Did Shipton get the benefit of the doubt?
Australian Securities and Investments Commission (ASIC) chairman, James Shipton, is being allowed to resume his post until his replacement is found notwithstanding the fact that the Treasury-initiated Thom Inquiry suggested legal advice might be obtained in relation to breaches of the Australian Public Service code of conduct.
The Treasurer, Josh Frydenberg, announced on Friday that Shipton would be resuming his position until a replacement was found, but a reading of the Thom Review recommendations suggested the Government could have taken a very different view.
Shipton was also resuming his position until his replacement was found notwithstanding the tenor of evidence given by his deputy, Karen Chester, to Parliamentary Committee hearings last year which included telling the Senate Parliamentary Joint Committee on Corporations and Financial Services that if there had been less opacity on the part of Shipton “I would not be here today”.
Frydenberg said that he expected to announce Shipton’s replacement as chairman within three months.
Dealing with the manner in which the Australian Securities and Investments Commission (ASIC) handled the payment of tax advice provided to Shipton, the review recommended that, “based on the evidence available to this review, it would be reasonably open to Treasury to obtain legal advice about whether Mr Shipton’s conduct in late 2018 amounts to a breach of section 13(7) of the Australian Public Service (APS) Code of Conduct or any other obligation, and, if so, what action could be taken in relation to the conduct giving rise to that breach”.
Recommendation five of the Thom Review also recommended that, “based on the evidence available to this review, it would be reasonably open to Treasury to obtain legal advice about whether Mr Shipton’s conduct, in the period from 11 August, 2020 to 25 September, 2020, may amount to a breach of section 14 of the ASIC Code of Conduct or any other obligation and, if so, what action could be taken in relation to the conduct giving rise to that breach”.
Elsewhere in the documentation provided to Frydenberg, the Review said “it would be open to ASIC to review the actions of the ASIC officials involved in these procurement decisions, to determine what, if any, further action is warranted. ASIC might want to take into account the circumstances at the time of the procurement, the time that has elapsed since the procurement, and the acknowledgment by the officials of the potential breaches”.
However, Shipton had been cleared to resume his role pending appointment of his replacement because Frydenberg said that after considering the report’s recommendation sand supplementary legal advice he was "satisfied that there have been no instances of misconduct by Mr Shipton concerning his relocation arrangements, including ASIC’s payment for tax advice resulting from his relocation to Australia in early 2018, nor have there been any breaches of applicable codes of conduct”.
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