Uncategorised 23rd November 2016

Draft Action Plan: Beneficial Ownership-What you had to say

by Peter Timmins

Further in the series- Issues raised in Submissions on Draft National Action Plan

Issues raised include  the need for a stronger commitment, how this commitment fits with the proposed sale/privatisation of management of the ASIC register, why access to information should be limited to ‘competent aurthorities’ and whether legal entities other than corporations should be covered.

Commitment 1.2 Beneficial ownership

From the PM&C round up:

Justin Warren    PivotNine (consultancy) 

A BO registry already exists in the form of ASIC’s corporate database. This should be public available and searchable, free of charge. Privatising the database is in direct opposition to this commitment.

The ambition in this commitment does not appear to align with the ‘public accountability’ aspects of the Relevance. It is focused on making information available to competent authorities, when surely this information is already available to competent authorities.

Angus King    Switched on Solar! 

One area that overlaps many of the commitments concerns the ASIC Registers: the Corporations (Fees) Act needs to be examined, perhaps even abolished, to minimise what parts of ASIC information incur a fee. In countries like NZ and the UK, this information is free. The proposal to privatise the ASIC registry completely contradicts the move towards open government. The data should be held by government and not a private corporation.
Marie Lintzer    OGP Natural Resources Working Group (Natural Resource Governance Institute) 

Commitment could be stronger. Should be more ambitious in the long-term (i.e. commit to disclosing BO information with clear deadlines after mid-2017). Australia could also consider signing up to the collective action of the Paris declaration that refers to ending abuse of anonymous companies.
Jack Mahoney    OGP Support Unit    

Main commitment text could have additional detail. Will consultation be on whether a BO register is needed, or on the ways to implement/establish it? Why are there no months attached to the start/end dates of milestones? Will the consultation paper be developed through multi-stakeholder engagement? Would be good to provide more detail on what the public consultation will look like.
Nigel Waters    Pacific Privacy (consultancy) 

Register should be available to the public, not just to competent authorities – those accepting the benefits/protections of incorporation have to accept a loss of financial privacy.

Individuals’ financial affairs should not be routinely made public and there should not be any further erosion of financial privacy.

Privacy Commissioner should be included as a relevant actor.

Jose Marin    OGP Anti-Corruption Working Group 

May be strengthened by milestones that seek compliance with the G20 Principles on Beneficial Ownership (refer to TI’s review of compliance with these principles: http://www.transparency.org/files/content/publication/2015_BOCountryReport_Australia.pdf)

Commitment could be strengthened by explicitly considering the public availability of the register.

Steering Committee of the Australian Open Government Partnership Network    

Commitment should go beyond consultation.

Unequivocal commitment should read: “We will ensure the availability of adequate, accurate and timely information on beneficial ownership and control of companies (and other entities).”

Commitment should include “other corporate entities” – not just the beneficial ownership of companies.

Commitment should not be limited to making BO information only available to competant authorities before the public consultation and debate included in the milestones. There are international precedents and arguments that support varying degrees of public access – e.g., UK public register includes details of persons with significant control.
Jessie Cato    Publish What You Pay Australia  

Wants stronger wording for the commitment – particularly given that disclosure of BO of the extractives sector is a requirement of the EITI.

Language should make it clearer that the government is committed to having the registry of beneficial ownership, and that the consultation to be held is for the purposes of determining the best way to set up the registry.

Supports making the register public, as in line with the UK commitment of ‘…creating a publicly accessible central registry of company beneficial ownership information.”

If a commitment to make the BO information public cannot be made, at a minimum, this information should be made available to civil society organisations.

Competent authorities should be defined.

Would welcome further opportunity to work with the Gov to increase the ambition of this commitment.
Dr Madeleine Roberts  

Unique identifiers (e.g., ABN/ACN) should be added to existing datasets/future register – which would also allow matching of tenders, grants and political donations with businesses. This should also be applied at state and local government levels.

No provisions of what will happen once corruption be detected on this data.
Evelyn Doyle    Individual (2)  

• Ensure a Beneficial Owners Register is established to include not only corporations but other bodies such as investment funds etc.
• In relation to the point above, beneficial owners should be listed on the Register of Lobbyists under “owners” .  At them moment there are too many anonymous entities listed as owners with no way of knowing who benefits from the activities of lobbying.
Rosie Williams    Individual    

Unclear how the government will implement a Beneficial Ownership Register
that is open to public scrutiny if the ASIC register (of which it must derive much
data) is sold to the private sector for management.

Unclear how it will ‘advance the OGP values of access to information and public accountability’ when there is no intention to make this Register available to
anyone other than ‘competent authorities’
Kat Szuminska    OpenAustralia Foundation  

Promising to “consult” is not a concrete commitment. It is an intent to follow a process that could very easily end up with no beneficial ownership register at all. Suggest: “We will establish a beneficial ownership register. We will work with civil society, the corporate sector and the public to do this and we will make the register publicly available.”
Natasha Molt    Law Council of Australia  

The proposed beneficial ownership consultation should ensure the availability of adequate, accurate and timely information on beneficial ownership and control of companies and other entities. The consultation should examine:
– Existing disclosure mechanisms with a view to avoiding multiple regulatory regimes; and
– The use of offshore vehicles by Australian citizens, particularly in tax havens.
Phil Newman    TI Australia  

Stops well short of implementation with milestones limited to recommendations to
Kat Lane    Australian Privacy Foundation 

We support this action, provided it is limited to beneficial ownership of legal entities. Such a register should be available to the public, not just competent authorities.

Privacy Commissioner should be identified as a relevant actor for this commitment.
Mel Flanagan    Nook Studios

This commitment could be stronger or more ambitious. Some of the language used in this commitment is confusing and it appears to only commit to consultation.

Strongly suggest a public register. UK model could be referenced and adapted for Australia and be used during the research and consultation period as an example of best