ASIC’s death by a thousand cuts

by | May 5, 2012 | Business, Government

Over the past nine years, 800 million people have been born into the world, YouTube and Facebook were invented and the Iraq War passed into history, but Will Matthews, an actuary from East Brighton in Melbourne, is still waiting for his freedom of information request to be processed.

So Homeric is this voyage by a lone campaigner through the hostile seas of bureaucracy that, when the subject of an epic FOI was raised in conversation with the new Office of the Australian Information Commission – with nary so much as a mention of Matthews’s name – chairman Professor John McMillan simply intoned, “Ah yes, the Matthews case”.

Even the Long March, when Mao Zedong led the Red Army 12,500 kilometres in a circuitous retreat from Chiang Kai-shek’s bloody forces, endured a mere 370 days.

Matthews lodged his fateful request with the corporate regulator in October 2003. By 2007 – in the wake of hurricane Katrina, the defection of James Hardie to the Netherlands and the death of Pope John Paul II – he found himself in a legal showdown more redolent of the High Court than the Administrative Appeals Tribunal.

The AAT is the place where one goes when one has exhausted every other avenue. On one side in the AAT matter there was he, Will Matthews, an ageing surfer with a pony-tail who rather naively believed that justice, truth and common sense must, at some point, prevail.

On the other side were lawyers for the world’s biggest goldminer, Newmont, investment banking powerhouse Macquarie, legal firm Clayton Utz, insolvency firm Taylor Woodings, Matthew Gill, the manager of the Beaconsfield Mine in Tasmania, and the mine’s owner Allstate Explorations.

This glittering cast of big-city lawyers sat with the Australian Securities & Investments Commission, which had its own taxpayer-funded barristers on the case, and which had been stonewalling Matthews’ FOI request since 2003.

Rolling forward another five years – through the global financial crisis, the Arab Spring and the invention of the bionic hand – and, this very week, the commission informed the obstinate Matthews that it would release documents to him “outside of the FOI Act”.

What? After nine years, and millions of taxpayer dollars expended in pettifogging, they would simply surrender and hand their weathered adversary the stuff he’d been asking for all along? Presumably they no longer wish to be bound by the Freedom of Information Act.

There had to be a catch, there was always a catch. Matthews had already beaten the commission in the AAT.

In a watershed 219-page judgment in August 2010, the AAT overturned 90 per cent of the “public interest” exemptions claimed by ASIC and ordered it to hand over the documents to Matthews. It still hasn’t.

What is this information so jealously guarded by ASIC and its corporate consorts? When the company that controlled the Beaconsfield mine in Tasmania bit the dust in 2001, in controversial circumstances, ASIC had begun an investigation.

Allstate, the company that controlled the mine, had appointed an accountant, Michael Ryan, from a small Perth insolvency group, Taylor Woodings, as administrator.

There was a cry of foul play from Will Matthews and other minority Allstate shareholders. They said the mine should never have been put in administration in the first place.

When it needed an expert to examine the Allstate gold hedge books, ASIC duly enlisted the assistance of an actuary – none other than Will Matthews.

The relationship was fine until the regulator suddenly stopped investigating and refused to explain why. Frustrated, Matthews filed his FOI to find out. This single administrative request has now outlasted three ASIC chairmen, messrs David Knott, Jeff Lucy and Tony D’Aloisio.

Things had taken a dramatic turn on Anzac Day 2006 when the Beaconsfield mine collapsed, killing Larry Knight and trapping Todd Russell and Brant Webb almost a kilometre underground.

Despite being operated by a Perth accountant, in administration, the Tasmanian mine had been extremely profitable for its Sydney bank creditors until then.

At the outset, the commission’s ploy had been to grant Matthews access to only 0.1 per cent of the relevant documents he had applied for, charging circa $200 per page.

It was “not in the public interest”, said the regulator, to give him the other 98 per cent. They billed him $6939.90, including charges for header pages and even his own submissions, somewhat bizarrely, which they proposed to send back to him for a fee.

By November 2004, Matthews had complained to the Commonwealth Ombudsman, whereupon there was an 18-month delay which the Ombudsman put down to ASIC not responding.

By 2006 the matter had hit the AAT. It took four years before the corporate regulator was ordered to release roughly one quarter of the documents sought. It hasn’t.

This included the sole confidential submission on ASIC’s insolvency regime by the mine’s administrator, while he was under investigation.

One document which did emerge was an email from ASIC lawyer Sue Hanson to a colleague: “I would really like to know what this Will Matthews’ qualifications/business/interest in this topic is. Who is he? Some student/academic/disaffected lawyer or accountant, or what? I hope he has to pay another FOI fee …”

During the myriad hearings, Matthews showed that key ASIC records had gone missing.

This was confirmed by the commission’s silk, Richard Niall, who advised the tribunal they had subsequently been found. Years earlier Niall had warned Matthews that, if he wished to proceed with the matter, it would turn into a “circus”.

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Michael West established to focus on journalism of high public interest, particularly the rising power of corporations over democracy. Formerly a journalist and editor at Fairfax newspapers and a columnist at News Corp, West was appointed Adjunct Associate Professor at the University of Sydney’s School of Social and Political Sciences. You can follow Michael on Twitter @MichaelWestBiz.

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