Accountability and governance structure
As an independent Australian government statutory authority entrusted
with significant powers, it is essential that ASIC is subject to robust
accountability processes. The accountability framework must also require the
regulator to exercise its powers fairly and transparently. As Professor Dimity
Kingsford Smith observed that ASIC's legitimacy as a regulator:
...comes partly from ASIC being transparent and accountable in
a number of ways: financially, procedurally, and substantially. Ultimately,
ASIC is a public institution, which works best when its decisions and
processes are seen by the public.
It is also essential, however, that the accountability framework applied
to ASIC recognises, and safeguards, the autonomy needed for ASIC to have
legitimacy among the regulated population and in the broader community. The
importance of accountability to agencies such as ASIC is recognised in the
terms of reference for this inquiry, which directs the committee to examine the
accountability framework to which ASIC is subject, and whether this needs to be
strengthened. The means for applying external accountability to ASIC is one of
the issues considered by this chapter.
ASIC's performance can also be influenced by its internal governance
framework. To ensure high‑quality public governance, efficiency and good
decision‑making it is essential that ASIC's internal governance framework
is appropriate and works effectively. This chapter considers the model of
governance currently applied to ASIC by the ASIC Act and possible alternatives.
ASIC's lines of accountability
ASIC is subject to several formal and informal accountability
mechanisms. The following paragraphs describe these processes.
Relationship with government
As is the case with other independent statutory authorities, the
government, through an assigned minister,
retains responsibility for the administration of ASIC. The relationship between
the government and ASIC is evident in several ways, but perhaps most notable are
that the government appoints ASIC's statutory office holders (i.e. the chairperson,
deputy chairperson and other commissioners)
and that ASIC relies on funds appropriated by the Parliament. The ASIC Act also
outlines the following specific areas where ASIC and the minister may interact:
ASIC has the function of advising the minister if ASIC considers
that changes to the corporations legislation (other than the excluded
or other legislation that confers on ASIC functions and powers are needed to
overcome, or to assist in overcoming, problems that ASIC has encountered while
performing or exercising its functions and powers;
sections 12 and 14 of the ASIC Act enable the minister to give
ASIC a written direction relating to ASIC's policies or priorities, or directing
that a particular matter be investigated.
As a prescribed agency under the Financial Management and
Accountability Act 1997 (FMA Act), ASIC's management of finances and property
are governed by the framework provided for by that Act.
In particular, as a chief executive of an
FMA Act agency, the chairman of ASIC must manage the affairs of ASIC in a way
that promotes proper use of the Commonwealth resources.
Further, under the FMA Act both the responsible minister and the Finance
Minister may request any reports, documents and information that they may
Two key mechanisms for ongoing parliamentary oversight of ASIC are the
scrutiny associated with proposed government expenditure through the budget
process and the requirement that an annual report on ASIC's activities be
presented to the Parliament. This dedicated inquiry into ASIC demonstrates
another way that ASIC is responsible to Parliament for its operations. Further,
the Auditor‑General, an independent officer of the Parliament supported
by the Australian National Audit Office (ANAO), audits financial statements of
government agencies and conducts performance audits. These reports assist the
Parliament to perform its functions.
ASIC is subject to ongoing parliamentary oversight via two committees:
the Senate Economics Legislation Committee, which examines all
Treasury portfolio agencies including ASIC as part of Senate estimates
(generally three times a year) and reviews the annual reports of these
the Parliamentary Joint Committee on Corporations and Financial
Services (PJCCFS)—a committee established under the ASIC Act charged with
inquiring into the activities of ASIC and the operation of the corporations
legislation, as well as reviewing the annual reports of bodies established
under the ASIC Act.
Parliamentary Joint Committee on
Corporations and Financial Services
The PJCCFS was established by the Australian Securities Commission
Act 1989. The decision to create a dedicated parliamentary committee to
oversee ASIC and the corporations legislation followed concern about the
complexity of the corporations legislation and ASIC's power to modify or
suspend the application of legislation to individuals or classes.
In 1989, a parliamentary joint select committee concluded that a permanent
committee should be established to 'monitor the work and activities' of the
bodies now known as ASIC and the Takeovers Panel. That committee wrote:
The Committee believes that if the powers of such a
Parliamentary Committee are carefully drafted and imaginatively employed they
will enable the Committee to identify important issues and inquire into and
report on these matters and make a positive contribution to the efficiency and
effectiveness of the ASC and its associated bodies.
The PJCCFS's duties are outlined in section 243 of the ASIC Act. Among
other things, the PJCCFS's tasks include inquiring into the activities of ASIC
and examining its annual report.
In fulfilling these statutory duties, the PJCCFS conducts regular public
hearings with ASIC.
The PJCCFS also conducts wider inquiries that gather written and oral evidence
and lead to detailed reports. Particularly notable inquiries conducted in
recent years include those into the Franchising Code of Conduct, financial products
and services (also known as the Ripoll Inquiry after committee's then chair
Mr Bernie Ripoll MP), and the collapse of Trio Capital.
The PJCCFS has also been tasked with reviewing significant legislative changes,
such as the 2012 Future of Financial Advice (FOFA) legislation.
Other accountability mechanisms
A number of other formal and informal accountability mechanisms exist.
Certain decisions made by ASIC under the ASIC Act, Corporations Act and other
Acts can be reviewed by the AAT or the Takeovers Panel.
Decisions can be subject to judicial review. ASIC is also required to comply
with other legislation or policies that are applied to government bodies
the Freedom of Information Act 1982;
the Legal Services Directions 2005, which includes a requirement
to act as a model litigant in the conduct of litigation, as well as policies on
the procurement of Commonwealth legal work;
the Commonwealth Procurement Rules; and
as ASIC's staff must be employed under the Public Service Act
1999, ASIC is bound by that Act, including the directions about employment
matters made by the Australian Public Service Commissioner. ASIC's employees
must also abide by the Australian Public Service (APS) Code of Conduct and
The Commonwealth Ombudsman, which investigates complaints alleging unfair
or unreasonable treatment by an Australian government department or agency, can
investigate complaints about how ASIC has handled a particular administrative
matter. Effective informal scrutiny of ASIC's activities can also be provided
by the media and academics.
Upcoming and possible changes to
the current accountability framework
Some changes to the whole-of-government accountability framework are
already scheduled to be implemented and further changes that specifically
relate to ASIC may also be under consideration. The Public Governance,
Performance and Accountability Act 2013 (PGPA Act) will reform the
financial framework that applies to all Commonwealth entities. The PGPA Act
will replace the FMA Act and the Commonwealth Authorities and Companies Act
1997 on 1 July 2014.
In March 2014, the parliamentary committee with responsibility for
oversight of the Australian Commission for Law Enforcement Integrity (ACLEI)
commenced an inquiry into the jurisdiction of ACLEI. Among other things, that
inquiry will consider the desirability and feasibility of extending the
jurisdiction of the ACLEI to include oversight of ASIC (and certain other
This follows concern expressed by the Parliamentary Joint Committee on Law
Enforcement in 2013 about ASIC being able to gain access to a national
repository of criminal intelligence without being subject to ACLEI oversight.
Views on the current accountability framework
Several submissions from aggrieved individuals and other observers argued
that ASIC is not being held accountable. Some examples are below:
There is no accountability when a regulator does nothing in
the face of years of evidence of bad loans. There is nothing in ASIC's annual
reporting obligations that requires it to explain actions it has taken to
prevent and put an end to corrupt and immoral business practices. Banks should
be required to disclose the number and value of loans they have foreclosed, the
number and value of properties they have repossessed, and the number of
customers they have placed in bankruptcy. Where these exceed a very low
threshold, ASIC should be required to automatically investigate, and all these
statistics should be reported to Parliament.
* * *
ASIC is subject to no accountability whatsoever. There is the
razzmatazz of Senate sub-Committee hearings, and the formal reporting
requirements—but these are just going through the motions. ASIC's Annual Report
is annually an exemplar of managerialist blah, a box-ticking waste of paper.
Others suggested that there appears to be sufficient oversight of ASIC,
but that 'whether it is effective depends upon the powers and performance of
the overseers'. With the exception of dedicated inquiries such as that being
conducted by this committee, it was argued that the Commonwealth Ombudsman is
to oversee ASIC on an ongoing basis.
Organisations and stakeholders that engage with ASIC on a regular basis,
and academics, had few concerns with the current accountability arrangements.
For example, the Association of Financial Advisers stated that oversight of
ASIC by the Australian Parliament is the most appropriate accountability
mechanism, and it does not consider there is a need for any significant change.
The Law Council's Corporations Committee similarly considered that the current
accountability mechanisms are 'satisfactory and effective'. It suggested that
'an evidence-based case would need to be made to suggest additional mechanisms
The Australian Shareholders' Association advised that it has no evidence that
suggests there is a need to strengthen ASIC's accountability framework.
Dr Marina Nehme also argued that the overall accountability framework does not need
to be changed. Dr Nehme highlighted the principles underpinning the
current system and the risks associated with any potential amendments:
[The framework] currently provides a good balance between
ensuring the accountability and the independence of ASIC. It is essential that
the independence of this regulator is not eroded in any way to enable it to
achieve its objectives efficiently.
ASIC addressed the issue of accountability in its main submission. While
it noted the criticism in some submissions about ASIC not being held
accountable, ASIC countered that it is accountable 'for all aspects of our
work', and that the current accountability framework is 'extensive,
multi-layered, and rigorous', and works well in practice.
While there was minimal support for significantly altering ASIC's
accountability framework, some minor enhancements that could be considered were
identified. Dr Nehme and CPA Australia commented on a past practice of the
government issuing ASIC with a public statement of expectations and requiring
ASIC to respond with a public statement of intent.
CPA Australia called for the practice
to be reinstated; it argued that the process had the effect of making ASIC
accountable and constrained by the statement of intent it made:
By articulating an annual plan and agreement with the
government, a regulator such as ASIC can ensure that it works towards meeting
the Government's expectations and appropriately manages its resources...This
requirement is not only good policy but increases the transparency and
certainty for the market, consumers and government. Good regulatory policy is
based on outcomes, not on the volume of rules a regulator produces.
In April 2014, the government issued a new statement of expectations to
The committee notes that the government has recommenced the practice of
issuing statutory agencies such as ASIC with statements of expectations. However,
to ensure this framework is as effective as possible, consideration should be
given to how adherence to the statement of intent could be monitored. Given
that ASIC is subject to ongoing oversight by the PJCCFS, that committee may be
to review these statements and question ASIC about them on a regular basis.
This process could inform the development of the next statements.
The committee has not received compelling evidence that suggests the mechanisms
currently in place for providing external oversight of ASIC's activities need
to be reviewed. Undertaking external oversight of an agency such as ASIC will
be inherently difficult regardless of the model in place for doing so. Over the
years, the PJCCFS has performed its challenging task commendably, with a number
of landmark inquiries such as the Ripoll Inquiry leading to substantial reforms
and continuing to influence policy discussions today.
The PJCCFS may wish to consider whether it can pivot its oversight
function towards emerging risks. It is evident that many PJCCFS inquiries have
a number of events, such as Storm Financial, Opes Prime and Trio Capital. Sadly,
inquiring into collapses such as these that lead to personal misery and significant
financial losses has been a necessary function of parliamentary committees,
particularly in the wake of the global financial crisis. However, in addition
to undertaking inquiries that assess what went wrong after the fact, the PJCCFS
could place greater pressure on ASIC about emerging issues and industry
developments with a view to limiting the number of minor issues that become
major scandals. It may be necessary for the PJCCFS to question ASIC about the
matters raised by individual complaints, as this committee has done with a
number of submissions. As a first step, the PJCCFS may wish to consider
dedicating one of its ASIC oversight hearings each year to emerging issues and
early warning signals that, if appropriate and timely action were taken in
response, could limit the potential for widespread investor losses or major
fraud. The PJCCFS would also be well-placed to develop inquiries into the
lifting of professional, ethical and educational standards in the financial
services industry, a recurrent theme in this review of ASIC
The committee notes that the Parliamentary Joint Committee on
Corporations and Financial Services could be well-placed to monitor ASIC's
performance against the government's statement of expectations and ASIC's statement
of intent. The committee recommends that the Parliamentary Joint Committee
consider this as part of its statutory ASIC oversight function.
The committee recommends that the Parliamentary Joint Committee on
Corporations and Financial Services consider how it could undertake its statutory
duties in a way that places a greater emphasis on emerging issues and how
action could be taken to pre-empt widespread investor losses or major frauds.
As a first step the Parliamentary Joint Committee could, on an annual basis, reserve
a public hearing to emerging issues, taking evidence from both ASIC and
The committee recommends that the Parliamentary Joint Committee on
Corporations and Financial Services inquire into the various proposals which
call for a lifting of professional, ethical and educational standards in the
financial services industry.
ASIC's governance structure
As is the case with large organisations generally, having in place a
governance structure that encourages good decision-making with the most
appropriate people involved is fundamental to ASIC fulfilling its objectives.
Given the independent status ASIC enjoys and the significant powers it is
entrusted with exercising, a sound governance structure is needed to promote
stakeholder and public confidence in ASIC's operations and protect against
The commission that governs ASIC is comprised of a chairperson, a deputy
chairperson and between one and six other members. The commission meets on
a monthly basis, although more frequently if required, to make decisions about
matters 'within ASIC's regulatory functions and powers that have strategic
to provide input about matters of significance and to oversee and to ensure
that ASIC's statutory objectives are being met. The commission also oversees
the management and operations of ASIC as a Commonwealth agency.
Specific commissioners are allocated executive responsibility for groups of ASIC's
stakeholder and enforcement teams.
Senior Executive Leaders (SELs) manage these teams and exercise various powers
and functions delegated to them by the commission.
A number of internal and external committees and bodies assist the commission
to carry out its functions.
The ASIC Act includes procedures for ASIC's chairman and commissioners
to disclose and manage conflicts of interest.
However, unlike other regulators such as the ACCC,
ASIC does not publish a code of conduct for its commissioners.
It is evident that there are different models in place for governing
regulatory agencies. Like ASIC, the ACCC is similarly governed by a commission.
However, while the ACCC's commissioners may chair internal committees that
relate to particular areas of the ACCC's remit, they are not formally aligned
with particular work areas and teams. The ACCC's commission also appears to be
collectively involved to a significant extent in decision-making; according to
its published guidance, the commission usually meets on a weekly basis to make
decisions about investigations and regulatory matters.
The ACCC previously had a separate chairman and chief executive officer,
however, the chief executive officer position has been recently abolished.
APRA is governed by an executive group comprised of the chairman and the
other members appointed (in total, the executive group consists of between
three and five members). APRA's executive group meets at least on a monthly
basis but also meets with senior management weekly 'for high-level information
sharing and decisions on more routine supervisory and organisational matters'.
Board structures can be used as a governance structure for regulators,
although they are more common is other countries. The RBA has two boards: the
Reserve Bank Board and the Payments System Board. The Governor of the RBA chairs
the boards and has responsibility for managing the RBA. The UK's Financial Conduct
Authority is governed by a board of executive and non-executive members, with
separate chairman and chief executive officer positions. The New Zealand
Financial Markets Authority has a non-executive board.
Views on ASIC's governance
The public perception of an agency's performance, accountability and
legitimacy can be affected by the governance model in place and the composition
of the governing body's members.
Aggrieved borrowers in particular criticised recent appointments made to ASIC;
for example, one submission objected to past and present chairmen and
commissioners having banking backgrounds or entering the banking sector after
Levitt Robinson Solicitors suggested that
the United States system of Senate confirmations for certain executive
appointments should be adopted in Australia for ASIC office-holders.
The committee sought views on ASIC's governance structure and tested the
advantages and disadvantages of different governance models. Professor Dimity
Kingsford Smith highlighted how the accountability of a regulator can be shaped
by the governance structure by reviewing various foreign regulators:
In the US the Securities Exchange Commissioners are overtly
political non‑executive appointments: the GFC suggests that this model
may make a commission more susceptible to political or industry influence. In
New Zealand the Financial Markets Authority has a CEO and a non-executive board
from industry and related groups. In the UK the Financial Conduct Authority has
an executive chair and CEO and a non-executive board from industry and consumer
groups. These models rely on individual executives being expert in a broad
range of financial activities, immune to industry influence through board
composition and fearless 'lone-wolf' decision-makers.
Professor Kingsford Smith concluded that the commission-based models
adopted by agencies like ASIC are 'more robustly independent and provide a
better spread of expertise'. However, she added that ultimately the structure
of an organisation 'is less influential than the calibre of personnel appointed'.
When asked about ASIC's governance structure, Mr Douglas Gration of the
Governance Institute of Australia identified two issues: ASIC's ability to draw
on industry experience and the independence of those overseeing ASIC. Mr
Gration observed that the existing model allowed ASIC to gain industry
experience, as ASIC's past and present chairmen and commissioners have had
private sector experience at senior levels. However, Mr Gration remarked that
the issue of independence is not addressed in the current structure:
[ASIC] is like a company that is composed entirely of
executive directors. The ASX corporate governance principles that we have been
heavily involved with others in developing very much value the presence of
independent directors on a corporate board. It is not obvious why ASIC would
not benefit similarly from the expertise of having commissioners who were not,
in effect, full-time executives and employees of ASIC as well.
Mr Gration concluded that the lack of expertise from outside the
organisation could result in ASIC 'very much living in its own world and in its
own cocoon'. He also highlighted how ASIC could suffer as a result of the governance
framework not encouraging the contestability of ideas:
Undoubtedly, the private sector recognises that there is
value in having independent directors, independent non-executive directors, on
the board of a company who are not employees. It is an odd arrangement that you
have the chair of the commission, and in one sense all the other commissioners
are beholden to the chair. It makes it quite difficult to have an independent
line of thinking there. If you have got a terrific chair, that is okay; but
even a terrific chair can benefit from that sort of independent thinking.
Other witnesses also commented on the influence of ASIC's chairman in
ASIC's current governance structure. Dr Stuart Fysh, an individual prosecuted
a result of an ASIC investigation and later acquitted, pointed to the changes
in approach that have occurred as a result of the latest change in
chairmanship. Dr Fysh concluded that 'the organisation is too imprinted with
the stamp of the guy at the top' and as a result 'the culture of the
organisation swings around'.
Dr Fysh commented on his experience at BG Group, an international energy
company involved in gas exploration and production, to demonstrate the benefits
that a board structure at ASIC could provide:
For example, in BG Group they would largely be functions of
the group executive, which of course exist in—but half a dozen times a year
human-resource policy would be discussed with the board. If we had killed
somebody because we had an incompetent operator in place—which is kind of what
ASIC has done—the board would want to understand: 'Was that just an accident?
Was this guy some sort of nut? How did he get through our system?' They would
spend a day looking at the core competencies that we want in investigators or
gas operators...If I were on the board of ASIC I would be saying to them,
'Look we've just lost this Fysh case. Could you chaps just come in—and don't
just bring in all your senior people; bring some of the junior people in, so we
get a look at the horseflesh in the organisation—and run me through the flow
chart of how a prosecution happens. I want to spend a couple of hours with you
really kicking it around. I want to know what went wrong.'...That is what I think
a board would do.
Dr Fysh added:
In any large enterprise we all benefit from someone standing
back and advising us. I do not think anyone is quite as good as they would need
to be to be doing a great job. Look at the brittleness in ASIC. I have referred
to it; you have seen it. We have the chairman's bloody travel schedule on the
web site of our national regulator. Don't tell me it is not a brittle
ASIC was questioned about its governance structure. Mr Medcraft noted
that with 30 years' experience in investment banking, he has had significant
exposure to the private sector approach to governance. Mr Medcraft emphasised
that ASIC has access to independent experts through its External Advisory Panel.
Mr Medcraft provided the following testimony regarding that panel:
We use that external advisory panel as a key reference body.
We tell them what we are doing, but we also get their views. The external
advisory panel are people taken from across the sectors that we regulate. For
example, one member is the current CEO of Google because I was keen that we
have somebody in technology. We can provide you a list of the external advisory
panel members. They include people such as David Gonski. We have established an
arrangement with the Business Council of Australia that whoever is the
chairman—it was Tony Shepherd—is a continuing member of the external advisory
panel so that we have that strong connection with the Business Council. We are
basically across the sectors. We essentially have very senior people and it
includes key consumer representatives as well. That external advisory panel is
actually quite important. In addition to all the other governance mechanisms we
have, that is quite important.
ASIC commissioner Mr Greg Tanzer noted that APRA previously had a board
structure, but that this was removed following the royal commission into the
collapse of HIH Insurance. Mr Tanzer also noted that the non-executive advisory
board utilised by the UK Financial Services Authority, the predecessor to the
FCA, did not prevent criticism of the agency's performance through the global
In theory, a commission-structure of governance such as that applied to
ASIC by the ASIC Act appears sound. A commission approach to governance
encourages collective decision-making and responsibility. It can lead to better
decision-making by drawing in the opinions and scrutiny of others and limiting
the power of individuals.
It potentially filters from the decision-making process the inclinations,
peculiarities and flaws that an individual decision-maker could possess. However,
the committee is concerned that the current governance framework has led to ASIC
operating in silos with individual commissioners performing executive
functions. ASIC's commission sets ASIC's priorities and strategic objectives,
but the same commission, and individual commissioners, are also responsible for
exercising ASIC's powers. As a result, any internal monitoring of ASIC's
performance or challenge to how ASIC operates relies on the willingness and
ability of the commissioners to scrutinise the decisions they have made. Although
ASIC engages external persons through groups such as its External Advisory Panel,
these groups focus on current areas of interest that relate to ASIC's
regulatory work. They are not well-placed to scrutinise ASIC's performance or how
the agency operates.
Conclusion and recommendation
One suggestion discussed during the public hearings was that ASIC be
governed by the equivalent of an executive and non‑executive board. The
committee has taken particular care when contemplating possible recommendations
about ASIC's governance structure. The committee wishes to avoid disruptive
changes that could potentially destabilise ASIC and distract it from its core
functions. The committee is of a firm view, however, that ASIC's governance
structure is not serving the agency well.
Over time, ASIC's performance may well be improved by replacing its
commission structure of governance with an executive and non‑executive
board to which management would report. Introducing a board as the governing
body for ASIC would create a stronger foundation for internal oversight. The
board would provide leadership to the agency and assess management's
performance. A board could provide ASIC's management with access to a range of
experienced individuals and allow this informed group to scrutinise cases where
things went wrong, particularly if they had access to ASIC's employees and
internal policies. A chief executive officer would assume executive
responsibility for ASIC's operations, although the board would provide guidance
and challenge the chief executive officer where necessary. The responsibilities
of the chairman and chief executive officer would not be performed by the same
However, the committee has made a number of recommendations in this
report that are intended to:
improve the overall regulatory environment and allow ASIC to
focus on areas of most concern;
encourage ASIC to become more of a self‑evaluating and
self-correcting organisation; and
provide insight into the conduct and draw on the knowledge,
experience and expertise of people in the corporate world.
The committee considers that these recommendations should be adopted,
monitored and allowed time to work before any further consideration of ASIC's
governance framework takes place. A fundamental restructure of ASIC would be a
major reform and require extensive consultation. By the end of two years,
the committee's recommendations and ASIC's internal reform process should have
had time to take effect. At that time, if the need for further reform is
apparent, ASIC's governance arrangements and the extent to which they affect
the agency's performance should be revisited.
The committee recommends that at the end of two years, the government
undertake a review of the Australian Securities and Investments Commission
Act 2001 that would consider ASIC's governance arrangements, including
whether ASIC should be governed by a board comprised of executive and
Should the government decide that the governing body of ASIC be changed
from a full-time commission to an executive and non-executive board, the word
'commission' would need to be removed from ASIC's name. This would also be an
appropriate time to consider whether ASIC's current name suitably describes its
responsibilities. As ASIC's chairman observed, ASIC is a financial services and
markets regulator. In his view ASIC's current name, the Australian Securities
and Investments Commission, 'means nothing to the average person'.
A possible new name is the Financial Services and Markets Authority.
Although the committee has concluded that its other recommendations
should have had time to take effect before ASIC's governance arrangements are
considered further, the committee does urge ASIC to take steps to increase the
transparency of its internal accountability arrangements. Simple changes such
as publishing internal policies and guidelines on matters such as the
management of conflicts of interest could strengthen public confidence in how
these issues are addressed and demonstrate that they are taken seriously within
The committee recommends that ASIC publish a code of conduct for its
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