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ESTIMATES COMMITTEE ESTIMATES COMMITTEE E - 05/09/1991 - ATTORNEY-GENERAL'S DEPARTMENT - Program 2-BUSINESS AND CONSUMER AFFAIRS - Subprogram 2.2-Business Affairs

SENATOR MACDONALD -On the Australian Securities Commission: Minister, are you able to tell me how the Ravenshoe matter is going that Senator Richardson has neatly flicked into your area now by putting it into a section 13 investigation under the Australian Securities Commission Act?

SENATOR TATE -I have some officers here but, no doubt, they will act with due prudence and caution in providing an outline of an indication of a prelude to an answer.

SENATOR MACDONALD -I was going to warn them also, Minister. Senator Richardson is being reticent, but then he does not understand these things.

MR ROBINSON -I do not have any information immediately available on that matter. If we are to take a short adjournment I may be able to obtain some information during that period of time.

SENATOR MACDONALD -My concern is-I am not sure if you are familiar with it; I suspect you would not be-a matter where $7m of taxpayers' money was given to a timber mill in Ravenshoe as part of the structural adjustment package on World Heritage listing. The money has gone astray. For 12 months we have been trying to find out where it was. Recently the Minister announced that the Australian Securities Commission, I think under section 13 of the Act, was conducting an investigation. I would have thought that investigation would have now been running for 12 months but it seems to be a reasonably new initiative. Because I have not been able to get much information through the front door, I was just wondering if I could try you to get some through the back door on when you got it, how far you are going, where we are at and when we are likely to get some results?

MR ROBINSON -I can give you some information on that. The matter was referred to the ASC itself on 13 June 1991 and that followed a meeting with the Department of the Arts, Sport, the Environment, Tourism and Territories, the Attorney-General's Department and the Australian Government Solicitor and Price Waterhouse. We commenced a formal investigation of that matter on 9 August 1991 following an extensive preliminary assessment process which involved officers of the ASC and others in examining the detailed and complex circumstances surrounding those transactions. That investigation is still proceeding and that is as much information as I am able to give you at the present time.

SENATOR TATE -At any time, I would have thought. That gives you what you wanted, does it not?

SENATOR MACDONALD -Are you in a position to give me some indication of when the investigation might be getting towards a conclusion?

MR ROBINSON -Not immediately. I would have to make further inquiries of the officers of the ASC who are involved in that investigation.

SENATOR MACDONALD -Could you do that for me?

MR ROBINSON -Yes.

SENATOR MACDONALD -I have got a question on notice about this but you may be able to shorten the process: what is the difference between a section 13 under the ASC and a section 597, is it, under the Companies Code?

MR ROBINSON -Both are under corporation law. The examination under section 597 is an examination by a liquidator which relates to the liquidator's examination of officers of the company. The ASC does not have a direct involvement in that examination. It can become a party where an examination under section 13 is section 13 of the ASC Act itself and it is a specific examination conducted or investigation conducted by the ASC. That is the essential difference between the two matters.

In relation to my earlier answer on making an inquiry as to when that investigation may be completed, I will do that. I may not be able to give you a great deal more information other than an approximate indication of when it is anticipated the matter is likely to conclude. I think that is probably as far as I would be able to take it for you at the moment.

SENATOR MACDONALD -That is really what I am looking for. Just some approximation. It has been quite a big issue up where I come from. Minister, that leads me back to the question I briefly mentioned in a preliminary way but I will be more specific here: there are a number of people who would say that they were defrauded as a result of this Commonwealth money coming in for a purpose into this company and then the money disappearing from that company and not being used for what it was given by the Commonwealth. That is what the investigation is about.

There were a number of people who had given credit to the mill on the basis that the Government was pouring a lot of money into it and therefore it was quite sensible for them to give credit because they knew the Government was pouring in millions and they would get paid. Those people now, as a result of this, have lost a lot of money and they are really down and out. They may have a case against the directors too if it is shown by your investigation that the directors have been fraudulent.

In that instance, Minister, would there be some possibility of getting some form of assistance in the way of grants to enter into these investigations, or put a submission to the Commission? I am not quite sure how these section 13 investigations proceed, I must say, but these people now have no money because they have lost everything. How would they go about approaching you to get some money to get someone to represent them before this inquiry or as part of the process that might result from Commission's investigation?

MR ROBINSON -The corporations law does enable the ASC both to take actions on behalf of individuals who have been affected by the actions of companies and to join in actions to seek to become a party to the action. Prior to the investigation being completed the ASC, I believe, would not want or be able to make a decision as to which, if either, of those remedies would be appropriate. It would certainly be open to those who have been affected by the actions of the company to make an approach to the ASC to suggest that they wish to take civil action in relation to officers of the company and to ask the ASC to consider whether it would become either a party to that action or it would take the action, in a sense, on behalf of the people who are affected by it. So the application should be by the people concerned to the ASC in the first instance.

SENATOR MACDONALD -Thank you for that. Is that what you were going to say as well?

SENATOR TATE -That is precisely what I was about to say. It was expressed marginally better by the officer.

Short adjournment

CHAIRMAN-Senator Campbell would like to ask a series of questions of the ASC.

SENATOR CAMPBELL -A number of these questions probably could be put on notice but I will try to run through them quickly. How many staff are currently employed by the Australian Securities Commission?

MR ROBINSON -The figure as at 31 August was 1,537.

SENATOR CAMPBELL -Is the Perth office fully staffed now?

MR ROBINSON -I believe so. I can give you the figures for the staffing of the Perth office. There are 140 people employed in the Perth office and I believe that is either at or very close to the approved maximum staffing for that office.

SENATOR CAMPBELL -How many additional staff have been employed to deal with enforcement and litigation?

MR ROBINSON -Is that question directed to Perth only?

SENATOR CAMPBELL -No; Australia-wide.

MR ROBINSON -The additional number is difficult to indicate. I can tell you how many people are employed in each of those programs. Do you mean additional since 1 January?

SENATOR CAMPBELL -Yes, I think that is the question.

MR ROBINSON -Again, the break-up is a total of 546 people employed. Can you bear with me a moment?

SENATOR CAMPBELL -While you looking for that I will ask another question because it relates to enforcement as well. Has the Commission developed a budget in relation to enforcement for the current financial year?

MR ROBINSON -The Commission does have a budget on enforcement. Let me put it to you this way: the total number of staff years that the Commission proposes to expend in the area of enforcement is 902. So, of that figure of 1,537, 902 will be employed in the enforcement division of the Commission. The total expenditure which will be provided for that enforcement component is $71.2m.

MR SKEHILL -Senator, that money is itemised on page 54 of the document.

SENATOR CAMPBELL -What major litigations do you anticipate the Commission involving itself in? If that is a long list, it may be better to incorporate it or take it on notice.

MR ROBINSON -I will need to take it on notice in terms of the numbers.

SENATOR CAMPBELL -Perhaps you would do that. I think that is the best way to get the most useful information. Also, how much in terms of resources do you anticipate each of these cases requiring to litigate? I will provide you with a copy of these questions but I will just run through them.

MR ROBINSON -Can I answer your question to this extent: currently the ASC has 238 major matters which are under investigation, the subject of hearings or pending litigation. The details of those 238 matters have been given already to the parliamentary committee in answer to its inquiry and that further information can be provided.

SENATOR CAMPBELL -You would be able to give us a breakdown of how many staff are working on each of these cases, would you?

MR ROBINSON -I am not sure that I could.

SENATOR CAMPBELL -Some staff would be working on a number of the cases at the same time, would they?

MR ROBINSON -They would indeed.

SENATOR CAMPBELL -Is the current Western Australian Royal Commission delaying any litigation by the Commission?

MR ROBINSON -There are charges which have been preferred against a number of people who are also appearing before the Western Australian Royal Commission. The hearing of some of those matters has clearly been delayed as a result of that process. If your question is directed by litigation to civil litigation, I am not immediately aware that there are any particular matters that have been delayed, in terms of civil proceedings being brought, by the fact of the sittings of the Royal Commission, but certainly criminal proceedings have been delayed.

SENATOR CAMPBELL -How many cases will the Commission, on current indications, pursue when the Royal Commission concludes its activities?

MR ROBINSON -I will have to take that on notice. I cannot give you that information.

SENATOR CAMPBELL -That raises a question about the resources that are required . If the Commission is delaying some of these cases, would you be budgeting for resources to be applied at the conclusion of the Royal Commission?

MR ROBINSON -We are certainly doing that. The Commission is reserving a substantial amount of its budget to fund the external legal costs associated with actions being brought by the Commission, both criminal and civil. Certainly, some of that money would be available to the Western Australian regional office when it was able to proceed with those matters that are currently being delayed.

SENATOR CAMPBELL -Would you anticipate having more people located in Perth during that post-Royal Commission period?

MR ROBINSON -If the need arises that can be done. It is very much the policy of the organisation to shift resources where the need arises. On a number of occasions already, we have had investigators and legal staff from one regional commission attend another regional commission for the purpose of providing assistance in particular matters. If that were necessary in Western Australia the Commission would certainly look at doing that.

SENATOR CAMPBELL -What sum was spent by the Commission on investigating breaches of the corporations law in the last fiscal year? If you would prefer it, that can be taken on notice.

MR ROBINSON -The figure on page 54 indicates that our actual expenditure in the last year was $52.4m.

SENATOR CAMPBELL -Would it be possible for you to take on notice the question of the breaking down of expenditure on individual cases?

MR ROBINSON -I can certainly take the question on notice. I am not sure of the ability to divide it in individual cases. At this stage, the Commission has made no attempt, particularly in terms of staff allocated to investigations, to cost, on an individual basis, staff time spent on each investigation. I will certainly take it on notice but I am not sure that I can answer your question with the amount of specificity that you are asking for.

SENATOR CAMPBELL -On the question of set-up activities, the transition and so forth, are there still activities going on in relation to set-up? If so, what further amounts do you expect to be spent this year?

MR ROBINSON -Essentially, all of the Commission's set-up costs have now been met. However, there are some several million dollars worth of fit-outs which have yet to be completed. The Western Australian office is one where that is still to occur. But apart from that relatively small figure, the Commission's set-up costs have now all been met.

SENATOR CAMPBELL -Does that include that controversial $50m that I think my colleague Peter McGauran has been making some noise about lately?

MR ROBINSON -This year the Budget contains an amount to commence the funding for the erection of a building in Traralgon. The Attorney-General is reviewing the ASC's recommendation in that respect. The Attorney-General requested the ASC to review a proposition put by Esso for the possible leasing of a building which that company owns in Sale. That investigation is proceeding at the moment. It is being done by assessing both the commercial and the technical aspects of the Esso proposal. The ASC anticipates being able to provide that information to the Attorney-General in the near future-within the next week to 10 days, in fact. The ASC assumes that the Attorney-General will make a decision following that.

SENATOR CAMPBELL -I refer to pages 54 through to 57. Is it possible for you to provide the Committee with a detailed breakdown of all administrative expenses in subcomponents 2.2.1.1 which is Enforcement, 2.2.1.2 which is Information Services, and 2.2.1.3 which is Executive, for the previous financial year? In other words, how much was spent on what?

MR ROBINSON -Yes, that can be done.

SENATOR TATE -But why?

Senator CAMPBELL-Because we would like to know. Could you provide the Committee with a budget for the current financial year of all estimated expenditure on those same items?

MR ROBINSON -Yes.

SENATOR CAMPBELL -Could you inform the Committee how much was expended by each of the following bodies in the previous financial year-the Corporations and Securities Panel, the Legal Subcommittee of the Companies and Securities Advisory Committee, and the Companies Auditors and Liquidators Disciplinary Board?

MR ROBINSON -That information can be made available. I do not have it with me. I will take that on notice and the information will be supplied.

SENATOR CAMPBELL -Could you advise the Committee of the activities of the Companies Auditors and Liquidators Disciplinary Board since its formation on 24 May?

MR ROBINSON -There has been so far only one sitting of that board. That was a sitting of a preliminary nature to deal with some procedural issues associated with a number of matters that the New South Wales regional office has referred to the board for a hearing. Those matters tend to be relatively minor breaches, suggested breaches against the corporations law. There are major matters which are in the process of being referred to the board and the board is sitting again in about two week's time at which stage it will allocate a number of hearing days so that the first several of those major matters can in fact commence a hearing before the board.

SENATOR CAMPBELL -Do you know when that annual report for that board will be? Is it under preparation at the moment?

MR ROBINSON -An annual report by the Australian Securities Commission is under preparation. There will be a segment of that report which will deal with the Auditors and Liquidators Disciplinary Board. Given the fact that it is only recently established, I think that the amount of information contained will be very little more than that which I have just given you.

SENATOR CAMPBELL -Do you know when that might be available for tabling?

MR ROBINSON -The report is in the process of preparation and because the financial reports of the Commission in its first year of operation are also being prepared by the Australian National Audit Office, we anticipate that it would be probably at least another three to four weeks before a respectable draft of the report will be available.

SENATOR CAMPBELL -Have you got an anticipated expenditure for that board for this current financial year? Is there a figure in there?

MR ROBINSON -There is a figure. I do not have it. That can be supplied.

SENATOR CAMPBELL -Could you provide a similar figure for the Legal Subcommittee of the Companies and Securities Advisory Committee and the Corporations and Securities Panel while you are at it?

MR ROBINSON -Yes.

SENATOR CAMPBELL -In the section headed `Strategies' it is noted that the Prospectus Subcommittee has requested submissions from any interested parties about problems encountered with the prospectus provisions-which seem to be quite considerable-and perceived inadequacies in that area of the legislation. How were the submissions sought? How many submission have been received, and what are the inadequacies addressed in these submissions?

MR ROBINSON -Those submissions were sought by writing to a number of organisations, by a general invitation to others, both organisations and individuals, to make a submission. It is a matter which is being administered by the advisory committee and the executive officers of the advisory committee . That operates independently of the ASC and there is no direct connection between the two organisations. So, to provide you with more detailed information as to the precise process I would again have to obtain that information and bring it back for you.

SENATOR CAMPBELL -Has this process been advertised or is it a word of mouth exercise?

MR ROBINSON -I do not believe that there was any general public advertisement advising or seeking submissions to the committee.

SENATOR CAMPBELL -Do you think that an inquiry into that would be warranted by the joint statutory committee-the parliamentary committee? I guess it would be worth having a look at.

MR ROBINSON -It is a matter for that committee, Senator. The Attorney-General has asked the advisory committee and the Australian Law Reform Commission to examine, both separately and jointly, a number of aspects of the corporations law. The parliamentary committee may take the view that it would be appropriate to await the result of those investigations, or rather await the report which follows that inquiry by those bodies first.

SENATOR CAMPBELL -It certainly seems some fairly quick action is required to solve some of the problems with the prospectuses that have emerged in the last eight months.

MR ROBINSON -It is the ASC's view that, whilst there is a perception of a number of difficulties relating to the issue and circulation of prospectuses, fundraising generally has not been detrimentally affected by the corporations law in the form that it is at the moment. Indeed, a number of members of the legal profession, as well as the commercial community, have made public statements recently which support their belief that the prospectus provisions are working reasonably effectively, and it is the view of the ASC itself that those provisions are working reasonably effectively. That is not to say that they are perfect but we do believe that it is not inhibiting the fundraising action by companies generally.

SENATOR CAMPBELL -So the ASC's view is that it has contributed to Ray Shower's assertion that companies like Merryl Lynch and IBM and Nestle wanted to raise funds in Australia but decided the prospectus provisions were such that it was just not worth while and they went offshore to issue prospectuses?

MR ROBINSON -That is Mr Shower's view, which he expressed publicly the other day.

SENATOR CAMPBELL -Which apparently was not contradicted at that conference where he was talking.

MR ROBINSON -I am sorry.

SENATOR CAMPBELL -There was a conference in Sydney last week or the week before, where he expressed that view and it was not contradicted.

MR ROBINSON -The ASC was not directly represented at that conference.

SENATOR CAMPBELL -One of the strategies listed on page 51 is to develop:

a deterrent net against contravention of the corporations law, . . . taking action quickly to:

-preserve property;

-obtain civil remedies . . .

-prosecute or discipline offenders.

In how many cases has such action been taken and what has been the outcome in those cases?

MR ROBINSON -We have not sought to break that up into individual cases. I mentioned at an earlier stage that there were in excess of 200 matters under investigation or in the course of litigation by the ASC at the present time, and a number of those would be within the range of seeking to achieve that particular objective by the organisation.

SENATOR CAMPBELL -The performance indicators, on page 52, suggest the use of client surveys as a way of assessing performance. Have any of those surveys been undertaken?

MR ROBINSON -The major survey which has so far been undertaken concerns the information responsibilities of the Commission. Every business office in every State, together with a significant number of the corporate community were asked to provide information. There has been a comprehensive report of that and a number of actions have already been taken by the organisation to meet some of the concerns that were expressed as a result of that. There has not yet been a study done in relation to the enforcement side of the Commission's activities.

SENATOR CAMPBELL -Did the survey reveal any problems with information collection, storage, retrieval and revenue collection computer systems?

MR ROBINSON -It revealed a number of matters that the Commission believes that it would need to address: the level of delivery of service was not entirely uniform right around Australia; in several individual business offices there have been indications that clients were not receiving the level of service that the ASC itself believes is appropriate in those cases. There have been adjustments to the staffing levels in several of those business offices in recognition of that and there is a continuing review of procedures both for lodgment of documents in the business offices and for lodgment of documents in the ASC in Morwell where it is at the present time. All of those are designed to improve the service which is available to clients.

SENATOR CAMPBELL -Is the 1991-92 corporate plan in place yet?

MR ROBINSON -It has been developed through the first stage, which is the preparation of an overall corporate plan, that is, a mission for the organisation. Currently business plans are being developed for each of the divisions of the Commission, those being essentially information, investigations, legal, and corporate regulation. The business plans are to be discussed at a meeting of regional commissioners with the Commission; that is occurring in Melbourne in two weeks time. We intend to have those developed business plans in place by the end of October, to complete the first stage of the Commission's corporate planning. There will be a document which spells out the Commission's objectives in considerable detail for the balance of this financial year.

SENATOR CAMPBELL -The program performance statements show a very big increase in the staffing and outlays for enforcement. Do you see that that increase reflects the general level of funding and staffing which could be expected in the future?

MR ROBINSON -Forward estimates indicate the Government's commitment to continue to fund the ASC at the current levels, at least. To the extent that anybody can foresee the future, the ASC believes that it will be able to continue to do that.

SENATOR CAMPBELL -In relation to the outcome for 1990-91 it was stated that the Commission conducted a number of investigations during the year into Bond Corporation Holdings Ltd, Spedley Group and Yap. This Committee was told in September last year that the target date for the completion of the Yap special investigation was 31 March 1991. Has that investigation been completed, and what are the expected completion dates of the Bond and Spedley investigations?

MR ROBINSON -I will have to take that question on notice, particularly as far as YAP is concerned. The Bond investigation is ongoing. There is a team working in the Western Australian regional commission which is specifically employed on aspects of an investigation concerning matters associated with Mr Bond and the companies that he administered. So far as Spedley is concerned, briefs have been prepared and have been delivered to the Director of Public Prosecutions, and the ASC expects that the Director's consideration of those briefs and action likely to flow from them will be resolved in the relatively near future. It is essentially a matter now for decision by the Director of Public Prosecutions as to the appropriateness of the charges to be brought.

SENATOR VANSTONE -I refer to page 51. Has the Australian Securities Commission received complaints from former clients of Monitor Money Corporation Ltd, trading as Monitor Money, regarding unresolved investor complaints about representations made by Monitor Money and its subsequent action on or about 19 October 1987?

MR ROBINSON -I will have to take that question on notice.

SENATOR VANSTONE -The others will probably follow, then. Do these complaints raise questions as to whether any sections, in particular the prescribed interest sections, of the Australian companies and securities legislation may have been breached? If so, what is the ASC doing about it, and when will whatever it is doing come to fruition? To what extent does any investigation relate to a change in ownership of Monitor Money, and has the ASC received complaints from current clients of Monitor Money regarding any unresolved complaints concerning representations within the last one or two years?

MR ROBINSON -All of those we will take on notice to provide the answers to them.

SENATOR BOSWELL -When will the bankruptcy figures be available on the securities?

SENATOR TATE -Do you mean the quarterly ones that we put out?

SENATOR BOSWELL -No, they come from your Department. These are the registered company bankruptcy figures.

MR ROBINSON -The ASC has provided those figures to the Attorney-General. I understand it is his intention to publish them within the next few days. Thereafter it is the intention of the ASC to publish those figures on a regular basis. We anticipate that at the conclusion of each month we will be able to publish those figures, both in the ASC Digest, which is a subscription journal published on behalf of the ASC, and also by general release to the press.

SENATOR BOSWELL -So there are 12-monthly figures to come out?

MR ROBINSON -The figures that the ASC can provide will be only from 1 January this year, because that is when the ASC commenced. We do not have access to the information on a comprehensive--

SENATOR BOSWELL -Who provided those figures before?

MR ROBINSON -They would have been within the records of the various State corporate affairs commissions, but they were not collected and coordinated on any uniform or national basis.

SENATOR BOSWELL -So the figures that you will release will have those State corporate figures and then--

MR ROBINSON -We understand it is the Attorney-General's intention to publish the first six months of figures as a cumulative table. The ASC will publish them on a regular basis after that.

SENATOR BOSWELL -What about the previous six months that the ASC was not collecting?

MR ROBINSON -The ASC would be able to publish figures on and from 1 January 1991.

SENATOR BOSWELL -So what you are saying is that we will get only six months figures; we will not get a full 12 months.

MR ROBINSON -We are not in a position to put them out. We do not have a full 12 months figures.

SENATOR BOSWELL -That is not a very satisfactory. I direct this question to the Minister: because the ASC has been collating the figures only from 1 January, can you provide a full 12 months figures of bankruptcy statements?

SENATOR TATE -We are hardly at the end of 12 months from 1 January. The problem is that the ASC only came into existence on 1 January. Its charter to collate these figures nationwide flows only from that time. As has been explained, the corporate affairs offices throughout the States did it for themselves and not in a uniform national way, so we just do not have the figures, unfortunately. It is not a question of trying to suppress information ; we just do not have it.

SENATOR BOSWELL -The previous figures were released about this time last year. They were collated by a department-I do not know which department it was-from the figures of all the State departments, and were released by the Federal department.

SENATOR TATE -Perhaps the NCSC made some attempt to at least bring them altogether in one publication. I could check on that anyway. Perhaps the ABS did some work on it; perhaps the Bureau of Statistics had tapped into the corporate affairs offices of the States. I will take the question on notice and if we can provide an answer for you we certainly will.

SENATOR BOSWELL -I can contact your office.

SENATOR TATE -We will provide an answer to the Committee and to you separately , if you wish. I understand the request to be to try to find out what has happened in this last financial year, so from July last year till 30 June this year.

SENATOR BOSWELL -Yes.

ACTING CHAIRMAN -Before we move on from subprogram 2.2, we will get Mr Robinson to read more information into the record.

MR ROBINSON -Senator Macdonald, in answer to your earlier question, an investigation team is in fact working on that matter. It has been, and will continue to do so. We expect that towards the end of next week we will be in a position to give a much firmer indication of when that investigation is likely to be completed. It is not expected at this stage that it will be a protracted investigation and I would therefore wish to take the question on notice and provide a more precise written response, and I would anticipate that the ASC would be able to do that certainly by the end of next week.

SENATOR MACDONALD -Thank you. That would be very good.