James Shipton, chair of ASIC, was again on the stand during day five of the seventh round of the royal commission and told the commission that ASIC often sent to the banks the strongest message it could.
“We sent the strongest message we could have which was a public expression of disappointment, and also a private expression of disappointment,” said Mr Shipton.
“That is the strongest message you could have sent Mr Shipton?” said Ms Orr.
“That is what I have been advised,” said Mr Shipton.
Mr Shipton was responding to questions from counsel assisting Rowena Orr about the commissions response to NAB’s spot foreign exchange business.
ASIC entered an enforcement undertaking with NAB and it was negotiated that the bank would pay a $2.5 million community benefit and develop a program of changes within its foreign exchange business to prevent, detect and respond to conduct.
It was to be assessed by independent expert Promontory in November 2017, yet the commission heard that by March 2018, Promontory produced a report that it was unable to assess the program.
“Progress in developing the program has been slow. There appears to have been no comprehensive risk assessment across NAB’s spot foreign exchange business against the enforceable undertaking requirements and relevant regulatory standards and guidance,” said Promontory.
It was then decided that, despite the enforceable undertaking requiring it to take action, ASIC gave NAB another three months to deliver the program without any action taken against them for not complying.
Mr Shipton said that it was a reasonable decision and that NAB did face negative consequences for their failure to comply with the undertaking.
“Our approach, we wish our approach was stronger, but we sent the strongest message we could,” he said.
Mr Shipton throughout day 5 continued to assert that ASIC had made mistakes but that it hadn’t failed.
“I prefer mistakes. I use the expression mistakes because failings to me means there has been no success, no functioning and that we haven’t been doing it at all. And we have,” he said.
Another ‘mistake’ of ASICs was to offer infringement notices ahead of litigation, suggested Ms Orr, who questioned why the notices had to be voluntarily entered into by the entity.
“Why do you need to get an indication as to whether they will accept and pay it? The parking inspector doesn’t seek an indication from the person he’s giving a parking fine to as to whether they will accept and pay it,” she said.
Mr Shipton blamed ASICs response on limited resources but said they did not cosy up to the banks.
Mr Shipton said the commission still sought indication from entity’s around infringement notices but that it had changed the mindset around litigation.
“The starting point today would be to ask the question and turn our minds to why not litigate this demonstrable breach,” he said.
