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August 30, 2021

Frydenberg’s directions to ASIC throw the banking royal commission under a bus

The Treasurer appears to put the needs of industry ahead of those of the consumer

For Australia鈥檚 habitually-abused financial consumers it鈥檚 Back to the Future (minus the ).

Treasurer Josh Frydenberg appears to have thrown the most important findings of the banking royal commission under a bus, in glorious double-speak.

On Thursday he issued a direction to the Australian Securities and Investments Commission through what is known as a .

It is very different from the previous such statement, issued in .

This one includes an entirely new clause, placed right at the top.

The government expects ASIC to:

"identify and pursue opportunities to contribute to the government鈥檚 economic goals, including supporting Australia鈥檚 economic recovery from the COVID pandemic."

It鈥檚 an odd role for a corporate cop, on its face inconsistent with the way ASIC itself describes its function in the 鈥溾�� tab on its homepage.

Perhaps to take account of the guidelines, ASIC鈥檚 description says it is a regulator whose job is to 鈥渢ake whatever action we can, and which is necessary, to enforce and give effect to the law鈥�.

From 鈥榳hy not litigate鈥欌��

It鈥檚 how the royal commission saw ASIC鈥檚 role. In his final report, Commissioner was scathing about how ASIC carried out those duties, saying it was too ready to negotiate, and not keen enough to litigate.

"Financial services entities are not ASIC鈥檚 鈥榗lients鈥�. ASIC does not perform its functions as a service to those entities. And it is well-established that 鈥榓n unconditional preference for negotiated compliance renders an agency susceptible to capture鈥�. Negotiation and persuasion, without enforcement, all too readily leads to the perception that compliance is voluntary. It is not."

Hayne said the first question ASIC should ask whenever misconduct was identified was 鈥溾��.

Frydenberg鈥檚 new statement of expectations turns that on its head.

鈥�to 鈥榳hy not capitulate鈥�

Rather than 鈥渨hy not litigate,鈥� it reads as 鈥渨hy not capitulate鈥� 鈥� justified by the need to identify opportunities to contribute to Australia鈥檚 economic recovery.

The statement says the government expects ASIC to 鈥渁ct independently鈥� but also says it should 鈥渃onsult with the government and treasury in exercising its policy-related functions鈥� 鈥� a requirement not previously expressed in those terms.

It should 鈥渕inimise regulatory burdens鈥� (including presumably those that require regulated firms to act in the best interest of their customers).

It should ensure any guidance it offers to financial service providers is not 鈥渦nduly prescriptive鈥�.

The banks have not earned leniency

Granted, these are conditions that could be interpreted positively if ASIC was charged with supervising an industry that had demonstrated its trustworthiness and its commitment to putting its customers first.

^{Royal Commissioner Kenneth Hayne believed the banks had not earned out trust. AAP}

 

But after the evidence that was ventilated before the Hayne Royal Commission no one 鈥� not even the makes such a claim.

Indeed, the damage done by more than a decade of financial industry misconduct, fraud, criminality and venality, committed on an industrial scale, is yet to be fully quantified.

Colleagues at the University of Melbourne estimate the full cost at north of , affecting approximately 54% of the population.

Frydenberg鈥檚 solution appears to be to put the needs of industry first. Separately, he is trying to scrap .

From somewhere, to nowhere

What will the upshot be of a newly enfeebled ASIC? In light of the demonstrable failure of banks, super funds and insurers to act with integrity after the royal commission, the upshot will be more of the same.

Indeed, as reported in in November, the almost one million customers in Westpac-BT鈥檚 鈥渞etirement wrap鈥� umbrella fund had been gouged as much as $8 billion over the past decade, thanks to exorbitant fees.

Between mid-2018 and mid-2020 returns to members were close to zero (0.1%).

According to Australian Prudential Regulation Authority data, had the performance of the Westpac funds been merely average, its customers would have been $5 billion better off.

The matter was reported to ASIC on November 23 last year. All ASIC has done since is 鈥渞eview鈥� the situation. In that time fund members might have lost a further $1.5 billion relative to the industry average.

A better way to support a post-COVID economic recovery would be to give customers confidence that the laws meant to protect them were being properly enforced. It isn鈥檛 the road the treasurer has taken.

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, Senior Lecturer, Faculty of Law,

This article is republished from under a Creative Commons license. Read the .

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