On August 29th, The Australian newspaper reported that a government-owned bank, created out of Australia Post, may be back on the Labor government’s agenda. This move is seen as a response to the recent closures of numerous bank branches in regional Australia. If this report is accurate, I applaud the Government for this welcome development.
Years of regulation have not succeeded in forcing the banks to act with honesty, decency, and compassion. Additional regulation is not the answer, as large banks typically have access to superior legal resources compared to the Government. The answer lies in establishing a People’s Bank that can provide competition to the Big Four banks oligopoly, or more accurately, the cartel.
A People’s Bank could rewrite their Banking Code of Practice, restoring protections that successive Liberal Governments have removed—such as face-to-face banking, cash transactions and a guarantee of banking services to prevent the problem of political de-banking. People’s Banks worldwide have proven their ability to be secure and profitable, and to hold commercial banks accountable, as outlined in my speech.
Transcript
The Australian newspaper reported on 29 August that ‘a government owned bank created out of Australia Post is understood to be back on the Labor government’s agenda’ and that it is ‘seen as a response to the closure of numerous bank branches in regional Australia’. I hope this report is well founded, and, if it is, I applaud the government for this welcome development.
Years of regulation have failed to force the banks to behave with honesty, decency and compassion. More regulation is not the answer. Big banks will always have better lawyers than the government. The answer is a people’s bank offering competition to the big four bank oligopoly—or, more accurately, cartel. As someone who participated in the inquiry into bank closures in regional Australia, I attest that there is a desperate need for a public bank to revolutionise Australia’s banking system, the way the original Commonwealth Bank did, which the Fisher Labor government established in 1912.
Today the big four cartel controls 80 per cent of the market and dominates banking. They’re acting together to remove face-to-face banking, which doesn’t stop customers from needing face-to-face services. It just forces customers to travel further. It’s not just in the regions; it’s as difficult for the elderly in the city to travel to the next suburb for their banking as it is for a regional customer to travel to the next town.
We saw numerous instances of the banks’ dishonesty when closing branches, and we’re seeing it again right now with ANZ’s closure of its Katoomba branch. The ANZ treated Katoomba as a regional branch until it promised to not close the regional branches as a condition of its merger with Suncorp Bank. Lo and behold, suddenly ANZ claims Katoomba is not a regional branch so is proceeding to close it. The big four have concentrated close to 70 per cent of their lending into residential and investor mortgages, with more money fuelling the increase in house prices, while neglecting small business lending and regional communities.
All four are aggressively pushing customers away from cash and into digital banking and transacting so they can surveil and harvest your data and collect fees on all non-cash transactions. They now gouge Australians out of more than $4 billion per year in transaction fees and surcharges. In short, the big four serve only themselves and use their oligopoly power over a captive market to exploit their customers.
There’s a dire need for a public bank that can set standards of service and break up the banking cartel. A post office bank is the perfect way to do it, operating under a modified banking code of practice to restore protections to customers that successive Liberal-National governments have removed and guaranteeing cash and banking services, face-to-face banking in a branch, best interests of the customer and protections against politicisation of banking.
The Commonwealth Bank originally started in post offices in 1912, from which it provided banking services to all parts of Australia, even remote areas. It raised loans for the government at one-tenth the cost of the private banks. In the panic of 1914, it protected deposits in all the banks. It supported Australia’s agricultural production in World War I and funded the emergency purchase of a fleet of ships in the war, which became Australia’s first national shipping line. It made development loans to local councils all across Australia for crucial infrastructure, and it made affordable housing loans to returned soldiers. It accomplished all of this in its first decade, before its political enemies reduced its ability to compete with the private banks, until later when another Labor government unleashed it again in World War II.
Public and post banks are very successful around the world. The Japan Post Bank is one of the world’s biggest banks and was the secret to Japan’s postwar economic miracle, funding their government’s investments in infrastructure and industries. France’s post bank, La Banque Postale, started in 2006 and is already Europe’s 18th biggest bank and the biggest lender to local councils in France. Kiwibank started as a post bank in 2002, quickly growing into New Zealand’s fifth largest bank and the only bank that can compete with New Zealand’s big four banks, which Australia’s big four banks own. Its first achievement was injecting competition which stopped all branch closures in New Zealand for seven years. In the global financial crisis, Kiwibank was the only bank to increase lending while the private banks all reduced lending. Listen to this: the Bank of North Dakota, not a postal bank but a brilliant state owned bank, supported North Dakota’s public finances and its farmers for more than a century, making a profit in every year of operation. In the 2008 financial crisis, North Dakota was the only United States state to stay out of crisis.
I applaud the news that the government is in talks with Australia Post on this solution, and I urge the government to have the vision to create a powerful bank that can once again serve the people of Australia.
https://img.youtube.com/vi/mO21kmh2Mvs/maxresdefault.jpg7201280Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2024-09-19 17:15:002024-09-19 13:44:34Government-Owned Bank Back on Labor’s Agenda
The Banking Code of Practicewas originally designed to safeguard consumers from bad banking practices, however since the first code was issued, there has been a continual watering down of these protections, effectively rendering the code meaningless.
Currently, ASIC is conducting a review of the code. During the recent Senate Estimates, I inquired whether certain protections would be included, such as protections against de-banking, ensuring access to cash, and maintaining in-person banking services at branches.
Unfortunately, the responses provided were not encouraging. If this review fails to restore consumer protections to the Banking Code, One Nation will pursue a legislated response by way of a mandatory code.
Additionally, I inquired about ASIC’s handling of the recent crypto scandal, where Australian investors lost hundreds of millions of dollars due to ASIC failing to advise of the risks. This contrasts with the Mayfair scandal, where ASIC’s enforcement action actually caused the company and their investors to undergo a loss that would not have occurred without ASIC’s actions.
Transcript
Senator ROBERTS: Thank you for appearing today. Last estimates I raised a series of concerns regarding the Banking Code of Practice, and Ms O’Rourke was very forthcoming in her answers; thank you for that. At one point, Ms O’Rourke, you said you would update me if there was any progress on the negotiation for the new banking code. Could you provide an update now, please, in respect of these four matters. Is ‘prudent and diligent banker’ still in there? It’s a meaningless phrase.
Ms O’Rourke: Yes, we had that discussion at the last hearing, about the code of practice. I’m happy to update in relation to the discussions we’ve been having. To step back a moment—
Senator ROBERTS: On those specific four points: is ‘prudent and diligent banker’ still in there?
Ms O’Rourke: I think, prior to that particular question, you said, ‘What’s the state of play?’ The state of play is that there’s not yet a final code that has been finalised by the ABA to put to us for approval. The answer is that it’s not yet determined whether or not that phrase ‘prudent and diligent’ will or will not be in the final code. Can I give a little bit more detail?
Senator ROBERTS: Sure.
Ms O’Rourke: It is in the existing code. In the draft code published by the ABA last year, in relation to which we’ve had a consultation process, there was a proposal to narrow the application of ‘prudent and diligent’ to very specific circumstances and for other circumstances to rely on other legal provisions. That has been something through the consultation process we have had submissions in relation to, and it is something we have been speaking to the ABA about. The ABA is still considering its position, and there isn’t a final outcome.
Senator ROBERTS: Is there a guarantee of face-to-face banking services?
Ms O’Rourke: That is not in either the existing code or the proposed code from the ABA. Like I say, there is no final position in relation to what the final code will look like but that’s one that’s not been proposed, nor was it particularly raised in the submissions we received.
Senator ROBERTS: This is not a comment aimed at you, Ms O’Rourke, but we’re not interested so much in whether or not something was in there or will be in there; we’re interested in—purely, that’s something we believe is necessary. Is there a guarantee of access to the King’s currency of cash?
Ms O’Rourke: The current code does not have that, nor does the proposed code.
Senator ROBERTS: Is there a guarantee not to debank a customer for competitive or social reasons like, ‘We don’t agree with your politics’?
Ms O’Rourke: That’s not in the current code nor is it proposed to be in the revised code.
Senator ROBERTS: I believe you took on notice the debanking issue, but the response only answered ‘other matters’. Has ASIC considered the debanking issue? It’s a device by which the banks harm the business of their competitors and manipulate the markets to their financial advantage—as they have, for example, with cash in transit. This says misuse of market power to me. Has ASIC considered the debanking issue?
Ms O’Rourke: ASIC has been part of discussions around the cash-in-transit issue you referred to. I’m not sure whether you’ve had an opportunity to speak to other agencies, including the RBA, Treasury or others involved on the government side, or, indeed, if you’ve had opportunities to speak to the ABA or others. We’re more interested observers than participants in relation to cash in transit. We don’t have any regulatory hooks or provisions that particularly go to the provision of cash or its transportation.
Senator ROBERTS: What about debanking?
Ms O’Rourke: Similarly, there is no requirement to bank or to take steps in relation to debanking in relation to which we could take action.
Senator ROBERTS: On the crypto scam: Senator Hume asked some very fine questions today. Your testimony was that you were aware of this scam for quite some time, yet the scam companies Infinity CapitalG, Topmarketcap, Iron Bits and Richmondsuper were added to the scam list just yesterday. Why did it take so long to get those companies onto the scam list?
Ms Court: As I said in my answers to Senator Hume, when that information came in to us it was for the purposes of a continuing criminal investigation at that time. At that time, in August 2023, we didn’t have up and running the investor alert list we have now; that commenced in November 2023. We hadn’t received any reports of misconduct or any indication that any of those entities referred to in the article—that consumers were continuing to invest or lose money as a result of investments in those entities. However, following the media reporting, we went back and had a look at those entities, and I think we took a decision that we would put four out of the five—even though we had no information about continuing losses to investors—on the investor alert list, for completeness.
Senator ROBERTS: Thank you. On Mayfair 101: ASIC went after a company that appears to have been trading *legally. Mayfair 101 were up-to-date with repayments to lenders and, as demonstrated over the last three years, had financial resources as they fought your action. ASIC considered Mayfair’s advertising misrepresented their investment product and took immediate action to freeze the company’s asset. By doing that, ASIC almost cost 500 Australian investors $200 million but the company has survived. ASIC’s actions have, however, caused a lot of damage to investors and the company for no good reason we can see. One Nation, I must mention, as I previously stated, is one of those investors. This matter has been dragging on for three years and now ASIC is going for another round. What’s the state of play now?
Ms Court: I gave quite a long answer to Senator Bragg earlier, when you weren’t in the room, about the status of Mayfair—
Senator ROBERTS: Okay; we’ll leave it. I want to get on. Thank you for that. Your actions were ostensibly to protect investors, yet the investors in Mayfair have not had access to their funds or a return on their investment since you started your action, despite the entity they invested in still being viable. Why are you hurting the people you profess to protect?
Ms Court: As I said in my response to Senator Bragg earlier, ASIC acted quickly in relation to the Mayfair matters for the purposes of protecting future investors. The matter’s been before the court, and Mayfair has been found to have engaged in misleading conduct. The court has imposed a $30 million penalty on Mayfair, which I understand remains unpaid. There are still several matters currently before the courts, and the courts are testing ASIC’s claims and the defences to those claims. That is an appropriate place for them to be determined now.
https://i0.wp.com/www.malcolmrobertsqld.com.au/wp-content/uploads/2024/07/ASIC.png?fit=1297%2C750&ssl=17501297Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2024-07-04 13:16:322024-07-18 08:34:37ASIC Grilled on Banking Code of Practice and Crypto Scandal
The Australian Financial Complaints Authority (AFCA), an independent industry-funded agency, handles complaints concerning financial losses due to actions by banks, insurance companies, or superannuation funds. While AFCA has a reputation for avoiding complaints rather than addressing them, their recent accomplishment of collecting $300 million for members of the public affected by financial misbehaviour is a good result.
My questioning of AFCA didn’t start smoothly, as CEO David Locke seemed unaware that the AFCA website explicitly asks that individuals with concerns about a code of practice to submit them via the form provided, as part of their role overseeing the Banking Code of Practice review body, the BCCC.
It took until around the 2 minutes 52 seconds mark to receive a response to what, I thought, was a straightforward opening question. Subsequently, I pursued questions regarding AFCA’s success rates. A significant portion of their response was taken on notice, so I look forward to receiving their answers.
Transcript
Senator ROBERTS: Your website invites consumers to lodge a complaint regarding the operation of a code of practice. How many such complaints have you received on the Banking Code of Practice?
Mr Locke: We receive complaints where a consumer has a contract with the bank and they have suffered financial loss. Then they can bring a complaint through to AFCA. So the matter is really if, for example, the bank has failed to comply with its legal obligations or they’ve suffered loss through some misconduct or inappropriate action on the part of the bank. We have to determine what’s fair, and, in looking at that, we have to have regard to the banking code. That’s how the banking code comes into effect. We had 56,000 complaints about banks and other credit lenders last year. In terms of a freestanding complaint about the banking code, though, that would normally go through to the Banking Code Compliance Committee, which is a separate body, and their role is to enforce the banking code. The banking code is relevant to us in our jurisdiction and we do look at it, but, if it’s just about a financial firm breaching the banking code obligations on its own, then that would be a matter that would go through to the Banking Code Compliance Committee.
Senator ROBERTS: So you would only field the complaint if it was a breach of the banking code?
Dr Smith: We can take complaints about breaches of the banking code if the consumer can show that there has been a financial loss suffered as a result of that breach or indeed that they have suffered non-financial loss as a result of that particular breach. For example, a breach of the provision under the banking code related to guarantees and whether or not the guarantor was fully informed of their rights before they entered into that guarantee might be a matter that we would take as a complaint.
Senator ROBERTS: So, if someone was just concerned about a potential change or a possible change in the banking code, which is coming up, they would not be lodging a complaint with you?
Dr Smith: The conduct needs to have occurred. But, in terms of future issues, there has obviously been a recent review of that code and no doubt that person could also voice those concerns to the Banking Code Compliance Committee.
Senator ROBERTS: Have you had any communication with the Australian Banking Association regarding their review of the banking code?
Mr Locke: Yes. We were consulted in a fashion by the Australian Banking Association in the course of their review. They commissioned an independent review of the banking code, which was carried out, and then they undertook an informal consultation process with a number of bodies, including us. Following that, they approached the Australian Securities and Investments Commission for approval to change the banking code. This is a code that has been approved by ASIC, so any changes need to be approved by ASIC. ASIC decided to undertake its own consultation, and we participated in that and made a submission to it as well. So we’ve engaged with the ABA and we’ve engaged with ASIC with regard to the ABA’s review.
Senator ROBERTS: On notice, could I get a copy of your comments to the ABA and ASIC, please.
Mr Locke: Certainly. We’ll take that on notice. We have made a public submission, and it’s available on our website, but we can certainly send the link through to your office.
Senator ROBERTS: From the data on your website, for the year 2023, the number of complaints resolved in favour of the complainant was only 31 per cent, with 69 per cent in favour of the bank or financial institution. However, only five per cent of complaints reached the decision stage. Some were rectified early on and some were refused process. Of the complaints over banking disputes—just banking—how many complaints were received, how many were resolved in favour of the complainant and how many were withdrawn for 2023?
Mr Locke: I can provide all those details on notice, Senator.
Senator ROBERTS: That’s fine.
Mr Locke: What I can tell you is the way our process works. A consumer will have gone through an independent dispute resolution process with the bank and then come through to AFCA. AFCA sends it back to the bank for them to have one last opportunity to resolve the matter before we otherwise start working on it. What we’re finding is that about 65 per cent of the time the banks resolve the matter at that point.
Senator ROBERTS: Once you step in?
Mr Locke: Yes. Obviously we would prefer for that to have been done and for people not to have to come to AFCA, but we’re finding that 65 per cent of the time there. What we then find is that we are able to resolve the majority of cases through our case-working process—through mediation, through recommendations and through negotiation. Only about five per cent of matters actually go through to decision. What you will see is that the matters that resolve when we go back to the bank or the matters that resolve through our processes—that is a situation where the consumer is effectively happy with the agreement that they’ve reached with the bank. So you would expect that the small number that go through to determinations are probably the ones where it’s more contentious, more of a binary decision. You would expect that, where the consumer had a better claim, the banks would have resolved the cases earlier in the process. But I can set all of that out on notice so you’ve got that.
Senator ROBERTS: Could you also break down the information into value groups so that I can see the success rate at progressively higher amounts of claim. My feedback is that AFCA are great at getting back $1,000 but not so good at getting back $100,000. The banks’ clutches are maybe a bit stronger.
Mr Locke: I’ll certainly provide you with whatever we have in terms of the breakdown. Last year our work secured $304 million in compensation and refunds for consumers and small-business owners, but we can give you the amounts that relate to that. I don’t think it is the case that it’s just lower value amounts that have been settling. We do settle a number of matters where the settlement is in the hundreds of thousands of dollars. We’ll provide you with some information on that.
Senator ROBERTS: I’m hearing settlements are a fraction of the claim but the complainant accepts something rather than nothing. On notice, of all complaints settled on behalf of the complainant, what was the value of claim verses the settlement accepted or awarded?
Mr Locke: I don’t think we would have that information, but I can certainly let you have the information that we have available.
Mr Untersteiner: The challenge with that is: if something is settled between the parties before it goes to determination, there’s no obligation for them to disclose to us what the settlement was, so we typically won’t have visibility. We have some visibility, and, on notice, we can share with you what we do have, but it will be a small cut of the overall data.
Mr Locke: There are three cohorts that I talked about. The first cohort, when we go back to the financial firm, is given an opportunity to resolve. We don’t normally know what the resolution of that matter is. We just know the consumer’s happy and doesn’t want us to do anything further. That is what we call IDR data, internal dispute resolution data. The firms have, since January, had to report that through to ASIC, so ASIC would have some of that data. The data that we will have are those cases that don’t resolve and that are then resolved through our caseworking process or the matters that go through to decision, which you have mentioned. With regard to that, I can certainly provide that.
Senator ROBERTS: Thank you very much, if you could do that. When AFCA were set up, you were allowed to go back to 2012 to take on older cases. On notice, of all banking cases referred to you for the period 2012 to 2018 for an amount over $200,000, how many were resolved in favour of the complainant, and what was awarded as opposed to what was claimed?
Mr Locke: I will take that on notice. I think, in total in that look-back jurisdiction, if I recall right we had just under 1,500 cases. A majority of those did relate to banking and credit matters. We will certainly take that on notice and provide you with what information we can.
Senator ROBERTS: Thank you. Finally, for that group of claims, are there any claims still outstanding from 2012 to 2018?
Mr Locke: No. They’ve all been dealt with.
Senator ROBERTS: Great. Thank you. The next question is about your administration. Are you still closing your office at 2 pm on Wednesdays so the staff can go home in the name of productivity?
Mr Locke: We don’t close the office, but we do give staff—it’s effectively a bit like compressed hours—three hours to spend on wellbeing or to use for their time. This was an initiative we trialled during COVID, when we were seeing a lot of burnout and stress amongst our people. We discussed it with our people. We didn’t change any of our productivity measures, so the same amount of work had to be completed within the five-day week as was completed with this three-hour period. What we actually found was that productivity increased, and we’ve found that’s continued to be the case. We actually have higher levels of productivity now than at any time in the operation of the organisation, by caseworker. We found giving people that small amount of flexibility has actually made sound business sense. The initial intent behind it was about wellbeing, particularly when we were seeing a lot of and stress and challenges during lockdowns. Of course the majority of our staff are Melbourne, and they had prolonged lockdowns at that time. But what we’ve actually seen is that productivity has increased and continued to increase. So that is something that we do, but we don’t close the phones. It is an optional thing. Many staff work during that period but use it just for quiet time without interruption, but some staff use it to pick up the kids or to look after older relatives or to arrange appointments. As I said, the same amount of work has to be done during the working week.
Mr Untersteiner: I’ll just add that we did measure and we saw our attrition rates drop, we saw absenteeism drop, we saw productivity go up, we saw cost per complaint go down and we’ve seen employee engagement go up. Just from a general business initiative and a cost perspective, it’s been cost positive.
Chair: I need to share the call, Senator Roberts. Do you have another question?
Senator ROBERTS: I can put two on notice, but I’ve got one final question. Are financial institutions afraid of AFCA, or do they see you as another pesky bureaucracy that needs to be surmounted or brushed aside?
Mr Locke: Well, I hope—
Senator ROBERTS: I know you said 65 per cent of complaints are resolved.
Mr Locke: I can’t speak on behalf of—there are 44,000 members. About three-quarters of those are people who have ACRs, and the remainder are different firms with Australian financial services licences. I don’t think there’s any unified view with regard to that. What I hope, Senator, is that financial firms recognise that we play an important role. We do our utmost to act independently and fairly to determine intractable matters that otherwise people would presumably be coming to their elected representatives for or going to the media about. We seek to give people closure on matters, whether that goes in their favour or not. We act in accordance with the rules, and we apply our fairness jurisdiction in accordance with the way that we articulate there. I don’t seek for anybody to be afraid of us. I hope that industry see us as playing a constructive and useful role and recognise our legitimacy, but I hope that they also recognise that we will call matters as we see them and we will treat all parties fairly and independently. That’s our role as an alternative to the court system.
Senator ROBERTS: Could you take on notice if there’s any sign, evidence or statistic that reflects that the financial institutions respect what you’re doing.
Mr Locke: I’ll take that on notice.
Senator ROBERTS: It’s a difficult one.
Mr Locke: It’s a difficult one for us to answer really.
Senator ROBERTS: It is; I accept that.
Mr Locke: We hope that parliamentarians, financial firms and people who act on behalf of consumers, whether that’s law firms or consumer bodies, respect the role that we play and believe that we do that to our utmost ability.
https://i0.wp.com/www.malcolmrobertsqld.com.au/wp-content/uploads/2024/03/180324-ASIC-3.png?fit=506%2C401&ssl=1401506Senator Malcolm Robertshttps://www.malcolmrobertsqld.com.au/wp-content/uploads/2020/04/One-Nation-Logo1-300x150.pngSenator Malcolm Roberts2024-03-18 16:03:112024-03-18 16:16:15ASIC Confirms Fees for No Service Still Problematic
Recently, supervision of the Banking Code of Practice moved from the Australian Prudential Regulation Authority (APRA) to the Australian Securities and Investments Commission (ASIC), who have initiated a thorough review of the code. This first draft of the new code has many shortcomings, and I asked about these. From their answers, it is clear that ASIC are across the shortcomings in the code and I felt they are serious about making the new code a better document that provides stronger protections for customers. A lot of protests have quite rightly occurred around the closure of bank branches.
The truth is that banks are allowed to do that because the banking code contains no provision requiring the banks to provide face to face banking. Also missing from the new code is a guarantee of access to cash and a guarantee of banking services. Currently banks are de-banking competitors like bullion dealers and crypto exchanges. They are also closing bank branches and ATMs to reduce access to cash which they can’t easily monitor or control.
I was encouraged by the answers from Deputy Chair, Sarah Court of ASIC and I look forward to the next draft of the 2024 Banking Code of Practice. Bank customers deserve better protections than APRA have provided in recent years.
Transcript
Senator ROBERTS: Can I start by confirming our meeting will occur on 19 March on the subject of the security of companies offering bullion storage and sales services in Australia.
Ms Court : That’s right.
Senator ROBERTS: I look forward to that. Total compensation for the ‘fee for no service’ scandal was $4.7 billion. Since those compensation payments, do you believe financial institutions have fixed their systems and this practice is no longer happening?
Mr Longo : I’ll ask Deputy Chair Court to comment on that. I think it’s a truism that systems and processes of the banks are always in need of improvement and enhancement, so one can never be certain that those systems will be fixed forever. We certainly think a lot of progress has been made coming out of the royal commission. I know Deputy Chair Court has done some work in this area as well.
Ms Court : I don’t think I’d ever presume to say that the issues of fees for no service or the compliance and legacy systems of large financial institutions have been completely fixed. I think there’s been progress made. As you say, there have been billions of dollars of remediation. There have also been multimillion-dollar penalties applied by courts in relation to that conduct. We continue to have cases where fees for no service are being alleged, and we are continuing to investigate them and take court action where it’s appropriate.
Senator ROBERTS: That’s pleasing. Do you think the amount of compensation, $4.7 billion, met or exceeded the revenue that was illegally obtained by financial institutions for the ‘fee for no service’ scam?
Ms Court : I think you’d have to ask that question of those institutions. The remediation figure is eye watering.
Senator ROBERTS: I will turn now to the new mandatory Banking Code of Practice that ASIC will consider recommending to the minister. The Australian Banking Association, led by former Labor premier Anna Bligh, has extended coverage to include buy-now pay-later providers by including them in the phrase, ‘Each bank will exercise the care and skill of a diligent and prudent banker.’ Does that phrase provide a quantifiable legal protection to customers, or is it utterly meaningless?
Ms O’Rourke : I’m happy to assist in relation to the banking code. I might just clarify. In your introduction, you referred to it as a mandatory code, and you also referred to it being taken to the minister. Industry codes aren’t mandatory. You’re right that the banking industry has developed one. The approval process is also one that, if chosen by the industry association, comes to ASIC. It’s an ASIC approval process, not a ministerial one.
If I come to your particular question about the terms of the code, the code that exists now commenced in 2018. I think, as you’re alluding to, the Australian Banking Association, who wrote the code, and its members, who signed up to it, have been going through a process of updating the code and have proposed to bring it to ASIC for additional approval—for approval under the statutory scheme. One of the issues that are live in that process is the question of the inclusion of the phrase ‘prudent and diligent banker’, which you’ve called out. In the existing code, the one that exists now that was approved in 2018—and there have been some revisions approved since—that phrase is included. In the proposed code, the draft code that’s been prepared, there’s a question about whether it can come out on the basis that it’s duplicative of the responsible lending obligations that already apply to bankers. So that’s the issue.
As to its progress, I’ll give you some further information. The ABA had done a consultation process to develop the draft code. We now, at ASIC, are doing a consultation process associated with our consideration of approving it because of the importance of these codes to all banking consumers—all Australians. These codes really matter, and making sure that they are suitable in their content and meet the statutory requirements is something we take very seriously. We are undertaking a consultation process. That particular question is one of the ones we’re seeking submissions on and very carefully considering.
Senator ROBERTS: I think I’ll be coming back to that, Ms O’Rourke. I’ll move quickly because the chair’s needing to hurry.
CHAIR: I’m staring at you, Senator Roberts, but thank you for proceeding quickly.
Senator ROBERTS: I raised the fee for no service earlier for a reason. The clause in the proposed Australian Banking Association code, chapter 12, No. 31, used to read that the bank ‘will make sure we have your agreement’ on charging a fee for a new service. That clause has been removed from the new code, meaning the bank does not need to get a customer’s permission before charging them a fee for a new service. If a bank doesn’t get my permission, under the new code can they simply start charging me for services that I did not agree to or may not know I’m being charged for? Are they unwinding your good work on the fee for no service?
Ms O’Rourke : I’m not particularly aware of that proposed deletion. I think I might take on notice any background relevant to that. The general answer is that there are provisions widely in the code that would be relevant to whether fees for no service can be charged, and indeed I think my colleagues have spoken to the important work ASIC has taken to ensure that that sort of activity does not occur.
Senator ROBERTS: Can you show me in the draft code where it provides a guarantee of face-to-face banking services that means access to a bank branch?
Ms O’Rourke : I think that in both the existing code and proposed code the question around branch closures, which is what I think you’re alluding to, is covered by reference to a protocol that exists about the provisions that a bank will consider on decisions as to whether or not it provides banking services in particular communities. It’s not framed, as far as I’m aware, in the way that you’ve framed it: as a right. I can’t point to that, if that’s what you’re seeking.
Senator ROBERTS: Debanking is proving to be a real problem across businesses that are alternatives to the bank system. Banks are debanking bullion dealers, crypto brokers and third-party cash transit companies. Is there anything in this code of practice that guarantees banking services for customers who use cash, bullion or cryptocurrency?
Ms O’Rourke : I’m going to have to take that on notice.
Senator ROBERTS: Is there anything in this draft that guarantees access to the King’s currency—cash?
Ms O’Rourke : Not that I’m aware of, but I’m happy to take it on notice.
Senator ROBERTS: Can you show me where it says something like, ‘We undertake to not terminate your banking services for your political views unless a criminal conviction has resulted,’ or similar? As written, the code gives no protection for a customer who exhibits wrongthink on social media, for instance. This is a problem.
Ms O’Rourke : I think that’s a statement.
CHAIR: Last question, thank you, Senator Roberts.
Senator ROBERTS: Why is the sentence, ‘We will engage with you in a fair, reasonable and ethical manner,’ being replaced with ‘efficient, honest and fair’? Is there no room for ethics in modern banking, and is the term ‘efficiency’ used so that the bank can say it’s not efficient for them?
Ms O’Rourke : I think you’re right to point out that that’s one of the important distinctions between the existing code and the proposed one, and therefore it’s one of the areas that we are consulting on to understand stakeholders’ views on that proposed change. I’m agreeing with you that it’s an important issue for us to explore to understand the basis for the proposed change and what the consequences would be.
Senator ROBERTS: Are you aware that the Consumer Action Law Centre describes the new code as offering no overall improvements in consumer protection? Do you, ASIC, agree with this characterisation, and will ASIC add extra protections yourself before forwarding the code?
Ms O’Rourke : As I referred to, we’re right in the middle of a consultation process which includes listening to stakeholders about their perspectives on the new code. We’re taking careful consideration of all the issues that are raised before we move to the decision point that I described earlier.
Senator ROBERTS: Thank you. I must say that I appreciate the direct and immediate answers.
