Commonwealth Ombudsman - Complaint about ASIC

     

 

 

Complaint Description & Steps Taken

 
 
Background

On 20 May I lodged an online request with ASIC.  I asked this  simple question:

Question: Is there any legislative obligation for an ADI to notify a depositor when the ADI changes the published rate of interest applicable at the time of the deposit.

Full details of what followed can be viewed here, but the abridged version is:

At the same time as lodging this request with ASIC I also lodged the same request with APRA

ASIC responded to my request on 21 May 2015 advising me that:-

Thank you for your enquiry.  
I would suggest that you contact The Australian Prudential Regulation Authority (APRA) with your query
.www.apra.gov.au

APRA responded to my request on  22 May 2015 advising me:-

Thank you for your email of 20 May regarding the disclosure of interest rates.
The role of the Australian Prudential Regulation Authority (APRA) is to regulate authorised deposit-taking institutions (ADIs) such as banks, credit unions and building societies and insurance companies, some superannuation funds, and friendly societies in order to promote the prudent management of those financial institutions.

Disclosure requirements are the responsibility of the Australian Securities and Investments Commission (ASIC). ASIC is responsible for regulating financial markets, financial services and consumer credit activities. This includes disclosure of information by financial institutions in Australia and the regulation of financial intermediaries. You can contact ASIC online at www.asic.gov.au, or by phone on 1300 300 630.

On 25 May I contacted ASIC and provided them with a copy of the advice from APRA

ASIC responded to my submission by advising:-

Dear Mr Bolton,

Thank you for your enquiry.

As outlined in the email from APRA, if you would like to lodge a formal complaint, you will need to contact the entity itself.

You can find the information you need on our website at: http://www.ASIC.gov.au/complain

What on earth are they talking about? What entity do I need to contact?

I do not have a problem, a complaint or a question to any 'entity' other than ASIC and APRA!

So I responded by calling ASIC on their 1300 number and spoke to a person by the thir customer support officer.

 


After a discussion I was sent a link to a page on ASIC website which I was told would answer the question I asked on 20 May.

However after reviewing the web page there was no material on that particular page or any page linked to that page which addressed the question that I asked so I again contacted ASIC thus:-

-....... Nothing contained within the page referenced in your email or the pages it link to addressed or answers the question asked!

ASIC responded thus:-

Thank you for your enquiry.

To get information on the legislative requirements of ADI's you will need to contact the Australian Prudential Regulation Authority (APRA).

Alternatively, you can seek independent legal advice.

 

 
 

Steps to resolve the matter

 

 

I tried to complaint to ASIC about the way they handled this matter but it not that easy

 

 

I went to their web site-

 
 

Followed the link for the 'How to Complain'

 

 
 

Stay with me on this one. - It took me to here

 
 

But right at the bottom of the page - finally

 
 

so now we must be are getting warmer

 
 

SO how do I complaint to ASIC?

Melyssa already had referred the matter to her superior and the email she sent with a link to the web page was that result and was no help in addressing my question - Not going back there again!

 

But wait there is a solution

 
 

So here I am

 
 

Outcome sought

 
 

All I need is a

  1. 'Yes' or 'No' answer. - Does legislation, dressing my enquiry, exist? AND

  2. If 'Yes" who administers it ?

  3.  

    That doesn't seem like too big an ASK - Does it ?

     

    Warren Bolton

 

Response

 
 

From: Ombudsman [mailto:Ombudsman@ombudsman.gov.au]
Sent: Wednesday, 24 June 2015 1:35 PM
To: me@warrenbolton.com
Subject: Ombudsman Response - Ref: 2015-703424 [SEC=UNCLASSIFIED]

Our ref: 2015-703424

Dear Mr Bolton

Thank you for your online complaint of 3 June 2015 about the Australian Securities and Investments Commission (ASIC). I have tried contacting you on the phone number provided but have been unsuccessful.

For our office to better assess your complaint, we require the following information:

  1. Whether you have escalated your concerns within ASIC;
  2. If so, please provide the response you received from the staff member your matter was escalated to.

 

Please provide this information by close of business 1 July 2015. If we do not hear from you by this date, I will assume that you no longer require the services of this office and your complaint will be closed. However, you are invited to approach our office again should the need arise.

You can view a copy of our Service Charter and our brochure Making a complaint to the Ombudsman, which explain the Commonwealth Ombudsman’s role in more detail, at http://www.ombudsman.gov.au/.

Yours sincerely


Public Contact Officer
Public Contact Team | Operations South

 
     
 

From: Warren Bolton [mailto:me@warrenbolton.com]
Sent: Wednesday, 24 June 2015 8:45 PM
To: 'Ombudsman'
Subject: RE: Ombudsman Response - Ref: 2015-703424 [SEC=UNCLASSIFIED]

Hi 'Officer'

Thank you for responding to my complaint.

All the material relevant to the complaint thus far is displayed on the website, reference to your office in my complaint. There is no other material relevant to my complaint that has been forthcoming since I lodged a complaint with your office.

Further, as I’m sure you can appreciate from the context of the complaint there is no way of having clarity as to which organisation I should be progressing this matter with because as I am sure you have noted both organisations are claiming that the subject matter of my enquiry falls within their domain of the other organization; PLUS  

As you would have seen from the material thus far provided, I attempted to make a complaint to ASIC but according to the material set out on their web site, there is no facility for me to make a complaint of this nature to them, only to YOU (Commonwealth Ombudsman)  

Regards

 

Warren Bolton

 
     
 

From: Ombudsman North [mailto:Ombudsman.North@ombudsman.gov.au]
Sent: Friday, 26 June 2015 10:02 AM
To: me@warrenbolton.com
Subject: Ombudsman complaint [SEC=UNCLASSIFIED]

Dear Mr Bolton,

I refer to your complain regarding ASIC. Could you please contact me on 1300 362 072.

Yours sincerely,


Investigation Officer | Operations
COMMONWEALTH OMBUDSMAN

 
     
     
 

From: Warren Bolton [mailto:me@warrenbolton.com]
Sent: Friday, 26 June 2015 6:37 PM
To: 'Ombudsman North'
Subject: RE: Ombudsman complaint [SEC=UNCLASSIFIED]

'Officer'

Can you please send me a link to the part of ASIC web page that has the information that you passed on this morning in out telephone conversation regards making a complaint in writing to Chair, Deputy Chair or Commissioner of ASIC and the postal address.

Thanks

 

Warren Bolton

 
     
 

From: Ombudsman North [mailto:Ombudsman.North@ombudsman.gov.au]
Sent: Monday, 29 June 2015 9:03 AM
To: me@warrenbolton.com
Subject: RE: Ombudsman complaint [SEC=UNCLASSIFIED]

Dear Mr Bolton,

As requested below is the link to the ASIC page.

http://asic.gov.au/about-asic/contact-us/#write-to-us

In case you can not access the link, the postal address is as below:
Australian Securities and Investments Commission
GPO Box 9827
Sydney NSW 2001


Yours sincerely,

 

Investigation Officer | Operations
COMMONWEALTH OMBUDSMAN

 
     
     
 

From: Warren Bolton [mailto:me@warrenbolton.com]
Sent: Monday, 29 June 2015 12:28 PM
To: 'Ombudsman North'
Subject: RE: Ombudsman complaint [SEC=UNCLASSIFIED]

Thanks 'Officer'

Yes I was aware of this page but it actually does not indicate that this is the way I should lay a complaint to ASIC about a decision they have made.

This circumstance 'laying a complaint to ASIC about a decision' has the process well documented on their web site and at no stage suggest that I should "correspondence directly to the Chairman, Deputy Chair or Commissioners "

ALSO I see the invitation is 'optional' that is they do not require I write to them - only 'if I wish'.

As I pointed out in my submission, in relation to a complaint under 'ASIC decisions and your rights' it actually states "if you are unhappy with how we handle your matter....

  • you may wish to bring your concerns to the attention of a more senior ASIC staff member than the officer with whom you have been dealing - done that - as you will have heard from my conversation with Melyssa]
  • You may also have the rights to complain to the Commonwealth ombudsman. However the ombudsman usually prefers that you discussed your complaint with ASIC first. There is an office of the Commonwealth ombudsman in each capital city" incorporating a link to your website

 

According to their website, these are the only two alternatives I have in dealing with a 'complaint' I may have about a 'decision' made by ASIC.

Actually if you carefully read through the material the ''decisions' that they imply are the ones that they make in relation to the administration of the law. That is abundantly clear by their reference to lodgement period and the payment of late lodgement fees. - Not I think, a policy or administrative matter.

ASIC also has the facility for you to complain about an 'officer' and sets out a separate procedure. However I have absolutely no complaint about the way the officers handle my enquiry, my complaint is with ASIC advice to me, and that surely is a complaint about a 'decision'

So that I have this crystal clear in my mind, are you advising me that before you will consider my complaint that I must refer the matter to the  Chairman, Deputy Chair or Commissioners of ASIC for their attention and response despite the fact this is contrary to the complaint procedures set out in their website.

Regards

 

Warren Bolton
 
 

From: Warren Bolton [mailto:me@warrenbolton.com]
Sent: Monday, 20 July 2015 2:56 PM
To: 'Ombudsman North'
Subject: FW: Ombudsman complaint -Ref: 2015-703424

'Officer'

I was wondering where we are up to with this one?

Regards

Warren Bolton

 
     
 

From: Ombudsman
Sent: Tuesday, 21 July 2015 9:36 AM
To: Warren Bolton
Subject: RE: Ombudsman complaint -Ref: 2015-703424 [SEC=UNCLASSIFIED]
Dear Mr Bolton

I refer to your email below.

It appears you have asked both ASIC and APRA for information about requirements under the National Consumer Credit Protection Act 2009 (the Act) and the National Credit Code as Schedule 1 to the Act. However, each agency has referred you to the other.

Under the current Australian Government Administrative Arrangements Order, ASIC is responsible for administering the Act. http://www.asic.gov.au/about-asic/what-we-do/laws-we-administer/

However, ASIC cannot give you information that would amount to legal advice about how the Act and Code may apply to your situation. Our records show that on 26 June 2015, Ms Gilmore advised you that the best course of action is for you to write to ASIC and escalate your complaint. The records show that you were reluctant to do so, but agreed to this course of action. Ms Gilmore closed the complaint file the same day.

I have read through your emails below but I agree with Ms Gilmore’s handling of this matter. I cannot see that an investigation by the Ombudsman is warranted. This means we have decided not to take action on this complaint. If you have any questions, please call me on 1300 362 072.

Yours sincerely,
'Officer'| Senior Investigation Officer
Commonwealth Ombudsman

 
     
 

From: Warren Bolton [mailto:me@warrenbolton.com]
Sent: Tuesday, 21 July 2015 4:08 PM
To:Ombudsman
Subject: RE: Ombudsman complaint -Ref: 2015-703424 [SEC=UNCLASSIFIED]

Thanks 'Officer' for your response.

I am not sure that you have reviewed the material provided in my compliant, because I find it very difficult to see how you could conclude that asking the question "Is there any legislative obligation for an ADI to notify a depositor when the ADI changes the published rate of interest applicable at the time of the deposit."  of a statutory regulator could in any shape or form "amount to legal advice' under any test.

I think you may be confusing it with the term 'legal information'

Asking a police officer if there is legislative obligations to be the holder of a licence before driving a motor vehicle on a public road does not constitute 'legal advice' when provided.

Secondly I could not have asked for information about requirements under the National Consumer Credit Protection Act of 2009 because at the time I asked the question I was not even aware that that legislation existed.

In relation to the advice tendered by Ms 'Officer' the following is relevant

Dear Mr Bolton,

As requested below is the link to the ASIC page.

http://asic.gov.au/about-asic/contact-us/#write-to-us

In case you can not access the link, the postal address is as below:
Australian Securities and Investments Commission
GPO Box 9827
Sydney NSW 2001
Yours sincerely,

From: Warren Bolton [mailto:me@warrenbolton.com]
Sent: Monday, 29 June 2015 12:28 PM
To: 'Ombudsman North'
Subject: RE: Ombudsman complaint [SEC=UNCLASSIFIED]

Thanks Lisa

Yes I was aware of this page but it actually does not indicate that this is the way I should lay a complaint to ASIC about a decision they have made.

This circumstance 'laying a complaint to ASIC about a decision' has the process well documented on their web site and at no stage suggest that I should "correspondence directly to the Chairman, Deputy Chair or Commissioners "

ALSO I see the invitation is 'optional' that is they do not require I write to them - only 'if I wish'.

As I pointed out in my submission, in relation to a complaint under 'ASIC decisions and your rights' it actually states "if you are unhappy with how we handle your matter....

  • you may wish to bring your concerns to the attention of a more senior ASIC staff member than the officer with whom you have been dealing -done that - as you will have heard from my conversation with Melyssa]
  • You may also have the rights to complain to the Commonwealth ombudsman. However the ombudsman usually prefers that you discussed your complaint with ASIC first. There is an office of the Commonwealth ombudsman in each capital city" incorporating a link to your website will

 

According to their website of these are the only two alternatives I have in dealing with a 'complaint' I may have about a 'decision' made by ASIC.

Actually if you carefully read through the material the ''decisions' that they imply are the ones that they make in relation to the administration of the law. That is abundantly clear by their reference to lodgement period and the payment of late lodgement fees. -Not I think, a policy or administrative matter.

ASIC also has the facility for you to complain about an 'officer' and sets out a separate procedure. However I have absolutely no complaint about the way the officers handle my enquiry, my complaint is with ASIC advice to me, and that surely is a complaint about a 'decision'

So that I have this crystal clear in my mind, are you advising me that before you will consider my complaint that I must refer the matter to the  Chairman, Deputy Chair or Commissioners of ASIC for their attention and response despite the fact this is contrary to the complaint procedures set out in their website.

Regards

To which I never received a response from Ms Gilmore.

Now you tell me the file is closed!

I therefore take it that your Office has no problem with the way this simple matter was handled by ASIC? i.e. referring me to APRA in relation to legislation which you now advise, according to  the current Australian Government Administrative Arrangements Order, was handled by ASIC at the time I made the enquiry? And ASIC was unaware that they were the responsible body to address that enquiry?

This is absolutely unacceptable.

Warren Bolton
 
     
 

From: Ellisha Hill [mailto:Ellisha.Hill@ombudsman.gov.au]
Sent: Tuesday, 21 July 2015 4:23 PM
To: Warren Bolton
Subject: RE: Ombudsman complaint -Ref: 2015-703424 [SEC=UNCLASSIFIED]

Mr Bolton

I am happy to answer any questions you may have about our decision but do not believe I can add any more than I have already written. I maintain the best course of action is for you to escalate your concerns within ASIC in the first instance and provide it with the chance to answer your question at a more senior level.
If that process does not provide you with an answer to you queries, you can make a new complaint to us and we will re-assess. However, I believe our involvement is premature at this stage.

Yours sincerely,


'Officer'| Senior Investigation Officer
Commonwealth Ombudsman