ADELE FERGUSON. The regulators failed bank customers but they are now being trusted to fix this mess. (SMH 5.2.2019)

For those Australians hoping for structural separation of the banks, an overhaul of the regulators or heads on sticks, royal commissioner Kenneth Hayne’s verdict would have been disappointing.  

For those looking for massive structural change in the wake of the Banking Royal Commission, an overhaul of the regulators or a list of heads on sticks, Commissioner Hayne’s verdict may have disappointed, says Adele Ferguson.

There was little blood and gore. It was more like a soft landing.

The royal commission spent a year listening to how many ways government regulators failed in their duty to regulate the financial services industry.

Customers were ripped off but the regulators had little or no appetite to use the tools at their disposal, preferring instead to do cosy deals with those they were meant to police.

Despite this, Hayne is giving them more powers and more work and has faith they will now actually do their job.

He recommends additional co-regulation, which could be an excuse for more buck-passing.

In the case of the Australian Securities and Investments Commission (ASIC), there are some new commissioners who hopefully will start flexing their muscles, but the Australian Prudential Regulation Authority (APRA) has kept the same old faces.

Hayne throws the book at some of the country’s biggest institutions including the National Australia Bank, Commonwealth Bank, ANZ, AMP and Suncorp for an array of crimes.

There are 24 cases all up, which could end up including individuals. But Hayne has referred the cases to ASIC or APRA for further investigation in the hope that this time they will do something.

The former High Court justice lays into NAB’s chief executive Andrew Thorburn and chairman Ken Henry, noting he was not convinced the pair had learnt the lessons of misconduct.

In other words, Hayne is not persuaded that NAB is willing to accept the necessary responsibility for deciding what is the right thing to do and then have its staff act accordingly. It is a withering summation that should give both cause to consider their future.

The royal commission tackled mortgage broking, financial advice and the $44 billion life insurance industry – to a degree – and recommends insurance contracts should be included in existing unfair contract term provisions to help protect customers from life insurers who fail to update medical definitions and other hidden nasties.

But he leaves it up to ASIC to decide whether to ban commissions on life insurance.

Treasurer Josh Frydenberg delivers the government’s response to the findings of the Banking Royal Commission. Live from 4 pm direct from Parliament House in Canberra.

Under the former Labor government’s Future of Financial Advice legislation, which banned commissions on financial products, life insurance was carved out.

It means trailing commissions and upfront commissions remain in force. Time will tell what ASIC does.

Ditto for superannuation trustees. One of the biggest eye-openers of the royal commission was the failure of trustees – largely in retail funds – to act in the best interests of members.

In many cases they allowed members to be charged fees for no service or put them into life insurance products that were not commercial.

Anything more radical such as phasing out for-profit retail super funds isn’t touched.

Equally shocking, ASIC chased remediation instead of simultaneously hitting them with breaches and fines.

Hayne has recommended that trustees of super funds should be more heavily scrutinised – as they should – but largely leaves it up to ASIC and APRA to ensure they do the right thing.

Anything more radical such as phasing out for-profit retail super funds isn’t touched.

In a bid to improve APRA, Hayne has called for a capability review into its performance, culture and structure – something that was recommended by David Murray in his December 2014 report into the financial system.

The government has nominated the highly regarded Graeme Samuel to conduct this review.

Every four years both ASIC and APRA will be subject to a fresh capability review.

This is a positive. But at the end of the day, it will depend on whether the recommendations are adopted.

ASIC had a capability review that was released in 2016 but the government largely ignored them.

Given the disappointing behaviour of regulators over the years, including allowing the regulated to preview and change draft press releases and in the case of CommInsure, slugging its parent CBA with a community benefit donation of $300,000 instead of an $8 million fine, Hayne recommends an overseer of the regulators.

The commissioner has put a lot of faith in the regulators to do their job but unless ASIC and APRA change their ways, little else will change.

From this point on, the devil will be in the detail. If history is any guide, lobbyists will be out in full force from today trying to get both sides of politics to make as few changes as possible.

  • Adele Ferguson comments on companies, markets and the economy.
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One Response to ADELE FERGUSON. The regulators failed bank customers but they are now being trusted to fix this mess. (SMH 5.2.2019)

  1. Rosemary O'Grady says:

    Adele Ferguson is, not unjustly, being credited with having been one of the three main causes of the Hayne RC having been established. I’d like to say a few words on behalf of those whistleblowers, professionals and seekers after justice who preceded Adele Ferguson and spent many years attempting to bring misgovernance and malpractice in financial and public service sectors to light. There are no kudos for these anonymous activists and conscience-carriers – yet the debt is also due to them. In such a climate as we have these days, standing-up for justice can be a costly affair. We might remember that.

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