system and the judges do nothing about it, but are routinely played by the ASIC. The so-called legal system looks corrupted. The so called honest and transparent corporate regulator appointed to keep companies honest is in fact dishonest, non transparent and lacks ethics whilst abusing the court system daily.
“Innocent until proven guilty? Guilty even if proven innocent, after which it’s too late, as you’re punished upfront as guilty. Lives and reputations end up in tatters, and the costs are brutal. It creates financial destruction where jobs and careers are destroyed based not on a single law being broken. In some cases it leads to suicides and lives lost, all because of a corrupt ASIC”, he said.
Another industry observer said many ASIC employees have blood on their hands but no remorse.
“They simply don’t care about anything other than getting their safe secure taxpayer funded salary. They are happy to destroy people’s lives, as long as they get paid their salary. They have no moral compass or any ethics and it makes me sick. Until some ASIC officers are jailed, nothing will change. The Judges are being taken for a ride, so are the hapless politicians and the public. It’s a sham”, said the industry observer.