Data released by the Senate economics committee has shown that the number of cases being referred to the Commonwealth Director of Public Prosecutions (CDPP) by the Australian Securities and Investments Commission (ASIC) has more than halved in the past five years.
Released as the Senate’s inquiry into ASIC resumed on Wednesday, the CDPP data showed that ASIC made 86 referrals during the 2018–19 financial year compared to 41 referrals in the 2022–23 financial year. Additionally, so far in the current financial year, ASIC has made only two referrals.
The CDPP data also showed that the rate of prosecutions initiated from ASIC referrals dropped from 75.6 per cent in 2018–19 to 19.5 per cent in 2022–23.
Liberal senator Andrew Bragg, the chair of the Senate economics committee, drew attention to what he described as “ugly statistics” in a media release issued on Wednesday.
“These figures signal that ASIC has made Australia a haven for white-collar crime. ASIC has given up on their sole obligation to enforce corporate law,” Mr Bragg said.
“With public hearings for the Senate’s ASIC inquiry resuming today, we will gain a clearer understanding of why ASIC has become such an inept corporate regulator.”
Of the 41 referrals received by the CDPP from ASIC during 2022–23, eight referrals prosecutions were instituted. In three of the referrals, a decision was made that a prosecution should not be instituted.
Eleven of the referrals were reported to be requests for pre-brief advice and a further 19 were being assessed in accordance with the prosecution policy of the Commonwealth.
The CDPP indicated that, of the eight matters in which prosecutions had commenced, two had concluded as of 13 September.
“These two matters were both defence appeals where summary charges had been prosecuted in a lower court by ASIC, convictions obtained, and the CDPP appeared on the appeal,” it said.
“In one matter, the appeal was successful and the defendant was acquitted. In the other matter, the appeal against sentence was successful. The offence was found proven and a non-conviction recognisance release order was imposed.”
Meanwhile, the other six matters have not yet concluded and remain before the court.
So you had the ASIC fella say they’ll litigate first and ask questions later. This made every AFSL holder reluctant to self-report and dialogue cease between ASIC and firms.
Later, ASIC came out with a more collaborative approach and engagement with firms increases.
Throughout these cycles, if the crooks are getting swung out of the industry then this is the main narrative to focus on. If ASIC is producing better guidance because they’re working with businesses, let’s not torpedo this because we will just take steps backwards not forwards.
Others might see the reduction in case referrals as excellent news and evidence that ASIC has been highly successful in lifting corporate governance standards, accountability and professionalism across the sector.
ASIC, if anything have been super active this year – just because it does not result in criminal proceedings, doesn’t mean they are not enforcing! They have may tools in their regulatory toolkit.