Service delivery and access to information
As Australia's corporate, markets and financial services regulator, ASIC
is contacted by and provides services to a large number of varied stakeholders.
In particular, ASIC's registry services, such as those for company documents
and business names, effectively require the entire business community to deal
The committee received submissions critical of ASIC's registry services
and approach to handling information. In fact, ASIC's performance at both ends
of the information supply process was questioned; that is, stakeholders
expressed displeasure at the processes for providing information to ASIC and
the information ASIC makes available to the public. For example, industry
participants and interested observers such as academics have an interest in
accessing data held by ASIC so that they can better understand, consider and
scrutinise industry developments. However, they outlined concern about the current
impediments to accessing such data. This chapter considers these issues. The
websites operated by ASIC, which perform a key role in the provision of ASIC's
services as well as being an important source of information for members of the
public and regulated entities, are also considered in this chapter.
ASIC's registries and client services
While most of the submissions that criticised ASIC's interactions with
the public related to the handling of misconduct reports, the committee also
received submissions regarding other aspects of ASIC's client services, such as
the databases it is required to maintain. There are instances where
miscommunication and inflexibility can lead to businesses suffering. One
example was provided by Mr Graeme Hay,
a director of a company based in Asia but also registered in Australia so that
it can compete for government contracts. Section 201A of the Corporations Act
requires that a proprietary company must have at least one director and that
director must ordinarily reside in Australia. In his submission, Mr Hay
advised that his sister was nominated as a director to satisfy this
requirement. However, after his sister passed away, ASIC continued to address
correspondence to her. Mr Hay submitter that letters sent to his address were
not received because his address was entered into ASIC's database incorrectly
by ASIC. Mr Hay provided a summary of how these events impacted his business:
In April 2013, [Sub-Sea and Pipeline Protection International
(PPI)] had won a significant contract with Charles Darwin University. Our
company required an additional business name, operating bank accounts, and
internet domain names. In order to obtain these, I needed a corporate key for
the ASIC portal. I contacted ASIC for a corporate key for the ASIC portal.
Despite a number of attempts by phone and email, I was unable to speak to any
living person. As matters became dire, I instructed my Australian consultants
to do the best they could until I was able to ascertain the ASIC information.
It was around this time that I was able to contact ASIC, and
I was informed that PPI had been listed for de-registration! I was really quite
shocked and was in disbelief. Our company prides itself on its successful
operations and high integrity. PPI does not even owe any money to any creditors
anywhere in the world. To be informed that a government statutory body had
deemed our company to be in default for any reason was a genuine surprise.
Initially I assumed there had been a misunderstanding or clerical error. I
later learned that ASIC, had sent important documents to my sister's address
after her passing. ASIC had actual knowledge that my sister had passed away. As
aforementioned, ASIC claimed to have sent these communications to our Thailand
office. These were never received. My Bangkok address has remained the same
since 1987. The same address was noted on our original ASIC registration. A
data entry error by ASIC meant all correspondence were not received.
Despite paying the fee required by ASIC, Mr Hay was informed that a
notice of ASIC's intention to de-register the company would be placed on the
register, 'despite no de-registration occurring':
This notice remains on the public record. In 30 years of
business, PPI has never had one mark against our good name or our international
reputation. The only mark now is this notice by ASIC.
In May 2013 I was contacted by one of the world certification
bodies. I was informed that there were concerns about PPI as PPI was
"Under investigation by ASIC". This was untrue. I have since had
ongoing trouble in business relations with long term vendors, accreditation
organizations, international banks and a number of other institutions who, in
the ordinary course of commerce have undertaken the usual prudent checks, only
to find this unwarranted ASIC mark against our company's name. As the notice
appears in the insolvency notices on the ASIC site, I am of the understanding
that some credit reporting agencies have listed our company on their register.
I am unable to find the words to describe how incredulous this makes me feel
knowing that this is the result of (a) my sister's death, which was followed by
a great period of family mourning, and (b) a clerical/administrative error of
ASIC. It is very unreal.
ASIC was questioned about this matter at a public hearing. It advised
that the notice was removed from the website on 10 May 2014. ASIC's
interpretation of events was given as follows:
...The background of the matter is that Mr Hay's company was
listed for deregistration for not having paid its annual return fee that had
been outstanding for over 12 months. The process is that we then publish a
notice of deregistration as required by the law and separately write to all of
the office holders at their home addresses that this is the process that is
being undertaken. Mr Hay tells us that that is the first time that he heard
about this deregistration process. There would have been a previous notice both
to remind of the need to pay the annual fee at the time that it was due and a subsequent
reminder, but the registered office Mr Hay tells us had changed. We had not
been informed of that change. Subsequently, however, we became satisfied that
there were reasons that suggested that it was not appropriate to proceed with
the deregistration. Chief among them was that he paid the annual return fee,
but also that there had been some communication that the previous registered
office was no longer the right registered office. In fact, the sole Australian
director had died and their spouse had advised us that she was no longer
accepting mail at that particular address but we had no other address to follow
up. Therefore it has been removed.
Another area of complaint about ASIC's registers related to how
effectively they are integrated with other government databases. Mr David
Pemberton, an accountant based in Darwin, questioned why ASIC's register of
banned or disqualified persons does not include undischarged bankrupts. He
advised that the response given to him by ASIC was that ASIC did not have the
resources to update its registers with the details of individuals listed on the
registers operated by the bankruptcy regulator, the Australian Financial
Security Authority (AFSA).
Based on their experiences of using ASIC's registry services and contacting
ASIC, a small businesses owner suggested that ASIC has 'little, if any,
understanding of small business'. The small business owner provided the
following statement on their experience telephoning ASIC's call centre:
Telephone inquiries can result in a wait of some 30 minutes
up to 90 minutes for connection. The call-centre operators I have
encountered are disinterested in providing basic customer service, have little
knowledge, read from prepared scripts, and have no interest in, or incentive
to, providing a solution, provide no 'ownership' of an inquiry, or interest in
any form of 'follow-up'.
The small business owner contrasted ASIC's call centre with private
sector call centres they have encountered. From their experience, they consider
that ASIC's call centre staff are unable to respond to more complex inquiries
that are beyond the standard call centre scripts. The small business owner also
advised that ASIC's call centre employees are not tasked with 'ownership' of an
I could relate numerous examples with a range of suppliers—particularly
banks, share registries, and energy and internet providers—where such ownership
has resulted in call-backs to keep me informed of the progress with an issue, a
resolution and, often, a post-event call to gauge my satisfaction with that
resolution. In my experience such a concept is alien to ASIC.
The same submitter also argued that ASIC places 'the onus on small
businesses to do ASIC's job':
An example; 'If you have not received your annual statement
within 5 days after the review date you should contact us'. Could you [imagine]
you[r] electricity supplier putting on their web site: 'If you haven't got you
bill 5 days after it was due to be issued contact us'. Really.
The Commonwealth Ombudsman, which receives and investigates complaints
about Australian government agencies such as ASIC, addressed the issues faced
by small businesses. The Ombudsman provided some examples of its investigations
to illustrate the difficulties clients experienced. Two examples are outlined
Mr A attempted to register a business name online using ASIC
Connect. His application was automatically rejected, as the name he was
attempting to register was too similar to an existing registered business name.
The existing registered business name was the name of Mr A's existing business
and the purpose of his application for a new business name was to rename this
Mr A successfully contacted ASIC by phone to explain the
situation and to seek advice. In response, ASIC sent an email to Mr A with a
link to a form for an application for review of the decision to reject the
application. Mr A claimed that the link in the email did not work, and that
after searching ASIC's website, most of the relevant links on the website were also
broken. Mr A emailed ASIC explaining that the links were broken and that he
still required assistance. After waiting a further 9 days without a response,
Mr A contacted ASIC by phone. Mr A claimed that ASIC told him it was still
unable to provide a response and that he would need to wait. Following this, Mr
A tried on several occasions to contact ASIC by phone to check the progress of
his matter. Mr A claimed he was either told that he would need to wait up to 2
hours in the phone queue or received a "busy announcement" message
which advised that he should call back later.
Three months after Mr A applied for the business name, Mr A
complained to the Ombudsman that he had still not received a response from ASIC
and that he was now unable to contact ASIC to discuss the matter. The Ombudsman
transferred the complaint to ASIC pursuant to the complaint transfer agreement,
and the matter was resolved.
* * *
Ms G had a registered company. Ms G discovered that a
competitor to her business registered a substantially similar business name to
that of her company. Ms G believed that she had been losing revenue since this
occurred, as some customers were confusing the competitor's business with her
Ms G complained to ASIC about the registration of the
substantially similar business name. Despite numerous phone calls to ASIC, the
matter was still not resolved over 5 months later. Ms G complained to the
Ombudsman that ASIC had not resolved the issue within a reasonable time period.
The Ombudsman investigated Ms G's complaint. ASIC cancelled
the registration of the substantially similar business name, and apologised to
Ms G for its delayed and insufficient communication. ASIC informed the
Ombudsman that the delay in responding to Ms G was largely attributable to the high
number of enquiries received by ASIC about business names following the
introduction of the [business names register], and that systems and processes
for dealing with business name conflicts and reviews were still in development.
The Commonwealth Ombudsman noted the results of ASIC's 2013 stakeholder
survey, which indicated that 23 per cent of small businesses that had
interactions with ASIC considered ASIC to be 'very' or 'somewhat' difficult to
The committee is concerned by the evidence it has received about the
experiences small businesses have had when dealing with ASIC. The committee
notes that many of the issues relate to the implementation of the national
business names register, and that ASIC has continued to improve the services
related to that register. Nevertheless, the results of ASIC's own stakeholder
engagement survey indicates that small businesses have the least positive view
on how easy it is to deal with ASIC. There are also other examples of problems
small businesses have had with ASIC.
The committee urges ASIC to continue to improve its delivery of services to
Access to information collected by ASIC
Given that ASIC gathers significant amounts of information and collects
further information as a result of its regulatory activities, a number of
witnesses were critical of ASIC's failure to publish much of this material. For
example, a submission from several academics at the Adelaide Law School
expressed concern about 'the relative lack of statistics and data for
researchers, stakeholders and the wider public'. The group noted that ASIC
receives and stores prescribed information under legislation and, while
acknowledging that some of it cannot be made public, argued that anonymous and
aggregate statistics could be made public if ASIC chose
to do so.
The group contrasted ASIC's approach to that of other government agencies, such
as the AFSA and the ATO:
ITSA (now called AFSA) publishes far more information and
interprets its received data in a way that provides a clear and detailed
analysis of trends, for example in its Profile of Debtors. As another example
the ATO makes 1% of its tax files available for research and analysis, on an
anonymous basis of course. ATO even sets out on its website how this research
benefits the ATO and the public.
The group of Adelaide Law School academics was firmly of the view that ASIC's
statutory functions 'go far beyond merely collecting mandatory information and
storing it'. They argued that to promote 'informed participation' in the
market, ASIC should make material accessible and present it in an informative
way. As an example, they cited information relating to insolvency appointments,
where such information would be of use 'not just to academics but to market analysts,
economists, the business media, the insolvency and legal professions and
Other submitters also criticised ASIC for not producing instructive
statistics. Mr Jason Harris, a senior lecturer in corporate law at UTS,
informed the committee that the lack of data, particularly relating to
enforcement and insolvencies, stifles debate as 'we are unable to determine
exactly what it is that ASIC does aside from what it tells us; but, more
importantly, we are unable to work out what it is ASIC is failing to do'. He
stated further that ASIC's reports are 'almost marketing material', providing
broad based percentages without producing real numbers. As an academic and a
...it would be useful to be able to look at exactly what ASIC
does in that space...It talks about banning directors. It gives us numbers over a
number of years. When you dig down into the enforcement reports, the detail is
lacking. We do not know if ASIC is actually taking action against phoenix
company directors even though insolvency practitioners will tell you they ...are
seeing the same people coming back again and again with regard to insolvency.
They are submitting reports to ASIC. We have well over 10,000 companies going
under every year. We have something like 11,000‑odd reports from
liquidators and other insolvency practitioners going in every year, and the
numbers of enforcement statistics that we are getting from ASIC just in terms
of director bannings—they do not tell us what they are banning the directors for—are
looking at a very small number. It is 20 or 30 directors across a very broad
range of activity. They do not relate it back to, for example, insolvent
Mr Harris provided some further examples, such as the discussion on non‑compliance
outcomes in ASIC's annual report. ASIC provides only the numbers of orders but does
not publish the total numbers of non‑compliance. Mr Harris made the
Obtaining 26 civil orders and 46 criminal convictions is an
unhelpful statistic without knowing how many cases of non‑compliance were
involved. For example, if 5,000 companies failed to lodge their reports
(a conservative figure based on the more than 2 million registered
companies), then 72 orders seems a low figure.
The figures published in ASIC's half yearly enforcement reports were also
criticised for being general in nature. Mr Harris noted:
For example, the category of 'insolvency' is almost
meaningless given Ch 5 of the Corporations Act (which covers insolvency)
comprises several hundred provisions. Similarly the category of 'small business
compliance and deterrence' is too vague. The report for July 2013–December 2013
includes 42 administrative remedies against directors and 181 criminal orders
against directors, both for small business compliance and deterrence. No detail
of what contraventions or what sanctions were imposed is included, neither is
any information on how many matters were commenced/investigated/completed in
this category. This is a very unhelpful statistic. The media releases provided
in Appendix 2 do not include small business compliance and deterrence, which
means the overwhelming majority of sanctions go unreported to the public. This
is totally unsatisfactory. If there are privacy concerns then these can be addressed
by removing personal information, but there is no reason why information
concerning enforcement action is not made public.
According to Mr Harris, ASIC was in possession of this information but
needed to produce better statistics. Mr Harris provided further examples of
information that he, and other academics he consulted, would like ASIC to
He informed the committee that there was a team of academics happy to go in as
free labour and extract that data and provide a usable database. Mr Harris
informed the committee that academics had been discussing this matter for many
years and have had meetings with 'very senior people inside ASIC'.
The Australian Restructuring Insolvency and Turnaround Association
(ARITA) also drew attention to the amount of prescribed information that ASIC
receives and stores under legislation. ARITA explained that much of the
material is supplied by insolvency practitioners in their reports and
lodgements with ASIC'. According to that organisation 'much information is
collected but less is published'.
Mr Michael Murray, Legal Director, ARITA, also compared ASIC's statistics with
those of the bankruptcy regulator:
[AFSA] produce good statistics which inform the law reform
process in bankruptcy. We do not have that sort of information in corporate
According to ARITA, ASIC had improved its collection and publication of
data but needed to do more. Mr David Lombe, President, ARITA, gave an example
of the limitations imposed on researchers:
ARITA gives a research prize so that someone can do research.
One of our prize-winners was looking at deeds of company arrangement. When you
go into voluntary administration, there is a decision about whether you go into
liquidation or a deed of company arrangement. He was trying to work out how
many companies go into deeds of company arrangement and how successful those
deeds of company arrangements are. He wanted to get access to information from
ASIC to be able to do that very important research. It would have cost thousands
of dollars and ASIC just said, 'We can't give that information to you.'
He noted, however, that ASIC may be prevented from waiving fees or
giving out that information.
Dr Suzanne Le Mire and her colleagues were of the view that ASIC has ample
power to devote more resources to making information and data publicly
available. They suggest that the ASIC Act could be improved by making this duty
more explicit. As an example, they cited section 455 of the Insolvency Act 2006
(NZ), which places a specific duty upon the regulator to make insolvency
statistics available for research purposes (for example, searching the
insolvency index in New Zealand).
The committee sought ASIC's views on whether the current approach to accessing
and publishing information stored by ASIC promoted informed participation in
the financial system. ASIC explained that the information it collected and how
it was made available to the public, including the fees it charged, was
prescribed by legislation. ASIC advised that it had 'little discretion' in
administering the fees charged for accessing information on ASIC's registers,
although certain information and statistical data could be accessed without
charge on its website.
ASIC also asserted that its annual report contained 'a wide range of
ASIC described how it handles customised requests for information from
members of the public:
Any such request will be directed to the relevant business
area. The request will be assessed as to whether the legislation will permit
the release of the data, and whether ASIC's data storage systems can support
such a request. If the customer's request can be provided, the fee is
determined according to the accessibility of the data and the work involved in
producing it. For example, if copies of documents are requested then the number
of documents provided will impact the prescribed fee.
According to ASIC, in 2013 it provided customised data in response to
53 requests from customers including academics, information brokers, and
government bodies. The cost incurred by these customers ranged from $9 to
$1,100, with the average cost being $276. ASIC reported that 41 other requests
were not proceeded with due to the unavailability of the requested data,
legislative restrictions or the customer deciding not to proceed with payment. ASIC
stated that these customised requests for data were 'particular to the specific
needs of the customer' and were 'usually one-off in nature'. ASIC informed the
committee, however, that the statistical data it published was responsive to
public demand, adding that:
If there were sufficient demand for certain types of
statistical data, and its release satisfied legislative and technological
parameters, ASIC would certainly consider making it readily available.
The committee is of the view that ASIC should interrogate its databases
and extract and publish critical information that would allow academics,
professional bodies and interested members of the public to gain a greater
understanding of what is happening in the financial world. This requirement to
analyse the various databases would also provide ASIC employees with the means
to develop and test their analytical skills and capability.
The issue of releasing data reaches beyond simply publishing statistics.
As identified elsewhere in this report, ASIC does not respond promptly to
warning signs of brewing trouble. A part solution to this problem could well
reside in ASIC's ability to analyse its databases and other vital information
that it gathers and records. In the committee's view, ASIC should do more than
simply record, collate and publish such information. If ASIC were to undertake
serious research and critical analysis of the information it receives, it would
provide its employees with the opportunity
to apply and further hone their skills. They would be well placed to
interrogate ASIC's databases in order to discern any troubling trends or
identify areas that appear to warrant close scrutiny. In addition, by making
available a rich source of statistics and importantly its own analysis of that
material, ASIC would benefit from allowing academics and other stakeholders to
subject its analysis to further scrutiny and in‑depth analysis and to
receive informed feedback.
The committee recommends that ASIC promote 'informed participation' in
the market by making information more accessible and presented in an
ASIC operates its main website www.asic.gov.au and a consumer advice
website MoneySmart www.moneysmart.gov.au. The MoneySmart website was launched
in March 2011 as part of the National Financial Literacy Strategy.
The website contains information on several consumer finance key topics.
For example, it provides general guidance about what to take into account when
considering credit, it explains how superannuation works, and highlights
various finance-related scams. The website also contains several calculators
and tools such as budget and retirement planners, and mortgage, superannuation
and credit card calculators. ASIC provided the following information about the
MoneySmart website's success:
It regularly gets over 400,000 unique visitors a month and has
been visited by over 6.9 million people since its launch.
ASIC's research indicates that 89 per cent of users rate the site
as 'useful', and 90 per cent of users said they had taken specific action with
their finances as a result of visiting the website.
The website was named 'best service delivery website' at the 2012
Excellence in e-Government Awards, and 'Best in Class' at the 2012 Interactive
Media Awards in two categories (Government and Financial Information).
In 2011, the International Organization of Securities Commissions
(IOSCO) rated the website as 'outstanding' and gave it a five out of five
Stakeholders commended ASIC for its work on the MoneySmart website.
The Association of Superannuation Funds of Australia described the MoneySmart
website as 'an excellent initiative' that contains 'exceptional information'.
State Super Financial Services Australia advised that it has taken ideas from
the website to develop educational material to assist their clients to
understand financial concepts.
The Consumer Credit Legal Centre (NSW) stated that while it often provides
constructive feedback about certain parts of the website, 'overall it is a very
comprehensive and useful resource for consumers—especially the numerous
calculators and other practical information available to assist people consider
their financial options'.
However, similar praise for the main website ASIC operates was not
forthcoming. One small business owner described the homepage of ASIC as an 'exercise in how not to design' such a webpage. The submitter added that
it appears to be a website 'primarily to promote ASIC, not to access services':
Most of the ASIC home page is filled with a list of ASIC's
actions/successes. As a small-business operator I don't go to the site for a
news service to promote ASIC. The poorly thought-through home page is typical
of the whole site that is shaped to serve ASIC's needs, not to be an efficient
access portal for small business, or others, to access database services.
The small business owner also objected to the 'complicated' nature of
the website and that the information on the website, once it has been located,
supplies 'overwhelming detail in some areas and little or none in others'.
They argued that the website should be completely reworked with a 'fundamental
rethink' of the purpose of the website and who it is intended to serve
Academics also commented on ASIC's website. Mr Jason Harris described
the search engine of ASIC's website as 'totally inadequate...almost unusable and
unhelpful, generating hundreds of hits with very little ability to refine
The Commonwealth Ombudsman suggested that ASIC's website could be
improved. In particular, the Ombudsman identified a need to more clearly
articulate ASIC's complaints process and to simplify the information provided
The Ombudsman noted that ASIC's 2013 stakeholder survey revealed that small
businesses rated the website negatively.
ASIC has taken some steps to improve the useability of its website in
relation to insolvency notices. In mid-2012, a standalone website for
publishing insolvency notices commenced operation.
This website followed a 2008 recommendation by the Corporations and Markets
Advisory Committee to limit the publication of notices in the print media.
A great number of people visit and rely on ASIC's main website
www.asic.gov.au for information about matters relevant to them. However, when
compared to the website of other Australian government agencies or ASIC's
international counterparts, in most cases ASIC's website appears cluttered and
not user-friendly. Rather than providing easy access to the most requested
information and services, ASIC's homepage heavily emphasises ASIC's recent
Also, the information presented elsewhere is not tailored to its different
audiences: members of the public are left to navigate the same webpages as
As this report has indicated elsewhere, there is a need for ASIC to improve how
it communicates with consumers and other groups. In sum, ASIC's main website
appears to be another symptom of this wider problem.
It is important that ASIC's website is functional and provides a
satisfactory user experience. Although ASIC's website is likely targeted to
those it regulates,
it should provide useful information for members of the public. Given the
confusion in the community about the respective roles of various government
the website should clearly describe ASIC's role, preferably on the homepage.
ASIC should explain how it undertakes this work and provide general information
about the regulation of the financial system to members of the public. As the
website of a regulatory agency, it should provide easy access to relevant and
up-to-date information that assists regulated entities to comply with their
obligations. As a law enforcement agency, the website also needs to
encourage people to come forward and report matters to it. At present, it does
not appear that any group of users is particularly satisfied with ASIC's
The committee recommends that ASIC consider the aims and purposes of its
website and redesign its website so that these aims and purposes are achieved. Particular
consideration should be given to:
explaining ASIC's role clearly on the website's homepage;
providing a 'for consumers' category of information; and
redesigning the homepage to give greater prominence to key
information and services and less prominence to recent media releases.
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