Enumerating perceived conflicts of interest would take more time than ASIC has

The Australian Securities and Investments Commission (ASIC) has told a Parliamentary committee that it does not have the ready resources available to reveal how many perceived conflict of interest matters have been noted with respect to its senior executives over the past seven years.

At the same time, one of its most experienced commissioners, Cathy Armour, has declined to answer questions relating to her time as an executive at Macquarie Group and the company’s executives with whom she worked.

The responses have come as ASIC has sought to explain its involvement and that of some its officers related to the problematic initial public offering (IPO) of Macquarie-related NUIX.

NSW Labor Senator, Deborah O’Neill had sought information from ASIC on its handling of the NUIX float including any implications which may have flowed from one of ASIC’s Chief Supervisory Officers accepting a job with NUIX.

O’Neill also asked via the Parliamentary Joint Committee on Corporations and Financial Services, “how many incidents of perceived conflict of interest matters have been noted in the last 7 years” and then asked that they be documented with explanations of how they were managed.

ASIC responded by claiming it would be an undue drain on its resources to answer the question, stating: “There is a wide variety of situations where a conflict of interest may arise during the course of a Commissioner or staff member carrying out ASIC’s work. With regard to this, responding to this question would cause an unreasonable diversion of ASIC’s resources.?

On the question of Armour’s time at Macquarie Bank, Senator O’Neill asked whether the ASIC commissioner had worked on the same floor as Dan Phillips who sits on the Nuix board as a representative of Macquarie.

ASIC responded that the question related to Commissioner’s Armour’s previous employment (before June 2013) as General Counsel for Macquarie Capital and as Executive of Macquarie Group.

It stated:

“Commissioner Armour objects to answering this question on the basis that without further information setting out the purpose of the question and how the question will assist the Committee with its inquiries:

(a) providing an answer to the question may result in a breach of Commissioner Armour’s duty, as a former employee, to Macquarie to maintain its confidentiality and legal professional privilege, in circumstances where Macquarie has not provided a waiver. Without Macquarie’s consent to waive confidentiality and its privilege, providing a response to this question may be prejudicial to Macquarie’s interests (see Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters, February 2015 at [4.8] and Odgers’ Australian Senate Practice, 14th Edition, Canberra, 2016 pp 559, 668-669); and

(b) the question is not relevant (see Procedures for dealing with witnesses, Resolution of House of Representatives adopted 13 November 2013 at [9], Procedures to be observed by Senate Committees for the Protection of Witnesses, Resolution of Senate adopted 25 February 1988 at [10] and Odgers’ pp 558). As referred to in ASIC Chair Longo’s opening statement to the Committee on 18 June 2021, Commissioner Armour has not been involved in ASIC’s review of the Nuix prospectus, does not hold any Macquarie shares or otherwise have a financial interest in Macquarie (other than a bank account), and on this basis, ASIC does not believe that Commissioner Armour has a conflict of interest.”

It cited the same answers to Senator O’Neill with respect to other former Macquarie executives, David Standen and Nuix co-founder, Tony Castagna.