Evidence from the Royal Commission reveals ASIC needs to 'step up'.

Evidence from the Royal Commission reveals ASIC needs to 'step up'.

ANALYSIS

CRUEL shenanigans in the finance sector were not a secret to the government before the banking Royal Commission swiftly exposed details to a shocked public this month.

Prime Minister Malcolm Turnbull knew of bad banking behaviour and this week even boasted he had “called it out” two years ago.

The government had access to the results of the controversial enforcement undertakings negotiated by the Australian Securities and Investments Commission, the sector’s policing agency, with companies caught out on shonky dealings.

This has provoked claims ASIC is “litigation shy” and only interested in bringing small outfits before a judge.

And certainly these administrative agreements don’t impose odium on a misbehaving company compared to the humiliation of a penalty and a stiff lecture from the bench.

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The agreements substitute for court actions, which could become lengthy and expensive legal battles with justice, and compensation, for victims delayed or prevented. But knowledge of their outcomes is limited and there is little shame factor involved.

ASIC reports these agreements on its website and to the government itself, but the outcomes usually are in a legalese unfamiliar to most people, and the flesh-and-blood casualties of wrongdoing never clearly identified.

The offenders are not spotlit for the general public and the offences are not itemised in a way most people could digest.

The public notifications don’t satisfy the “head on a pike” outcomes angry banking and financial advice complainants want, and there have been instances in which the wrongdoer has not carried out its side the undertaking.

Former head of the Australian Competition and Consumer Commission Professor Allan Fels said today the absence of detailed, readily consumed public data was a “missing link” in ASIC operations.

“One of the things that happens in litigation is that if you take a matter before a judge, the judge will always, and very properly, insist on there being full and complete disclosure of what has happened,” Prof Fels told ABC Radio National.

“So that the judge is in a position to assess what the level of fine should be.

“With an administrative settlement, part of the deal is usually to hold back on facts. There is high pressure from businesses and their legal firms to hold back on factual disclosure.”

However, the government was aware of the episodes of misconduct as it resisted calls for a Royal Commission, which Treasurer Scott Morrison at one point dismissed as “populist whingeing”.

Mr Turnbull, meanwhile, once dismissed the Opposition Leader’s demands for action as a “thought bubble”.

“Bill Shorten’s call for a royal commission into the banking industry is just another distraction, just a thought bubble, to respond to the news of the week,” the prime minister told reporters in 2016.

The painful dealings inflicted on finance sector customers were not a mystery to the government. It knew what was going on in the regulator it managed. It was the public that was not informed sufficiently.

The government certainly knew of problems in April 2016, when ASIC collared Westpac for rigging bank bill swap rates, the interest rate used in business loans.

Speaking on Monday, Mr Turnbull recalled events back then, when he told banks there had been “too many troubling incidents over recent times”.

The Prime Minister had spoiled Westpac’s 199th birthday party by telling those celebrating that banks had to “stand up and show real leadership” over the “cultural issues” damaging their reputations.

“Look, about two years ago — in fact on April the 6th, 2016 — I gave a speech in Sydney at a function of Westpac’s in which I called out the unacceptable behaviour of the banks,” Mr Turnbull said in Berlin.

“I talked about how there had been a failure to put customers first and that the culture of the financial services sector was not delivering on their fundamental fiduciary obligation to put the customers first.

“They operate with a social licence and they have an obligation to do that. Now, I called that out.”

Well, that sure worked.

Despite this warning and the insider knowledge provoking it, the government continued to resist the Royal Commission calls.