02/10/2012 - 09:41

Analysis: heads should roll at ASIC for six wasted years

02/10/2012 - 09:41


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If no-one at the Australian Securities and Investments Commission quits over the failed prosecution of Fortescue Metals Group and Andrew Forrest then someone ought to be sacked.

Not only has ASIC wasted time and taxpayers' money on what was a pointless case from the day it was launched, but the focus on Forrest will have prevented other, more worthwhile prosecutions, from proceeding.

Many lessons will be learned from Forrest v ASIC but I think two are particularly important.

Firstly, that Australian companies dealing with China must take extra care in the wording of any agreement and make sure that there are no “lost in translation” situations, which is essentially what happened with Fortescue.

Secondly, the Australian Government should take the opportunity to urge ASIC to re-focus its law enforcement actions on more important cases, and ones that it can win rather than taking a wild swing at a mining entrepreneur who has annoyed them in the past.

The China factor is the hardest of the two because the country remains a mystery to many Australians even after two decades of closer economic relations.

Enforcing agreements made with Chinese companies is a particularly difficult era of the law, a fact that Fortescue has not been alone in discovering.

While ASIC was pursuing Forrest through Australia’s courts a similar case was unfolding in China which saw another iron ore miner, Mt Gibson Mining, trying to enforce a contract signed by a Chinese buyer.

The Chinese company had clearly reneged on a contract, refusing to pay for iron ore deliveries, forcing Mt Gibson to try and use the Chinese courts to have the contract honoured – a process which proved to be practically impossible as the Chinese company called on friends in government and the legal system to thwart the process.

There was never any attempt by Chinese authorities to prosecute one of its companies, or to assist Mt Gibson in pursuing what was a flagrant abuse of a contract and the legal system.

The Fortescue case is different only is as much as Forrest allegedly misled investors by saying he had a “binding” agreement rather than what turned out, from the Chinese perspective, to be a “framework” agreement.

It was either a “lost in translation” event, or a negotiating ploy by the Chinese, but whichever way it is analysed there was never any doubt that Fortescue and Forrest believed they had a binding agreement.

ASIC copped a warning shot across its bows when the original Federal Court prosecution over the “binding” statement was lost.

At that point the regulator could, and should, have walked away. It didn’t, persisting with the case until is scored a win on appeal.

Today’s decision of the High Court is the last word on a case which should never have been launched, partly because it was flimsy and hung on an understanding of a single word (binding), and partly because of the way different arms of government ganged up on Forrest.

Not a man who needs defending I found it deeply disturbing that the ASIC allegations against Forrest were so willingly embraced by some prominent broadcasters at the Australian Broadcasting Corporation.

In one crisp encounter I was asked to speak on the Fortescue case as it was heading for the Federal Court. Apparently I had been chosen because it was believed I would talk about Forrest’s previous problems and help paint a negative picture of the man.

When it became clear that I did not agree with ASIC’s prosecution, and voiced an opinion that I thought Forrest would eventually be vindicated, the invitation from the host of the ABC program was withdrawn.

ASIC was wrong to pursue Forrest. The ABC was wrong to ignore people prepared to argue his case.

Both of those government-funded organisations need to consider very carefully how they use taxpayer funds in the future.


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