ASIC accuses NAB of $100m super rip-off

The corporate watchdog has launched legal action accusing National Australia Bank of breaking the law 77 times.

The corporate watchdog has launched legal action accusing National Australia Bank of breaking the law 77 times and undermining confidence in the superannuation system over a fee-for-no-service scandal that ­allegedly siphoned more than $100 million from half a million unwitting customers.

In a Federal Court suit filed yesterday, the Australian Securities & Investments Commission alleges NAB’s superannuation trustees NULIS Nominees and MLC Nominees ripped off one group of 220,000 savers by trousering $33.8m in advice fees to super fund members who did not have an adviser.

On top of this, a further $67m was taken from another 300,000 super savers who did have an adviser linked to them in NAB’s systems but where the services they received were no more than those enjoyed by a customer without an adviser.

NAB also failed to tell the second group that they had the right to turn off the advice fee, ASIC ­alleges.

ASIC told the Federal Court NAB’s law-breaking eroded “consumer trust and confidence” in the entire superannuation industry, which is supported by the taxpayer.

The bank could be facing a fine of up to $35.7m because among the 77 alleged breaches of the law are 21 counts of making false or misleading statements under a provision of the ASIC Act, 12DB, that can each attract a penalty of up to $1.7m. And the bill could soar further if the court decides that every occasion NAB allegedly hoodwinked each of the hundreds of thousands of customers should count as a separate breach — the approach sister regulator Austrac took when taking Commonwealth Bank to court over 53,000 breaches of anti-money laundering and counter-terror finance laws.

While breaking 12DB can be a crime, ASIC has stopped short of accusing NAB of criminal wrongdoing.

The claim comes as part of a ­series of investigations under way into the wealth management industry in which about $850m has been earmarked in potential compensation for customers and follows explosive revelations about wrongdoing at NAB’s wealth arm, MLC, exposed in evidence to the financial services royal commission last month.

NAB general counsel Sharon Cook last night left open the possibility the bank, which has already seen its reputation tarred by revelations about the fee-for-no-service scandal aired at the royal commission, might fold to the regulator and admit liability.

“We will consider carefully the allegations that have been made,” Ms Cook said.

The bank has been locked in a years-long tussle with ASIC over the breaches, which last October reached a peak when the regulator sent NAB a lengthy “outline of suspected offending”.

In closing submissions for the last round of the royal commission, counsel assisting Michael Hodge QC also attacked the bank and its head of wealth, Andrew Hagger, over its dealings with ASIC commissioner Greg Tanzer in the run-up to the release of a report into the fees-for-no-service issue in October 2016.

“No reasonable person would believe that NAB’s communications with ASIC in relation to the fees-for-no-service report, including Mr Hagger’s telephone call with Mr Tanzer, were ‘open and transparent’,” Mr Hodge said.

Last night, Ms Cook said: “We respect the work of our regulators and will work with ASIC on these matters.”

In it Federal Court claim, ASIC alleges NAB breached six sections of financial services and superannuation laws in eight separate instances.

The regulator’s accusations include 15 claims that NAB breached its overriding obligation to provide financial services efficiently, honestly and fairly, contained in a section of the Corporations Act that attracts no penalty when breached.

It claims MLC Nominees and NULIS failed to “exercise proper care and skill and failed to act in the best interests of members” of the super funds in question: MasterKey Business and MasterKey Personal.

ASIC also intrudes on the territory of sister regulator, the Australian Prudential Regulation Authority, by taking in eight alleged breaches of the Superannuation Industry Supervision Act.

Cross-examination of Mr Hagger and other executives from NAB dominated the last round of royal commission hearings as Mr Hodge probed the bank’s fee-for-no-service scandal.

The commission heard that although NAB has paid or agreed to pay more than $100m in compensation to hundreds of thousands of victims of the scandal, its unwillingness to fully confess to wrongdoing and compensate victims using ASIC’s preferred method had deeply aggravated the regulator.