Photo: Royal commissioner Kenneth Hayne is being urged to look into enforceable undertakings. (AAP: Edie Jim)
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Do the crime, but negotiate the time. Enforceable undertakings are a controversial Australian invention to punish corporate wrongdoers without regulators taking expensive court action.The Commonwealth Bank recently copped two in just one month.
The nation's largest bank had to add $1 billion to its risk capital after a report into its grim culture, and was forced to pay out $25 million after the scandal of rigging the bank bill swap rate.
The agreements between a company and a regulator head-off lengthy and costly court action and are supposed to remedy problems in the financial sector.
But are the undertakings a copout?
Former federal treasurer Peter Costello told The Business how little he thinks of them as an enforcement tool.
"I'd like to hear ASIC explain to the royal commission why it works that way," he said.
"Why they thought it was better than actually taking legal action. Why they thought that would police behaviour better?"ASIC was asked in the most recent hearings of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry about its undertakings.
Its response was not reassuring.
"To your knowledge," senior counsel assisting, Rowena Orr QC asked, "are enforceable undertakings with ASIC heavily negotiated?".
"Yes, they are," ASIC's Louise Macaulay replied.
Photo: Senior counsel assisting the financial services royal commission Rowena Orr QC questioned ASIC's Louise Macaulay. (Supplied: Royal Commission)
The questioning went on.
"Is ASIC concerned about a public perception of ASIC negotiating and reaching consensus with financial services entities about appropriate sanctions for their misconduct?" Ms Orr asked.
"Yes, I'm aware of that public view," Ms Macaulay admitted.
'Deals done behind closed doors'There is history. ASIC signed undertakings with the Commonwealth Bank and NAB in 2016 for rigging the foreign exchange market, and signed another one with AMP more than ten years ago for overcharging clients.
As the royal commission has highlighted, no-one took much notice.
Swinburne Law School corporate governance research fellow Helen Bird said there are concerns about "regulatory capture", where the enforcement agency is in thrall to the institutions it is meant to be watching over.
"From the viewpoint of the public, they appear to be deals done behind closed doors, between regulators and parties," she said.
"We don't see what goes on inside those rooms."The number of enforceable undertakings has recently been sinking, from 22 five years ago to just seven in the most recent financial year.
ASIC is increasingly pursuing civil cases, and experts say that is because regulators are concerned about being seen as a soft touch.
'Punishment doesn't fit the crime'Associate professor Andrew Godwin of Melbourne Law School said the undertakings are cost-effective when it comes to achieving compliance and enforcing the rules.
"But the question is whether it's significant in changing the mindset and changing the culture of institutions," he pondered.
"The public thinks the punishment doesn't fit the crime — and that's fitting when you see the huge profits the banks are making and the disproportionately low amounts they seem to be paying pursuant to these undertakings."
That gap was exposed when the Commonwealth Bank was forced to refund nearly $120 million it took from customers in the "fee-for-no-service" scandal detailed at the royal commission. The fine was just $3 million.
In February the bank reported a half-year cash profit of $4.73 billion.
In a statement, the regulator defended its decision.
"Bearing in mind the scale of the penalties imposed, the payments made to consumers affected and related circumstances, ASIC determined $3 million was an appropriate community benefit payment for ... CBA for their [fee-for-no-service] conduct as set out in their respective [undertakings]."
Fines mainly go to financial literacy programsThe $3 million goes to financial counselling and ethics organisations, and groups helping specific parts of the community, such as seniors.
Not-for-profit group Financial Literacy Australia (FLA) receives the majority of undertaking fines, using the money to teach consumers about finance.
In a sign of the cosiness within the banking industry, one board member of FLA is the Commonwealth Bank's Linda Elkins, who was grilled about the scandal that led to the $3 million fine, and forced to admit the bank was the "gold medallist" in fee-for-no-service claims.
Another FLA board member is Craig Dunn, who was AMP's chief executive between 2008 and 2013 when much of the fee-for-no-service conduct occurred, and who is currently a non-executive director of Westpac.
With a surprise $26 million cut for ASIC in the federal budget, the undertakings could be back in vogue.