Tribunal Reduces ASIC Banning Order
Media Release
Tribunal Reduces ASIC Banning Order Against Christian Henry from Five Years to Three Years
Mackay Chapman has secured a positive review outcome for our client, Christian Henry, in his challenge to an ASIC banning order. The Administrative Review Tribunal varied the banning order from five years to three years, with the Tribunal making orders by consent reflecting agreement reached between the parties.
The outcome raises an important question about proportionality of the enforcement action taken against Mr Henry. In agreeing to reduce the ban from five to three years, the resolution reflects a number of significant factors:
- There was no allegation of dishonesty, fraud or intentional conduct against Mr Henry.
- Mr Henry’s conduct occurred over a limited period of 17 days in 2023, during which he produced three advice documents recommending a managed fund to three client groups.
- At the time, Mr Henry was on probation with his advice firm and subject to mandatory pre-vet compliance sign-off by the licensee on every Statement of Advice he produced. Each document was reviewed and approved before being presented to a client.
- The managed fund at the centre of the matter had been approved at every relevant institutional level, including by the licensee, the superannuation trustee and an independent research house – before Mr Henry recommended it.
These factors do not erase Mr Henry’s admitted regulatory shortcomings. Mr Henry accepts the outcome and acknowledges the compliance failures that occurred. But accepting those shortcomings is not the same as endorsing an enforcement response that does not adequately account for the role played by upstream participants in the advice and product distribution chain.
There is a broader principle at play. Mr Henry was a relatively junior adviser operating within a licensee-approved framework, under direct supervision, and recommending a product that had been approved by the institutional gatekeepers. In imposing a five-year ban initially, ASIC’s original decision arguably created a misalignment between individual accountability and the systematic failures that enabled the conduct. The consent outcome corrects that misalignment.
Mr Henry has published a statement setting out his views regarding the matter. These are Mr Henry’s own views.
Mr Henry accepts the outcome and remains committed to moving forward constructively. The three-year banning period provides a defined timeframe within which he can demonstrate that the matters of concern have been genuinely addressed.
Mackay Chapman acknowledges that many investors in the relevant managed fund have suffered significant losses, and that ASIC’s regulatory response in investigating this matter and taking administrative action was warranted.
While we consider Mr Henry would likely have achieved a more favourable outcome had the matter proceeded to a contested final hearing, we respect his decision to resolve the proceeding in light of the significant time, cost and personal stress associated with ongoing litigation.
Mr Henry accepts the outcome and remains committed to moving forward constructively.
MEDIA ENQUIRIES
Michael Chapman
michael.chapman@mackaychapman.com.au
0409 950 317
The contents of this article do not constitute legal advice and it is not intended to be a substitute for legal advice and should not be relied upon as such. It is designed and intended as general information in summary form, current at the time of publication, for general informational purposes only. You should seek legal advice or other professional advice in relation to any particular legal matters you or your organisation may have.
