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Hedge Fund Regulation in Australia: Mitigating Fraud Risk in an Environment of Mandated Disclosure

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Hedge Fund Regulation in Australia: Mitigating Fraud Risk in an Environment of Mandated Disclosure University of Wollongong Research Online University of Wollongong Thesis Collection 1954-2016 University of Wollongong Thesis Collections 2013 Hedge fund regulation in Australia: mitigating fraud risk in an environment of mandated disclosure Lagnesh Kumar University of Wollongong Follow this and additional works at: https://ro.uow.edu.au/theses University of Wollongong Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorise you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part of this work may be reproduced by any process, nor may any other exclusive right be exercised, without the permission of the author. Copyright owners are entitled to take legal action against persons who infringe their copyright. A reproduction of material that is protected by copyright may be a copyright infringement. A court may impose penalties and award damages in relation to offences and infringements relating to copyright material. Higher penalties may apply, and higher damages may be awarded, for offences and infringements involving the conversion of material into digital or electronic form. Unless otherwise indicated, the views expressed in this thesis are those of the author and do not necessarily represent the views of the University of Wollongong. Recommended Citation Kumar, Lagnesh, Hedge fund regulation in Australia: mitigating fraud risk in an environment of mandated disclosure, Doctor of Philosophy thesis, School of Accounting, Economics and Finance, University of Wollongong, 2013. https://ro.uow.edu.au/theses/4036 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] HEDGE FUND REGULATION IN AUSTRALIA: MITIGATING FRAUD RISK IN AN ENVIROMENT OF MANDATED DISCLOSURE A thesis submitted in fulfillment of the requirements for the award of the degree DOCTOR OF PHILOSOPHY from UNIVERSITY OF WOLLONGONG by LAGNESH KUMAR BSc (Hons), MForAccy (Dist) SCHOOL OF ACCOUNTING, ECONOMICS AND FINANCE 2013 DECLARATION I, Lagnesh Kumar, declare that this thesis, submitted in fulfillment of the requirements for the award of Doctor of Philosophy, in the Department of Accounting, Economics and Finance, University of Wollongong, is wholly my work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Lagnesh Kumar 15 November 2013 ii ABSTRACT The mandate to regulate the hedge fund industry in Australia is motivated by the need to protect retail investors and the requirement to maintain market integrity while not impeding economic growth. As such, regulators have taken a light touch supervisory approach based on the premise that the hedge fund sector is not a large portion of the Australian funds management industry and hence, does not pose a risk to the financial system. This assumption is contingent to the theory that hedge fund investment activities are carried out with no link to the unregulated shadow banking system and the prevalence of dark pools, where transparency is limited and risks cannot be easily detected or appropriately quantified. However, a key issue which has been overlooked is the ability of hedge fund managers to conduct investing activities under the purview of regulators facilitated by the evolution of financial innovation which enables fraud risks posed by rouge hedge fund managers to evade detection. This thesis examines the effectiveness of the regulatory framework governing the hedge fund industry in Australia and its ability to mitigate fraud. The collapse of Trio Capital Limited in 2009 identified gaps within this regulatory architecture which had failed to protect certain retail investors against huge financial losses. Further, a future mandate to increase disclosure of hedge fund activities to mitigate fraud may prove to be less than effective if the information provided is too complex to understand and articulate and will serve little purpose in mitigating the risks of fraudulent conduct pertaining to the operational activities within hedge funds. The findings of this thesis suggest that a positive way forward is to promote the employment of independent hedge fund administrators proficient in forensic accounting analytics based on the assertion that active asset management requires active due diligence in an environment where investing in illiquid assets and valuation mismatches are the norm. iii ACKNOWLEDGEMENT Education Is the Most Powerful Weapon Which You Can Use To Change the World Nelson Mandela 1918 - 2013 There have been many people who have helped me through my research process and contributed to making the completion of this thesis this possible. I am grateful to my supervisor, Professor Warwick Funnell, for his advice, confidence and support. His unrelenting guidance and encouragement in every endeavor I undertook. I will always be appreciative of his commitment. I would like to thank my friends for their encouragement and support, the listening ear and belief in me. A special mention to Dr Sam Jebeile, a friend and a mentor, a respected and dedicated academic who has always been there for me. I am also grateful to Dr Zaffar Subedar, a loyal friend and whose intelligent insights enabled me to gain valuable knowledge and understanding of the elusive hedge fund industry, especially, at the initial stages of my research process. A special thank you is also conveyed to Dr Husayn Aly, Mr Jay Bland, Dr Steve Tuliq, Mrs Tina Mak, Mrs Danielle O’neil and Mr Oliver Kutz for always making themselves available. In addition, I am thankful to the inspirational academics of the School of Accounting and Finance, University Of Wollongong. Though it would be impossible to mention everyone by name, I would like to thank Professor Gary Tian, Associate Professor Indra Abeyskara, Associate Professor Kathie Cooper, Associate Professor Mary Kaidonis, Dr Sudhir Lodh, Dr Anura De Zoysa, Dr Ciorstan Smark, Dr Dionigi Gerace and Mr Paul Mazzola for the encouragement, support and advice for my research and everyone who have been an important part of my life at the University of Wollongong. Most importantly, I would like to thank my family. My patient and loving parents who have always been encouraging, supportive and having faith in me. I could not have completed this thesis without your understanding, support and love. Thank you. iv TABLE OF CONTENTS DECLARATION ........................................................................................................................................ ii ABSTRACT ............................................................................................................................................... iii ACKNOWLEDGEMENT ......................................................................................................................... iv ABBREVIATIONS ................................................................................................................................. viii LIST OF TABLES ..................................................................................................................................... xi CHAPTER 1 INTRODUCTION TO THE STUDY 1.1 Introduction ........................................................................................................................................................... 1 1.2 Financial Liberalisation ..................................................................................................................................... 4 1.3 Regulatory Theory ............................................................................................................................................. 11 1.3.1 Public Interest Theory .....................................................................................................................................................17 1.3.2 Market Failure .....................................................................................................................................................................20 1.3.3 Regulatory Intervention ..................................................................................................................................................23 1.4 Research Problem .............................................................................................................................................. 26 1.5 The Study’s Central Themes: Definitions and Explanations ............................................................. 32 1.5.1 Risk ...........................................................................................................................................................................................32 1.5.2 Regulation of Hedge Funds ............................................................................................................................................36 1.5.3 Protection of Retail Investors .......................................................................................................................................39 1.6 Hedge Fund Failures ......................................................................................................................................... 41 1.7 Structure
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