Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Today we debate two bills that at least in terms of intent are uncontroversial. In fact, Labor will support schedule 1 of the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 and the ASIC Supervisory Cost Recovery Levy Amendment Bill 2017 without hesitation. Schedule 2 of the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 provides for the appointment of a productivity commissioner with extensive skills and experience in dealing with policies and programs that have an impact on Indigenous persons and experience with dealing with one or more communities of Indigenous persons. Personally, I am always very happy to get some good people into the Productivity Commission. However, Labor has raised concerns about the manner in which indigeneity is defined in schedule 2 of the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017. We'll have more to say about this in the committee stage of the bill; however, we will support the bill with the amendment that the government has circulated to address this issue.

Turning to the details of the Treasury laws amendment bill, schedule 1 makes amendments to the Corporations Act 2001 to strengthen protections against manipulation of financial benchmarks. Firstly, schedule 1 of the bill will make manipulation of all financial benchmarks used in Australia a specific criminal offence and subject to civil penalties. Individuals will be liable for fines of up to greater than three times the benefit they gain, or $945,000, which is 4,500 penalty units. A body corporate will be liable to fines of up to the greater of $9.45 million—that is, 45,000 penalty units—three times any benefit from manipulation or 10 per cent of the entity's turnover in the previous year. Civil penalties will also apply. Currently, manipulation of financial benchmarks is enforced using existing laws relating to market manipulation, false trading and market rigging.

Secondly, schedule 1 to the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 will establish a new licensing regime requiring administrators of certain designated significant financial benchmarks to obtain a new benchmark administrator licence from the Australian Securities and Investments Commission. Administration of financial benchmarks at present does not require a licence and is not a regulated activity under current law. ASIC will have the power to designate significant financial benchmarks with the consent of the minister. Financial benchmarks can be so designated if the benchmark is systemically important, could cause instability or would materially impact Australian investors if the availability or integrity of the benchmark were disrupted.

Thirdly, the bill will give ASIC powers to make rules imposing a regulatory framework for licensed benchmark administrators and related matters. This framework will reflect a set of principles released by the International Organization of Securities Commissions. The bill will also give ASIC the power to compel market participants to make submissions to ensure the continued generation of a financial benchmark during times of financial market stress. This is a power of last resort. The ASIC Supervisory Cost Recovery Levy Amendment Bill 2017 supports this regime by adding benchmark administrator licences to the list of entities from which the ASIC may recover its regulatory costs under the ASIC supervisory cost recovery levy.

The ASIC industry funding model is based on the principle that ASIC's regulatory costs should be borne by the entities that benefit from or cause the need for this activity. ASIC's regulatory costs are apportioned each year between subsectors according to the amount of ASIC's regulatory activity that they account for. Regulations provide methods and formulas for how ASIC's regulatory costs are to be apportioned across the various sectors and subsectors that it regulates.

The ASIC Supervisory Cost Recovery Levy Amendment Bill 2017 makes amendments to the ASIC cost recovery levy that corresponds to the new regulatory requirements in schedule 1 to the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017. Labor will support these measures which strengthen our laws against the manipulation of financial benchmarks. We have seen cases of manipulation of financial benchmarks around the world. In Australia, ASIC legal action regarding alleged manipulation of the bank bill swap rates by banks continues. Settlements with NAB and ANZ regarding attempted manipulation of the bank bill swap rate were struck with ASIC last year. Justice Jagot of the Federal Court is reported to have said that the conduct of traders was a gross departure from basic standards of commercial decency, honesty and fairness and that the Australian public had a right to be shocked and disgusted at what took place. These are very serious matters. As ASIC has noted, manipulation of the bank bill swap rate is not a victimless crime. There are winners and losers, and those winners and losers move around depending on whether the rate is moved up or down artificially. The bank bill swap rate impacts Australian businesses because it impacts financial products used by many Australian businesses to manage their financial affairs. We welcome the change in schedule 1 to this bill to strengthen protections against the manipulation of financial benchmarks.

We also welcome the corresponding changes in the ASIC Supervisory Cost Recovery Levy Amendment Bill 2017. However, we note the poor record of those opposite when it comes to consumer protections in the financial sector. This is from a government that ignored the need for a royal commission into the banks. By contrast, Labor has a proud record of standing up against misconduct in the financial services sector. The previous Labor government introduced the National Consumer Credit Protection Act 2009. This was a single, standard and nationally consistent regime for consumer credit regulation and oversight. There was also Labor's enactment of the Future of Financial Advice reforms. The coalition voted against FOFA in the House. They voted against FOFA in the Senate. When they got into government, they tried to do everything they could to wind back the Future of Financial Advice reforms. They tried to hollow them out. They tried to gut them by legislation and then by regulation. Labor fought hard to protect FOFA.

Increasingly in 2016 ASIC found that FOFA requirements specifically opposed by the coalition helped to bring to light the massive fees-for-no-service scandal. The October 2016 ASIC report into the scandal showed that Australia's big four banks and AMP had spent years charging customers fees for services they did not receive. ASIC's report estimated that they were going to have to pay back nearly $180 million, excluding interest, to over 200,000 customers. In May 2017 these figures were revised upwards. The government ignored a range of examples like that for over 600 days—600 days when they stubbornly resisted the urgent need for a royal commission into the banks.

I will move to the Productivity Commission reforms. Schedule 2 of the Treasury Law Amendment (2017 Measures No. 5) Bill 2017 provides for the appointment of a commissioner with extensive skills and experience in dealing with policies and programs that have an impact on Indigenous persons and experience in dealing with one or more communities of Indigenous persons. The new law also increases the maximum number of commissioners, not including the commission chair, from 11 to 12.

In his Closing the gap report statement to parliament on 14 February 2017, the Prime Minister announced a new role for the commission in Indigenous policy evaluation and the expansion of the commission to include a new commissioner to oversee this work. According to the explanatory memorandum:

A number of high profile reports have highlighted the need for more evaluation of policies and programs that have an impact on Indigenous persons, including the Commission's Overcoming Indigenous Disadvantage Report 2016. This report included case studies of programs that are making a difference as 'things that work', but the report found that only a relatively small number have been rigorously evaluated. There is a pressing need for further evaluation to better understand which policies and programs are effective in improving outcomes for Indigenous persons.

Labor supports the inclusion of a Productivity Commissioner with expertise and remit for policy matters relating to Aboriginal and Torres Strait Islander people. There is, however, a significant issue that concerns Labor regarding the definition of 'Indigenous person' in the legislation. In the legislation as introduced, the definition of 'Indigenous person' is based on race and descent rather than the standard three-part definition based on descent, identification and acceptance in the community. We note that the government has circulated an amendment with regard to this definition, which Labor will support. As I've said, we'll have more to say about this issue in the committee stage of the bill.

In conclusion, Labor will support schedule 2 of the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017, with the amendment that the government has circulated. Labor supports the changes in schedule 1 to the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 to strengthen the rules against manipulation of financial benchmarks. We support the associated changes to the ASIC supervisory cost recovery levy in the ASIC Supervisory Cost Recovery Levy Amendment Bill 2017. However, we note that these changes regarding financial benchmarks come from a government that has a record of turning a blind eye to misconduct in the banks and the financial sector. They come from a government that will always back the big end of town over ordinary Australians. Nothing could epitomise more the backing of the big end of town against ordinary Australians than this government's determination not to have a royal commission inquiry into the banks and this government's determination to give those selfsame banks something like $8 billion in tax cuts under its tax cut policies. This is a government that does whatever it can to minimise the impact of decency on banks. This is a government that regretfully announced a royal commission after the public were determined, with the support of the Labor Party, to have a banking royal commission. These bills are important.

The Productivity Commission has done some good work and some pretty ordinary work over a long period of time. If we're going to have an Indigenous commissioner, that Indigenous commissioner should be supported by the Productivity Commission, ensured proper resources in the Productivity Commission and be welcomed into the Productivity Commission, which seems to be a closed shop for those with highly conservative ideas and policy proposals on most of the issues that they deal with—not all, but most of them—and the Productivity Commission has to ensure that this Indigenous commissioner has the resources and the framework to deal with the issues of importance to Indigenous Australians.

This bill also goes to some of the worst aspects that we've seen of the banks' misbehaviour. The rorting that goes on by banks justifies what we have always argued for: a banking royal commission.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

No, you didn't do it always!

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

We've got Senator Williams interjecting, and I'll take the interjection. Senator Williams, you were a lone voice in the coalition government about bad banking practices and the excesses of banks—not only bad behaviour but also illegal behaviour in banks. I don't know why you're getting all agitated now, because you've done a great job on this. Certainly, you will be remembered as one of the few coalition senators, if not the only coalition senator, who has stood up against bad behaviour by the banks. It's a credit to you. So just settle down. You don't need to get agitated. We're dealing with this issue. We're supporting what you have determined to do, and that is to make sure that banks are accountable.

I also have to say that you were one of the few on the government benches who was prepared to take the banks to task when they obviously needed to be taken to task. I'm sure, Senator Williams, through the chair, that you are not one of those who regretted the banking royal commission, because it's something that you took up for a long period of time as an absolute necessity to make sure that people in this country get treated fairly by the banks. It's just such a problem that you were an outlier among the coalition, that you were on your own, that you were a lone voice from this government against the excesses of banks. So I'm glad you intervened. I'm glad you reminded me about what a lone voice you were in the coalition in standing up against the bad behaviour of banks. You and I were on committees together in the past. We were both on the economics committee. It wasn't something that you woke up one morning and decided to run with. You were dealing with this for a long period of time before you became publicly vocal about the bad behaviour of banks. Then, when you did, you did a terrific job.

I'm not normally one to stand up here and praise an opposition senator, but in this area Senator Williams has got a good record. It's a pity he's got such a bad record in so many other areas, but in that area he's done a good job. That's why Labor, in this debate, are happy to support the position that the government's put up with the amendment to make sure that it's not up to a minister to determine who is an Indigenous person or not and that the standard proposal is dealt with. These are issues that are long overdue in addressing. These are issues that will go to the benefit of the Australian public. Labor support these bills as important bills. We certainly want to make sure that there are never race based definitions in any bills that come before the Senate, so Labor welcome the agreement of the government to remove any race based definitions in the bill.

These two bills, at least in intent, as I've said, are uncontroversial. We will support both of these bills. They are bills that are important. The concerns we have raised have been dealt with by the government. These will, in conjunction with the banking royal commission that we championed for so long, along with Senator Williams, make sure that things are better for ordinary Australians in dealing with banks in the future. The coalition should stop coming in here and just attacking unions. They should have been attacking the banks with the same venom they attack the union movement in this place. We would have had a better country, because the banks were not behaving well. The royal commission is exposing that. We support the bills. (Time expired)

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I just want to make a brief contribution to this. Like others in the chamber, the Greens want to get home to our families, friends and others tonight. The substantial legislation around the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 and the ASIC Supervisory Cost Recovery Levy Amendment Bill has already passed the Senate. At the risk of being overly simplistic, these bills are tweaking the edges, but they're making necessary changes. I just want to put on record that the Greens will be supporting the bills. We are looking at Labor's amendments at the moment.

I also wanted to put on record that the Greens have been a part of this process. In 2014, the Senate Economics References Committee had a very important investigation into ASIC. I think that's been one of the defining moments of the Senate since I've been here in the last six years. I was part of that particular inquiry. Before Senator Williams leaves the chamber, I would like to also recognise the contribution he made. In fact, he asked me to join that committee and inquiry, and I did. Not only did we get the recommendation that we needed a cost recovery model for ASIC—and this is hopefully the end of that, and we've achieved that in four years—but much more came out of that inquiry. It was an inquiry that, although it started as an inquiry into ASIC, ended up being an inquiry into Commonwealth Bank. Later, that snowballed and cascaded into the action that we've taken in this place on the banks in the last five years. We saw a scandal at the Commonwealth Bank—clear fraud, misconduct and unethical behaviour—and the Senate Economics Committee made an unprecedented recommendation. I think we needed a royal commission just into the Commonwealth Bank.

The Greens campaigned on getting a royal commission into the banking and financial services sector back in 2015. We also had a really in-depth and very troubling inquiry into forestry managed investment schemes, which also showed the need for a royal commission into the banks. Why? Because we needed the coercive powers and the resources of a royal commission. The Senate did a fantastic job over numerous inquiries looking into financial misconduct. At the end of the day we can highlight these things but we seldom compel witnesses, search premises or documents, or even compel documents. These are the kind of things I hope the royal commission will look at.

I want to get it on record today that the Greens are very happy to have played a part in this legislation and in getting this here today, as well as the push that this chamber has made. I would recognise that the changes to the FOFA legislation around a similar time were also pivotal. You could almost feel the wind change in this place when the FOFA disallowance regulations came up. I compliment Labor on leading that disallowance, and we were happy to play a part in that. That took a lot of organisation and it was a really important moment in actually cracking down on financial misconduct in this country and getting some laws and regulations in place. That's all I'll say today because I understand that we need to move on. But we've been a big part of this, and it's a good example of the Senate working together to get good legislation.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I rise to oppose the Treasury bills before us today—the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 and the ASIC Supervisory Cost Recovery Levy Amendment Bill 2017. These bills burden financial markets with unwarranted red tape and burden the Productivity Commission with an unwarranted commissioner. The bills will mean financial service providers will face criminal penalties for intentionally influencing an index price or interest rate that the government considers to be a financial benchmark, such as the bank bill swap rate. Individuals will face up to 10 years in prison and a fine of nearly a million dollars, while businesses face fines of nearly $10 million.

This is outrageous. Intentionally influencing a price should not be a crime even if others put great importance on that price. If someone is stupid enough to base their decisions on the price of eggs, you shouldn't be banned from taking advantage of this by buying up eggs and driving up the price. The government says that intentionally influencing a price is already a breach of civil penalty provisions. This is wishful thinking. The government's case against ANZ, NAB and Westpac for alleged market manipulation and unconscionable conduct in relation to the bank bill swap rate is still before the courts. I wouldn't be at all surprised if it fails.

Financial service providers will also need government approval to administer something that the government considers to be a financial benchmark, even though the provider might not want what they administer to be used as a benchmark for others. Someone who fails to get this approval will face five years in jail and a six-figure fine. Once approved, a financial service provider will need to pay the government a fee for the privilege of being regulated. This is akin to Tattslotto needing the approval of Lottoland and needing to pay Lottoland a fee simply because Lottoland chooses to use Tattslotto as a benchmark.

This is regulation gone mad. Regulators seem to view financial markets as something they need to control. They reveal a Soviet-style mindset that is not accepted anywhere else in the economy. Part of the reason for this is that no-one has sympathy for financial service providers. Unfortunately, every bit of red tape on financial services reduces the chances of real competition in financial services where small players enter the market to offer better, cheaper services to everyday Australians. Part of the reason regulators get away with Soviet-style regulation of financial markets is that financial markets seem to them to be more complex than other markets. But this complexity is a reason to be particularly worried about regulation, because there is a massive risk that regulators will get it wrong.

The Treasury bills before us today also require an additional commissioner at the Productivity Commission, with experience in dealing with Indigenous communities. I fear that this lends weight to the questionable idea that those suffering disadvantage know how to overcome that disadvantage and that we must not pursue policies that disadvantaged people oppose. I think it more likely that unpopular policy options, like abolishing the Community Development Program that keeps people in squalid, remote communities, offer the best chance for overcoming disadvantage. For this reason, and because we do not need more Soviet-style regulation of financial markets, I oppose these Treasury bills.

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I rise to support the Treasury Laws Amendment (2017 Measures No. 5) Bill 2017 and the ASIC Supervisory Cost Recovery Levy Amendment Bill 2017, as indicated by Senator Cameron. Before I go to those comments, I want to address the comments made by Senator Leyonhjelm, because I could not disagree more strongly with the comments that he's made.

When one looks at the attitude of the major banks to this, particularly on the issue of the bank bill swap rate, ASIC has finally got onto the case and has highlighted the fact that there has been a deliberate rigging of a key benchmark rate which sets so much of what goes on in the financial community. We know that the BBSW is one, which links into home mortgages. It also links in as a reference point and sets rates for most business loans, through to personal lending rates. If the banks are manipulating this particular benchmark rate for their own purposes, then this is a very, very significant matter. It's not a question of Soviet-style control; this is a question of addressing a very real matter of public policy. As Senator Cameron has indicated, this is not a victimless act; this is a bank taking advantage of their market power and their ability to manipulate rates for their own purposes.

We look at the ASIC action in respect of the Commonwealth Bank and we know that there are emails which show communication between the CBA's head of swaps and the CBA Treasury official. The email to the swaps dealer said: 'I think it would be in the bank's interest if you didn't borrow three months' bills on the 15th. We have almost $5 billion setting on that date.' There should have been Chinese walls in place between the different parts of the bank, but those did not exist. It is very clear, in my view, that these are examples of deliberate manipulation.

It's interesting to note that we have just seen reports that mortgage rates are in fact rising without the RBA doing anything about interest rates. We've had the news that Suncorp will lift its owner-occupier mortgage rate by 0.05 percentage points to a standard rate of 5.6 per cent. The article that I'm referring to is by Mr Mata, dated 27 March. It indicates that the size of the lift is not the impressive part of this piece of information; it's the reason for the lift that is important. Mr Carter, the CEO, Banking and Wealth, at Suncorp, said that the decision to hike rates was based on the increasing costs of funding, the costs associated with regulatory change and the US interest rate hikes. So, they've seen higher interest costs for wholesale funding. As I've said, this is not a victimless crime or an abstract matter; this is a matter where our regulators have a legitimate role to step in and stop the sort of manipulation that we're seeing. As a member of the Parliamentary Joint Committee on Corporations and Financial Services and as chair of the Senate Economics References Committee, I've had the opportunity to speak with ASIC on a regular basis and I've seen a lift in the performance of ASIC in recent times. I welcome their activity in pursuing the major banks in respect of this matter, because it seems that all four major banks were engaged in this type of activity.

I can recall the scandal in London a few years ago with the LIBOR—a similar benchmark rate. We saw examples of the manipulation of that particular benchmark rate, and we were told that that type of thing couldn't happen in Australia to the BBSW. However, unfortunately, it has come to pass, or certainly it's been alleged that that is the case. I note that ASIC has been able to settle matters against two of the banks, and I believe that there are ongoing matters that are being pursued. This is not a victimless crime; this is an area where we do need to have proper intervention by the regulators to address these issues. If there's one action by the banks which, to me, justified the royal commission, it is the manipulation of the BBSW. It shows that the culture within the banks is one where they are open to doing this sort of thing. It's quite clear that their culture dictates that, if there is an opportunity to do something, they will take that opportunity, whatever the consequences to others in the Australian community, so I do welcome ASIC's intervention.

It is also to the government's credit that they are looking at increasing the penalties in relation to this matter, so that the manipulation of all financial benchmarks used in Australia will be a specific criminal offence and subject to the penalties that others have talked about. A body corporate will be liable to fines of up to the greater of $9.45 million, which is 45,000 penalty units, or three times any benefit from the manipulation or 10 per cent of the entity's turnover in the previous year. Civil penalties will also apply.

The bills set out a number of the other benchmarks that are to be caught within the regime, and I welcome that. This will give ASIC powers to make rules imposing this regulatory framework, and the framework is based on a set of principles released by the International Organization of Securities Commissions. The Senate economics committee has been looking at this particular issue over a period of time, and it's pleasing to see the government acting on this matter. We commend the bills.

Mathias Cormann (WA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source

I thank all senators who contributed to this debate and commend the bills to the Senate.

Question agreed to.

Bills read a second time.