Add Category
Bernie Madoff died in a North Carolina medical centre attached to Butner, a US federal prison known for housing inmates with chronic health conditions, just three years ago.
Once a titan of Wall Street, the 82-year-old was just 12 years into a 150-year sentence for running the world's biggest Ponzi scheme, worth a reputed $US65 billion.
Previously considered untouchable, the former chair of the Nasdaq Stock Exchange was unceremoniously led from his office in handcuffs on December 11, 2008 and paraded before the public in what US politicians refer to as the "perp walk" by FBI and US Securities and Exchange Commission officers.
By June the following year, Madoff was behind bars.
If he ever had misgivings about his downfall, perhaps his greatest regret should have been that he didn't base himself in Australia.
The pool of money may well be a mere pond compared to the US. But the chance of detection or prosecution was far lower, overseen by a regulator with a reputation for cosying up to big business and shying away from prosecution.
This week, a parliamentary inquiry recommended a radical overhaul of our corporate regulator, the Australian Securities and Investments Commission (ASIC), in yet another call to bring it into line with its global peers.
The first recommendation was a demand for the federal government to recognise the organisation's inadequacies.
A regulator missing in action
ASIC's failures have been well documented over the past 25 years, most recently by former High Court justice Kenneth Hayne in his royal commission into banking misconduct.
Each day for months, lurid tales of theft and deceit were broadcast to the world as the leaders of some of our biggest financial institutions were forced to confess their sins.
But it wasn't as though ASIC had been caught unaware.
Take AMP as a case study. In 2006, the life insurer became embroiled in what then was hailed as the scandal of the decade.
It was caught overcharging thousands of customers, switching them into expensive and poorly-performing products designed to enrich planners and the organisation, at the expense of clients.
Despite what would usually be referred to as theft outside the financial world, no-one faced charges and the organisation was never even subjected to a civil damages case.
Instead, it was forced to sign "enforceable undertakings" where it merely promised to never repeat its misdeeds.
If the highly publicised action had any effect, it was to send a message to financiers that the wealth management industry could operate with impunity.
In the period leading up to the Hayne royal commission, our biggest banks were found to have rigged the foreign exchange market and engaged in illegal activity with their wealth management divisions. Each time, they were subjected to "enforceable undertakings".
But, as the royal commission showed, the undertakings, for whatever reason, were rarely enforced.
Instead, ASIC chose to chase mainly the tiny fish; individuals and small companies ill-equipped to take on the might of a government-backed authority.
Why was ASIC so reluctant to prosecute?
In the early 2000s, then ASIC head David Knott decided the organisation would spread its legal wings, and engage in civil court actions in addition to criminal cases.
The rationale was that civil cases involved a lower burden of proof, making the organisation more effective.
Shortly afterwards, Onetel, backed by James Packer and Lachlan Murdoch, collapsed. In what became Australia's longest running civil case, ASIC's deeply flawed investigation went down in a screaming heap.
Then followed a failed case against Citigroup over insider trading and a botched attempt to run a case against Andrew Forrest over alleged misleading of investors.
For an organisation so heavily populated by corporate lawyers and accountants, its failures were stunning. But perhaps that was part of the problem.
High profile lawyers from the corporate world often were recruited into the regulator on a secondment basis, occasionally to advise on highly sensitive policy matters, leading to accusations that ASIC was captured by the big end of town.
While its law enforcement actions tailed off, its revenue raising activities took precedence.
Last year, according to ASIC's annual report, the organisation raised close to $2 billion in fees from its database and corporate registration activities. But ASIC has an operating budget of about a quarter of that, with the difference going to the federal government's budget bottom line.
It's clear where the priorities lie.
Justice not being seen
Even in high-profile cases, when it was forced to proceed to court, its approach was found wanting by those presiding over proceedings.
Consider the case against the former heads of Storm Financial, Emmanuel and Julie Cassamatis. Between them, acting largely in unison with our biggest banks, the pair destroyed $880 million of wealth for mostly low to middle-income and vulnerable families.
But they escaped criminal prosecution. Instead, ASIC called for fines of just $70,000 and a seven-year ban from running a company.
In March 2018, when handing down his decision, Justice John Dowsett took it upon himself to comment on what he believed was the lax penalty.
"I am inclined to think that the penalty sought by ASIC is on the low side, having regard to the cases to which I have been referred," he told the pair.
It wasn't an isolated incident.
Several years earlier, alleged comedian and former Telstra director Steve Vizard struck a deal with ASIC over his use of confidential Telstra information.
He admitted the charges, but only after ASIC agreed that punishment would be limited to civil penalties.
Even those were considered inadequate. Justice Ray Finkelstein took it upon himself to double the penalties recommended by the regulator.
Undelivered promise
ASIC began life in the 1990s with a great deal of fanfare.
Armed with a new set of national corporations laws, its task was to deliver Australia into the modern global financial system.
But it never lived up to its promise. The organisation it replaced, the National Companies and Securities Commission – staffed by a mere handful of executives – was much more effective.
Under-resourced and with minimal budget, it had taken on the likes of Alan Bond, John Elliott and other giants of the Australian corporate scene to enforce the law and instil investor confidence in the regulatory framework.
It was replaced by an organisation populated by industry insiders that, over the decades since, has concentrated on backroom dealings away from the legal system, which may have saved it money but done little for delivering justice.
Its failures have forced investors to take justice into their own hands with civil court class actions, thereby outsourcing its regulatory activities.
The federal government this week batted away calls for ASIC's break-up and reform. But for how long?