APRA ‘ignored’ CBA offences

APRA made no effort to prosecute the Commonwealth Bank over more than 15,000 criminal breaches of superannuation law.

The prudential regulator made no effort to prosecute the Commonwealth Bank over more than 15,000 criminal breaches of superannuation law admitted to by the bank, The Weekend Australian can reveal.

Evidence before the financial services royal commission at hearings in August showed that the CBA subsidiary, Colonial First State, failed to move 15,000 customers who had not made a choice about where their superannuation should go into a low-fee MySuper account, as required by law.

But instead of prosecuting CBA over the breaches, which could have resulted in a fine of up to $127 million, the Australian Prudential Regulation Authority ­accepted a plan that allowed the bank to gradually transfer members over three years, during which time it was able to continue charging the higher fees.

In response to a Freedom of ­Information request from The Weekend Australian, APRA said it was unable to produce a brief ­prepared for the Commonwealth ­Director of Public Prosecutions over the crimes admitted to by CBA because no such documents existed.

The regulator also refused to hand over documents relating to the bank’s admitted criminal conduct, saying one was covered by legal professional privilege ­because it contained advice from in-house lawyers, while others were “protected” from disclosure under APRA’s governing legislation because they were “given or produced under or for the pur­poses of a prudential regulation framework law” as part of the authority’s investigation of CBA.

APRA’s admission that it did not try to brief prosecutors about more than 15,000 crimes committed by the country’s biggest bank comes as CBA and the rest of the finance sector brace for the ­release on Monday afternoon of royal commissioner Kenneth Hayne’s final report.

Commissioner Hayne was driven — sitting in the front seat — yesterday morning to the Governor-General’s residence in ­Canberra to hand over the three-volume report before visiting Josh Frydenberg, whose hand he ­refused to shake when asked by photographers.

In what is shaping up as a busy week for banks and regulators, CBA is also set to face investor scrutiny on Wednesday when it reveals its half-year results.

APRA, which was criticised by commissioner Hayne in his ­interim report for its almost complete failure to take court action over breaches of superannuation law, is also likely to face a review of its enforcement capability at the hands of Treasury.

An APRA spokesman declined to comment on its failure to prosecute CBA, saying it stood by an August submission to the commission in which the regulator said “no formal enforcement action was taken” because the bank ­“implemented the process it had agreed with APRA and because the members were dealt with ­appropriately”.

Evidence before the commission shows that the saga began in November 2013, when APRA was preparing for the start of the ­MySuper regime, which was ­designed to keep people who do not keep close tabs on their retirement savings from being kept in high-cost, low-performance funds.

To ensure superannuation funds were quick to act, a new section, 29WA, required that fund managers move members into a MySuper fund by January 1, 2014, unless they had made alternative arrangements.

Failure to comply is an offence of strict liability, meaning a ­prosecutor does not need to prove any intention to break the law in order to secure a guilty verdict.

CBA first told APRA it had broken the law on March 14, 2014, ­admitting to 13,000 breaches of section 29WA — a number, the commission heard, that later climbed to 15,000.

Instead of immediately moving to atone for its crimes by moving the members to MySuper, CBA ­started calling and writing to customers to seek an investment ­direction from them.

During the royal commission hearings, Colonial First State executive general manager Linda Elkins admitted that the call scripts and letters sent to cus­tomers were misleading and not balanced because they were ­focused on keeping clients in their existing investment option.

In a move counsel assisting the commission, Michael Hodge QC, described as “surprising”, APRA approved CBA’s plan to run a call centre and send the letters.

The commission heard it took until May 2017, when a final group of 7000 was moved across, for CBA to transfer all eligible clients to MySuper.

During the process, financial advisers were repeatedly reminded to secure an investment direction from clients, thus protecting lucrative commissions that would be taken away if customers moved to MySuper.

In his submissions following the superannuation round, Mr Hodge said Colonial First Stake had acknowledged the breaches and it was “open to the Commissioner to find that (Colonial) was right to acknowledge this contravention”, potentially opening the door for Mr Hayne to recommend criminal prosecution in his final report.

In its submissions, CBA dis­agreed with Mr Hodge’s characterisation of the situation, saying that at the time MySuper was being introduced Colonial First State management had a “genuine belief” they did have investment advice from clients involved.

The bank eventually hired Ernst & Young to remediate ­clients.