The ASIC Podcast

Episode 44: Former financial adviser Gabriel Nakhl sentenced to 10 years imprisonment

Mr Nakhl engaged in dishonest conduct and was found guilty in the District Court of New South Wales. The court set Mr Nakhl a non-parole period of 6 years.

View the ASIC media release (19-055MR) for more information

Mr Nakhl was convicted on eight charges (18-178MR), brought by ASIC, of engaging in dishonest conduct with investor funds. The conduct affected 12 investors while Mr Nakhl was a representative of Australian Financial Services Limited (in liquidation) and as sole director of SydFA Pty Ltd (deregistered).

The court found Mr Nakhl advised clients to set up self-managed superannuation funds and to invest their superannuation and other funds in products such as shares, managed funds and high interest rate bank accounts. Rather than investing the 12 investors’ funds in these products, Mr Nakhl used these funds 'as he pleased' and for his own purposes.

Mr Nakhl then lied to the investors, telling them that he had invested their funds in accordance with his advice and that their investments were performing well. Mr Nakhl also tried to cover up his wrongdoing by having these 12 investors sign documents that supposedly authorised Mr Nakhl to use the funds in the way he did.

These 12 investors allowed Mr Nakhl to invest approximately $6.7 million on their behalf. Mr Nakhl lost approximately $5.1 million of these invested funds.

Episode 43: Climate risk disclosure

ASIC Commissioner John Price joins the podcast to discuss ASIC’s review of climate risk disclosure by listed companies in Australia.

You can read the full transcipt below.

TRANSCRIPT

HOST: Hello, and welcome to the official podcast of the Australian Securities and Investments Commission.

In today's episode, we'll be discussing ASIC’s review of climate risk disclosure by listed companies in Australia.

My name is HOST Heilbuth and with me this time around is ASIC Commissioner, John Price. John, thanks for your time.

JOHN: Thanks very much.

HOST: Before we talk about ASIC’s report, can you define what we mean by climate risk?

JOHN: A global Task Force on Climate-related Financial Disclosures puts climate-related risks into two main categories.
The first is risks related to the transition to a lower-carbon economy. The transition includes policy, legal, technology and market changes – and this presents a number of risks to Australian companies.
The second is a series of risks related to the physical impacts that result from climate change. This can be extreme weather and shifts in climate patterns, such as sea level rises and sustained higher temperatures.

HOST: What role does ASIC play in this space?

JOHN: Firstly, we are very focussed on encouraging strong and effective corporate governance. We consider the management of issues such as climate change begins with good corporate governance. Within listed companies, this should be led by directors and senior management. Companies that have effective corporate governance practices are better equipped to develop and implement effective strategies to manage risks and opportunities, and that of course includes climate risk.
Secondly, we are also focussed on disclosure. Where the law requires it, ASIC is focussed on making sure that companies disclose material climate change risks. Disclosure of risks – like climate change and other risks – helps investors to be better informed when they make their important investment decisions.

HOST: ASIC’s surveillance project examined how listed companies disclose climate risk. What did ASIC find?

JOHN: What we found is that listed companies need to do more to comply with their disclosure obligations, especially outside of the top-200 listed companies.

Of the 60 listed companies in our ASX 300 sample, when we did our work around climate change, 17% identified climate risks as material risk to their business.

While most of the reviewed ASX 100 entities had considered climate change risk to the company’s business, at least to some extent, disclosure practices were fragmented, inconsistent and patchy.

As part of our surveillance, it was often difficult to know whether general references to climate change risk related to physical or transition climate risks, or both.

These fragmented climate risk disclosure practices, we think, make it difficult for investors to compare between companies.

HOST: What can listed companies do to properly disclose climate risks? What do we expect to see from business?

JOHN: We recognise that climate risk disclosure practices are still evolving (not only here in Australia but internationally). What we do recommend is that directors and advisers of listed companies consider climate risk both as a short-term and a long-term risk, and directors and officers also continually reassess existing and emerging risks and how they apply to the company’s business.
Also, listed companies need strong and effective corporate governance. This includes active and informed engagement by the board. Boards play a critical role to identify and manage risk.
And finally, it goes without saying that listed companies must comply with the law. Directors of listed companies should carefully consider the requirements relating to operating and financial review – or the OFR as it’s commonly called – as it prescribes certain disclosures under the Corporations Act.
In fact, the law requires an OFR to include a discussion of climate risk when it could affect a company’s achievement of its financial performance or desired outcomes. Depending on the circumstances, disclosure of climate risk may also be required by the law in other circumstances, such as in a fundraising document like a prospectus or in a continuous disclosure announcement.

HOST: And John, can you tell us what type of information must be disclosed to investors?

JOHN: Listed companies should disclose useful information to investors – that’s the first rule of thumb. The voluntary disclosure recommendations issued by a body called the TCFD are specifically designed to help companies produce information that is useful for investors.
We do not consider there is any legal or policy impediment to listed companies reporting under TCFD recommendations provided that the disclosure is not misleading or deceptive and is based on appropriate evidence available at that time.
We also recommend that listed companies with material exposure to climate risk consider reporting under the TCFD framework. In March 2018, the Australian Government released its response to a 2017 report on Carbon Risk issued by the Senate Economics References Committee.
The Government, in that response, encouraged stakeholders to consider the final TCFD report and its various recommendations.
ASIC is closely monitoring developments and we will continue to look at this closely as market practice develops over time.

HOST: Where can listeners find more information?

JOHN: I’d strongly encourage people to refer to ASIC’s REPORT 593 on Climate risk disclosure by Australia’s listed companies can be downloaded from our website – asic.gov.au

HOST: Thanks John. And we’ll be back with another episode of ASIC’s podcast shortly.

Episode 42: Registered liquidators and creditors

Nisansala Peries from ASIC’s Insolvency Practitioners team and Michelle Jakubauskas from ASIC’s Behavioural Research and Policy Unit join the podcast to discuss one way registered liquidators can help people who are owed money by a business (creditors) to navigate the complex landscape of an external administration. Download the letter and read more at asic.gov.au.

Episode 41: ASIC's review of the credit card market

Michael Saadat, ASIC's Senior Executive Leader - Deposit takers, Credit and Insurance, joins the podcast to discuss ASIC's review into the credit card market in Australia.

Read the Report

Consultation Paper media release

Review into Credit Card lending media release

Transcript below:

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Episode 40: SMSF advice

ASIC Senior Executive Leader Jo Bird joins the podcast to discuss a review of self-managed super funds, and to give some advice to consumers who are thinking of setting up an SMSF.
Read the reports of this review Report 575: SMSFs: Improving the quality of advice and member experiences and Report 576: Member experiences with self-managed superannuation funds, and find out more about SMSFs on ASIC's MoneySmart.

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Episode 39: Indigenous Outreach trip to the APY Lands

ASIC's Indigenous Outreach Officer Nathan Boyle talks with Susan Tilley from Anangu Lands Paper Tracker Radio Program about ASIC's work with indigenous consumers and the recent outreach trip to the APY Lands with super funds. Visit the Paper Tracker website to listen to the full interview.

Transcript below:

*Opening music*

Susan Tilley: Nathan, welcome to the Anangu Lands Paper Tracker radio show. Thank you for joining us today.

Nathan Boyle: No worries. Thanks very much for inviting us on.

Susan Tilley: Nathan, could you give us an overview of the role and the work of the Indigenous Outreach Program of the Australian Securities and Investments Commission?

Nathan Boyle: Yeah sure. The Indigenous Outreach Program, or IOP for short, is a national team of lawyers and analysts who specialise in working with Aboriginal and Torres Strait Islander people, in communities right across the country to really help them to resolve financial services issues that might impact on them.

The IOP focuses on three main types of work. The first is on helping Indigenous people to get a better understanding of financial products on the market, by producing information that is designed specifically for Indigenous people to really help them get a proper understanding.

The second main type of work that we do is working with stakeholders. So, people that are in the organisations that Indigenous consumers need to interact with, like superannuation companies or banks, and helping them to understand how they change the way that they provide services to Indigenous consumers to make sure that they have the same ability to access financial services as all other Australians.

And, the third thing that our team does is where Indigenous people let us know about a problem that they’re having with a financial services provider, like a bank, or credit provider, and we can work with that community to take those issues to court and to ask a judge to decide whether or not the type of behaviour that is being experienced by the Indigenous consumers is fair. And that way we’re able to help Indigenous consumers to solve big problems that they might be having in the way that they’re treated by certain companies.

Susan Tilley: Now, ASIC and your team have just been to the APY Lands to talk with Anangu about their superannuation and their entitlements. But before we chat about your visit, which we’re really keen to hear about, it would be useful if you could explain what superannuation is and who’s eligible to pay and to receive superannuation.

Nathan Boyle: So, there are a lot of quite difficult rules around exactly how superannuation works. Sometimes it can seem really hard for people to understand exactly what superannuation is, but the easiest way to think about super is that super is like a special bank account that a person’s boss has to set up and put extra money in, on top of the wage that they earn each week. That money can only be accessed by the person usually once they’re too old to work, and they retire.

Susan Tilley: So Nathan we’re really keen to hear about your recent visit to the APY Lands. Would you like to tell us which communities you went to and what was the reason behind your visit?

Nathan Boyle: I’m really excited to be able to talk about last week’s trip actually because it was a really fantastic trip and we got to meet with a whole lot of Anangu. So, last week we took a group of executives from superannuation funds that had customers in the APY Lands, as well as Government departments and senior people from the Government departments that are involved in superannuation, out to the APY Lands. We visited 5 APY Lands communities last week.

We started in Indulkana, moved to Mimilli, Fregon and Pukatja, then finished the week on Friday in Amata. We really looked to a large part of the APY Lands with this outreach.

There were a few main aims of the trip. The first and definitely most important aim was that Anangu had told us that while they had superannuation, they were finding it very very hard to get that super even when they were entitled to get it. We wanted to help people get access to their super if they had met a reason why they could get their super because it’s their money.

The second reason was that we wanted to give people from the super funds and Government departments, an ability to see firsthand, to see from Anangu, how hard it was to access those services now so they can think ‘how can we make it better in the future’. We hope that those people will remember the difficulties that they saw when they were in the APY Lands this week when they’re thinking about making policy changes to make sure that it is easy to access superannuation for Indigenous people right around the country. So we think of it, if the superannuation funds actually get to see an Aboriginal person who is having difficulties accessing their own money, that it has a much bigger impact for that person than just hearing stories from someone like myself or from ASIC about what the issues are. Taking them out to communities really lets them see it and think about how they can fix the problems.

Susan Tilley: What did you find were some of the main challenges that they were facing in terms of superannuation?

Nathan Boyle: There were a whole range of barriers that people were facing. From things as simple as language, that many people in the APY Lands are first language speakers and communicate mainly in Pitjantjatjara. Access to interpreters to help them communicate with the funds, limited telephone coverage, as well as problems with identity documents. They might have had different names and different dates of birth on two different formal identity documents.

Susan Tilley: Now we know that there aren’t many jobs in remote communities and that lots of people are living on income support benefits and unemployment money. What are your thoughts on how the lack of work and the very small jobs market in remote communities, how that affects people’s ability to earn super, and what this might mean for people when they’re older and they can’t work, or have very little or no super?

Nathan Boyle: I think it is true that there are less jobs, less ability to find paid employment in some remote communities, and look it’s not really my area of expertise to talk about why there might or might not be jobs in remote communities, but there are a lot of issues like income support payments and these kinds of programs that really do intersect with the type of work that we do. We try and be very clear if we can, about the types of issues that we can help people with and those that we can’t, because we want to make sure that we make the biggest difference we can and, as an example of that, one of the things that I think Anangu taught the financial services industry representatives last week, was how intelligent they are and how much they want to know about their superannuation. I think that the super reps that came learnt the importance of really making sure that they give Anangu or other Indigenous consumers information in a way that they can understand so that they can make an informed decision, and that’s the kind of work that we like to do with the industry and with other Government departments.

It was really great to see all of those senior people from both finance industry and Government sitting down and learning from Anangu, taking the time to listen to Anangu about what their problems are in accessing super, finding out exactly what they do know and don’t know, and we’ve had a lot of comments already that people take the things they learnt from Anangu and think ‘how can we make sure that we’re communicating better so that both Anangu and the super industry can understand each other’s requirements and get the best out of superannuation.

Susan Tilley: We’d like to talk now about book-up, which is the practice of store owners taking customers debit cards and PIN numbers that are linked to a bank account into which their income is paid, and using that as security for purchases that they buy on credit. This arrangement can give the store owners free and easy access to customers’ accounts and to their money, and a case of book-up ‘bad practice’ was taken to the Federal Court. There have been more recent developments about this particular case, so it would be great if you could give us an update about the Mintabie book-up case.

Nathan Boyle: It is important to say that although the court did find that Mr Kobelt, the man who was running the store in Mintabie that we did take to court to ask the judge about whether or not his services were fair in terms of book-up, that the court found that he was operating a credit business without a licence, but that the way that he was operating the business wasn’t necessarily ‘bad practice’ under the law as it currently exists. So, ASIC thinks that potentially the behaviour might have been enough to amount to unconscionable conduct, the legal standard that a court needs to find in order to say that something is unfair, and at the moment we have sought commission to ask the High Court of Australia to make a decision about whether or not the way Mr Kobelt ran his book-up practice was fair or not. ASIC also thinks that even if the High Court thinks that Mr Kobelt’s book-up was fair as the law is now, that we should do something to make sure that Anangu have some rules that they can understand and Indigenous people using book-up around the country can understand, to make sure that they are always treated the same way and fairly if they’re using book-up. So, we’re talking to Indigenous people at the moment to find out ‘are there some rules that we could bring in to make this work better for them’.

Susan Tilley: Nathan, drawing to a close is there anything else that you would like to share with our listeners today?

Nathan Boyle: I think just quickly, it’s important for me to say a massive thank you to Anangu and to the communities in the APY Lands that really welcomed us there and invited us into their communities last week. The event was really well attended and on behalf of our partners that we ran the trip with, MoneyMob Talkabout, First Nations Foundation, The Australian Taxation Office, AUSTRAC, The Department of Human Services, Australian Super, HESTA, Super SA, QSuper, and Prime Super, we were all really appreciative and learnt a huge deal from your engagement in the program last week. The last thing I want to say to people is a lot of the things that we’ve spoken about today and in financial services generally are very confusing. You don’t have to know everything about financial services, we say to people it’s the same as being a little bit sick. If you’ve got a problem or you’re not quite sure about something in terms of your finances you don’t need to be your own doctor, you just need to know that there are places you can go to for help. In the APY Lands, MoneyMob financial counselling service is a really great place to go with your money questions.

Susan Tilley: Well Nathan thank you so much for talking with us today, it’s been great hearing about the work that ASIC’s been doing and we wish you all the best with your ongoing work. Thank you.

*Closing music*

Episode 38: Van Le

Van Le, Director of Innovation and Strategy at Xinja, was a guest at ASIC's Annual Forum in March 2018. She made time to join us on our podcast to discuss open banking.

You can read the full transcript of the interview below.

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Episode 37: Scott Farrell on open banking

Scott Farrell, Partner at King & Wood Mallesons, joins ASIC SEL Michael Saadat on the podcast to discuss open banking.

Scott headed up the Australian government's review into open banking and was asked to recommend the most appropriate model for open banking in Australia. 

Episode 36: ASIC's Stretch RAP

On 17 April 2018, ASIC launched its Stretch Reconciliation Action Plan. On this episode, we're joined by Danille Abbott, Chair of ASIC's RAP Strategic Committee and RAP Working Group and descendant of the Wirlomen Noongar people, to talk about the goals of the stretch RAP and ASIC's commitment to reconciliation.

Episode 35: Ian Yates

Ian Yates, Chief Executive of the Council of the Ageing Australia, joins ASIC Deputy Chair Peter Kell on the podcast to discuss preparing financially for retirement.

Visit ASIC's MoneySmart website for more information on retirement income planning. 　

Click through for transcript:

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