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Lessons from ancient Greece as banking royal commission changes direction

By Clinton Free & Dimity Kingsford Smith  July 20, 2018

In ancient Greece, pharmakoi were individuals offered as sacrifices when a calamity threatened the community. The pharmakoi were publicly whipped and punished as purifying atonement.

Leaders of Australia's big four banks have assumed a pharmakoi role in recent years. With a stream of public shaming from media exposés, Senate inquiries, and regulator reports, chief executive officers from the big four banks have been called to account.

Stern-faced apologies have become a common ritual.

The recent revelations of inappropriate advice, bribery, fraud and deception at the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry have played a familiar track.

This is unsurprising given the important symbolic and political forces at play in this commission, amplified by its case-study approach.

However, while much is familiar there are important new pointers as to where the commission may be heading. This direction is also observable in recent actions by the Australian Competition and Consumer Commission (ACCC) and by overseas prosecutions of executives, including CEOs.

The tide of adverse opinion may gather sufficient momentum to result in legislative reform and a different approach to enforcement, including criminal prosecution

At the royal commission a much wider array of characters has taken the stand. Rather than apologetic CEOs, the uncomfortable shifting and hand-wringing has been done predominantly by executive general managers.

This has had the benefit of providing evidence from those closer to relevant behaviours. It also raises questions about the individual liability of bank executives, beyond simply firing "rogue" staff, symbolic apologies by CEOs and penalising the corporation.

Two avenues to individual executive liability are civil penalty sanctions and criminal prosecutions.

Civil penalty sanctions target directors and "officers". Officers of a corporation can include employees involved in decision-making that can affect significantly the corporation's financial standing. Executive general managers just below board level are likely to fit this description.

Officers such as those from AMP and the big four have duties requiring them to exercise care and diligence.

As proceedings brought by the Australian Securities and Investments Commission  against officers of the Australian Wheat Board (ASIC v Flugge [2016] VSC 779) and Avestra Asset Management (ASIC v Avestra [2017] FCA 497) have illustrated, officers below board level who fail to make appropriate inquiries or to prevent conduct after gaining knowledge about the suspect conduct of others, may find themselves in the crosshairs.

If, as seems likely at AMP, the corporation has breached the law, officers may be found to have breached their duty of care and diligence.

Officers must also act in the best interests of the company. If officers of a company intentionally cause the company to breach the law, which seems plausible at AMP, it is virtually impossible that conduct could be in the interests of the corporation.

Officers "knowingly concerned" in such conduct may also be liable, including if they know and fail to act.

If the intention of the officers is shown to be reckless or intentionally dishonest, they themselves may be criminally prosecuted, or have accessorial liability for criminal breach of the law by staff or by their company.

This may range from misleading the regulator to fraud or conspiracy to defraud charges in relation to customers' money.

It may also extend to ACCC criminal cartel conduct. Criminal prosecutions recently announced by the ACCC of officers of the ANZ, Deutsche Bank and Citigroup fall into this category.

Putting the heat on senior executives is not limited to finance. The arrest and questioning of the CEO of Audi in Germany highlights a growing willingness to prosecute executives.

Presently, civil penalty sanctions involve disqualification for up to 20 years from corporate officer appointments and/or civil penalties (civil fine) of up to $200,000.

Criminal penalties for the types of conduct seen at the royal commission range from 12 months in jail for misleading ASIC, to unlimited penalties for some species of conspiracy to defraud.

The harsher sanctions and penalties recently announced by the government will not apply retrospectively to executives appearing at the commission. The same is true of the sanctions in the new Banking Executive Accountability Regime (BEAR).

While civil penalty sanctions are pursed by ASIC, criminal prosecutions are not. They are referred to the Commonwealth Director of Public Prosecutions.

The DPP is thinly stretched with terrorism and drug-related offences and has focused its economic crime attention on fraud and insider dealing. Its prosecutions of bank executives for dishonest breach of duty are vanishingly rare.

However, the ACCC actions may herald a shift in priorities.

Much has been said about changing executive conduct through overhauling remuneration and senior executive accountability. In parallel, a chorus of politicians has thrown its weight behind individual penalties for bankers, most notably Treasurer Scott Morrison's recent call for "jail time".

Public, political and legal dissatisfaction with the banks and other corporates have various dynamics, but they also overlap.

These currents have already started to run together: CEOs have resigned, while institutional investors voted against sitting AMP directors at the company's AGM.

The tide of adverse opinion may gather sufficient momentum to result in legislative reform and a different approach to enforcement, including criminal prosecution. Banks may not be the only corporates caught in the flow.

It is to be hoped changes carry more sting than the CEO pharmakoi rituals of recent years.

Clinton Free is a professor at UNSW Business School and deputy director of the UNSW Centre for Law Markets and Regulation. Professor Dimity Kingsford Smith is the centre's director. A version of this post appeared in The Australian.

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