Background of the Royal commission

Discuss about the Internal Systems Of Financial Services Entities.

In view of the account fraud scandal that hit the US bank Wells Fargo. In 2014, an expose of a self driven culture within the financial planning division of the Commonwealth Bank (CBA) was described at profit at all cost. Later on, it was recommended by a Senate committee inquiry that a Royal commission should look into the fraud scandal due to which thousands of CBA. Customers have lost millions of dollars.[1] The committee gave a report on the performance of the ASIC. After many days, the then chief executive of CBA, Ian Narev made an unreserved apology to the customers who have lost money as a result of the financial planning scandal in the bank. The erstwhile treasure, Joe Hockey mentioned that the bank failed to act quickly to deal with the problem. His mother was also affected by this scandal. Later on, the CBA was also involved in another matter, which included money laundering on behalf of drug syndicates, ignoring statutory reporting responsibility for nearly 3 years in case of 750,000 accounts, turning blind eye to terrorism funding and improprieties in foreign exchange trading.

In 2015, the National Australia Bank (NAB) was involved in a series of scandals related with financial planners. It was revealed that NAB paid millions of dollars as compensation to a large number of clients regarding what it was considered as inappropriate financial advice given by its staff members during 2009 and 2015. It was claimed by a whistleblower that a toxic, volatile culture was present within the bank. The staff of NAB was prohibited by the ASIC as earlier they were licensed to give financial advice. Later on, it was also revealed that NAB has also been implicated for improprieties in foreign exchange trading.

There were allegations against Westpac that it had rigged key interest rates of Australia, because the bank bill swap rate. Later on, it also faced litigation under responsible lending legislations, as it had used an automated process for the purpose of deciding if the home loan applications made by the people, fulfilled the lending criteria. Moreover, a banker from Westpac had to face imprisonment because he had fraudulently lent millions of dollars to pensioners.[2] After the investigations by the ASIC, Westpac had to donate $3 million to Financial Literacy Australia after it was discovered that the employees of the bank gave confidential details of the clients orders to foreign exchange traders.

Issues and problems with the conduct of major banks

These are some of the circumstances and the backdrop of which, the Royal commission was announced by the government.

Some issues and problems with the conduct of major banks: Under these circumstances, the opposition leader, Bill Shorten made a speech at the National Press Club, where he outlined his plans for the Royal commission to look into the banking sector in case the Labour government wins in the 2016 in federal elections.[3] The call for Royal commission also received support from Liberal MP Warren Entsch and also the CBA whistleblower Jeff Morris, who had documented the “systemic bad behavior” of the industry since 2008. Despite an attempt made in 2016 to protect the interests of the consumers and to increase accountability and transparency and also to create confidence and trust in the banks, in view of the rising concerns of the community, in generated on 1725 members of Australian banking Association launched an initiative named Better Banking with a view to provide improved product services and a better culture as well as to offer the customers helpful resources and information. A former senior public servant of Australia, Steve Sedgwick was commission to look into the pay and conditions of the bankers. He recommended that the bonus payments to retail bank employees should be terminated, which are related with sales performance.[4] A report was also delivered by the ASIC regarding the financial advisor compliance in the sector. The Turnbull government introduced legislation in 2017 for establishing the Australian Financial Complaints Authority. This was an external dispute resolution body established with a view to simplify the way consumer complaints were resolved with the banks and other financial entities. However, the ASIC had to face a lot of criticism for its activities as the regulatory body including the supervision of banks.

The issues faced during Global Financial Crisis (GFC) and lessons: The significance of having a stable and safe banking system in order to achieve sustainable economic development was brought into focus as a result of the global financial crisis of 2007 and 2008. In case of the countries where the banking systems were weak, the economic activity faced a severe downturn as a result of this crisis. Some of the significant examples that can be given in this regard is the United States and the United Kingdom. As revealed by these examples, the economic downturns caused by the global financial crisis tend to be more severe and prolonged in case of such countries. On the other hand, the Australian banks are highly rated and well-capitalized. Therefore it can be safely stated that as a result of the years of rigorous supervision by world level financial regulators, the banks in Australia had benefited significantly. However this quality of supervision is not by chance. It is a significant feature of the regulatory infrastructure of Australia. For a number of years there has been a common understanding between the governments, the regulators and the regulated regarding the significance of prudential regulation. The result was that no banking Australia collapsed during the global financial crisis. Similarly, no banking firm was required to be bailed out by the government by using tax payers money. Therefore it can be stated that due to the global financial crisis, the banking system of Australia emerged in a stronger position as compared to the banking system in several other countries. During this season, the banking system of Australia is highly regarded throughout the world.

Lessons from the Global Financial Crisis (GFC)

The need for reform: A significant and unique role is played by the banks in the community and also in our economy. Due to this reason, an implicit social license has been given to the banking sector that needs to be considered while deciding the expectations and the standards of the community. In this regard, a lot has been written about the banking and social contract but it can be stated that the implied privileged position that has been granted to the banks means that the community has high expectations of conduct in case of banks.[5] It has been stated that people of Australia do not have them think the president is simply out of the banking system. It is integrated into the ability of the people as citizens to function and to assist in the modern society. While deciding these increased expectations of the community, the important element of the standards and expectations of the community can be derived from the Financial System Inquiry (FSI) that was conducted under the said David Murray. It was mentioned in the final report of the FSI that it is very important that the financial system is fair, efficient and resilient.[6] At the same time, a basic condition of fair treatment is the concept that the financial products and services should be capable of performing according to the expectations of the consumer. At the same time, it also needs to be stated that it is expected by the community that the financial services organizations faced allegations of inappropriate conduct should first of all deal with the problem and then compensate the customers for the loss suffered by them. Due to the problem and in the end, all this should be done in a timely way.

individuals as well as entities are invited by the commission to make public submissions through an online platform along with the provision for those who need further assistance through e-mail or through telephone. These submissions are invited to the regulated by the nature of alleged misconduct and the factors due to which such misconduct took place and the steps that have been taken in order to resolve the complaint of the customer and the outcome of the company. In this case, the Commission did not play the role of resolving individual complaints. It made efforts to create an understanding regarding the systemic failures due to which the complaints were made.[7]

The need for reform

Problems with the Royal commission inquiry: It is the right of the people of Australia to be treated fairly and honestly why they’re dealing with banks, sober and vision and other financial service providers. In this regard, it is important that the highest standards of conduct are maintaining order to ensure good governance and corporate culture. Among these service providers. The banking, superannuation and financial service industry of Australia is one of the strongest and the most stable in the world. It has played an important role in underpinning the autonomy of Australia. The banking system of the country is systemically is strong, and it has been recognized throughout the world as the best prudential regulation and oversight.[8] The government has decided that the Royal commission should be established to further ensure the financial system of the country. The Royal commission will adopt a focused, conventional approach. The approach of the government towards the reforms in banking and financial services focus on making sure that the financial system of the country is efficient, resilient and fair. In this regard, the government has moved towards the establishment of a new one-stop shop to deal with the complaints of the consumers. At the same time, the powers and resources of the ASIC have also been significantly increased resulting in a framework to hold the executives of the bank’s accountable for their actions. In the same way, the government has also taken steps to increase competition among the banking and financial services to favor the customers. The government also tries to make sure that the inquiry is not result in the lanes on limiting the proposed or announced policy, regulation or legislation that is currently being implemented.[9] Under this inquiry, the conduct of the banks, financial service providers, insurers and superannuation funds will be considered. At the same 10 the commission will also look into the fact that how well the regulators are equipped to identify and address the instances of misconduct. However, the commission is not going to look into the matters like financial stability of the resilience of the banks.

On the other hand, there are many who believe that the Royal commission was not necessary. According to them. There have been a lot of problematic incidents that have an adverse impact on the customers in banking sector. In the same way, examining such incidents, deciding if they were systemic causes and identifying possible solution to such incidents can be done in a simpler way. It could be potentially more effective.[10] Therefore even to the extent that the objective is to pinpoint the responsibility for the wrongdoings in past, it is not clear if the Royal commission has any advantages as compared to the investigators of the empowered and well resourced financial regulators. It is likely that the Royal commissions can work best in case of a particular major issue that needs to be addressed or in cases where a degree in matters related policy formulation is present on which the primary legal analysis can throw some light. The present and the recent concerns are related with a wide range of problems that have caused a detriment to the financial consumers. These include the action of the individuals from different types of financial organizations and also the way, objectives, ethics, culture and governance of the organization itself has been used, encouraged hard incentivized such behavior.

Problems with the Royal commission inquiry

However these topics cannot be best addressed through the many legal perspective or the analysis of the topics which need trappings and powers and the costs of a Royal commission. Instead the need is to have analysis regarding what gives rise to such perceived problems and what policy changes (regulatory or legislative) may be required to deal with these problems. In the end, some type of cost-benefit analysis is also required because the bad behavior of concern can be described as a byproduct of institutional arrangements and the structures that are used to provide financial products and services fulfill the needs of the customers.[11]

Implications: Arguably there is no product category that results in more harmful impact on the consumers than banking. There are a lot of people who never recover from the emotional and financial distress on such misconduct on the part of the banks. It has been revealed by the research and acted by the banking industry itself that there is extremely low level of trust in the banking sector.[12] The cost is suffered by the community from the misconduct of the banking industry is extreme, which includes emotional, financial and social cost. On the other hand, the banks continuously make record profits due to their actions. In view of the significant and the widespread impact on the community, it is necessary to have a Royal commission of inquiry into the conduct of the banks and financial service providers.

The banks and financial service providers act under the expectation that their actions will boast of highest integrity and fidelity. The actions that are consistent with such expectations resulted in a high level of trust of the consumers in the banking and financial services sector. Although it is possible to make mistakes, particularly in case of large organization, it is expected by the community that the mistake will be acknowledged rapidly, and it will be resolved in a timely way. On the other hand, systemic misconduct and later on, the failure to accept responsibility regarding redress, results in diminishing the trust of the people in the banking sector. Due to the systemic and extensive type of misconduct, the trust of the people is completely eroded in this sector.[13] The fact needs to be noted that the victims of systemic misconduct have been let down by the compound failure on the part of self-regulation by the industry and also by the regulatory framework as well as the consumer redress system. Only magnifies the sense of injustice among the consumers.

On the other hand the Royal commission of inquiry will have the necessary resources, powers and terms of reference. Therefore it will be the most suitable mechanism to evaluate the instances of such compound failures and also to make well-informed recommendations that can be used for rebalancing the consumer protections and also to implement effective redress system for the consumers.[14] On the other hand, if this best practice approaches not adopted, it is not likely that the present industry reforms will succeed in achieving the unintended outcomes.

Whether the Royal commission will achieve any real long-term change: It is strongly believed by the community that the banks and the senior management is not being held liable for their actions. This lack of accountability is believed to be contributed in the present and the rising problem of serious systemic bank misconduct.[15] At the same time, there is resentment among the community regarding the double standards that are present concerning the lack of prosecution of the serious financial crimes that have been committed by the banks. The banks have aggressively pursuing jail terms for the persons who have committed fraud against them. On the other hand, the banks have themselves been involved in much worse conduct, often connected on systemic basis. But in many cases it is not even investigated by the regulators. These double standards result in severely undermining the confidence of the people in the banking industry. Therefore a fully transparent, Royal Commission will be able to identify the persons who are responsible for systemic misconduct. This can be the first positive step taken in the direction of holding banks and their senior management accountable to the level that is consistent with the expectations of the community.

Although an assurance has been given by the banking industry that the banking misconduct is an event of the past, there are still several victims who have not been given adequate compensation, and there is no chance in the future of fairly resolving the issues. This is another two for the banking industry that promises to treat its customers fairly, particularly in cases where it is found that the banks have done the wrong thing.[16] Therefore, the Royal commission will be able to identify the liability of the bank regarding the criminal or unconscionable conduct, and this in turn can accelerate the process of composition as against the present circumstances where a lot of victims of banks cannot find a way forward.

After taking a look at the conduct of the banks in the courts, it has been revealed that the banks and their lawyers were involved in highly concerning conduct, which included forging signatures, withholding evidence and swearing false affidavits. Such a situation is against the promise made by the banking industry that whenever the mistake has been made by a bank, it will move fairly and quickly in order to correct the mistake.[17] At the same time, the Royal commission of inquiry will have the score to review the effectiveness and the suitability of the current legislation, while the ASIC and APRA only have the power to review the conduct of the bank within the scope of present legislation.

Another advantage that will be available in case of the Royal commission is that of transparency. The commission will conduct public hearings. This will allow maximum transparency and also provide for the most appropriate way forward for the government to make sure that the issues that have not been resolved till now were also investigated and the senior management of the bank is held accountable and the confidence of the people is restored in the banking industry.

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