The Australian Government has today announced a broad-ranging Royal Commission into misconduct in the banking, superannuation and financial services industries.
The scope of the Royal Commission will be significantly wider than anticipated by many.
The draft terms of reference, which will become the Letters Patent when issued by the Governor-General, indicate the Commission is expected to inquire into conduct by ‘financial services entities’, being:
- authorised deposit-taking institutions
- AFSL-holders and authorised representatives and
- RSE licensees (and those connected to such licensees) of registrable superannuation entities (nb this excludes self-managed superannuation funds).
The type of ‘misconduct’ the focus of the Commission’s inquiry is expected to extend to misleading or deceptive conduct, breach of trust, unconscionable conduct and breaches of professional standards. It is not limited to conduct which constitutes a criminal offence under financial services laws.
The draft terms of reference require the Commission to inquire into the following matters:
1. The nature, extent and effect of misconduct by a financial services entity (including by its directors, officers or employees, or by anyone acting on its behalf).
2. Any conduct, practices, behaviour or business activity by a financial services entity that falls below community standards and expectations.
3. The use by a financial services entity of superannuation members’ retirement savings for any purpose that does not meet community standards and expectations or is otherwise not in the best interest of members.
4. Whether any findings in respect of those matters:
- are attributable to the particular culture and governance practices of a financial services entity or broader cultural or governance practices in the industry or relevant subsector and
- result from other practices, including risk management, recruitment and remuneration practices;
- the effectiveness of mechanisms for redress for consumers of financial services who suffer detriment as a result of misconduct by a financial service entity
5. the adequacy of:
- existing laws and policies of the Commonwealth (taking into account law reforms announced by the Government) relating to the provision of financial services;
- the internal systems of financial services entities; and
- forms of industry self-regulation, including industry codes of conduct; to identify, regulate and address misconduct in the industry, to meet community standards and expectations and to provide appropriate redress to consumers and businesses;
6. the effectiveness and ability of regulators of a financial services entity to identify and address misconduct by those entities;
7. whether any further changes to:
- the legal framework
- practices within financial services entities and
- the financial regulators
are necessary to minimise the likelihood of misconduct by financial services entities in future (taking into account any law reforms announced by the Government) and
8. any matter reasonably incidental to a matter mentioned in the above paragraphs.
The Commission is to give priority to matters which have “greater potential for harm” if not addressed “expeditiously”.
The Commission is expected to submit an interim report to the Government by September 2018, with a final report (including findings and recommendations) due within 12 months and before 1 February 2019.