Monday, 27 May 2019

A right royal collection from the Commission – Cuffelinks

In financial markets, 2018 was the year of the Royal Commission. Broadcast live, the hearings became compelling viewing for both market participants and the public, and the worst revelations dominated the news cycle. The Final Report is due on 2 February 2019, and the market awaits with great anticipation.

Banks and large wealth managers are big and ugly and fair game, but like the Westminster political system, they look bad until the alternatives are considered. Do we want to close the loan choices offered by mortgage brokers? Do we want banks to stop offering financial advice to their customers, and instead send them around the corner to an ‘independent’ adviser? Do we want the banks to reduce lending to small businesses, pushing activity to second-tier and shadow lenders with less regulation and capital. The Commission must note: Be Careful What You Wish For.

Consider what appears on the surface the worst of the behaviours: charging financial advice fees to dead people. How can a dead person receive advice? But financial advisers often have a lot of work to do handling matters for a client’s estate. Are they not supposed to be paid for that? Aren’t the very people in the legal profession who accuse banks of charging scurrilous fees also the people who act for dead clients and charge handsomely for their services? Do accountants turn off the meter when handling the final financial accounts for a dead person? Someone has to manage the affairs of the estate, and many service providers ‘charge fees to dead people’.

In the Cuffelinks editorials, we covered the Royal Commission throughout the year, and we have collected the major events into this summary, from most recent backwards in time.

7 December 2018

The Royal Commission’s two defining moments

In his final summary after an exhausting 68 days of public hearings, 134 witnesses and 6,500 exhibits, Commissioner Kenneth Hayne identified one phrase, six words long – “Can I show you a document?” – that had entered the vocabulary over the course of the Commission. It was usually followed by Rowena Orr or Michael Hodge demonstrating an embarrassing mistake.

I consider the two most impactful words of the Commission were dissembling and criminal.

It was Michael Hodge who accused CBA’s Marianne Perkovic of dissembling. In Marianne’s defence, I thought she had a right to provide context, as most answers are not black or white. Dissembling means ‘to conceal or disguise one’s true beliefs’. Kenneth Hayne issued a warning:

“We will get along much more quickly and efficiently and if I may put it quite bluntly, it will be safer for you, if you attend to counsel’s questions. If you need to stop and think about your answer, take your time.” 

Safer for you! What did he mean by that serious threat?

Michael Hodge said: “Is the reason why you are dissembling in the way you are dissembling because you are trying to pre-emptively explain why it took more than two years to notify ASIC of this breach?”

Kenneth Hayne later added: “Ms Perkovic, I do not regard that as answering counsel’s question. Please ask the question again. I want you to listen to it and I want you to answer it as directly as you can.”

Little wonder Marianne completed most of her subsequent evidence with one-word answers. This was in April 2018, near the start of the Commission, and it set the rules. It was a warning to everyone, and the QCs hired by banks stepped up their witness training intensity.

Giving evidence was probably the most intimidating experience in the careers of most of the witnesses. Put this to your ‘inverted bucket list’ of things you never want to face …