Senate Economics Legislation Committee, , 6:14:52 to 6:17:36
Analysis of the Scheme for Compensation for Detriment caused by Defective Administration (CDDA) as it applies to ASIC following a Federal Court ruling regarding the agency's independence.
Topics: Law reform, Integrity
Speakers: Lynn Kelly, Senator Andrew Bragg, Speaker 35, James Kelly
Okay, fine. Look, um I just wanted to ask you about the um the defective administration scheme.
Uh yes, Senator. Um Lynn, do you want to?
Yeah. Well, this will be this will be quick. Basically, you've written Treasury has written Jessica Robinson, I think actually again. Um she's a lawyer there, is she? Jessica Robinson, first assistant secretary.
Uh Lynn Kelly Financial System Division.
Yeah.
Um Jess Robinson was a SES at Treasury, she's no longer with us.
Okay, fine. We'd look the Treasury written to a constituent saying that effectively that the um ASIC is not part of the C D DA scheme.
Yes, there's been a federal court um decision that has was handed down a few months ago that confirmed that the CDA in its current form can't apply to ASIC. That's correct.
So but it's true. Which one?
The Sharia case?
Yeah. So it is true that ASIC can't make a decision about this scheme. But the finance minister can, right?
No, the court case also confirmed that because of the way the ASIC Act works, that the Minister cannot direct ASIC to do it either. Uh, because we cut across the requirements under the ASIC Act around its independence and Ministers not interfering with ASIC decision. So the court case confirms that the Minister can't direct ASIC to do it, and ASIC cannot do it itself under the current form.
Okay, so this is very important. So your evidence is that the if there is a a case where there's been defective administration by ASIC and they failed to enforce the law, which they do almost every day because they're hopeless, um, that that the position is that no one can be awarded compensation. So in the ASIC regulated world.
So to be clear, it's not my position, it's a position of the Federal Court of Australia under the Sharot case. That is how the law applies. Um as we have communicated to various parties that have written to Treasury in relation to this matter, there are other means open to them. They can apply for an act of grace, for instance. Um specific scheme under the current law, the federal court has confirmed that the actors are currently open to them.
Thank you. Uh Senator Sharma. And I just note we're 15 minutes behind schedule, so if you could. Thank you, I'll be as I'd appreciate it.