ASIC commences civil penalty proceedings against Commonwealth Bank of Australia for BBSW conduct

ASIC has today commenced legal proceedings in the Federal Court in Melbourne against the Commonwealth Bank of Australia (CBA) for unconscionable conduct and market manipulation in relation to CBA’s involvement in setting the bank bill swap reference rate (BBSW) between 31 January 2012 and October 2012.

The BBSW is the primary interest rate benchmark used in Australian financial markets and was administered by the Australian Financial Markets Association (AFMA) during the relevant period. On 27 September 2013, AFMA changed the method by which the BBSW is calculated. The conduct that the proceedings relate to occurred before this change in methodology. Since 1 January 2017 ASX Limited has been the administrator of the BBSW, introducing a new Volume Weight Average Price (VWAP) based calculation methodology.

During the relevant period CBA had a large number of products which were priced or valued off BBSW. ASIC alleges that on three specific occasions CBA traded with the intention of affecting the level at which BBSW was set so as to maximise its profits or minimise its losses to the detriment of those holding opposite positions to CBA’s.

ASIC alleges it was unconscionable for CBA to trade in this way, and also to enter into products priced off the BBSW without disclosing its trading practices to its customers and counterparties. ASIC also alleges that CBA’s trading  created an artificial price and a false appearance with respect to the market for some of these products.

ASIC is seeking declarations that CBA contravened s12CA, s12CB, s12DA, 12DB and s12DF of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), s912A(1), s1041A, s1041B and s1041H of the Corporations Act 2001 (Cth) (Corporations Act).

Further, ASIC has sought from the Court pecuniary penalties against CBA and an order requiring CBA to implement a compliance program.

ASIC will be making no further comment at this time.

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Background

ASIC commenced legal proceedings in the Federal Court against the Australia and New Zealand Banking Group (ANZ) on 4 March 2016 (refer: 16-060MR) and against National Australia Bank (NAB) on 7 June 2016 (refer: 16-183MR).

On 10 November 2017, the Federal Court made declarations that each of ANZ and NAB had attempted to engage in unconscionable conduct in attempting to seek to change where the BBSW set on certain dates and that each bank failed to do all things necessary to ensure that they provided financial services honestly and fairly. The Federal Court imposed pecuniary penalties of $10 million on each bank (refer: [2017] FCA 1338).

On 20 November 2017, ASIC accepted enforceable undertakings from ANZ and NAB which provides for both banks to take certain steps and to pay $20 million to be applied to the benefit of the community, and that each will pay $20 million towards ASIC’s investigation and other costs (refer: 17-393MR).

On 5 April 2016, ASIC commenced legal proceedings in the Federal Court against the Westpac Banking Corporation (Westpac) (refer: 16-110MR). The matter is awaiting judgment.

ASIC has previously accepted enforceable undertakings relating to BBSW from UBS-AG, BNP Paribas and the Royal Bank of Scotland (refer: 13-366MR, 14-014MR, 14-169MR). The institutions also made voluntary contributions totaling $3.6 million to fund independent financial literacy projects in Australia.

In July 2015, ASIC published Report 440, which addresses the potential manipulation of financial benchmarks and related conduct issues.

The Government has recently introduced legislation to implement financial benchmark regulatory reform and ASIC has consulted on proposed financial benchmark rules.

Westpac ditches “instant mortgage” plan

From Australian Broker.

Westpac has dropped its plan to offer “instant mortgages” as banks’ lending practices come under increased scrutiny.

The Australian Financial Review reported on 28 January that Westpac confirmed a plan to offer instant mortgages had been abandoned. The project had been active until as recently as late 2017.

The plan would have allowed Westpac to offer clients a nearly instant approval, or provisional approval.

Despite dropping the project, Westpac will continue to streamline its process for mortgage application and improve its turnaround times for housing borrowers, said the report.

The bank will go ahead with plans to extend innovations for its business clients and residential mortgage customers as it works to bolster its mortgage capabilities and protect its market share. These innovations include e-document signing and other technology-based solutions.

A Westpac spokesperson said the bank took its lending duties seriously and that it was always looking for ways to improve its mortgage lending experience for customers while complying with regulatory requirements, according to the report.

ASIC initiated civil proceedings against Westpac in March last year for its alleged failure between December 2011 and March 2015 to properly assess if borrowers could repay their housing loans.

The regulator said in its allegation that the bank relied on a benchmark to help it decide how much to lend to potential borrowers, instead of using actual expenses declared by borrowers.

Westpac has denied ASIC’s claim.

The Australian Financial Review said in its report that the bank was preparing for a courtroom fight with ASIC over this allegation.

Banks’ lending practices are expected to come under further scrutiny as the royal commission kicks off its investigation of misconduct in the banking, superannuation and financial services industry. The commission will hold an initial public hearing on 12 February.

New CBA Head Announced

CBA says Matt Comyn will be the new Chief Executive Officer of the Commonwealth Bank of Australia (CBA), effective 9 April 2018, replacing Ian Narev, who announced in August that he would retire before the end of this financial year, after more than six years in the role.

An internal appointment, Matt Comyn has nearly 20 years’ experience in banking across business, institutional, retail and wealth management.

He joined the Commonwealth Bank Group in 1999 where he has held a number of senior leadership roles. In 2012 he was appointed Group Executive Retail Banking Services, which now accounts for half of the Group’s profit and also leads the development of digital products and services on behalf of the Group.

Warnings On The Profitability Of Global Banks, Excessive Risk-taking and Leverage

The Committee on the Global Financial System  at The Bank for International Settlements (BIS) has published an important report “Structural changes in banking after the crisis“.

The report highlights a “new normal” world of lower bank profitability, and warns that banks may be tempted to take more risks, and leverage harder in an attempt to bolster profitability. This however, should be resisted. They also underscore the issues of banking concentration and the asset growth, two issues which are highly relevant to Australia.

The report highlights that in some countries the 2007 banking crisis brought about the end of a period of fast and excessive growth in domestic banking sectors.  Worth noting the substantial growth in Australia, relative to some other markets and of particular note has been the dramatic expansion of the Chinese banking system, which grew from about 230% to 310% of GDP over 2010–16 to become the largest in the world, accounting for 27% of aggregate bank assets.

They also call out the concentration banking to a smaller number of larger players since the crisis.  The number of banks has fallen in most countries
over the past decade. Post-crisis reductions in bank numbers have been mainly among smaller institutions, aside from a handful of distressed large banks in the euro area and the retreat of some international banks from specific foreign markets. Concentration has also risen in some countries that were less affected by the crisis and where bank numbers have
continued to expand or remained steady (Australia, Brazil, Singapore).

The decade since the onset of the global financial crisis has brought about significant structural changes in the banking sector. The crisis revealed substantial weaknesses in the banking system and the prudential framework, leading to excessive lending and risk-taking unsupported by adequate capital and liquidity buffers. The effects of the crisis have weighed heavily on economic growth, financial stability and bank performance in many jurisdictions, although the headwinds have begun to subside. Technological change, increased non-bank competition and shifts in globalisation are still broader environmental challenges facing the banking system.

Regulators have responded to the crisis by reforming the global prudential framework and enhancing supervision. The key goals of these reforms have been to increase banks’ resilience through stronger capital and liquidity buffers, and reduce implicit public subsidies and the impact of bank failures on the economy and taxpayers through enhanced recovery and resolution regimes. At the same time, the dynamic adaptation of the system and the emergence of new risks warrant ongoing attention.

In adapting to their new operating landscape, banks have been re-assessing and adjusting their business strategies and models, including their balance sheet structure, cost base, scope of activities and geographic presence. Some changes have been substantial and are ongoing, while a number of advanced economy banking systems are also confronted with low profitability and legacy problems.

This report by the CGFS Working Group examines trends in bank business models, performance and market structure, and assesses their implications for the stability and efficiency of banking markets.

The main findings on the evolution of banking sectors are as follows:

  1. Changes in banking market capacity and structure. The crisis ended a period of strong growth in banking sector assets in many advanced economies. Several capacity metrics point to a shrinking of banking sectors relative to economic activity in several countries directly impacted by the crisis. This adjustment has occurred mainly through a reduction in business volumes rather than the exit of firms from the market. Banking sectors have expanded in countries that were less affected by the crisis, particularly the large emerging market economies (EMEs). Concentration in banking systems has tended to increase, with some exceptions.
  2. Shifts in bank business models. Advanced economy banks have tended to reorient their business away from trading and more complex activities, towards less capital-intensive activities, including commercial banking. This pattern is evident in the changes in banks’ asset portfolios, revenue mix and increased reliance on customer deposit funding. Large European and US banks have also become more selective and focused in their international banking activities, while banks from the large EMEs and countries less affected by the crisis have expanded internationally.
  3. Trends in bank performance. Bank profitability (return on equity) has declined across countries and business model types from the historically high rates seen before the crisis. At least in part, this reflects lower leverage induced by the regulatory reforms. In addition, many advanced economy banks, in particular banks in some European countries, are facing sluggish revenues and an overall cost base that has been resistant to cuts, including, in some cases, legacy costs associated with past investment decisions and misconduct.

The main findings regarding the impact of post-crisis structural change for the stability of the banking sector are related to three areas:

  1. Bank resilience and risk-taking. Banks globally have enhanced their resilience to future risks by substantially building up capital and liquidity buffers. The increased use of stress testing by banks and supervisors since the crisis also provides for greater resilience on a forward-looking basis, which should help support credit flows in good and bad times. In addition, advanced economy banks have shifted to more stable funding sources and invested in safer and less complex assets. Some of these adjustments may be driven partly by cyclical factors, such as accommodative monetary policy, and hence may diminish as conditions change. Qualitative evidence
    indicates that banks have considerably strengthened their risk management and internal control practices. Although these changes are hard to assess, supervisors point to significant scope for further improvements, in particular because of the inherent uncertainties about the future evolution of risks.
  2. Market sentiment and future bank profitability. Despite a recovery in marketbased indicators of investor sentiment towards larger institutions in recent years, equity investors remain sceptical towards some banks with low profitability. Simulation analysis carried out by the Working Group suggests that some institutions need to implement further cost-cutting and structural adjustments.
  3. System-wide effects. Assessing the impact of structural change on system-wide stability is harder than in the case of individual banks because of complex interactions within the system. Nonetheless, a number of changes are consistent with the objectives of public authorities and the reform process. First, banks appear to have become more focused geographically in their international strategy and tend to intermediate more of their international claims locally. Second, direct connections between banks through lending and derivatives exposures have declined. Third, some
    European banking systems with relatively high capacity have made progress with consolidation. Fourth, while the effect of less business model diversity arising from the repositioning of many banks towards commercial banking cannot be assessed yet, this trend has been accompanied by a shift towards more stable funding sources (such as deposits). A range of other reforms has also enhanced systemic stability (eg money market mutual fund reforms) and further progress has been made on resolution and recovery frameworks.

 

Changes in banking sector resilience have to be measured against the impact on the services provided by the sector. The main findings regarding the impact of changes on the efficiency of financial intermediation services are:

  1. Provision of bank lending to the real economy. Trends in bank-intermediated credit have been uneven over time and across countries, reflecting differences in their crisis experience and related overhang of credit. Credit declined significantly relative to economic activity in advanced economies that bore the brunt of the crisis, and in most countries started to recover only from 2015. But the adjustment is still ongoing
    in others, reflecting in part a legacy of problem bank assets that continues to hamper the growth of fresh loans. By comparison, advanced economy banking systems not significantly affected by the crisis continued to report solid loan growth, notwithstanding tighter regulations.Recognising the difficulty of disentangling demand and supply drivers, the
    evidence gathered by the group does not suggest a systematic change in the
    willingness of banks to lend. But, in line with the objectives of regulatory reform, lenders have become more risk-sensitive and more discriminating across borrowers. In contrast to many advanced economies, bank lending has expanded strongly in EMEs, raising sustainability concerns and prompting the use of macroprudential measures and the tightening of certain lending standards more recently.
  2. Capital market activities. Crisis-era losses combined with regulatory changes have motivated a significant reduction in risk and scale in the non-equity trading and market-making businesses of a number of global banks.
  3. International banking was one of the areas most affected by the crisis. Aggregate foreign bank claims have seen a significant decline since the crisis, driven particularly by banks from the advanced economies most affected by the crisis, especially from some European countries. By contrast, banks from other non-crisis countries have expanded their foreign activities, in some cases quite substantially, resulting in a significant change in the country composition of global banking assets.

The report highlights four key messages for markets and policymakers:

  1. Post-crisis, a stronger banking sector has resumed the supply of
    intermediation services to the real economy, albeit with some changes in
    the balance of activities.
    – Bank credit growth remains below its excessive pre-crisis pace in advanced economies but without indications of a systematic reduction in the supply of local credit. Lending to some sectors and borrowers has seen reductions, however, as banks have adjusted their risk profile, and policymakers should remain attentive to potential unintended gaps in the flow of credit.
    – Experience from crisis countries underscores the benefits of acting early in addressing problems associated with non-performing loans (NPLs).
    – The withdrawal of some banks from capital markets-related business has
    coincided with signs of fragile liquidity in some markets, although causality
    remains an open question.
  2. Longer-term profitability challenges require the attention of banks and
    supervisors, as they may signal risk-taking incentives and overcapacity. Low profitability partly reflects cyclical factors but also higher capitalisation and more resilient bank balance sheets. As such, banks and their investors need to adapt to a “new normal”. Market concerns about low profitability may deprive banks of an important source of fresh capital, or encourage risk-taking and leverage by banks, thus placing a premium on robust risk management, regulation and supervision. In some cases, low profitability might also signal the existence of excess capacity and structural impediments to exit for individual banks, requiring decisive policy action to apply relevant rules.
  3. Consolidation and preservation of gains in bank resilience requires ongoing
    surveillance, risk management and a systemic perspective. Key indicators
    show areas of improvement since the crisis, but also areas which are still a work in progress. Authorities and market participants should not become complacent. The system is adapting to a variety of changes, the interaction of which is difficult to predict. Authorities should monitor the ongoing adaptation and evolution in the nature and locus of risk-taking within the banking sector and the financial system more broadly. In this regard, the group sees scope for the international supervisory community to undertake a post-crisis study of bank risk management practices. In addition, ample buffers remain critical to coping with unexpected losses from new risks.
  4. Better use and sharing of data are critical to enhanced surveillance of
    systemic risk. Surveillance is crucial, given that the financial sector evolves
    dynamically and because future risks will likely differ from past ones. Although data availability has improved, there is a need to make better use of existing data to assess banking sector structural adjustment and related risks. This effort will likely require additional conceptual work, building on the data sets of national authorities and the international financial institutions. Areas that warrant further analysis include the potential for increased similarities in the exposure profile of banks to correlated shocks, the growing role and implications of fintech, and the migration of activity and risk to the non-bank sector.

 

Financial Advice Conflicts Still Exists In Vertically Integrated Firms

An Australian Securities and Investments Commission (ASIC) review of financial advice provided by the five biggest vertically integrated financial institutions has identified areas where improvements are needed to the management of conflicts of interest. 68% of clients’ funds were invested in in-house products.

This highlights the problems in vertically integrated firms, something which the Productivity Commission is also looking at.

The review looked at the products that ANZ, CBA, NAB, Westpac and AMP financial advice licensees were recommending and at the quality of the advice provided on in-house products.

The review was part of a broader set of regulatory reviews of the wealth management and financial advice businesses of the largest banking and financial services institutions as part of ASIC’s Wealth Management Project.

The review found that, overall, 79% of the financial products on the firms’ approved products lists (APL) were external products and 21% were internal or ‘in-house’ products. However, 68% of clients’ funds were invested in in-house products.

The split between internal and external product sales varied across different licensees and across different types of financial products. For example, it was more pronounced for platforms compared to direct investments. However, in most cases there was a clear weighting in the products recommended by advisers towards in-house products.

ASIC noted that vertical integration can provide economies of scale and other benefits to both the customer and the financial institution. Consumers might choose advice from large vertically integrated firms because they seek that firm’s products due to factors such as convenience and access, and recommendations of ‘in-house’ products may be appropriate. Nonetheless, conflicts of interest are inherent in vertically integrated firms, and these firms still need to properly manage conflicts of interest in their advisory arms and ensure good quality advice.

ASIC will consult with the financial advice industry (and other relevant groups) on a proposal to introduce more transparent public reporting on approved product lists, including where client funds are invested, for advice licensees that are part of a vertically integrated business. ASIC noted that any such requirement is likely to cover vertically integrated firms beyond those included in this review. The introduction of reporting requirements would improve transparency around management of the conflicts of interests that are inherent in these businesses.

ASIC also examined a sample of files to test whether advice to switch to in-house products satisfied the ‘best interests’ requirements. ASIC found that in 75% of the advice files reviewed the advisers did not demonstrate compliance with the duty to act in the best interests of their clients. Further, 10% of the advice reviewed was likely to leave the customer in a significantly worse financial position. ASIC will ensure that appropriate customer remediation takes place.

Acting ASIC Chair Peter Kell said that ASIC is already working with the major financial institutions to address the issues that have been identified in the report on quality of advice and management of conflicts of interest.

‘There is ongoing work focusing on remediation where advice-related failures have led to poor customer outcomes, and the results of this review will feed into that work,’ said Mr Kell.

ASIC is already working with the institutions to improve compliance and advice quality through action such as:

  • improvements to monitoring and supervision processes for financial advisers; and
  • improvements to adviser recruitment processes and checks.

ASIC will continue to ban advisers with serious compliance failings.

ASIC highlighted that the findings from this review should be carefully examined by other vertically integrated firms. ‘While this review focused on five major financial services firms, the lessons should be considered by all vertically integrated firms in the financial services sector.’

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Irresponsible Mortgage Lending A Significant Risk For Seniors

From NestEgg.com.au

Surging property prices in Australia’s capital cities can be attributed to irresponsible lending, but it’s not just young buyers suffering the consequences, a consumer organisation has said.

In its submission to the royal commission into Misconduct in the Banking, Superannuation and Finance sector, the not-for-profit consumer organisation, the Consumer Action Law Centre (CALC) said the number of Aussie households facing mortgage stress has “soared” nearly 20 per cent in the last six months, and argued that lenders are to blame.

Referencing Digital Finance Analytics’ prediction that homes facing mortgage stress will top 1 million by 2019, CALC said older Australians are at particular risk.

The organisation explained: “Irresponsible mortgage lending can have severe consequences, including the loss of the security of a home.

“Consumer Action’s experience is that older people are at significant risk, particularly where they agree to mortgage or refinance their home for the benefit of third parties. This can be family members or someone who holds their trust.”

Continuing, CALC said a “common situation” features adult children persuading an older relative to enter into a loan contract as the borrower, assuring them that they will execute all the repayments.

“[However] the lack of appropriate inquiries into the suitability of a loan only comes to light when the adult child defaults on loan repayments and the bank commences proceedings for possession of the loan in order to discharge the debt,” CALC said.

The centre referred to a Financial Ombudsman Service (FOS) case study in which retiree and pensioner, Anne, entered into a loan contract with her son Brian. The repayments were to be made out of Brian’s salary and Anne’s pension. The loan was requested in order to extend her home so that Brian could live with her.

Following loan approval, the lender provided more advances under the loan contract. The advances were used to pay off Brian’s credit debt and buy a car.

When Brian left his job to travel, Anne could no longer afford the repayments and the lender said it would repossess her home.

“Anne lodged a dispute with FOS. After considering the dispute, FOS concluded that Anne was appropriately a co-debtor in the original loan contract, as she had received a direct benefit from the loan (the extension to her home and therefore an increase in its value),” CALC said.

“However, FOS considered that she was not liable for the further advances as she did not directly benefit from the application of the funds. Even though the repayment of Brian’s credit card debts may have provided more towards the household income, FOS concluded that this was not a direct benefit to Anne.

“Neither was the purchase of a car for Brian, as there was no information to show that Anne used the car or relied on Brian to transport her.”

CALC also expressed concern that the Household Expenditure Measure (HEM) is not a robust enough living expense test.

Noting that the Australian Prudential Regulation Authority shares their concern, the centre said the reliance on the HEM test raises concerns about the robustness of the actual measure.

“APRA states that it has concerns about whether these benchmarks provide realistic assessments of a borrower’s living expenses.

“In the same vein, ASIC has issued proceedings against Westpac in the Federal Court for failing to properly assess whether borrowers could meet repayment obligations, due to the use of benchmarks rather than the actual expenses declared by borrowers.”

CALC warned that over-indebtedness has ramifications for the economy but also for individuals and families.

Highlighting the link between high levels of debt and lower standards of living, CALC said it can have significant long-term effects as well, with the capacity to damage housing, health, education and retirement prospects

ASIC Updates Commonwealth Bank Financial Planning Licence Conditions

ASIC says under additional licence conditions imposed on Commonwealth Financial Planning Ltd and Financial Wisdom Ltd by the Australian Securities and Investments Commission, CBA will review all advice given to customers of five former representatives. CBA will pay compensation where customers have suffered loss.

As at 10 January 2018, CBA has reported to ASIC that approximately $1.9 million of compensation is due to customers of the five advisers. Compensation is likely to increase as CBA reviews further customer files. CBA recently wrote to over 3,500 customers of the five advisers informing them their advice was being reviewed. Following completed reviews CBA has issued assessment outcome letters to over 1,000 customers. CBA will continue to issue assessment outcome letters and compensation offers to affected customers between now and 31 March 2018.

ASIC appointed KordaMentha Forensic (KordaMentha) to complete a compliance review under the additional licence conditions. KordaMentha determined that CBA should review advice given by 16 potentially high-risk advisers, and has now reviewed and is satisfied with the processes that CBA used to:

  • select samples of advice given by the 16 advisers for review
  • review the appropriateness of advice given by the 16 advisers
  • calculate whether any inappropriate advice given by the 16 advisers resulted in customers losing money of suffering loss, and
  • conclude that all of the customers of five of the advisers should be reviewed in the compensation program and that no further review is required for 11 advisers.

The current round of compensation is in addition to $4.97 million including interest already offered to customers of different advisers under the additional licence conditions compensation scheme, as reported on in KordaMentha’s December 2016 compliance report.

For more information see the KordaMentha Compliance Report Part 3.

Background

In August 2014, ASIC imposed additional conditions on the Australian Financial Services licences of Commonwealth Financial Planning Ltd and Financial Wisdom Ltd, with the licensees’ consent. Under the additional licence conditions, ASIC appointed KordaMentha Forensic to assess the adequacy of CBA’s 2012 review of potentially high-risk advisers.

KordaMentha’s Identification Report (December 2015, available from the ASIC website) reported that the two licensees had taken reasonable steps to identify potentially high-risk advisers in 2012, but after identifying them, did not adequately review 17 of them to determine whether their clients should be included in a review and compensation program.

KordaMentha later determined that one of the 17 advisers did not need to be reviewed because the adviser had not, as CBA had previously informed KordaMentha, advise a high number of clients to invest 25% or more of their portfolios in property investments.

To address CBA’s failure to adequately review the remaining 16 advisers, KordaMentha’s Identification Report and subsequent work set out the ‘Additional Processes’ that the Licensees were required to take for the advisers:

  1. A review of a sample of six client files for each of the advisers to determine any instances of inappropriate advice that led to loss. For advisers where CBA identified no inappropriate advice with loss, KordaMentha did not require any further review. For advisers where CBA identified inappropriate advice with loss, step (ii) was required.
  2. A review of a further 25 files of the adviser. If no further instances of inappropriate advice with loss were identified, KordaMentha did not require the Licensees to take any further action or review for that adviser. If, after step (i) and (ii) (31 files reviewed), CBA identified that an adviser had provided between two and five instances of instances of inappropriate advice that led to loss, KordaMentha’s default position was that step (iii) was required – that CBA should review a further 25 files of that adviser. If six or more instances on inappropriate advice with loss were identified, CBA was required to implement the full compensation program for all of the adviser’s clients.
  3. A review of a further 25 files.
  4. If, after step (i) or (ii) or (iii) (between six and 56 files reviewed per adviser), CBA identified a total of six or more instances of inappropriate advice with loss, CBA was required to implement the full compensation program for the all of the adviser’s clients.

As a result of these steps:

  • KordaMentha does not require CBA to conduct any further review of 11 of the 16 advisers. KordaMentha concluded that those 11 advisers have been adequately reviewed by CBA and should have no further review under the additional licence conditions.
  • KordaMentha requires CBA to apply the full review and compensation program to all customers of the remaining five advisers, which includes reviewing their advice, issuing review outcome letters including compensation offers if applicable, and offering customers up to $5000 for an independent assessment of their advice.
  • Any customers who CBA identifiedin steps (i), (ii) or (iii) as having lost money through inappropriate advice, from any of the 16 advisers, will be compensated.

Previous KordaMentha reports on the additional licence conditions

The report released today is KordaMentha’s fourth report under the additional licence conditions. Previous reports are published on ASIC’s website at the following links:

  • Comparison Report (April 2015): REP 431
  • Identification Report (December 2015): REP 462
  • Compliance Report Part 1 & 2 (December 2016): REP 504

Next steps

ASIC will continue to report publicly on compensation under the additional licence conditions. ASIC will publish Compliance Report Part 4 when KordaMentha completes its assessment of CBA’s compliance with the additional licence conditions.

ASIC begins shadow shopping brokers

From Australian Broker.

ASIC has launched the second phase of its review into the mortgage broking industry by delving into the suitability of brokers’ advice through a mystery shopping exercise.

ASIC said this is part of its effort to better understand the home loan purchase process, which goes beyond broker remuneration.

“While broker remuneration practices may have an impact on home loan choice, ASIC recognises that a range of other factors influence which home loan products are purchased, and that the purchase experience may vary across purchase channel, i.e. via broker compared to directly from a lender,” said Michael Saadat, ASIC’s senior executive leader for deposit takers, insurers and credit services.

Saadat told Australian Broker that ASIC is conducting consumer and broker research to better understand the home loan purchase process as part of its review of mortgage broking practices.

The research looks to determine what factors – beyond broker commission – affect how and which home loan products clients buy, and whether and how consumer outcomes could be improved.

Within this, ASIC aims to gain insight around how consumers buy home loans, identifying critical points in the buying process, key inputs and decision-making criteria at such points, and how behaviour is influenced during the process.

Saadat said ASIC also wants to understand how the broker shapes which product a consumer buys and whether the advice offered results in positive consumer outcomes. These include making an informed choice, buying products that meet needs, and being provided with the right amount and relevant information in order to make a choice.

In November, Saadat told Australian Broker magazine that anything discovered through shadow shopping “will be more about understanding to what extent brokers are potentially not meeting their legal obligations, and whether ASIC, for example, needs to produce more guidance around what they can or can’t say to consumers or whether some other action is required”.

In the past, ASIC had pointed to record-keeping as something brokers needed to improve on to better explain the process that had occurred.

“This is not about going into the review thinking that there are significant problems that need to be uncovered; in fact this is about really trying to understand how the interactions between the broker and the consumer are playing out, given that we don’t get any sense of that really from the loan files,” he said at the time.

Major industry players supported ASIC’s recommendations in the Review of Mortgage Broker Remuneration when it was released in March 2017. However, they advised ASIC and the government to proceed with caution in implementing those recommendations.

Financial Services Royal Commission To Hold Initial Public Hearing

The Royal Commission into Misconduct into the Banking, Superannuation and Financial Services Industry will hold an initial public hearing in Melbourne at 10am on Monday 12 February 2018.

An online form for submissions allows an individual or entity to make a submission to the Commission. The Commission will continue to receive submissions over the coming months and will advise when a deadline for submissions is set.

At this hearing the Commissioner and Senior Counsel Assisting will make short opening statements. No witnesses will be called.

The hearing will be held at Level 6, 11 Exhibition Street in Melbourne and will be open to the public although seating will be limited.

The hearing will be streamed live through the Royal Commission’s website and a transcript will be available shortly after the hearing.

Further information about the Royal Commission and Terms of Reference are available on the Royal Commission’s website.

Public Submissions

The Commission is inviting submissions from any individual or entity wishing to tell the Commission about misconduct in the Banking, Superannuation or Financial Services Industry.

The online form for submissions is now available on the Royal Commission website.

The Commission is required to conduct an inquiry. It cannot resolve individual disputes, fix or award compensation, or make orders requiring a party to a dispute to take or not take any action.

The online form has been designed to organise the information provided in a way that will guide the user, and help the Commission, by categorising the information in line with the areas of inquiry set out in the Commission’s

Terms of Reference.

The Commission may contact some individuals or entities that make submissions. The Commission will not be able to contact everyone who makes a submission but will ensure that all submissions are recorded, reviewed and used to inform the Commission’s work.

Which Banks Are Changing Broker Commissions Fastest?

From Mortgage Professional Australia.

The latest update on bank reform has revealed the slow and varying progress made by banks in changing broker commissions.

Ian McPhee’s report, commissioned by, but independent of the Australian Bankers Association, asked banks how far they had implemented the Sedgwick Review’s recommendations. Stephen Sedgwick called for an end to volume-based incentives and for banks to ensure remuneration was not directly linked to loan size.

Macquarie Bank, My State Bank, and Bank Australia were amongst the furthest ahead banks, with ‘substantial alignment’ of their broker remuneration to Sedgwick’s recommendation. Only Qudos Bank was fully aligned with the recommendations.

Conversely, Commonwealth Bank’s broker remuneration and governance arrangements were ‘not aligned – planning and/or some implementation progressed’. Work on reforming remuneration had not started at Bank of Queensland, and work reforming governance had not begun at Bank of Sydney.

Of the other majors, ANZ, NAB, and Westpac reported partial implementation of Sedgwick’s reforms.

An imperfect scorecard

McPhee himself notes that “it is not appropriate to draw early conclusions on the status of individual banks’ implementation programs.”

For a start, banks self-reported their own progress with minimal oversight from McPhee. Furthermore, banks’ reporting cycles vary; a bank that reports at the end of the financial year may appear further advanced than a bank that reports at the end of the calendar year, for instance.

According to McPhee “the Sedgwick Review recommendations relating to banks’ arrangements with third parties are least progressed, with a number of banks reporting that they are still in the planning phases. This reflects the time taken to establish the Combined Industry Forum and agree industry-wide responses.”

The Combined Industry Forum set out its changes to remuneration in December.