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The Senate Standing Committee on Economics The Senate standing committee on economics “Money has a way of exposing the basic instincts, and people will debase themselves by lying cheating and stealing in order to advantage themselves at the expense of others’. Honourable Senators, I am making this submission in respect of what I considered to be the grossly inadequate and underperformance performance of ASIC. It is my hope that as a result of submissions arising from this inquiry something positive will emerge. As it is structured ASIC are simply not capable of fulfilling performance duties that are exhibited in the ASIC charter. If the good Senators are not familiar with this Charter, the following link will take you directly to it. http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/ASIC-service-charter-published-12- September-2012.pdf/$file/ASIC-service-charter-published-12-September-2012.pdf From this site we are directed to another site advising us of the “Strategic Framework” http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/Strategic_framework-June- 2013.pdf/$file/Strategic_framework-June-2013.pdf The issues I have directly challenge the so-called strategic priorities on virtually all fronts; I would dearly love to be in a position to challenge any one of the personnel whose photos appear on this website on a range of issues at the forthcoming interrogation. Failing that I propose to contact a wide ranging group of people including creditors of the Opes Prime group who have been so shabbily treated as a result of ASICs actions and actively urge them to canvass their local members or Senators for a review of this matter. The grievance that I have is divided into two sections, unfortunately for me there happens to be a direct linkage between the two. Initially, I would ask you to visit the previous Senate enquiry into banking and financial services, Chaired by the Hon Bernie Ripoll and Deputy chair the Hon Brett Mason. The web address is below and I would ask you to read the section relating to Opes Prime, ASIC, the ANZ Bank and my submission, Ref, 120 In the name of Robert and Marie Fowler http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Ser vices/Completed_inquiries/2008- 10/fps/submissions/~/media/wopapub/senate/committee/corporations_ctte/completed_inquiries/ 2008_10/fps/submissions/sub120_pdf.ashx 1 http://www.aph.gov.au/binaries/senate/committee/corporations_ctte/fps/report/report.pdf I would ask you to re-read the section relating to Opes Prime, also the sub-sections relating to “the role of the ANZ Bank and the Position of the Bank, and the position of the regulator”. Senators, I am not only angry but also deeply and grossly offended, as I, along with many of the retail creditors at the way ASIC conducted itself throughout this matter. It appears that the entire scheme of company arrangement which has allowed the ANZ Bank to commit a gross act of malfeasance has avoided public scrutiny of the CEO, Senior Executives and the Directorate. The scheme has been founded on deception. In the explanatory statement outlining details of the proposed scheme of company arrangement (available upon request by individual creditors) dated 3rd July 2009, issued by the liquidator. Section 1.4 was headed. Potential claims by ASIC. ASIC has foreshadowed claims against the contributing banks, OPSL (Opes Prime Stockbroking Ltd) and the directors of OPSL. In a press release dated sixth of March 2009, ASIC stated that it had identified two potential actions available to it being: (a) a potential claim for compensation due to an alleged contravention of the managed investment scheme provisions of the corporations act by OPSL and alleged involvement in the contravention by the contributing banks: and (b) Potential civil penalty and compensatory claims against the directors of OPSL and ANZBGL for breach of director’s duties and involvement in the breach, respectively. The contributing banks have denied any liability in relation to the ASIC claims. Managed investment scheme claim. In its press release dated 6 March 2009, ASIC expressed the view that, between about 26 July 2006 and 27 July 2008 OPSL may have operated an unregistered managed investment scheme in contravention of the corporations act. ASIC believes that OPSL may have been operating a managed investment scheme because the business involved: The provision of equity finance and stock lending services to investors: The aggregation of cash and securities obtained from investors: and Obtaining collateral in the wholesale markets by reference to the aggregated pool of assets obtained from investors. In these investigations into OPSL’s business model, ASIC considered the following two issues: Whether the contributing banks had actual knowledge of OPSM’s possible contravention of the requirements for registration of managed investment schemes: and 2 Whether any managed investment scheme operated by OPSL could have been operated without the participation of the contributing banks. ASIC stated that it believed that this claim if it were to succeed it had the potential to provide compensation for investors. Action under section 181 of the corporations act. In its press release ASIC also stated that its potential civil penalty and compensation claims against the directors of OPSL and ANZBGL related to a number of transactions between OPSL and ANZBGL, on or about 20 March 2008, shortly prior to OPSL’s collapse ASIC investigated whether the transactions involved a breach of directors duties by the OPSL directors and whether ANZGBL was involved in the breach in contravention of section 181 of the corporations act. ASIC must act with utmost fairness (AFR Jan 6th 2011) The Court of Appeal did not invent the obligation of ASIC to act fairly. As far back as1912, Griffith CJ , in the High Court case of Melbourne steamship Co Ltd v Morehead referred to” old-fashioned traditional and almost instinctive, standard of fair play to be observed by the Crown in dealing with its subjects”. It is not the role of ASIC to play with people’s lives by initiating or maintaining a legal action that is not soundly based in established law and all relevant evidence. The court is not to be used as a platform for advocating a change of law., (To my untrained eye ,this is exactly what has happened ,the scheme of company arrangement ,as structured and sanctioned before Finkerstein J was a radical departure from previous liquidation arrangements. As I read this draft copy of the scheme of company arrangement, I am unable to determine whether to file this section, 1.4, in the Scheme of Company arrangement, under Smoke and mirrors, more flim-flam from ASIC, or just department bullshxt to create an illusion that ASIC were actually representing the creditors of Opes Prime. This scheme of company arrangement was drawn up by the banks solicitors with a clear understanding that the creditors accept the scheme or else fight the banks through the court system up to the full bench of the High Court. Mediation which formally commenced in August 2008, before retired Court of Appeal judge, the Honourable Alex Chernov OA QC. The creditors were kept totally in the dark regarding so-called mediation discussions, in fact were treated like the proverbial mushrooms, kept in the dark and fed Bullshxt. I wonder if there was full disclosure of all the facts relating to this matter, that this whole affair was based on lies, trickery and deceit. Did the solicitors for the bank explained in the course of mediation they had deliberately sought to advantage themselves at the expense of the Opes Prime creditors. It should not go unreported that an eminent QC, representing a small group of investors who had been wilfully deceived by the directors and staff of Opes Prime, into believing they 3 were receiving a conventional margin loan in which they had the equity of redemption. He advanced the logical and balanced argument as to why it was grossly repugnant by ordinary commercial standards that a reputable bank or investment house should have been prepared to allow its name or funds to be applied in support of such an enterprise. No experienced investor familiar with the ways in the markets and of licensed brokers would have imagined it possible. Certainly no experienced investor who understood the potential consequences would have participated, as far as is known, no Australian trading bank has ever previously lent its name or financially facilitated such an unscrupulous scam. The ANZ bank acted with great haste and without giving notice to the clients of Opes Prime although they would have been fully aware of the dreadful impacts it had upon those clients. It would appear there purpose in acting precipitously was to prevent the Opes Prime clients from having any effective opportunity to prevent the sale of their shares. The suggestion of immediate mediation was raised, the name of the honourable Michael McHugh. AC, QC, a former Justice of the High Court’s to act as an independent mediator and arbitrator. For reasons unknown to the writer, the honourable Alex Chernov OA QC was chosen. That both these respected QC’s could have handled the task in most fair and balanced manner is beyond question, assuming they have the full facts presented to them by all parties. I would suggest the honourable Alex Chernov was deceived inasmuch as he was unaware of how this whole affair had unfolded. I do not believe this gentleman would have been involved with this mediation, had he been aware of the blatantly dishonest scheming. That the ANZ bank had sought to disadvantage the Opes Prime creditors and profit by its actions. Whilst scouring the Internet for all things relevant to the scheme I came across this article.
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