Wednesday, 12 September 2018

Has ASIC dropped the ball on record Westpac penalty?

Judge baulks at record $35m Westpac fine

I must admit I don't like criticising ASIC but sometimes I just can't help it!

How can ASIC hope to secure a record $35 million for breaches of the National Credit Act, which is twice as large as the previous largest fine, when they put forward agreed facts which state that Westpac's conduct was due to an "innocent mistake"?

ASIC has to ensure that the agreed facts support the proposed penalty and by far the biggest consideration in the severity of a pecuniary penalty is whether the conduct was intentional or not - even recklessness can support a significant penalty.

However, ASIC are now facing the distinct possibility that Justice Perram will not accept the agreed penalty of $35 million for an "innocent mistake" and instead impose a significantly lower penalty.

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