Property expert and economist Joe Wilkes and I continue our exploration of New Zealand property. Are there parallels with Ireland? (and we all know what happened there!).
Caveat Emptor! Note: this is NOT financial or property advice!!
In this discussion, Harry Dent, the famous author, strategist and economist and I discuss the problem of the role of Central Banks. Are they part of the problem, or the solution?
Australian fintech Tic:Toc – the world’s only fully digital home loan platform – has announced Bendigo Bank will use Tic:Toc’s proprietary technology to power its own instant home loan, Bendigo Bank Express.
The white label partnership will allow Bendigo Bank to be the first Australian lender offering a digital home loan application and assessment process under its own brand, accelerated with Tic:Toc technology.
Tic:Toc launched the World’s first instant home loan™ in July 2017, and is now collaborating with financial institutions to offer their platform as a service; helping bring traditional home loan processes up to speed.
Tic:Toc’s technology offers customers a streamlined digital fulfilment process, while lenders benefit from significant efficiencies in the way they can originate home loan customers. The automated assessment strips cost from the process and delivers higher responsible lending standards via inbuilt reg-tech and digital validation of income and expenses.
Announcing the agreement, Tic:Toc founder and CEO, Anthony Baum, said most importantly, the customer will be the ultimate beneficiary of the collaboration between financial institutions and fintechs.
“Tic:Toc is changing the customer experience when it comes to home loans. It’s no longer necessary to wait weeks for home loan approval, when it can be done digitally and conveniently.
“There’s actually not much difference between home loan options. But there can be a big difference in how that home loan is delivered, and the experience for the customer.
“Our automated assessment and approval technology also creates dramatic cost efficiencies for lenders.
“You only need to look to the United States to see how a digital home loan can change a market: Quicken Loans is now America’s largest home loan lender after launching their online product, Rocket Mortgage.
“Our partner, Bendigo and Adelaide Bank, shares our passion for great customer outcomes, so we’re delighted the Bank has chosen Tic:Toc to offer its customers a truly digital experience, if they want it.”
Bendigo and Adelaide Bank Managing Director, Marnie Baker said, “Our partnership with Tic:Toc is another example of Bendigo and Adelaide Bank investing in innovative technologies to offer Australian consumers more choice, and ultimately, better digital experiences.
“Our strategy means we can provide the best solution to customers by selecting the right partner to offer the right services to meet our customers’ needs and make it easier for them to do business with us. Fintech disruption, combined with banking innovation, is helping us drive better outcomes and we consider relationships with fintechs, such as Tic:Toc, as a mutually beneficial strategy.
“We believe we can grow our business through our vision of being Australia’s bank of choice and we will do this by providing new and existing customers with valued and relevant products and services, all while investing in new capability and innovation,” she said.
Bendigo Bank Express will be available to customers in early 2019.
Since its launch, Tic:Toc has received more than $1.6 billion in value of submitted home loan applications. While the white label product will be available directly from Bendigo Bank, the multi award-winning home loans originated by Tic:Toc are already available throughout Australia at tictochomeloans.com.
An interesting piece in the The Conversation. suggesting that regulation of banking will not deliver the outcomes we need:
The financial services royal commission resumes for its final round of hearings on Monday, and reappearing before Justice Hayne will be the chief executives each of the big six institutions he has in his sights: the Commonwealth Bank, Westpac, AMP, Macquarie, ANZ, and the National Australia Bank.
At issue are shockingabusesoftrust, and when the government responds after receiving the report in February it will be under pressure to introduce tighter rules that more closely regulate bankers’ behaviour.
There’s another, better, path it could follow. It could loosen the rules and treat bankers more like doctors.
Crude attempts to regulate behaviour fail
We trust doctors, not because their behaviour is tightly regulated but because it is self-regulated. As professionals they strive to be trustworthy, in the same way as citizens who don’t cheat on their social security claims, or restaurant customers who don’t eat without paying.
A regulation imposed on top of a relationship of trust can ruin it.
In a famous study titled A Fine Is A Price, economists Uri Gneezy and Aldo Rustichini examined what happened when an Israeli daycare centre attempted to impose fines on parents who picked up their children late.
Surprisingly, the trial of the fine resulted in more, rather than fewer, late pickups.
In the eyes of the late parents, the fine changed late pickups from bad behaviour into an acceptable outcome of cost-benefit analysis. They simply interpreted the fine as a babysitting cost, and weighed it against the benefit of arriving when it suited them. Moral motivations were crowded out.
Doctors take vows
Professionals with ethics take vows to honour their duty to their clients, even where the costs of doing so are greater than the benefits of not doing so.
Service providers who don’t take ethics seriously weigh the costs and benefits of acting in the interests of their clients versus acting in their own interests. This ‘moral optimization’ may take account of ethics, but only if it pays.
Many financial services workers don’t take ethics seriously partly because they have been trained in economics or finance – disciplines which teach that cost-benefit analysis applies to everything.
A start would be to train them better. Their teachers could listen to the words of the creator of much of the theory used to justify performance pay, Michael Jensen of Harvard:
We teach our students the importance of conducting a cost-benefit analysis in everything they do. In most cases, this is useful – but not when it comes to behaving with integrity.
Recent research on the psychological power of money suggests that financial market participants are at risk of negative ethical tendencies when money is used as an incentive, or even when they are just reminded of its importance, so-called money priming.
Money is used as an incentive to in order overcome the so-called principal-agent problem in which agents, (workers or chief executives) are tempted to put they own interests ahead of those of the firm they work for.
It can work, but if high-powered financial incentives communicate that the recipient’s only goal should be to maximise profit, then a culture of material self-interest takes hold, constrained at best by the letter of the law. And this crowds out other interests, such as those of their customers.
This means high-powered financial incentives can solve one kind of untrustworthiness, but only by creating another.
Professionals such as doctors and teachers solve the principal agent problem in another way: through ethics.
Banking could be a profession
Rather than further regulation, we propose a greater focus on ethics through a program of professionalisation, including:
Establishing an interim professional body run by outsiders who come with a proven ethic of serving the public in fields such as education or health. After five years the finance industry can apply to the government to staff and run the body itself, subject to performance.
A winding back of regulation in order to signal that “you are professionals who have to take responsibility for ethical judgements”. The professional body could stand down senior managers deemed to be showing commitment to the new culture.
A fundamental change of bonuses so that they become incentives for ethical behaviour. We suggest an automatic bonus payment of 10-20% of total pay. It could be withheld for two reasons: either poor financial performance of the firm, or an ethical breach. In effect, it would be a negative bonus. Multiple ethical breaches would result in the loss of professional status and employment.
Regulation hasn’t worked
Automatic bonuses remove the extreme money priming of the finance industry, and they can be helpful in maintaining employment in the event of a downturn. They can simply be reduced instead of laying off staff, as happened during the global financial crisis.
Boosting regulation and boosting the capability of regulators, as many say they want, could work against developing the ethics and the trust that makes other professions work.
Authors: Warren Hogan Industry Professor, University of Technology Sydney; Gordon Menzies Associate Professor of Economics, University of Technology Sydney
RBA Deputy Governor Guy Debelle summarised the Bank’s assessment of the various measures put in place to address the risks around housing lending. He argues risks are under control, though external shocks could still hit household balance sheets. Loose ending is not seen as a risk…. Hmmmm! Whilst the regulatory measures have significantly reduced the riskiness of new housing lending, we have masses of loans written under weaker regulation, which are exposed.
The motivation for implementing these various measures was to address the mounting risk to household balance sheets arising from the rapid growth of certain forms of lending, in particular lending to investors and interest-only (IO) lending. The strong growth in investor borrowing was increasing the risk that investor activity could be excessively boosting housing prices and construction and so increasing the probability of a subsequent sharp unwinding. This risk is greater for investor borrowing than owner-occupiers as investors can behave pro-cyclically, withdrawing from the market as it declines. The rise in the prevalence of interest-only borrowing for both investors and owner-occupiers increased the overall risk profile of household borrowing. No principal is repaid during the IO period, and the increase in required repayments can be large when the IO period expires.
I don’t see the riskiness of the borrowing as being the source of the negative shock. My concern is for its potential to be an accelerator to a negative shock from another source. To put it another way, I don’t regard it as likely that household borrowing will collapse under its own weight. Rather, if a negative shock were to hit the Australian economy, particularly one that caused a sizeable rise in unemployment, then the risk on the household balance sheet would magnify the adverse effect of that shock. This would have first order consequences for the economy and hence also for monetary policy.
To repeat the conclusion of the assessment in the FSR: the measures have helped to reduce the riskiness of new borrowing. In turn, this has stemmed the increase in household sector vulnerabilities and improved the resilience of the economy to future shocks. The measures have led to a slowing in credit growth but there is little evidence to suggest that the measures have excessively constrained aggregate credit supply. Housing credit growth has slowed, but it is still running at 5 per cent.
The various measures implemented to address the riskiness of housing lending fall into three categories:[1]
Lending standards or serviceability criteria. This includes tightening up the assessment and verification of borrower income and expenses, the discouragement of high loan-to-valuation ratio (LVR) loans and ensuring that minimum interest rate buffers were being applied, including on existing loans.
Investor lending growth benchmark. A 10 per cent cap on investor lending growth was introduced in December 2014.
A cap on the share of interest-only loans in new lending of no more than 30 per cent.
These measures were introduced progressively over a number of years. The scrutiny on serviceability by both APRA and ASIC has been underway for over four years now. For example, in September 2015, APRA noted that by then, serviceability practices had been tightened, such as the haircutting of various forms of income, including rental income. At the same time, APRA reported that minimum interest rate buffers and floors were also being more consistently applied.
This means that these tighter lending standards have been in place for a while now. They are not a recent phenomenon. But this also makes assessing the overall impact difficult in some cases, though the effect of some of the measures has been obvious. There clearly has also been an interaction between them.
What Has Been the Effect of These Various Measures?
Different interest rates are now charged across the various types of mortgages. Interest rates are higher on investor lending and interest-only lending than they are on owner-occupier lending (Graph 1). Previously there was little, if any, variation in the interest rate charged on different types of loans, beyond the size of the discount that varied with borrower income and the size of the loan.
Graph 1
Rather than use quantitative restrictions on the flow of new investor or interest-only lending to meet the requirements, banks chose to increase the interest rate on all loans of these types, both new and existing. Judging by what happened, it appears that the impact of the interest rate changes on borrower activity was difficult to calibrate. The banks seem to have increased rates by more than enough to achieve the requirements with most significantly undershooting the caps on both investor lending growth and the share of IO loans.
Investor lending growth took a while to respond to the introduction of the growth benchmark, in part because banks didn’t increase interest rates on investor loans until some time after its introduction (Graph 2). But there was a sharp and immediate slowing in response to the cap on IO lending. The share of IO loans in the flow of new lending declined sharply from 40 per cent in March 2017 to 17 per cent by September 2017 and has remained around 15 per cent since then. At the same time, the share of new lending with LVRs greater than 90 per cent has declined for both owner-occupiers and investors. In particular, there is now only a very small amount of loans to investors being written with LVRs over 90 per cent. Investor credit is now barely growing. Lending to owner-occupiers has slowed but is still growing at 6½ per cent.
Graph 2
As a result there has been a sizeable shift in the composition of the stock of housing lending. In addition, in response to both measures, a sizeable number of borrowers switched from an investor and/or IO loan to a principal and interest (P&I) owner-occupier loan reflecting the now significant interest differential. As a result of switching and weaker growth of investor lending, we estimate the share of housing loans to investors has declined by 5 percentage points to around one-third. Interest-only loans currently comprise 27 per cent of the stock, having been as much as 40 per cent (Graph 3). These changes decrease the riskiness of the stock of housing lending.
Graph 3
There has been a decrease in maximum loan sizes offered by banks to new borrowers in response to the tightening of the serviceability requirements. How big an effect might this have?[2] As any of you who have applied for a home loan may know, often the bank is willing to lend you much more than you want to borrow. Now they are willing to lend you less on average, by around 20 per cent. How much impact this actually has in aggregate depends on how many people are now constrained by this lower maximum loan size that weren’t previously. Using data from the HILDA survey, we estimate that the share of borrowers who are near their maximum loan and so are affected by this change is small, though for those who are constrained the effect can be quite large. Our assessment is that the aggregate impact is less than it would appear on the face of it.
As a consequence of the greater scrutiny of interest-only lending and the tightening of serviceability requirements, some borrowers are no longer able to roll over their IO loan at the expiry of the IO period. The shift to a P&I loan can cause their required payments to increase by as much as 30–40 per cent.[3] Liaison with lenders suggests that some borrowers have encountered repayment difficulties after switching to P&I repayments at the end of their IO terms, but that many have subsequently been able to adjust to higher payments within a year. Loan-level data from the Reserve Bank’s Securitisation Dataset supports this. It is also worth remembering that this process has already being going for quite some time, but we have yet to see it have a material effect on arrears rates. It still has a couple more years to run before the stock of expiring IO loans will have all been written under the current tighter serviceability criteria. But based on the experience to date, I don’t see this is a material risk, particularly given the current favourable macro environment.
Competition
Turning now to look at the effect on these measures on competition. (This is covered in more detail in the FSR Chapter). The investor lending benchmark did have a competitive impact for a time in that it constrained the ability of smaller lenders to gain market share by increasing their lending faster than 10 per cent. That said, with investor lending growing at or below 5 per cent since early 2016, it has not been a significant constraint on most lenders increasing their market share for some time now. Indeed, recently we have seen smaller lenders again gaining market share. Currently the major banks’ share of new lending is at its lowest in a decade. At the same time, there was no constraint on the ability of smaller lenders to gain market share in the owner-occupier market. The interest-only cap did not obviously have an effect on competition. Again, with nearly all lenders well below the 30 per cent threshold, it is not a binding constraint on lenders from increasing their market share.
The tighter lending standards have seen an increasing share of borrowers obtain finance from non-ADI lenders. These lenders are subject to regulatory oversight but less than that of ADI lenders. They are subject to ASIC’s responsible lending standards but not to prudential supervision by APRA. Non-ADIs’ housing lending has been growing rapidly, over twice the rate of growth of ADIs. As a result, the estimated non-ADI share of housing credit has also increased, although it remains less than 5 per cent of the total.
Effect on the Housing Market
The integral relationship between debt and housing prices means that these measures have clearly influenced conditions in the housing market. The FSR analyses in detail the impact on the housing market of the investor lending benchmark in 2014. It uses the fact that the share of investors varies across different parts of the housing market. Differentiating between ‘high’ investor regions and ‘low’ investor regions, the analysis shows that high investor regions had very similar price growth to low investor regions before the benchmark was implemented. In contrast, after the benchmark was introduced, house price growth has been notably slower in the higher investor regions.
Other factors may have also contributed to the divergent price growth between the high and low investor regions. For example, regions with a high share of investors may have also experienced larger increases in housing supply and so slower price growth in the period after the benchmark was introduced. The analysis attempts to control for these other factors and concludes that the policy effect accounts for around two-thirds of the 7 percentage point difference in average cumulative housing price growth between high and low investor regions from December 2014 to mid 2018 (Graph 4).
Graph 4
Again it is worth reiterating that the measures are aimed at the resilience of household balance sheets, not house prices. The assessment of their effectiveness is around the riskiness of household balance sheets, not the outcomes in the housing market. But at the same time, they clearly are having a notable effect on the housing market.
Housing construction activity has been at a high level for some time now. Our forecast is for it to continue at this level for at least a year given the amount of work in the pipeline. Beyond that, we expect construction activity to decline from its peak. Off-the-plan apartment sales in the major east coast cities have declined since around mid 2017, with developers citing weaker demand from domestic investors, as well as from foreign buyers. One risk is that tighter lending standards could amplify the downturn in apartment markets if some buyers of off-the-plan apartments are unable to obtain finance. This could lead to an increase in settlement failures, further price falls and even tighter financing conditions for developers. However, to date, in our liaison with developers, few have reported much evidence of this.
While not directly related to the housing measures, there has been some tightening in credit for developers of residential property. This reflects lenders’ reducing their desired exposure to dwelling construction, which is higher-risk lending, particularly given the longer planning and construction lags of higher density dwelling construction. That is, banks are less willing to lend given the fall in prices. To the extent that the housing policy measures have contributed to the decline in investor demand and prices, they have indirectly affected developers’ access to finance. There is a risk that this process overshoots leading to a sharper or more protracted decline in activity than we currently expect.
The effect of a tightening in lending to developers seems to me to be a higher risk to the economic outlook than the direct effect of the tighter lending standards on households, which has ameliorated risk. Relatedly, there may also be a bigger impact on lending to small business given the extensive use of property as collateral for small business loans. This would be further exacerbated if the banks’ risk appetite for small business lending declines for other reasons.
Housing prices have fallen by almost 5 per cent from their late 2017 peak while the pace of housing credit growth has slowed over the past couple of years. The fall in housing prices is a combination of a number of other factors, including the very large increase in the supply of houses and apartments both now and in prospect. It also reflects a reduction in foreign demand, which has been affected by a tightening in the ability to shift money out of China and an increase in stamp duty in some states.
Some have attributed the slowing in housing credit solely to a tightening in the supply by banks in response to regulatory actions. Others have suggested there has been a weakening in housing demand and so demand for credit, including because of the high level of and weaker outlook for housing prices. To me, reductions in both the demand and supply of credit have been at play and it is hard to separate their effects. For example, tighter lending conditions have reduced how much some people can borrow, and this contributed to weaker demand for properties and so softer prices. Price falls have themselves contributed to weaker demand by investors who are no longer confident of rising values. Assessing the relative importance of demand and supply is also complicated by the fact that banks have cut back most on their lending to less credit-worthy borrowers, but have more aggressively targeted safer borrowers with lower interest rates.
Conclusion
The regulatory measures have significantly reduced the riskiness of new housing lending. A smaller share of new loans are to investors, are interest-only, have high LVRs or are to borrowers more likely to have difficulty repaying the loan. But it takes time for the riskiness of the stock of outstanding loans to improve. When you implement a change in lending standards the existing loans are no different to how they were the day before. But over time a larger share of outstanding loans will have been written with more stringent lending standards, while the larger share of principal and interest loans will see more of the outstanding loans have a declining balance over time. Finally, in assessing the overall riskiness of the debt both before and after the various measures, it is worth remembering that arrears rates remain low.
To conclude, the available evidence suggests that the policies have meaningfully reduced vulnerabilities associated with riskier household lending and so increased the resilience of the economy to future shocks.
Property Expert and Economist Joe Wilkes and I discuss the impact of foreign buyers in the New Zealand market, in the light of the recent ban, and the implications for the markets ahead.
Joe also looks at the impact of marginal borrowers on home prices and sales, in the light of recent data. This is an important concept which describes the network effect on prices and volumes as demand eases.
You can watch his previous show where he starts the NZ conversation as part of the UK background discussion, and some context for his comments.
More shows in the works as we amp up our coverage of the New Zealand market.
I discuss the current state of banking in Australia with businessman John Dahlsen, who was a director at ANZ for many years.
He brings his extensive experience to the issues facing the sector, and lays out an approach which would create more customer centric, efficient and lower risk banks.
The ACCC says that the Federal Court has imposed record penalties totalling $18 million against We Buy Houses Pty Ltd (We Buy Houses) and its sole director, Rick Otton, for making false or misleading representations about how people could create wealth through buying and selling real estate, following ACCC action.
The penalties of $12 million imposed against We Buy Houses, and $6 million imposed against Mr Otton personally, are the highest ever imposed for contraventions of the Australian Consumer Law by a corporation and an individual, respectively.
The Federal Court also banned Mr Otton from managing corporations for 10 years in Australia and permanently restrained Mr Otton and We Buy Houses from further involvement in the supply or promotion of services or advice concerning real property transactions or investment.
“We Buy Houses and Mr Otton peddled false hope to people simply looking to get a foothold in the housing market or invest money in real estate for their future,” said ACCC Chair, Rod Sims.
“The record penalties imposed against both We Buy Houses and Mr Otton reflect their egregious conduct.”
“They have also effectively been permanently banned from any further involvement in real estate in order to protect consumers,” Mr Sims said.
“These record penalties demonstrate the determination of the ACCC to take strong and effective enforcement action against businesses and individuals who prey on consumers using the false hope of creating financial success. The judgement signals the Court’s condemnation of false and misleading property spruiking and get rich quick schemes.”
“This outcome also reflects a recent trend of higher penalties for Australian Consumer Law breaches. We can expect this to continue following recent law changes to increase maximum financial penalties under consumer law,” Mr Sims said.
We Buy Houses and Mr Otton taught real estate investment strategies via free seminars, and paid ‘boot camps’ and mentoring programs that claimed people could:
buy a house for $1, without needing a deposit, bank loan or real estate experience, or using little or none of their own money
create passive income streams through property and quit their jobs
build a property portfolio without their own money invested, new bank loans or any real estate experience, and
start making profits immediately and create or generate wealth.
“In her judgement on liability, Justice Gleeson said the free seminars were a waste of time, and that the boot camps and the mentoring programs were an expensive waste of time,” Mr Sims said.
The Court also found that Mr Otton had made false or misleading representations that he had successfully implemented the wealth creation strategies he taught. In addition, a book authored by Mr Otton, and websites operated by We Buy Houses and Mr Otton, included testimonials from ‘students’ claiming they were able to buy a house for $1, which the court found were false or misleading.
Background
The ACCC instituted proceedings against We Buy Houses and Mr Otton in March 2015 following a coordinated investigation with New South Wales Fair Trading. On 11 August 2017, the Federal Court delivered judgment on liability, finding that Mr Otton and/or We Buy Houses had engaged in multiple contraventions of sections 18, 29(1)(f), 29(1)(g), 34 and 37 of the Australian Consumer Law.
We Buy Houses had been conducting training programs including free seminars, boot camps and mentoring programs throughout Australia since around 2000. Between 2011 and 2014, We Buy Houses generated the majority of its $20 million revenue from conducting these training programs.
The trend unemployment rate fell from 5.2 per cent to 5.1 per cent in the month of October 2018, according to the latest figures released by the Australian Bureau of Statistics (ABS).
“Today’s fall in trend unemployment to 5.1 per cent marks the lowest unemployment rate since early 2012. This month is the 25th consecutive monthly increase in employed full-time persons with an average increase of 20,300 employed per month” said the Chief Economist for the ABS, Bruce Hockman.
Employment and hours
Trend employment increased by 25,400 persons in October 2018. Full-time employment increased by 22,900 persons and part-time employment by 2,500.
The trend underemployment rate remained steady at 8.3 per cent in October 2018 and the trend underutilisation rate decreased 0.1 percentage points to 13.4 per cent.
The trend participation rate remained steady at 65.6 per cent in October 2018.
Over the past year, trend employment increased by 285,900 persons or 2.3 per cent, which was above the average year-on-year growth over the past 20 years (2.0 per cent).
The trend monthly hours worked increased by 0.2 per cent in October 2018 and by 2.0 per cent over the past year.
States and territories
The states and territories with the strongest annual growth in trend employment were New South Wales (3.5 per cent) and Victoria (2.6 per cent).
“Of the 20,300 average monthly increase in employed full-time persons over the past 25 months, New South Wales contributed 35.9%, Victoria 30.5%, Queensland 16.5% and Western Australia 12.1%. The contribution of the other states and territories was largely flat” said Mr Hockman.
Seasonally adjusted data
The seasonally adjusted number of persons employed increased by around 32,800 persons in October 2018. The seasonally adjusted unemployment rate remained steady at 5.0 per cent and the labour force participation rate increased 0.1 percentage point to 65.6 per cent.
The net movement of employed in both trend and seasonally adjusted terms is underpinned by well over 300,000 people entering employment, and more than 300,000 leaving employment in the month
TREND ESTIMATES (MONTHLY CHANGE)
Employment increased 25,400 to 12,665,800.
Unemployment decreased 7,600 to 680,300.
Unemployment rate decreased by 0.1 pts to 5.1%.
Participation rate remained steady at 65.6%.
Monthly hours worked in all jobs increased 3.6 million hours (0.2%) to 1,761.8 million hours.
SEASONALLY ADJUSTED ESTIMATES (MONTHLY CHANGE)
Employment increased 32,800 to 12,671,500. Full-time employment increased 42,300 to 8,703,700 and part-time employment decreased 9,500 to 3,967,900.
Unemployment increased 4,600 to 672,100. The number of unemployed persons looking for full-time work decreased 5,200 to 445,400 and the number of unemployed persons only looking for part-time work increased 9,800 to 226,700.
Unemployment rate remained steady at 5.0%.
Participation rate increased by 0.1 pts to 65.6%.
Monthly hours worked in all jobs increased 6.1 million hours (0.3%) to 1,764.4 million hours.
LABOUR UNDERUTILISATION (MONTHLY CHANGE)
The monthly trend underemployment rate remained steady at 8.3 per cent. The monthly underutilisation rate decreased by 0.1 percentage points to 13.4 per cent.
The monthly seasonally adjusted underemployment rate remained steady at 8.3 per cent. The monthly underutilisation rate remained steady at 13.3 per cent.
In commercial litigation, as in most litigation, there is an emphasis on trying to settle matters early before they are heard in court.
In criminal law matters the prosecutions encourage early guilty pleas in exchange for lower penalties.
The Australian Securities and Investments Commission (ASIC) has been increasingly resorting to early settlements as a means of achieving cheaper and quicker outcomes.
The quick win for ASIC is an enforceable undertaking and a media release. The quick win for the other party is avoiding a drawn-out court case and being able to get on with its business.
Courts usually rubber-stamp them
Where the alleged breach of the law is serious, necessitating a large penalty, a judge has to formally approve the settlement, in a hearing until now regarded as something of a rubber-stamping exercise.
He rejected the joint application for settlement between ASIC and Westpac Banking Corporation for a penalty of A$35 million.
The problem, as he pointed out was that it was not clear from the agreed facts what actual contraventions of the National Consumer Credit Protection Act 2009 Westpac had been accused of.
He asked ASIC and the Westpac to redraft the agreed settlement and return to court by 27 November 2018.
To establish the law and what happened
The case matters because the Financial Services Royal Commission has been examining the use of computer programs to determine the ability of borrowers to repay loans.
It is possible that many Westpac loans were approved to customers who would have been found to be unable to meet the repayments had their individual circumstances been examined, and it is possible that is in breach of the law.
But without a clear judgment or a clear statement of facts for the court to examine, or a clear judgment from the court, it is impossible to tell.
That’s why Justice Perram said no, to establish what the law requires and what Westpac did.
Author: Michael Adams Professor of Corporate Law & Governance, School of Law, Western Sydney University
