By now, you may have read a myriad of articles on the mandatory requirement for public and large private companies to implement and publish a Whistleblower Policy by 1 January 2020.
But it wasn’t until ASIC released Regulatory Guide 270: Whistleblower Policies (RG270) in mid-November 2019, that the regulator’s expectations on how to comply became clear.
What’s also clear is just how much confusion remains on key elements such as what’s disclosable, what qualifies for the whistleblower (WB) protections, and how organisations are expected to manage communications.
This article busts some of the common myths that we’ve been hearing.
myth #1: We don’t have to provide WB protections if the disclosure doesn’t state that it is being made under the Whistleblower policy?
Remember that cliché, if it looks like a duck? Well the same applies to a WB disclosure.
If an ‘eligible discloser’ (such as an employee or a supplier), makes a disclosure about a ‘disclosable matter’ to an ‘eligible recipient’ (which may be internal or external) then they will qualify for WB protections regardless of whether the disclosure is marked or labelled with any special words.
A ‘disclosable matter’ relates to ‘misconduct’ or an ‘improper state of affairs’ in relation to an entity or its related bodies corporate.
This carries two inherent difficulties for companies:
‘Disclosable matters’ is intentionally broad to cover a wide range of matters that may affect organisations and some disclosures may prima facie appear not to be a WB disclosure. It may include circumstances or conduct that don’t break any laws.
An ‘eligible recipient’ is not just the authorised person identified in the WB policy. It can be an officer, a senior manager or even an auditor, in addition to a relevant regulatory body such as ASIC, APRA and the ATO.
To avoid an inadvertent breach of WB protections, we recommend:
Senior staff training – All senior management level employees (and above) should receive specific training to identify a WB complaint, and know their obligations when one has been disclosed;
Triage checklist – Have an easy to use checklist available to assist the recipient to assess the substance of the report and whether it qualifies for WB protections;
Referral process – If the receiver is unsure, have a clear procedure as to how the matter is to be referred, potentially for external legal advice, before the matter is dismissed.
myth #2: I’m being bullied by my boss. I’ll use the WB laws to make them pay.
WB policies do not cover personal work-related grievances such as interpersonal conflicts between team members or hiring decisions. The Act and ASIC do not regulate disputes that are purely employment related and this has not changed with the introduction of WB protections. In fact, there is a specific carve out.
A general rule of thumb for any employee is that if the matter only affects them as an individual then it will be unlikely to fall within WB protections, unless there is victimisation involved.
Companies need to take care in relation to what is known as a ‘mixed report’. For example, a disclosure that deals with a personal work-related grievance and includes information about a ‘disclosable matter’, such as:
allegations of misconduct – noting that misconduct is expressly defined in the Act as ‘fraud, negligence, default, breach of trust and breach of duty’;
breaches of commonwealth employment or other laws that are punishable by a period of imprisonment of 12 months or more;
reports of an ‘improper state of affairs or circumstances’ – this is intended to cover systemic issues that should be known by the regulator or may cause harm to the public (therefore not likely to cover workplace matters that only affect one individual).
Remember that complainants may be emotional, and the subject matter of the complaint may involve a multitude of things. It could take some time to unpack it and identify which issues are ‘disclosable matters’ and which ones are not.
We anticipate that very few workplace disputes will qualify for WB protections. Federal employment laws (except for the Work Health and Safety Act 2011 (Cth)) do not provide for criminal sanctions or terms of imprisonment. WB protections will apply to employees who make allegations of criminal misconduct such as fraud or sexual assault and any contraventions of the specified legislation such as the Act.
To avoid employees incorrectly using the WB policy to air personal work-related grievances, in addition to the earlier recommendations, we suggest that:
Companies update their ancillary HR policies to ensure there is cohesion between all relevant policies;
Choice of authorised ‘eligible recipients’ – When choosing who to name in your WB policy as a person eligible to receive WB complaints, think carefully about that person’s interpersonal skills and whether they are likely to be well-equipped for the role;
Senior staff training – Should include training on ‘mixed reports’ and identify the other tools (such as a Triage Checklist) available to them to assist in identifying whether these contain a ‘disclosable matter’ or elements of victimisation. Training should identify appropriate avenues and responses for different elements of a complaint, and the other applicable company policies that may need to be followed, if the WB Policy does not apply.
General awareness training – Staff at all levels should receive general awareness training of what is, and (importantly) what isn’t a matter to be dealt with under the WB policy. This may assist in curbing over-use of the policy.
myth 3#: I’m anonymous so I can say what I like!
Individuals can report anonymously under WB protections and are entitled to remain anonymous through the course of their disclosure.
On one hand, recipients of disclosures have positive obligations to:
Permit an individual to remain anonymous if they choose, including receiving complaints made via anonymous emails or letters;
Maintain the confidentiality of the discloser’s identity, including redaction of any information that may likely lead to their identification;
Ensure that no action is undertaken which may result in detriment to the discloser (e.g. Westpac’s alleged demotion of their compliance officer for advising the board of their failure to declare payments under anti-money laundering laws).
But this doesn’t grant free licence to the discloser to say what they like.
The Whistleblower is only eligible for protection arising from a legitimate WB disclosure. If their report is a ‘mixed report’, then WB protections may not apply to the entirety of their disclosures. False or vexatious disclosures will not receive the available protections, and could expose a discloser to liability or other consequences of any misconduct they have engaged in during their employment.
Given the time it can take to determine if a report is false, companies are far better to err on the side of caution before opening themselves up to criminal liability for failing to extend WB protections.
A breach of confidentiality for a legitimate WB discloser is an offence which may result in criminal liability.
Any WB Policy and staff training programs need to specifically address how confidentiality and anonymity will be retained.
myth #4: The Company can decide whether to communicate with Whistleblowers
WB disclosures that qualify for protection are required to be investigated and WB policies must stipulate how the investigation will proceed.
ASIC have now clearly communicated that (whenever possible) companies are encouraged to communicate with a discloser throughout the course of any investigation, including providing progress updates, and clarifying in the policy how investigation findings will be documented and reported (either internally or to the discloser).
Notably though, the Act does not require companies to continuously communicate with the discloser or provide them with updates on the investigation, particularly if this communication may jeopardise the confidentiality of the discloser or overall investigation.
Continuous communication with disclosers is a discretionary matter for each company to consider on a case-by-case basis. We do not recommend that companies enshrine such an obligation in a policy, as it may be impractical, and in some cases, may jeopardise an organisation’s ability to provide required protections.
As a practical matter, Companies should be aware that WB disclosers will expect action, and a failure to communicate with the discloser may result in an attempt to make the complaint external.
Do not enshrine communication obligations in a policy;
Setting expectations on how the investigation procedure will work (in each case) and the level of communication a discloser can expect to receive from the outset (following a disclosure) will help to mitigate the risk of further action;
Companies should keep a detailed record of each complaint and investigation undertaken so they can be prepared to respond to any enquiries from a regulator.
myth #5: The new laws mean that whistleblowers can go to the media or use social media to blow the whistle.
Disclosers will not be afforded WB protections if they go straight to the media.
To receive WB protections, a discloser must meet the requirements of the Act in relation to a ‘public interest’ or ‘emergency’ disclosure – meaning the discloser must:
have made a previous disclosure of the information to the company or other ‘eligible recipient’; and
have either:in the case of an ‘emergency disclosure’ reasonable grounds to believe that ‘the information concerns a substantial and imminent danger to the health or safety of one or more persons or the natural environment’; or
in the case of a ‘public interest disclosure’, the discloser has waited 90 days since their previous disclosure and has reasonable grounds to believe that no action is being taken, and that making a further disclosure is in the public interest;
notified the body to which the previous disclosure was made with sufficient information to ascertain the previous disclosure, and state that they intend to make a ‘public interest’ or ‘emergency’ disclosure under the Act;
make the disclosure to a journalist or a member of the Parliament of the Commonwealth, state or legislature of a Territory; and
disclose information that ‘must be no greater than what is necessary to inform the recipient’ of the improper state of affairs or misconduct (in the case of a public interest disclosure) or the substantial and imminent danger (in the case of an emergency disclosure).
Ultimately, a discloser will have to jump through these hoops before they can go straight to the media with a complaint. These reasonably high thresholds ensure that companies have an opportunity to take appropriate and measured responses to complaints, without being held to ransom by threats of premature public disclosure.
Ensuring that potential whistleblowers understand the types of disclosures that may receive protections, and in what circumstances, is an important feature of staff ‘general awareness’ training;
Consider whether your organisation’s social media policy needs to be amended and cross-refer to its WB Policy to guard against inappropriate use of social media;
Whistleblowers are recommended to follow the procedures identified in the WB Policy or contact the relevant regulator before resorting to a disclosure to the media.
If someone is adamant about making a public disclosure, we recommend seeking prior independent legal advice about how to access the legal protections available, or to understand the potential consequences if the protections do not apply.
WB policies were never intended to be a one size fits all policy and each company will need to adopt their own procedures that suit the needs of the company.
After 127 days of public hearings and dozens of high profile witnesses, a royal commission into turncoat gangland lawyer Nicola Gobbo is set to wrap up.
The inquiry into Victoria Police's use of Lawyer X as an informer will end on Friday, but will continue to investigate policy issues surrounding management of informers with legal obligations.
Commissioner Margaret McMurdo is due to hand down a report on her findings on July 1.
The inquiry has examined Ms Gobbo's three periods as a registered police informer.
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She was first recruited as a law student in 1995 when she turned on a former boyfriend for drug dealing.
In 1999 she was registered again while trying to offer police tips on fellow lawyers she accused of money laundering.
Her longest stint ran from 2005 until 2009 when she gave evidence against clients, including drug kingpin Tony Mokbel and underworld killer Carl Williams.
Ms Gobbo admitted she had acted as an agent for police instead of in the best interest of her clients.
"Was I accumulating information and, on one level, trying to impress people? Yes I was," she said.
"Do I regret it now? Yes. Every day."
The inquiry has heard from more than 100 witnesses, most of whom gave evidence in the public hearings.
Among them were former chief commissioners Simon Overland, Christine Nixon and Ken Lay, prominent gangland investigators including former Purana Taskforce boss Jim O'Brien and detective Stuart Bateson, and a number of handlers who directly managed Ms Gobbo and her tips.
Ms Gobbo was one of the last witnesses to give evidence, ordered to appear despite efforts to be excused on health grounds.
Crooks previously represented by Ms Gobbo - some who turned informer on her advice - also gave evidence.
Inspector John Nolan and former detective senior sergeant Shane O'Connell are expected to be the final witnesses on Friday, when lawyers will also make closing remarks.
The former chief of Antigua’s Financial Services Regulatory Commission (FSRC) has pleaded guilty for his role in connection with the Stanford International Bank (SIB) Ponzi scheme.
Assistant Attorney General Brian A. Benczkowski of the Justice Department’s Criminal Division and U.S. Attorney Ryan K. Patrick of the Southern District of Texas made the announcement.
Leroy King, 74, of Dickerson Bay, Antigua, was the last remaining defendant in the SIB scheme. Today, he pleaded guilty to one count of conspiracy to obstruct justice and one count of obstruction of justice for his role in obstructing the Securities and Exchange Commission (SEC) investigation into SIB. He was extradited to the United States in November 2019.
King is a dual citizen of the United States and Antigua. Beginning in approximately 2002, he served as the administrator and CEO of the FSRC, an agency of the Antiguan government. As part of his duties, he was responsible for Antigua’s regulatory oversight of Stanford International Bank Limited’s (SIBL) investment portfolio, including the review of SIBL financial reports and the response to requests by foreign regulators, including the SEC, for information and documents about SIBL’s operations.
In or about 2005, the SEC began investigating R. Allen Stanford and Stanford Financial Group (SFG) and made official inquiries with the FSRC regarding the value and content of SIBL’s purported investments. From 2005 through February 2009, Stanford, James Davis, King and others conspired to obstruct the SEC’s investigation of SFG, SIBL and their related entities. From at least 2003 through February 2009, Stanford made regular secret corrupt payments of thousands of dollars in cash and gifts to King in order to obtain his assistance in hiding the truth about SFG and SIBL from the SEC and other regulatory agencies.
Over the course of the conspiracy, Stanford’s cash payments to King totaled approximately $520,963.87. Stanford also provided King tickets to both Super Bowl XXXVIII in Houston, Texas (2004) and Super Bowl XL in Detroit, Michigan (2006). Stanford also provided King with repeated flights on private jets Stanford or SFG entities owned.
King later denied the SEC’s request for help, and he wrote that the FSRC “had no authority to act in the manner requested and would itself be in breach of law if it were to accede to your request.” In reality, the FSRC did have this authority and failed to exercise such because of the payments and other benefits Stanford gave to King.
A federal jury found Stanford guilty in June 2012 for his role in orchestrating a 20-year investment fraud scheme in which he misappropriated $7 billion from SIB to finance his personal businesses. He is serving a 110-year prison sentence. Five others were also convicted for their roles in the scheme and received sentences ranging from three to 20 years in federal prison.
U.S. District Judge David Hittner of the Southern District of Texas accepted the plea today and set sentencing for April 24.
The FBI’s Houston Field Office, IRS Criminal Investigation and the U.S. Postal Inspection Service investigated the case. Trial Attorney Brittain Shaw of the Criminal Division’s Fraud Section and Assistant U.S. Attorney John Pearson of the Southern District of Texas are prosecuting the case.
The Justice Department extends its gratitude to the government of Antigua for its cooperation and assistance.
The year 2020 marks the 150th anniversary of the Department of Justice. Learn more about the history of our agency at www.Justice.gov/Celebrating150Years.
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Paul Oosting from GetUp at Parliament House in Canberra. Picture: Kym Smith
Paul Oosting from GetUp at Parliament House in Canberra. Picture: Kym Smith
FEDERAL POLITICAL CORRESPONDENT
11:43PM February 12, 2020
A charity set up by senior GetUp officials, which is being investigated by the Australian Charities and Not-for-profits Commission, has appointed the left-wing activist group’s former campaign director to its board.
The Australian can reveal Commons Library Limited, launched by GetUp staff including national director Paul Oosting in 2014 as GetUp Commons Limited, was notified on October 22 that it was under investigation by the ACNC.
The investigation was sparked following reports in The Australian in August last year revealing links between GetUp and the Commons Library, including personnel and shared office space.
Party ceasefire is holding, for now
Despite being aware of the ACNC probe, the Commons Library appointed former GetUp campaigns director Django Merope-Synge to its board in January, replacing Benjamin Brandzel.
Mr Brandzel was a founding board member at the New York-based Avaaz.org, which made three donations to GetUp between 2013 and 2017 totalling more than $268,000.
Charities and Electoral Matters Assistant Minister Zed Seselja told The Australian the “links between GetUp and this charity are becoming clearer and clearer”.
READ MORE:GetUp links ‘concerning’|GetUp stirs activists’ climate claims|‘False and tawdry’: GetUp hijacks fireys|GetUp: poll fail Palmer’s fault|GetUp uses child to labour point
“It is absolutely appropriate the commissioner investigate these links to ensure integrity in the charity sector, and it is critical that GetUp, who preach transparency, publicly outline the extent of this relationship,” he said.
Senator Seselja wrote to ACNC commissioner Gary Johns on August 20 asking him to formally examine the “very close links” between the Commons Library and GetUp.
Senator Seselja told Mr Johns it was important that organisations with charitable status were “complying with their obligations and fulfilling their charitable purpose, and not being used as de facto political campaigners”.
An ACNC spokeswoman said the commission was not legally allowed to provide details on the status of investigations.
The Australian previously revealed senior officials at GetUp — which publicly claims “we don’t have or want charity status” — were involved in setting up the Commons Library, which had worked out of the offices of the left-wing group.
As a registered charity, the Commons Library is endorsed for “GST concession and income tax exemption” and as a “deductible gift recipient”.
On his LinkedIn account, Mr Merope-Synge said he was GetUp’s campaigns director between 2016 to October last year. He was previously communications co-ordinator of the NSW Greens and a senior adviser to Tasmanian independent MP Andrew Wilkie.
The Australian last year revealed Mr Merope-Synge — who led GetUp’s push to oust former prime minister Tony Abbott in Warringah — was a director of Climate Leaders, which was linked to Zali Steggall’s campaign.
A GetUp spokeswoman said Mr Merope-Synge had finished with GetUp on October 4 and that the group had “no role in the operation of the Commons”.
A Commons Library spokeswoman said they were an “independent social change library for the benefit of the Australian public”. “Our focus is broad and we have supportive relationships with many stakeholders in civil society. Commons materials are available for viewing and download by anyone with an internet connection.”
The “social change library” previously said GetUp had “no involvement in the operation of the Commons Library” and was an “independent organisation”.
The Commons Library says its vision is based on an Australia “that has well-informed, skilled, collaborative and effective movements for social and ecological justice”.
The online “public library” includes collections of articles, manuals, training materials and practical guides to “inform and equip” Australians to influence public policy and engage in “political structures”. “The Commons is committed to being accessible to the breadth of the Australian public,” the Commons Library says. “We aim to overcome barriers to access, including those related to ability, education levels, language, income, racism, sexism, homophobia, transphobia and any other oppression or systemic disadvantage.”
Federal Political Correspondent
Geoff Chambers is The Australian’s Federal Political Correspondent. He was previously The Australian’s Canberra Bureau Chief and Queensland Bureau Chief. Before joining the national broadsheet he was News Edito... Read more
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Court-approved guardians—strangers swooping in and taking over the lives of elderly people who are helpless to stop them. We’ll dig in on who, why and how.
In this photo taken Oct. 12, 2011, Irving Lindenblad, 82, rides down the stairs assisted by a stair lift, at his home in Washington. (Jacquelyn Martin/AP)
In this photo taken Oct. 12, 2011, Irving Lindenblad, 82, rides down the stairs assisted by a stair lift, at his home in Washington. (Jacquelyn Martin/AP)
It’s an epic scandal targeting the elderly. For profit guardians—strangers— knocking on the doors of our most vulnerable people and taking total control of their finances and lives. Moving them out of their homes into facilities, all at the expense of people who are helpless to stop them. Families think they’ve been kidnapped or gone missing And in some cases, this is perfectly legal. This hour, On Point: Who’s guarding the guardians? -- Jane Clayson.
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Pamela Teaster, director of the Center for Gerontology Virginia Tech. One of the few scholars in the country who studies guardianship.
Julie Belshe, daughter of Rudy and Rennie North – two Las Vegas residents who fell under exploitative guardianship and lost nearly everything they owned. They now live with Julie.
From The Reading List
The New Yorker: How the Elderly Lose Their Rights — "In the United States, a million and a half adults are under the care of guardians, either family members or professionals, who control some two hundred and seventy-three billion dollars in assets, according to an auditor for the guardianship fraud program in Palm Beach County. Little is known about the outcome of these arrangements, because states do not keep complete figures on guardianship cases—statutes vary widely—and, in most jurisdictions, the court records are sealed."
Las Vegas Review-Journal: Clark County’s Private Guardians May Protect — Or Just Steal And Abuse — "Over the course of five years, Berger’s court-appointed private guardian systematically drained her $495,000 estate nearly dry. The licensed private guardian, Patience Bristol, 39, was caught only when someone from outside of the guardianship system called police. She is now serving three to eight years in prison for stealing everything from cash to jewelry and expensive purses from Berger and other wards. Berger is left with nothing more than a feeling that she has been abused not just by Bristol but also by the county government that gave Bristol nearly unchecked power to ruin her life."
Vegas Voice: What Would You Do? — "There is a knock on your door and the care giver who has stopped by to check on your wife of 50 years motions you to sit, he will answer the door for you. Two people enter, a woman and a man. They approach you and the woman says, “Mr. xxxxx I am an officer of the court, you and your wife need to come with me." You ask, “why, what have I done, go with you where?” She responds “you have three choices, I can have you arrested, you can come with us to Lake View, or you can be taken to a mental facility.”
Rosen Lawyers class action in USA against Westpac and its Officials:
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are all in the class action filed by up to 6 US lawfirms from Oregon all the way to New York.
Meanwhile applicants want military trials for those who support terrorists.
Biden Trump Corrupt Practices and the FCPA
By Editor Filed in Uncategorized October 12th, 2019 @ 6:34 am
Corruption is becoming a hot political issue.
Last week, Congressman Paul Gosar (R-Arizona) called on the Justice Department to investigate former Vice President Joseph Biden for possible violations of the Foreign Corrupt Practices Act (FCPA).
“I have reviewed the transcript of the phone call between President Trump and Ukraine President Zelensky and concluded that the evidence of then Vice President Biden’s potential corruption warrants a full investigation by Congress and the Department of Justice,” Gosar said. “It appears, based on former Vice President Biden’s admission captured on video, that he used his official office as Vice President to coerce a foreign nation to take action that would personally financially benefit the Vice President’s son. This is the definition of a corrupt practice.”
Not so fast says FCPA Professor Mike Koehler.
“In recent weeks some have suggested in connection with the Ukraine situation that President Trump has violated the FCPA, some have suggested that Joe Biden has violated the FCPA, and some have suggested that Rudy Guiliani has violated the FCPA,” Koehler told Corporate Crime Reporter. “I find all three suggestions, based on what is currently in the public domain, to lack merit. Among other things, the FCPA’s anti-bribery provisions require that something of value is offered or provided to specific foreign officials to influence their discretion to obtain or retain business. The FCPA’s anti-bribery provisions do not apply to offering or providing things of value to a foreign government.”
Peter Schweizer, author of Secret Empires: How the American Political Class Hides Corruption and Enriches Family and Friends took to the op-ed page of the New York Times last week to argue that “What Hunter Biden did was legal — and that’s the problem — we need a Washington Corrupt Practices Act to stop political families from self-dealing.”
“As vice president, Joe Biden served as point person on American policy toward China and Ukraine. In both instances, his son Hunter, a businessman, landed deals he was apparently unqualified to score save for one thing: his father,” Schweizer wrote.
“The Bidens are hardly alone. President Trump’s transportation secretary, Elaine Chao, and her husband, Senator Mitch McConnell, are being accused of having profited from their commercial ties to Beijing. In 2004, the two had a net worth of about $3.1 million, according to public disclosures. Three years later, the range was $3.1 million to $12.7 million. The next year, their net worth rocketed to $7.3 million to $33.1 million.”
“What changed? In 2008, Ms. Chao’s father, James Chao, gave the couple a ‘gift’ of $5 million to $25 million (politicians are required to report money in ranges, not exact amounts). Certainly, their wealth has continued to grow.”
“Mr. Chao’s generosity was made possible by the fortune he has amassed through his shipping company, Foremost Group, which has thrived in large part because of its close ties with the Chinese government.”
Schweizer proposes a Washington Corrupt Practices Act – “one that clearly shuts down foreign influence and self-enrichment for some of America’s most powerful families on both sides of the aisle.”
Mark Worth Executive Director, European Center for Whistleblower Rights says that anti-corruption activists in Europe are expressing little outrage at the Biden Ukraine scandal.
“There is a misconception that people around the world have a good understanding of American politics and media,” Worth told Corporate Crime Reporter. “A vast majority of people don’t – even among activists who you imagine would know better. All they can do is respond to the headlines, 90 percent of which are filtered through the New York Times, the Washington Post and CNN.”
“So no, there is no revulsion about the Biden situation among anti-corruption activists because the international headlines have more to do with the whistleblower who exposed President Trump’s classified phone call with Ukraine President Zelensky, and questions by Democratic Congress members and party operatives who are questioning the right of Rudolph Giuliani – a private citizen and President Trump’s personal attorney – to collect facts about what happened and appear on television to explain it to the public. So any facts that may exist about potential misconduct by the Bidens are not getting through internationally.”
Some independent voices in the United States are questioning the Democrats strategy on Ukrainegate.
“Hunter Biden got a $50,000 a month gig at a Ukrainian gas company,” journalist Aaron Mate told comedian Jimmy Dore last week. “Trump will be given ample opportunities to keep highlighting that and to keep exposing Democrats’ hypocrisy. If one of Trump’s kids got a similar gig on a lucrative gas board that would be worthy of impeachment right there. People would be drawing up articles of impeachment based on that. It’s like Russiagate, another suicide mission.”
“Trump will be re-elected in 2020 if this is what the Democrats run on,” Dore predicted.
“If you read some leftist commentary in The Nation and The Intercept — this is an idea that — Ukraine-gate is narrow, it’s not exactly what we want, but it will give us an opportunity to highlight Trump’s more serious crimes,” Mate said. “No it won’t. No one is going to be talking about attacks on workers, or attacks on healthcare. It’s going to be all about Ukraine. As if average people care about that. It’s Democrats doing everything they can to avoid talking about the issues that impact people’s lives.”
Kelly Harris and Worksafe Victoria's IME Review know that victims of unethical and immoral practices (see Ombudsman files on IMEs) can result in toxic workplaces becoming dangerous. Coronial Inquests might help to uncover the cover ups too. What do you think?
Crime boss Tony Mokbel has threatened the life of one of the senior police officers responsible for his prosecution and jailing for drug trafficking.
Victoria Police sources say the threat against the detective who once worked in the Purana anti-gangland taskforce is considered genuine and credible and is now under investigation by an internal security squad. The veteran officer, who cannot be named for safety reasons, is also now receiving special protection.
Tony Mokbel when he was caught by police in Greece.
Tony Mokbel when he was caught by police in Greece.
A police spokeswoman said: “Victoria Police does not comment on any matters relating to threats against current or former members for safety reasons.”
Underworld sources say Mokbel’s behaviour has become increasingly erratic since he was brutally bashed and stabbed in the yard of Barwon Prison last year. He sustained a serious head injury in the attack and spent several days in a coma.
It’s the second time recently that Mokbel, who is serving a 30-year sentence, has been linked to a serious threat against someone seen to have crossed the infamous gangster. In early January, News Corp Australia reported that Victoria Police was investigating a threat to the safety of an unnamed journalist by associates of the Mokbel crime family.
Mokbel blames Purana and his former barrister-turned-police informer, Nicola Gobbo, for his extradition from Greece in 2008. He had fled there from Australia nearly two years earlier in the middle of a cocaine importation trial.
Nicola Gobbo and her one-time client, Tony Mokbel, in happier days.
Nicola Gobbo and her one-time client, Tony Mokbel, in happier days.Credit:Nine
Purana targeted Mokbel as a major player in Melbourne’s underworld – along with a long list of his associates and business partners – from the time it was formed in 2003 to combat the city’s bloody underworld war.
After his forced return to Australia, Mokbel pleaded guilty to other serious drug trafficking charges which resulted in a minimum jail sentence of 22 years and a maximum of 30 years. He also faced two murder indictments but prosecutors ultimately withdrew the charge relating to the death of drug dealer Michael Marshall, and a jury found Mokbel not guilty of killing “Carlton Crew” figure Lewis Moran.
The 54-year-old is claiming that without Purana’s reliance on intelligence provided by Gobbo, his long-time lawyer and trusted associate, he would never have been convicted and would instead be a free man today.
The Age has previously revealed police were assessing whether it was possible to revive a number of dormant drug cases against the notorious gangster and potentially seek to press new criminal charges against him in the unlikely event his current convictions are overturned. Purana has also worked to have millions of dollars in cash, property and other assets seized from Mokbel and his associates. Gobbo has repeatedly claimed to have had a key role in orchestrating these seizures.
A Department of Justice and Community Safety spokeswoman declined to comment on the incident, saying the agency does not discuss the affairs of individual prisoners.
"Prisoner placements are regularly monitored and reviewed, and may be modified where an assessment finds their risk and individual requirements have changed," she said.
The Royal Commission into the Management of Police Informants is currently probing whether Victoria Police’s decision to employ Gobbo as a registered police informer has potentially corrupted dozens, if not hundreds, of investigations. She was an informer in 1995, 1999 and between 2005 and 2009.
Faruk Orman, who was convicted of participation in a murder as a getaway driver, has had his conviction quashed by the Victoria Court of Appeal as a result of the exposure of Gobbo’s work informing on her own clients.
Westpac linked to international paedophilia case after Australian man charged
By Chris Vedelago and Sarah Danckert
January 16, 2020 — 11.30pm
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Westpac has been linked to an international paedophilia case following the arrest of a notorious Australian sex offender who is suspected of using the bank’s transfer system to pay for live-streamed child abuse videos in south-east Asia.
It is the first instance where an attempt to procure abuse of a child has been tied to Westpac’s failure to heed warnings since 2016 from money laundering watchdog AUSTRAC that lax standards for its LitePay and other money transfer systems could be used to facilitate the international child sex trade.
The Victorian man allegedly attempted to arrange for a child to be exploited in a south-east Asian country recently. It is not known whether the alleged abuse went ahead.
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The criminal charges against the man come after Westpac had been privately suggesting to the market since the scandal broke in late November that there was no evidence any act of child exploitation had occurred despite more than 3000 suspicious payments being identified.
The man, who cannot be named for legal reasons, has been arrested and charged by the Australian Federal Police with soliciting child abuse material and possessing child abuse material.
Police are still examining thousands of the man's private social media messages.
The AFP declined to comment because the matter is before the courts.
Legal restrictions prevent the publication of details of the case, except that the man allegedly used Westpac systems to send tens of thousands of dollars to a south-east Asian country in more than 100 transactions since late 2018 and recently attempted to solicit live-streamed child sex abuse.
The man has denied any wrongdoing.
Westpac chairman Lindsay Maxsted followed a conventional process in response to Austrac's allegations but it proved counter-productive and costly.
Surrendering to the mob, Westpac's plight will be chilling for corporate Australia
The registered sex offender had already served a substantial jail term for ordering live-streamed child sex abuse from contacts in a south-east Asian country.
A Westpac spokesman said the bank was unable to provide comment on specific matters while proceedings are before the court.
“We have made a number of changes to our transaction monitoring to lift our standards and ensure our financial crime processes meet our obligations,” he said. “Westpac is working co-operatively to resolve this matter with AUSTRAC.”
The revelation will be a further blow to the embattled institution, which has already lost its chief executive Brian Hartzer, experienced massive share price drops and suffered an intense backlash from the public, politicians and shareholders.
Westpac announced on Thursday that it had appointed Colin Carter, president of the Geelong Football Club, as the third member of an advisory panel reviewing the bank board's risk, governance and accountability.
The Victorian man is alleged to have used the bank’s transfer system to pay for live-streamed child abuse videos in south-east Asia.
The Victorian man is alleged to have used the bank’s transfer system to pay for live-streamed child abuse videos in south-east Asia.Credit:AAP
The federal and state police Joint Anti-Child Exploitation Team has been investigating numerous referrals about Australian-based sex offenders since AUSTRAC launched civil proceedings against Westpac in November 2019 for committing 23 million violations of anti-money laundering laws stemming back to 2013.
Among AUSTRAC's allegations are that Westpac should have detected the activities of at least 12 customers, including a convicted child abuser, who were making transactions through the bank’s systems “consistent with child exploitation typologies” since 2013, according to Federal Court documents.
AUSTRAC claims Westpac was specifically warned in late 2016 about the risk of international funds transfers being used to purchase child exploitation material, a risk that the bank had already identified internally regarding its LitePay and other payment systems earlier that year.
It is alleged Westpac repeatedly failed to implement an “adequate” system for detecting and responding to financial activities potentially related to child exploitation, at least until June 2018.
Even then, AUSTRAC claims, suspicious transfers still occurred for some customers into 2019 that were “indicative of child exploitation typologies”.
The bank’s alert system identified some of these transactions but no action was taken.
In one case, AUSTRAC alleged that Westpac became aware of one customer’s convictions for child sex abuse in June 2019 but allowed them to continue to send money to the Philippines.
Financial institutions are legally required to monitor for, prevent and report to authorities any suspicious financial transactions under anti-money laundering and terrorism financing laws.
Nearly one per cent of all Westpac shares changed hands on Tuesday as investors rotated out of the stock.
Westpac accused of 23 million breaches by money laundering watchdog
During Westpac’s annual general meeting chairman Linsday Maxsted, who following the AUSTRAC allegations announced his intention to retire, said the bank “absolutely accepts responsibility” for its errors.
“It’s these claims that have deeply affected all of us. That a possible failing of the bank could put anyone at risk of harm is incredibly upsetting and completely at odds with everything that Westpac stands for.
“Westpac’s monitoring had identified and filed suspicious matter reports for the customers outlined in AUSTRAC’s claims. However, we acknowledge we should have implemented more robust transaction monitoring earlier than we did. This would have generated more suspicious matter reports to AUSTRAC.”
LitePay, which Westpac has now shut down, is a low-cost payment system for making international money transfers up to $3000.
AUSTRAC case against Westpac continues in the Federal Court.
NATIONAL WHISTLE BLOWERS DAY CELEBRATIONWALK INORANGE COUNTY CALIFORNIAJULY 30, 2019&NOTICE OFTHEREMEDYTO HELP ORANGE COUNTY,CALIFORNIA AND THE NATION HEAL OUR HOMELESS,BRING AFFORDABLE HOUSINGAND SUSTAINABILITY TO HOME OWNERSHIP"Together we are endinghomelessnessand the theft of property title across America"To: The Orange County Board of Supervisors;Hello, we are Whistle Blowerscoming forward with ourNotice of Remedyand inviting youto join us on July 30 inCelebrationof Whistle Blowerseverywhere. We haveFaith that what we sharewill not only be heard,but acted upon by the Public Servantsin returned good Faith. As the Chairwoman of the National Committee in Support of Resolution 6021 I amtasked with writing this missiveand to deliver the notice of remedy to you.We firstly give you notice and appreciation for your service.Whistle Blowershave come forward for centuries, none more than in the last 15 years as the housing genocide has evolved. Whistle Blowerstake a risk of losing their friends, colleagues, jobs and even lives as they come forward. We on the Committee have suffered great atrocities to bring the evidence of the crimes stealing the land, homes and lives of millions. We network across the globe with other Whistle Blowersseeking to end the corruption that has engulfed our court records as we seek to bring remedy to end the crime spreeand a cure for the housing genocide. Human Trafficking, drug running, gun running and more are connected. On July 30, 2019 Whistle Blowersacross America celebrate the work and sacrifices all Whistle Blowers face in revealing the crimes theywitness, experience and die from. We bring you this information, most of youhave seen it before, and today we have Faith in yourpublic servants oath of office to do the right thing and take action with us.GO TO: www.whistleblowers.org/enact-a-national-whistleblower-day/Join the National Whistleblower Day Campaign!"The U.S. Continental Congress passed America’s first whistleblower law during the height of the American Revolution on July 30th, 1778.To honor this history, the first Congressional celebration of National Whistleblower Day took place in the U.S. Senate Kennedy Caucus Room on July 30th, 2015. It was a huge success.Since then, the National Whistleblower Center has held an annual celebration to honor and celebrate the great contributions of whistleblowers. We are strongly advocating for July 30th to be permanently recognized as National Whistleblower Day, and weneed your support."The intent of this missive is peaceful and to invite you to stand in celebration with Whistle Blowerson July 30 and to giveyounotice of a remedy being handed toOrange County. The remedythat bringsan end the financial problems of the county regarding budgeting to address the needs of the Californians and Orange County communities regarding housing and property titles. The growing issues of homelessness, affordable housing and property title theft, identity theft and the use of counterfeit securitiesare at massive genocide proportions, we believe it is a National Emergency. You have the opportunity to bring this remedy to the men and women of Californiaand Orange County (we are sending this to Representatives of other States too).Attached to this mailed missive is a thumb drive withdocumentation of Financial Crimes Against Humanity(a Dropbox link is also providedherefor the evidence and information attached to this missive: www.dropbox.com/sh/z2kslzei1mxrgeo/AACkY...G5v2Dw_mXbOgn5a?dl=0).These crimes are
continuing every minute of everyday across America,and the world, but today we ask the public servants of California to hear the remedy we bring as the gift we offer. This gift crosses allreligious, racial, political, domiciles and religionsas there is no boundary to the problems of housing and the theft of one's identity being attached to counterfeit securities.Miami Florida Resolution 6021has come to existence because of men who built bridges, Miami Mayor Suarez, Miami Commissioner Ken Russell and Florida Attorney Bruce Jacobs. These men co-authored Resolution 6021and our Committee is supporting them in sharing this information across America.Resolution 6021holds the criminals accountable to pay for the genocide of housing.The accountable are the entities, banks, servicers their assigns and representatives who use fraud upon the courtsthat maytrick public servants into a falsebelief of the Banksstanding to commit unjust takings. Imagine being able to have a self funded budget item that doesn'tcall for taxation orbonds, but is funded millionsof dollars, and even potential for hundreds of trillionsof dollarsthrough criminal fines. This is a reality already in motion. Who can be against having the criminals pay for their crimes as the victims and survivors benefit by the implementation of projects that end the genocide?additionally,To whom it may concernregarding mailed missive,The enclosed thumb Drive contains pertinent documents and videos which are related to this notification and have been pre-scanned for any Trojans, malware and viruses as to ensure network and computer system safety. We have no intent to cause harm, on the contrary, we are seeking to build bridges and bring remedy. Thank you to Whistle Blowerseverywhere and to Public Servantswho chose togive their dedication to the protection of the Constitution and the men, women and children of these beautiful lands we cherish as our home.We build families on California land, Orange County land, on Americaso let us build the bridges that will keep us in our homes (whether it be a tent, sleeping bag on the ground, rental house, or a house we own) and protect our lives from the pirating creating the genocide via Financial Crimes Against Humanity. In celebration of Whistle Blowersand BuildingPublic Servant Bridges with us. See you on July 30.Billie949firstname.lastname@example.orgNational Chairwomanof www.resolution6021&founderof www.abolishthebankers.com Cc: OCDA Todd Spitzer: 401 Civic Center Drive West. Santa Ana, CA 92701California Governor Newsom130310thStreet,Suite1173.Sacramento,CA95814OC Risk Management600 West Santa Ana BlvdSuite 104. Santa Ana, CA 92701President Donald Trump: The White House1600 Pennsylvania Avenue NW. Washington, DC 20500OC Commission to End Homelessness:333 W. Santa Ana Blvd. 10 Civic Center Plaza room 465, Santa Ana, California, 92701ACLU125 Broad Street, 18th Floor. New York NY 10004Congresswoman Maxine Waters: Head of US Financial Oversight CommitteeCongressman Levin Congressman Hunter Congresswoman Katie Porter Senator Lisa Murkowski: 522 Hart Senate Office Building. Washington, DC 20510San Diego Board of Supervisors: 1600 Pacific Hwy #335, San Diego, CA 92101Los Angeles Board of Supervisors: 500 W. Temple Street #383. Los Angeles California 90012Riverside Board of Supervisors: 4080 Lemon Street -4th Floor. Riverside, California 92501San Diego, Riverside, Los Angeles & Orange County are also noticed as the owners of S.E.C.U
This is an update on the current status of the Petition of Remonstrance. Valerie Naif and I have successfully gotten our Petition of Remonstrance filed into the Illinois General Assembly. We were also successful in getting Gene Warner’s also filed into the Hawaii Assembly. We have other parties coming forth now who want to join in our Petition of Remonstrance as a Third Party Intervenors, in which I have created a template for, which is attached herein. There are also two other templates on the drop box link, for committee members and non-committee members to get that sent out to the first 8 original parties in California and DC, CC’d as you come forth making your claim as a Third Party Intervenors, in the Powers V BONYM case and the Brashear Qui-Tam.
We have another packet going out today in response to the 3 committee members recent communications and on-going’s in their Appeals cases (Wyler, Powers and Warner). Everyone will receive an email with the contents of that packet as soon as it gets in the mail today. Val and I have 16 parties that are being notified today ( original parties in CA and DC and ( parties in Illinois. Dr. Warner will duplicate the mailing in his Hawaii (6 parties), so the parties involved in the Investigation and Public Order can see the doings of these Criminal Kangaroo Courts and Attorneys in these matters.
Thank you to all of you who are working diligently to get your claim in and the Remonstrance filed in your State. It is very important to follow-through, as we move fwd, you will only get behind on the filings, as we move these 50 Nation States back to their respective box of limitations in our Republic and end FINANCIAL CRIMES AGAINST HUMANITY.
What are the most common causes of action brought against banks and other financial services providers by their customers?
Common causes of action commenced against banks and financial service providers by customers include:
breach of contract - both express and implied terms;
breaches of statute - most particularly in relation to standards of conduct such as engaging in misleading or deceptive conduct, ‘unconscionable conduct’ or, in relation to consumer credit activities, breaches of responsible lending legislation.
Statutory consumer protection provisions, such as unconscionable conduct and misleading or deceptive conduct, are generally mirrored in the Australian Securities and Investments Commission Act 2001 (ASIC Act) for banks providing credit facilities, and the Corporations Act 2001 (Corporations Act) for other financial product and service providers. Although not applying to financial services, the Australian Consumer Law similarly reflects these provisions to protect consumers of other products and services.
Additionally, for financial service providers other than banks, such as financial advisers, common causes of action brought by customers also include negligence and breach of fiduciary duty.
Breach of contract
The legal relationship between a bank and its customer is essentially one of contract, supplemented by laws in equity and tort and by statute.
Breach of contract claims frequently arise in the context of the Code of Banking Practice, soon to be the Banking Code of Practice (Code). The Code sets out standards and obligations of the banking industry and applies to individual borrowers as well as small businesses. Adherence to the Code is voluntary but all of the large banks are signatories. Although the Code currently does not have legislative force, banks that adopt it by incorporation into their lending documentation are contractually bound by it. Claims under the Code have been used by both borrowers and guarantors to challenge debt recovery action by lenders and as a ground for damages. The most common claim made under the Code is an alleged breach of the bank’s obligation to ‘exercise the care and skill of a diligent and prudent banker’ in selecting and applying its credit assessment methods when forming an opinion about the borrower’s ability to repay the subject facility. Although generally a bank does not owe its customers a duty to exercise care, in contract or tort, when performing its serviceability analysis, this effectively imposes a contractual warranty by the bank about the stipulated standard of care.
Customers may also allege that the bank has breached an implied term of the contract. Implied terms arise at both common law (such as an implied duty of good faith) and via statute, such as the implied warranty that services will be provided with due care and skill.
Given the expansive yet amorphous nature of ‘unconscionable conduct’, it is a cause of action regularly invoked by customers against banks and other financial service providers. Unconscionable conduct claims are available both at general law (as an equitable doctrine) and under statute.
To establish a claim of unconscionable conduct in equity, it must be shown that:
there is a relationship that places one party at a ‘special disadvantage’ of some kind as regards the other party;
the stronger party has knowledge of the special disadvantage; and
the stronger party takes ‘unconscientious advantage’ of its position.
However, under statute, unconscionable conduct operates on a wider basis. For example, a customer under the statutory regime need not establish a ‘special disadvantage’, and a court may take into account a broad range of factors set out in the ASIC Act, including not just any inequality of bargaining power but also the numerical and financial literacy of a customer, any undue influence exerted over the customer, and the amount paid for the relevant services.
The wider scope of the statutory unconscionability regime means it has almost entirely superseded the equitable doctrine of unconscionable conduct in practice.
Misleading or deceptive conduct
Banks and other providers of financial products and services must not engage in conduct that is misleading or deceptive or likely to mislead or deceive. What is ‘misleading or deceptive’ is an objective test, and a bank or institution need not intend to mislead or deceive customers - rather, it is only necessary to show that a customer was in fact or likely to have been misled in relation to a particular matter.
In some circumstances, mere silence can amount to misleading conduct, for example, where a financial services provider offers a ‘half-truth’ or otherwise there is a reasonable expectation from the customer, on the facts of the case, that the provider, in fairness, would require the institution to have disclosed more.
Responsible lending laws have received significant attention in recent times, being a topic of emphasis in the 2018 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Royal Commission) (discussed below). Responsible lending laws regulate consumer lending, as distinct from lending for business purposes. Chiefly, it requires lenders to make an assessment as to whether a contract is ‘unsuitable’ for the consumer and make reasonable inquiries about their requirements, objectives and financial situation, and to verify their financial situation. However, the responsible lending provisions are broad, particularly insofar as they require ‘reasonable’ inquiries and ‘reasonable’ verification steps. Reasonable minds may, and do, differ over what precisely is required. Ultimately, the Royal Commission did not find that any structural amendment to the current responsible lending framework is necessary. The view taken was essentially that the current laws should be upheld and enforced (as guided and monitored by the corporate regulator, ASIC). Banks and other lenders have significantly amended their origination practices as a result, which has increased the formalities and burdens on both lenders and their customers.
In claims for the misselling of financial products, what types of non-contractual duties have been recognised by the court? In particular, is there scope to plead that duties owed by financial institutions to the relevant regulator in your jurisdiction are also owed directly by a financial institution to its customers?
Non-contractual claims in connection with the mis-selling of financial products are generally actionable by both customers and regulators. These protections span disclosure requirements, anti-hawking provisions, suitability assessments and general conduct provisions.
Key non-contractual duties affecting banker or customer relationships in Australia include: the statutory prohibitions on misleading or deceptive conduct, false or misleading representations, and unconscionable conduct. Consumer credit legislation also prohibits misselling consumer products that are unsuitable for the customer. The National Consumer Credit Protection Act 2009 (NCCP Act) specifically states that a consumer product will be considered unsuitable where the consumer is unable to comply with the relevant financial obligations or making the repayments would result in substantial hardship. Additionally, the loan will be considered unsuitable where the loan agreement does not meet the consumer’s objectives or requirements.
Further, financial services licensees and credit providers are both under a general licensing condition to ensure that their financial services or credit activities are provided ‘efficiently, honestly and fairly’. A breach of this provision can result in penalties for the institution as well as imposition of licensing conditions and, in serious cases, loss of licence.
The mis-selling of financial products was a key issue examined by the Royal Commission, particularly in connection with the sale of add-on insurance - that is, insurance sold with other financial products (such as consumer credit insurance with credit cards). These were often found to be of little value, either because the customer was ineligible to make a claim from inception, or because the cover, when called upon, provided little benefit to the customer.
Australia also has anti-hawking provisions that generally prohibit offering financial products in an unsolicited meeting or telephone call with a retail client. In addition to the penalties imposed by the Corporations Act for committing an offence, the person who is impacted by the anti-hawking provision is given a right of return and refund within a designated cooling-off period.
A raft of disclosure provisions also operate to prevent the mis-sale of products through the imposition of obligations to inform customers before they acquire a financial product, including the obligation to provide Product Disclosure Statements. Chapter 3 of the NCCP Act places disclosure obligations on financial institutions to aid consumers in understanding the relevant credit activities. The Code also contains consumer protections in this area, including disclosure requirements and particular obligations in connection with vulnerable customers or low-income earners.
Statutory liability regime
In claims for untrue or misleading statements or omissions in prospectuses, listing particulars and periodic financial disclosures, is there a statutory liability regime?
As noted in question 1, the ASIC Act provides the core regulations that control the publication of untrue or misleading statements in relation to financial products or services.
However, misleading or deceptive conduct in relation to disclosure documents (such as prospectuses and product disclosure statements), as well as in relation to material provided to satisfy an entity’s continuous disclosure obligations, is regulated specifically by the Corporations Act (and the ASX Listing Rules for listed entities).
These laws operate to ensure that any statement provided in prospectuses, listing, and periodic financial disclosures must be accurate, complete and able to be substantiated. The Corporations Act specifically addresses disclosure documents that contain a misleading or deceptive statement, or omit required information.
Liability for a contravention of these provisions may extend to both the company and individuals who made or authorised the misleading statement. In addition to both criminal and civil penalties for contraventions, the regime also allows aggrieved parties who have suffered damage or loss to bring a civil claim against the company.
As to the issuance of a prospectus, the Corporations Act provides that the issuers must ensure that the information provided is not misleading or deceptive. Disclosed information will be considered misleading where it is speculative or based on mere matters of opinion or judgement, and not made on reasonable grounds.
The Corporations Act and ASX Listing Rules also set out continuous disclosure obligations, which require listed entities to inform the ASX immediately of any information that a reasonable person would expect, if it were generally available, to have a material effect on the price or value of the entity’s securities.
This aims to ensure that investors have equal and timely access to relevant company information. Breach of continuous disclosure obligations has become the primary basis upon which shareholder class actions are commenced in practice in Australia, with shareholders seeking to recover the diminution in the value of their shares once the information that an entity ought to have disclosed at an earlier time eventually comes to light.
Duty of good faith
Is there an implied duty of good faith in contracts concluded between financial institutions and their customers? What is the effect of this duty on financial services litigation?
The courts are willing to imply a duty of good faith in certain commercial contracts, such as franchise agreements. However, there is no prima facie duty of good faith imposed in contracts between financial institutions and customers, and this issue has received little judicial consideration. Accordingly, customers generally invoke the statutory duties mentioned in question 1, including a duty not to act unconscionably (which itself requires consideration as to whether the parties acted in good faith). Typically, those duties are imposed to avoid instances of particular unfairness in the operation of the contract.
Where the duty of good faith applies, it generally requires the parties to act honestly and have due regard to the legitimate interests of both parties, and in particular, not to act capriciously or arbitrarily to defeat the objects of the contract. However, the financial institution is under no obligation to subordinate its own interests to that of the customer.
In what circumstances will a financial institution owe fiduciary duties to its customers? What is the effect of such duties on financial services litigation?
As noted in question 2, the typical legal relationship between banker and customer is one of debtor and creditor arising from contract. It is not an accepted fiduciary relationship. However, in special circumstances, a financial institution may owe fiduciary duties to a customer. For a fiduciary relationship to arise between banker and customer, the bank must have exceeded its usual role and engendered in the customer an expectation or understanding that it will act in the customer’s best interests by providing financial or investment advice (gratuitously or otherwise) for example. Common situations include where:
the relationship is one of confidence;
there is inequality of bargaining power;
there are agency elements;
one party undertakes to perform a task in the interests of the other;
there is scope for one party to unilaterally exercise discretion; or
there is particular dependency or vulnerability.
Today, more than ever, banks and financial institutions engage in a variety of transactions and roles. In circumstances where the bank takes on particular fiduciary obligations, in particular where it acts as a trustee (for instance, in the context of financial advice, investment management and superannuation), typical allegations in this context involve advisers or trustees acting in conflict with their duty or failing to sufficiently prioritise the customer’s interests. Even where fiduciary obligations arise, the precise content of a bank’s duties depends on the circumstances and context of the matter.
In the context of financial advice, there is a specific statutory regime involving the imposition of a ‘best interests’ duty. One recommendation from the Royal Commission, which will likely be implemented, is that this duty should be extended to mortgage brokers such that, when acting in connection with home lending, mortgage brokers must act in the best interests of the intending borrower.
While a fiduciary can contract to modify their fiduciary duties, they cannot exclude liability for fraud or the deliberate disregard of their duty.
How are standard form master agreements for particular financial transactions treated?
Australia uses standard form master agreements such as ISDA. Those provisions are accorded the full force of contract, but there has been limited judicial consideration of ISDA in Australia.
Can a financial institution limit or exclude its liability? What statutory protections exist to protect the interests of consumers and private parties?
Financial institutions can seek to limit or exclude particular kinds of liabilities. Most commonly, this is done in relation to institutional clients. As a general proposition, a financial institution is not able to limit its liability or exposure to statutory claims such as misleading or deceptive conduct, on that basis that it would be against public policy. Each of the Corporations Act, NCCP Act and ASIC Act contain prohibitions from contracting out of certain legislative provisions. Australian courts also construe exclusion clauses against the party seeking to rely on them. However, as noted above, parties can contract to exclude or modify fiduciary obligations.
Australia also has an unfair contract terms regime that precludes certain types of contractual terms in consumer and small business standard form contracts, including limited liability clauses that go beyond protecting the parties’ legitimate business interests.
Freedom to contact
What other restrictions apply to the freedom of financial institutions to contract?
While the general position is that parties are free to bargain and contract, there is an overlay of statutory and regulatory requirements and prohibitions, including under:
the Code, which imposes particular requirements on banks; and
statutory regimes in the Banking Act, Corporations Act and ASIC Act (including the unfair contract terms regime) and Superannuation Industry (Supervision) Act 1993.
The unfair contracts regime regulates standard form contracts to both consumer and small business customers. Unfair terms are those that would impose a significant imbalance in the rights and obligations of the parties, are not reasonably necessary to protect legitimate interests; and would cause detriment to the other party if applied, for example, unilateral variation clauses. The Contracts Review Act 1980 (NSW) also enables the court to make void a contract in its entirety if a provision is considered unjust in the circumstances.
In terms of financial charges to customers, banks are restricted from charging penalties, being liquidated damages charged pursuant to the contract that are not commensurate with the actual loss suffered as a result of a breach or other contractual implication. This is particularly so in the context of late fees or charging default interest.
There are additionally laws restricting certain restraints of trade, such as conduct constituting exclusive dealing.
What remedies are available in financial services litigation?
Customers can, depending on the underlying cause of action, generally apply for the following remedies:
specific performance of a contract;
setting aside an agreement; and
The remedies available to ASIC, the corporate regulator, are set out in question 21.
Have any particular issues arisen in financial services cases in your jurisdiction in relation to limitation defences?
As a matter of procedural law, there is a statutory limitation regime in Australia. Each Australian jurisdiction has enacted legislation limiting the period within which certain claims may be brought. Generally, the time period begins to run from the date on which the cause of action accrues. For example, in most Australian jurisdictions, the limitation period for breach of contract is six years from the date of the breach.
As a general proposition, courts enforce statutory limitation periods strictly, although some particular jurisdictions have exclusions such as matters that are ‘fraudulently concealed’.
Although not a judicial body, the Australian Financial Complaints Authority (AFCA), being the new external dispute resolution body (see question 27), resolves certain types of complaints, including up to six years after the customer first became aware, or ought to have become aware, of the loss suffered or, if they have already complained to the financial institution via its internal dispute resolution process, then two years following that response. In February 2019, AFCA’s remit was expanded to establish a temporary ‘legacy complaints jurisdiction’ to consider eligible financial complaints outside of AFCA time limits. The Australian government announced the measure as part of its response to the Royal Commission, which considered cases of financial misconduct dating back to 1 January 2008. Between 1 July 2019 and 30 June 2020, AFCA will consider disputes since 1 January 2008 that have not previously been heard and that fall within AFCA’s current monetary limits and compensation thresholds.
Do you have a specialist court or other arrangements for the hearing of financial services disputes in your jurisdiction? Are there specialist judges for financial cases?
While there is a commercial list in the Federal Court and certain state Supreme Courts for case management purposes, there are no specialist courts for adjudicating financial services disputes. However, AFCA is the new one-stop shop external dispute resolution body for financial disputes (see question 27). AFCA hears both financial and superannuation complaints (previously heard by separate third-party external dispute resolution bodies).
Do any specific procedural rules apply to financial services litigation?
There are no specific procedural rules applying to financial services litigation. By way of guidance, there is a Central Practice Note dealing with the management of cases in the Commercial and Corporations National Practice Area. This covers commercial and corporation disputes within federal jurisdiction, of which banking, finance and insurance are sub-areas as well as economic regulation, competition and access.
May parties agree to submit financial services disputes to arbitration?
Arbitration in Australia is voluntary and it is possible for financial service institutions to agree to arbitration provisions; a more common practice with institutional clients. However, ASIC does not use arbitration as a dispute resolution method with financial service providers.
Australia is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention). As such, Australian courts will give effect to private agreements to arbitrate and recognise and enforce arbitration awards made in other contracting jurisdictions.
Out of court settlements
Must parties initially seek to settle out of court or refer financial services disputes for alternative dispute resolution?
There are legislative requirements for financial services providers to seek to resolve their disputes out of court, if possible (see question 15). However, generally, they are not required to refer matters to alternative dispute resolution before commencing proceedings.
While customers are not required to first raise their dispute with AFCA, membership of AFCA is either required by law or is a licence condition of financial institutions that provide financial products and services. Accordingly, in practice, this is often the first step to a dispute, becuase customers can pursue a court outcome if unsatisfied with AFCA’s recommendations. AFCA is also free to consumers and small businesses because it is funded by contributions from subscribed financial institutions.
Are there any pre-action considerations specific to financial services litigation that the parties should take into account in your jurisdiction?
In Australia, there are no specific pre-action formalities generally applicable to financial services litigation. Some states have such formalities as a matter of course in litigation generally.
Various state jurisdictions and courts have particular pre-action requirements before commencing proceedings, including, by way of example, an obligation to take genuine steps to seek to resolve the matter and subsequently filing a ‘genuine steps statement’.
There are, however, some requirements regarding agricultural customers as a result of farm-debt mediation regulations. This requires a mediation to be held in certain circumstances before the bank can take enforcement action. While this is only applicable in some jurisdictions, a recommendation of the Royal Commission was the implementation of a uniform national scheme, which will likely be carried out.
Unilateral jurisdiction clauses
Does your jurisdiction recognise unilateral jurisdiction clauses?
Unilateral jurisdiction clauses, also known as ‘asymmetric’ or ‘one-sided’ jurisdiction clauses, limit one party to suing the other in a court of a particular country while the other party is free to sue the former party in a jurisdiction of its choice. Accordingly, this favours one party. While there is little judicial consideration of such clauses, it is likely that these would be enforceable under Australian law, although this is not the case in certain overseas jurisdictions (such as where the term is regarded as unfair or unconscionable).
What are the general disclosure obligations for litigants in your jurisdiction? Are banking secrecy, blocking statute or similar regimes applied in your jurisdiction? How does this affect financial services litigation?
Australia has wide-ranging ‘disclosure’ obligations for litigants (most commonly referred to as ‘discovery’).
Unlike other jurisdictions, this process is limited to discovery of documents and does not extend to the taking of witness statements.
There are only limited exceptions to the obligation to disclose relevant documents, most notably, documents prepared for the dominant purpose of seeking or being provided legal advice (legal professional privilege, which is a fundamental common law immunity). Another exception is without prejudice material - that is, material (which is often full and frank) evidencing a willingness or an attempt to settle the matter, which may include concessions not to be relied upon in court. However, without prejudice material may be shown to the court at the conclusion of the matter on the question of costs.
Courts can, in certain circumstances, draw inferences where documents likely to exist are not produced without reasonable excuse or where it appears that documents or particular evidence that could have been adduced in support of a party’s position were not.
This common process varies within Australian jurisdictions. Most relevantly, in the Federal Court, parties must apply for court orders for discovery and this must be in circumstances where it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. In state and territory jurisdictions, the rules generally allow for discovery of documents relevant to the issues in dispute. Particularly in larger cases, the parties will often seek discovery by categories of documents (as opposed to general discovery).
Although there is no banking secrecy or blocking legislation in Australia, the courts have considered the operation of such laws from extraterritorial jurisdictions where necessary - typically in the context of a foreign applicant seeking to set aside a notice to produce certain documents or a subpoena to produce documents, if compliance would require the applicant to commit serious criminal offences in breach of local banking secrecy laws.
Must financial institutions disclose confidential client documents during court proceedings? What procedural devices can be used to protect such documents?
As a general proposition, financial institutions will be required to disclose client information to the extent it is relevant to the issues in dispute. That being said, where third-party information is relevant to a dispute, courts will usually entertain specific confidentiality requirements in relation to that information. In some circumstances, parties can seek ‘preliminary discovery’ of documents that may give rise to a cause of action or are required to complete information necessary to bring a cause of action. Courts seek to balance an overriding principle of access to relevant information with the burden on the parties and any associated third-party rights.
Procedural devices to protect confidential information include suppression or non-publication orders. Courts may also allow redaction of confidential and irrelevant information, such as bank account details of third-parties or those not in dispute. Circumstances in which a suppression order may be granted include, for example, where it is required to prevent prejudice to the proper administration of justice or national security, or to protect the safety of any person or to avoid causing undue distress or embarrassment in particular cases.
Disclosure of personal data
May private parties request disclosure of personal data held by financial services institutions?
As noted in question 18, where proceedings are brought against a financial services institution, a party will ordinarily be entitled to discovery and inspection of all discoverable documents in the institution’s possession or control. Disclosure of personal data could also be sought by a private party issuing a subpoena to produce on the institution.
An ‘open banking’ regime was recently introduced in Australia, which is in effect a data sharing regime to support customer choice and competition. This will see the introduction of a comprehensive right for consumers to access information about them held by certain entities and, where the customer has elected, share this information with third parties. Data will be shared in a usable, machine-readable form. While the implementation is being completed in stages, the ‘big four’ Australian banks have voluntarily commenced publishing certain data in accordance with the first phase of the regime. This data sharing will assist banks and other lenders to assess suitability.
What data governance issues are of particular importance to financial disputes in your jurisdiction? What case management techniques have evolved to deal with data issues?
There are complex regimes in Australia to deal with the extraction and use of data in court proceedings. Courts will entertain a range of different technological solutions for the extraction and compilation of potentially relevant data. Electronic discovery is now commonplace. There are also instances of courts permitting artificial intelligence solutions such as predictive coding to reduce the size of disclosure sets. Parties may agree (with or without court intervention) on regimes to lessen the burden of discovery, such as by excluding certain types of electronic data from discovery. The Federal Court has developed a template protocol that sets out the terms under which information may be electronically exchanged between parties, typically during the discovery process.
Interaction with regulatory regime
What powers do regulatory authorities have to bring court proceedings in your jurisdiction? In particular, what remedies may they seek?
Various regulators have broad powers to bring court proceedings against financial service institutions for matters such as contravention of financial services or credit laws or corporations laws.
The available remedies range from preservative actions (to avoid or limit the damage), recovery action (to recover assets or obtain compensatory damages), and remedial and protective actions (to remedy contraventions and otherwise prevent further loss or damage). The remedies regulators may seek include:
injunctions (both interlocutory, mandatory and preventative);
imposition of civil penalties;
imposition of criminal penalties and custodial sentences;
damages (on behalf of the corporation, or registered scheme, or by those persons who suffered as a result of the contravention);
imposition of compliance regimes; and
other remedies such as orders to disclose information or publish advertisements.
Regulatory authorities may bring court proceedings for a range of purposes, most notably:
to act as a public deterrent to similar conduct by the entity or other entities;
for the imposition of civil penalties (which cannot be imposed by simple agreement); and
for any criminal sanction.
The corporate regulator also has powers to intervene in proceedings already on foot.
Court-based enforcement is commonly used by regulatory authorities in Australia. Following the Royal Commission, all major regulators (particularly the corporate regulator, ASIC) have indicated they will seek to commence court-based enforcement more frequently.
Australian regulators have broad investigative and information-gathering powers and can require financial institutions to provide documents and information, attend examinations to answer questions and provide assistance to investigations.
Generally, if ASIC has sufficient evidence to support a criminal offence, particularly in cases of serious conduct that is reckless, dishonest or intentional, it will refer the matter to the Commonwealth public prosecutor.
ASIC can also take administrative protective action (ie, action that does not involve the courts) including disqualification from managing a corporation, revocation, suspension, variation of licence conditions, enforceable undertakings and public warning notices.
Significant litigated regulatory matters in recent times include allegations of market manipulation in connection with financial benchmarks, anti-money laundering and alleged breaches of responsible lending provisions.
Disclosure restrictions on communications
Are communications between financial institutions and regulators and other regulatory materials subject to any disclosure restrictions or claims of privilege?
In recognition of the commercially sensitive material they hold, the key financial services regulators - ASIC, the Australian Competition and Consumer Commission (ACCC) and the Australian Prudential Regulation Authority (APRA) - are subject to confidentiality obligations. Regulators are required to take all reasonable measures to protect from unauthorised use or disclosure the information given to it in confidence or in connection with the performance of its functions. ASIC and the ACCC will generally give the relevant parties notice before disclosing confidential material so as to give the owner of the material the opportunity to take any action to protect their interests.
Regulators cannot compel the production of communications or documents subject to a valid claim of legal professional privilege. However, parties may voluntarily elect to provide privileged documents to ASIC on a limited and confidential basis under its standard form disclosure agreement. This ‘limited waiver’ regime was introduced to enable ASIC to obtain the relevant information needed to make regulatory and enforcement decisions. The standard agreement provides that the disclosure of information to ASIC is not a waiver of any privilege existing at the time of the disclosure. ASIC will generally treat the information as confidential, but the privilege holder retains responsibility for otherwise safeguarding any privilege claims he or she wishes to maintain (eg, asserting any privilege where ASIC is compelled by law to disclose information under a court order for discovery).
It is important to note, however, that the agreement does not prevent third parties from asserting that privilege has been waived. There is some case law in Australia to support the proposition that a voluntary ‘limited waiver’ should not amount to a wider waiver of privilege, although the authorities have not directly considered the position of ASIC’s standard agreement. Until such time, and in the absence of legislative protection being enacted, there will remain a risk of waiver of privilege for parties voluntarily disclosing privileged communications to ASIC.
Specific statutory secrecy provisions may also operate to prohibit disclosure of information shared between financial institutions and the prudential regulator, APRA. Using its statutory confidentiality powers as set out in the Australian Prudential Regulation Authority Act 1998 (Cth), other than in permitted circumstances, APRA does not allow disclosure of certain information (referred to as protected information). APRA uses these prohibitions so that inadvertent disclosure does not provoke a market overreaction or lead to an unwarranted loss of confidence on the part of beneficiaries in the institution the subject of the disclosure.
May private parties bring court proceedings against financial institutions directly for breaches of regulations?
Prosecution of corporate, securities and financial service laws is not exclusive to regulators. Private parties can bring proceedings against financial institutions directly for certain kinds of breaches of regulations. However, there must be specific remedial provisions in the statute giving such persons standing to seek relief. Some provisions are enforceable only by regulators. Often, regulatory investigations will, in fact, act as catalysts for private claims, especially class actions.
In a claim by a private party against a financial institution, must the institution disclose complaints made against it by other private parties?
The disclosure of complaints made by other parties of a similar nature would usually not be relevant but that question may fall to be determined on the particular facts and allegations at hand.
Often, claimants will seek to subpoena a regulator to produce documents obtained by the regulator in its investigations, to the extent they are relevant to the extant action. Whether such orders are made by the court will depend on the relevance of the material and whether it is protected by public interest immunity, or other immunities such as those afforded by APRA to ‘protected information’.
Where a financial institution has agreed with a regulator to conduct a business review or redress exercise, may private parties directly enforce the terms of that review or exercise?
Generally, private parties (customers or otherwise) cannot enforce an agreement between a financial institution and a regulator. Enforceable undertakings are often agreed between financial institutions and ASIC in lieu of legal proceedings (although ASIC has been criticised for overreliance on this method of resolution), which are essentially administrative out-of-court settlements that are enforceable by ASIC in court if breached. While, private parties cannot directly enforce enforceable undertakings, as a practical matter, if they were to alert the regulator, the regulator is likely to enforce on their behalf.
Changes to the landscape
Have changes to the regulatory landscape following the financial crisis impacted financial services litigation?
There have been significant regulatory landscape changes since the financial crisis, characterised by a significant increase in the suite of regulatory requirements. Notably in 2018, the federal government conducted a Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, which focused in part on the role of the regulators. Among the recommendations from that Commission was additional regulation and changes to the approach to enforcement that would include the conduct of more investigations and an increased level of court-based enforcement.
Particular attention has also been given to the role of corporate culture, governance and remuneration and their links to corporate misconduct. This has drawn the attention of the prudential regulator, APRA, which has recently been requiring financial institutions to undertake self-assessments into governance, accountability and culture.
Is there an independent complaints procedure that customers can use to complain about financial services firms without bringing court claims?
Australian Financial Services Licensees and Australian Credit Licensee (licensees) are both under a general licensing condition to have an internal dispute resolution procedure that meets certain criteria, and to be a member of the AFCA scheme (as an external procedure).
Internal disputes resolution
Internal dispute resolution procedures must comply with the standards and requirements made or approved by ASIC and cover disputes in relation to the credit activities engaged in by the licensee or its representatives. ASIC has published a regulatory guide that it is currently seeking to update (RG 165 - Licensing: Internal and external dispute resolution), which aims at ensuring consumer complaints are dealt with efficiently and quickly, and that the licensee is able to identify potential systemic issues. This guidance also sets out time frames in which disputes should be dealt with internally.
AFCA - external disputes resolution
AFCA is a non-governmental organisation that administers a free and independent dispute resolution scheme as an alternative to courts and tribunals. AFCA reviews complaints about credit, finance and loans, insurance, banking deposits and payments, investments and financial advice and superannuation. It has jurisdiction to award compensation for indirect financial loss (capped at A$5,000 per claim), compensation for non-financial loss (also capped at A$5,000), and compensation up to A$2 million but the subject credit facility must generally not exceed A$5 million.
Once a dispute is lodged, the lender is notified and must cease all enforcement action relating to the dispute (which has been used as a delay tactic by many consumers, particularly where there is imminent enforcement action such as a court hearing). AFCA may require information to assess the dispute, usually by requesting documents or interviewing either party.
AFCA aims to resolve complaints using informal methods and by reaching a negotiated settlement. It can make a preliminary assessment that will result in a recommendation of how the dispute should be resolved. If the parties do not accept this, AFCA can make a formal decision called a determination. If the applicant accepts the determination, it will be binding on both parties. If the applicant rejects it, neither party is bound, and the applicant customer is free to pursue a court-ordered outcome.
AFCA can award financial damages (albeit not punitive, exemplary or aggravated damages). Other remedies include forgiveness of debt, release of security, waiver of fees or reinstatement or vitiation of a contract etc.
The Code (referred to in question 1) also stipulates lender requirements as to dispute resolution (both internal and external) and supplements this with obligations, such as obligations relating to complaints handling.
Recovery of assets
Is there an extrajudicial process for private individuals to recover lost assets from insolvent financial services firms? What is the limit of compensation that can be awarded without bringing court claims?
In the event that a bank or other authorised deposit-taking institution (such as credit unions and building societies) fails, the Australian government has a financial claims scheme, also known as the Australian Government Deposit Guarantee, to protect and support the stability of the Australian financial system. This also covers the situation where a general insurer fails (for claims up to A$5,000). The scheme must be activated by the government and is administered by APRA. The scheme acts to protect deposits up to A$250,000 for each customer.
Updates & Trends
Are there any other current developments or emerging trends that should be noted?
Challenges and trends29 What are the principal challenges currently facing the financial services litigation landscape in 2019? What trends are apparent in the nature and extent of financial services litigation? Are there any other noteworthy features that are specific to financial services litigation in your jurisdiction?
The financial services landscape in Australia in 2019 is a challenging one for financial services institutions. There has been a significant increase in the number and nature of consumer protection regulations affecting banks. Combined with heightened regulator interest and activity, there is a strong correlation between financial services investigations and civil litigation, including class actions. In February 2019, the government substantially increased penalties for corporate misconduct and introduced a penalty for contraventions of the obligations to ensure that financial services and credit activities are provided efficiently, honestly and fairly. The imposition of those penalties, in conjunction with other statutory developments and regulatory attitudes, means that enforcement litigation and later corresponding claims will be a much more significant feature of the landscape in the years to come.
An upcoming area in modern litigation is the use of litigation funding. Due to strong demand, attractive returns and limited regulation, third-party litigation funding has evolved in Australia over the past decade and is now commonplace, particularly in class actions. Such funders are not subject to licensing or capital adequacy requirements. However, there are particular court rules applying to litigation funding - for example, litigation funding agreements must be disclosed early on in the proceedings.
Gilbert + Tobin - Andrew Floro, Harish Ekambareshwar, Kasia Dziadosz-Findlay and Richard Harris
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FISA ABUSE CASE
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