find the latest legal job
Corporate/Commercial Lawyers (2-5 years PAE)
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Specialist commercial law firm · Long-term career progression
View details
Graduate Lawyer / Up to 1.5 yr PAE Lawyer
Category: Personal Injury Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Mentoring Opportunity in Regional QLD · Personal Injury Law
View details
Corporate and Commercial Partner
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Full time · Join a leading Adelaide commercial law firm
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Sydney NSW
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Melbourne VIC
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
Lawyer takes on ASIC over adviser naming and shaming

Lawyer takes on ASIC over adviser naming and shaming


A corporate lawyer has challenged ASIC’s policy of indefinitely maintaining adviser banning announcements on its website, saying this is contrary to anti-discrimination laws.

Speaking to Lawyers Weekly's sister pulication, ifa, Duke Myrteza, a partner at Australian Law Partners, said he has sent a lengthy letter to the Commonwealth Ombudsman highlighting his concerns with the way ASIC maintains adviser banning announcements on its website indefinitely.

Mr Myrteza’s client, a former financial adviser, has been urging the corporate regulator to remove a media release that sets out his banning order, as it has now expired.

But ASIC has since refused, a letter from the regulator shows.

Mr Myrteza brought this issue to the Ombudsman as he believes the regulator’s refusal goes against the federal “spent conviction” legislation, which allows offenders to amend their criminal records after a certain period of time in an effort to start over.

“Although it's important for ASIC to maintain records, there is also the necessity to ensure that the records don't affect somebody in a way that may prejudice their ability to get on with life after a ban has been finished,” Mr Myrteza said.

“We have this discrepancy between many laws in this country which allow someone who has been convicted of a criminal offence to go about their life without any record of their past indiscretions affecting them.

“Whereas, on the other hand, ASIC can maintain indifferently on their website a publication that can actually completely destroy a person's ability to earn a livelihood.”

In the letter to the Ombudsman, Mr Myrteza argued that an ASIC banning announcement tends to appear among a person’s top Google search results, resulting in a life-long impact on his or her employment and social standing.

“Why should a person who goes to jail for up to 30 months be allowed to start over under state spent criminal legislation with a clean record, when a person found guilty of a compliance breach by ASIC have the ban published and maintained on the internet for the rest of their lives?,” he said.

In a letter to the former adviser, who wished to remain anonymous, ASIC said while it understands the concerns, informing the public of regulatory outcomes is necessary for ASIC to be able to “properly perform its statutory functions”.

ASIC said its regulatory outcomes promote both market integrity and the confident and informed participation of investors.

These outcomes also ensure that there is transparency around ASIC’s law enforcement activities as well as inform the public about standards and consequences. Further, this provides investors, consumers and other participants in the industry with a permanent record of those who have been subject to regulatory action, ASIC said.

“ASIC is also required by the Corporations Act and Corporations Regulations to maintain a register of persons who are banned or disqualified from providing financial services,” the regulator said in the letter.

“It appears Parliament has clearly indicated an intention that members of the public should be able to indefinitely ascertain if an individual has been banned or disqualified from providing financial services.”

Mr Myrteza, however, has some issues with ASIC’s reasoning.

“Nowhere is it stated that the ASIC media releases must be maintained indefinitely under federal legislation,” the letter states.

“Further, other examples exist where the policy adopted by ASIC is not applied fairly and discriminates against some individuals. In summary, the ASIC policy is inherently flawed and is applied in a discriminatory fashion.”

The Commonwealth Ombudsman ultimately declined to investigate this matter, saying ASIC is acting within its regulatory power. A similar letter has now been issued to ASIC, which has yet to respond.

Mr Myrteza said the next step would be considering legal avenues and lobbying government to get ASIC to review their policy.

“There needs to be some pressure put on ASIC to review its policy,” he said.

“This is something that affects many people.”

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Lawyer takes on ASIC over adviser naming and shaming
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Scales of Justice
Dec 15 2017
Timing ‘critical’ in unusual contempt of court ruling
A recent case could have interesting implications for contempt of court rulings, according to a Ferr...
Dec 14 2017
International arbitration and business culture
Promoted by Maxwell Chambers. This article discusses the impact of international arbitration on t...
Papua New Guinea flag
Dec 14 2017
World-first mining case launched in PNG
Citizens of Papua New Guinea have launched landmark legal proceedings against the country’s govern...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...