No blood and gore on the floor

After a year of shame and grovelling apologies, the day of reckoning finally arrived. 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. 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 coregulation, 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 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 he 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

TKen Henry, noting he was not convinced the pair had learnt the lessons of misconduct.

In other words, Hayne is not persuaded 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.

he royal commission tackled mortgage broking, financial advice and the A$44 billion life insurance industry – to a degree – and recommends insurance contracts 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 the ASIC to decide whether to ban commissions on life insurance.

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 eyeopeners 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.

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

Hayne has recommended that trustees of super funds 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, he has called for a capability review into its performance, culture and structure – something that was recommended in a December 2014 report into the financial system.

The Government has nominated the highly regarded Graeme Samuel, a former Australian Competition and Consumer Commission chairman, to conduct this review.

Every four years both ASIC and APRA will be subject to a fresh capability review. This is positive. But at the end of the day, it will depend on whether the recommendations are adopted.

Given the disappointing behaviour of regulators over the years, including allowing the regulated to preview and change draft press releases, 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.

– Sydney Morning Herald