Fresh from the longest ever jailing for civil contempt in a federal white-collar case in the US, Martin Armstrong is back. You can read a much longer profile of him and others like him in The New Yorker.
I don’t have much time for cycle theories. When I worked in financial markets I met numerous advocates for various cycle theories among fund managers. Strangely, I always wound-up being the one who paid for lunch. However, his story is an interesting one. I’m always suspicious when someone gets locked-up for an incidental crime that hadn’t taken place before the prosecutors got involved and when everyone in the case seems to have copped a plea bargain. Even if I’m completely wrong in my suspicions, there are plenty of other cases like it pointing to the decline of the rule of law in the US.
FIRB chairman John Phillips on the rejection of the SGX-ASX merger:
“I couldn’t understand why anyone would support it—unless they had a vested interest.”
John ignores the possibility that some people might support the merger by taking the view that it was none of their business what ownership structure ASX management chose to pursue. Unfortunately, many in government and the media see their role as being back-seat drivers of other people’s business decisions.
John also complains about the FIRB’s time being taken up responding to FOI requests:
Mr Phillips said the FIRB was currently subject to many Freedom of Information requests which were taking up the time of its staff.
“We are getting so many requests from (journalists) and others under the FOI Act which is unfortunate in a way because it is taking up the time of people who ought to be dealing with applications,” he said.
Mr Phillips said he was “not sure how much more transparency there can be”.
I can think of one less FOI application the FIRB would have had to deal with if they had taken the time to put their public speeches on their web site. It is the FIRB that wastes everyone else’s time by denying access to information that should be on the public record as a matter of course.
“Becoming a junior partner to smaller regional exchange through this deal would risk us losing many of our financial sector jobs,” he told media.
Former Treasurer Peter Costello resorted to similar protectionist arguments in boasting about his role in frustrating the globalisation of Australian business:
The head office generates the corporate, financial, legal and insurance services and the highly skilled jobs that come with them.
The regulation of foreign direct investment in Australia is now effectively an arm of domestic industry and employment policy. Swan has received advice on the matter from the RBA and ASIC, but it remains to be seen how much of this advice is publicly released and how much stays a state secret. No doubt The Australian will try and FoI all of it. The journalists at The Australian are the only ones who understand that this is principally a rule of law issue. The commercial merits and implications of the proposed transaction are a secondary consideration.
Offshore Perceptions of Australia: A Failure of Leadership
The WSJ on the failure of the federal government and opposition to provide leadership on the SGX-ASX takeover:
Ms. Gillard professes to understand the general principle involved, having said that “An open economy has been in Australia’s interest.” So the failure by her and Mr. Swan to more aggressively support lifting the ownership cap to open the economy further is puzzling.
She may feel politically constrained as the head of a minority government beholden to a small band of Greens and independents. But that’s all the more reason to mount an aggressive persuasion campaign. Equally disappointing is the reaction—ranging from silence to outright hostility—from members of the ostensibly more free market opposition.
On this issue, the federal opposition is not even ostensibly free market.
Jennifer Hewett argues the government won’t risk defeat on something it doesn’t care about anyway:
It would be hard enough to muster political energy and risk defeat for something the government strongly supported, but Labor doesn’t really like this deal one bit. That is even though it knows blocking it on national interest grounds would be awkward for a government already regarded with suspicion by the international investment community. It’s why the Treasurer is sounding so cautious.
John Durie on the regulatory fall-out from the government’s capitulation to Joe Hockey’s ‘populist grandstanding’:
However you cut it, the ACCC will gain a massive increase in power from the new rules, powers to check every big financing deal, power to hold up financing if it is concerned, powers to issue section 155 discovery notices to check what is going on, and so it goes.
If you can accept the concept of the ACCC as the consumer’s best friend that works well, but we are talking about a massive increase in regulatory power. We are also talking about a massive increase in red tape to catch rare instances where competitors are supposedly secretly conspiring about price moves.
The maximum penalty for failure to comply with a section 155 notice is 12 months imprisonment.
The story itself is fascinating enough: it includes pirate radio, shotguns and .50-caliber machine guns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable.
IT WAS mid January and Bill Shorten, the Assistant Treasurer, was in Hong Kong attending an Australian Chamber of Commerce function.
In an address to a relaxed gathering of ‘‘Australians in finance’‘, Shorten told the audience of the importance of financial services, and if anyone had fresh ideas they should approach him in the informal setting.
David Webb, a former director of the Hong Kong Stock Exchange, elected on a corporate governance ticket by institutional investors, took up the offer. A well-known activist and retired investment banker, he now devotes much of his time to dealing with corporate governance in Hong Kong.
When Webb’s turn came for a chat, the Englishman told the minister that Australia should consider scrapping the Foreign Investment Review Board as it was an impediment to attracting foreign capital. Other regulators could consider contentious investments, he said.
According to Webb, Shorten said the board was necessary, turning the topic to a looming decision on the takeover of the Australian Securities Exchange by its Singapore counterpart…
But what Shorten said next surprised Webb.
‘‘His attitude about this was … that foreign ownership or a perceived foreign takeover would result in Australian investors being screwed. He didn’t make very cogent arguments to me.’‘
Deutsche Börse AG looks set to acquire the New York Stock Exchange, while the LSE Group is also set to merge with the Toronto exchange in the latest cross-border tie-ups between securities exchanges. The local market has correctly interpreted these deals as increasing the likelihood that Australia’s Treasurer will approve the proposed merger of SGX and ASX (it has already cleared ACCC scrutiny). If an icon of US capitalism such as the NYSE can be acquired by Deutsche Börse, it becomes very difficult for Australia’s FDI protectionists to argue that the ASX should be immune from foreign acquisition. Oddly enough, opposition to the Deutsche-NYSE deal is more likely to come from European than US regulators.
We should still not underestimate the potential for the ASX-SGX deal to fall over, either because Treasurer Swan deliberately spikes the approval with so much conditionality as to make it unacceptable to the parties or because of parliamentary disallowance of the necessary regulatory changes. The deal remains a key test of Australia’s international openness, one that some combination of the federal government, the cross-benches and the opposition might still fail.
John Durie highlights the unintended consequences of the government’s capitulation to Joe Hockey’s attack on the banks:
Many don’t realise that the proposed changes would also hit staff on the shop floor—consider rival liquor store employees noting that Dan Murphy is offering Boags beer at cheaper prices.
The proposed changes would make such private conversations illegal.
These are just some of the unintended consequences of the price signalling proposals unveiled by Wayne Swan last month as part of the Treasurer’s bank competition package.
What started as a policy discussion on the definition of an understanding got caught up in the government’s attempts to be seen to be setting the agenda on bank competition.
This issue was last considered back in 2007, when changes suggested by Julian Burnside were rejected. Now ACCC boss Graeme Samuel has cynically attempted to boost his powers by exploiting Swan’s perceived political vulnerability.
On a more generous interpretation, Swan has not realised the sweeping impact of his proposed changes, and simply wants to test public opinion. Having realised that the changes would involve overturning basic legal principles such as the onus of proof, Swan can now back off.
He has, after all, raised the issue for discussion, and can now scrap it, having seen the error of his ways.
Even if you believe the law is deficient, at most it requires some tweaking to bolster the ACCC’s armoury.
Instead, we were presented with a revolutionary version from Graeme “Che Guevera” Samuel.
A range of lawyers and economists have privately slammed the proposals as plain bad policy.
YESTERDAY we observed, like many others, that the PM has a jaw of crystal when it comes to criticism, after he dubbed unspecified Australian miners as “ugly”. Our words were prescient, because in the wee hours before The Australian hit the streets the PM had again stunned his fellow Australians gathered at the Canberra Press Gallery’s Midwinter Ball with an acerbic aside that carried with it a bleak threat to the mining industry.
“The mining industry are here tonight,” Rudd said in a prime ministerial speech that, in more normal times, would have been protected by Chatham House rules but was circulating widely yesterday.
“I extend my greeting to each and every one of them. I notice there’s a small fire which has been erected down the back. I understand that myself and Wayne Swan and Martin Ferguson will soon be erected above that fire. Can I say, guys, we’ve got a very long memory.”
This is not the first time representatives of the mining industry have been warned of retribution by this government.
I’ve been told, for example, that one very senior member of Rudd’s team made even more pointed threats to a table of mining industry folk dining in the hours after the recent federal budget. They were warned that the government intended to secure a mandate for the super-profits tax at the election and then, with victory in hand and tax in place, it would come after all those who had been dense enough to challenge Rudd’s reform.
It has taken an incredible three years for the Australian public to realise who their national leader really is. I sat with a Labor luminary having a late-night drink in June 2008. He turned to me and said: ‘Mate, one day the Australian public will grow to hate Kevin Rudd as much as I do.’ That day has arrived.
Pete Wallison on how bad ideas destroyed ‘the most innovative and successful financial system the world has ever known’. As Kevin Hassett notes:
It wasn’t a coincidence that equity markets posted their biggest drop in more than a year the day the U.S. Senate passed its sweeping financial reform bill…America has become the land of high taxes, big government, complex regulations and indignant politicians. The future of such a place is not bright. The markets understand that.
The US Senate passes what is potentially the most devastating regulatory attack on the foundations of US prosperity since the New Deal. Pete Wallison blames Republican populism:
How did this happen? After Scott Brown’s election to Ted Kennedy’s Senate seat, Republicans had the votes to prevent the closing of debate and keep the Dodd bill off the Senate floor. They could have argued that legislation this important should not be rushed through Congress. They could have pointed out that there were no hearings on most of the major elements of the bill. And they could have reminded the Democrats that the commission Congress appointed to advise them on the causes of the financial crisis would not be reporting until mid-December.
They did none of these things. Instead they backed away from cloture, allowing the legislation to go to the Senate floor where the bill, bad enough to begin with, became steadily worse. Amendments to allow the Fed to regulate interchange fees on debit cards, and to force banks out of the derivatives business are only two examples. This was fully predictable, since the unpopularity of Wall Street and the banks would encourage amendments hostile to business and finance.
Why was the GOP unable to stand united and filibuster the bill before it reached the Senate floor? For the least meritorious of reasons, it seems: unwillingness to go to the voters this November without having done “something” to punish Wall Street and the banks.