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After the banking royal commission: the long wait for compensation

Opinion

In the understandable clamour for reform of the troubling practices of our banks, let’s not forget the victims of their rapacious behaviour, writes legal commentator Morry Bailes. If you’ve suffered at the hands of the banks, here’s where you can start to get help.

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Well, here we are… After months and months of, at times, excruciating evidence before the Hayne Royal Commission, we have its final report. A great deal of the focus has been on the banks, but in spite of it all, there is market and financial commentary suggesting the big four might have expected a lot worse.

The recommendations are wide-ranging – from potential criminal prosecutions, to a shake-up of the regulators, to changes to superannuation board composition, legislation and the operations of financial planners and mortgage brokers.

Bamboozled? Many people are. And, anyway, how does it all help the average punter who thinks they may have been ripped off? All the recommendations in the world won’t necessarily address the damage done to many borrowers, investors and superannuants.

It is all well and good to now say there is a blueprint to fix a broken system in the future but in the rear-view mirror are thousands of ripped-off, distressed customers.

How do the banks and other financial institutions make good for their financial and emotional pain?

How can those who were burned get help to put things right?

Here are a few pointers on the possibility of future developments regarding compensation and redress, with a reminder that while the report may be the end of the road for the royal commission, it is the first step on a pathway that could yet take many twists and turns for those working in the industry and their affected customers.

First, if you are aggrieved, your approach depends greatly on the nature and size of your loss. Customers who have had properties foreclosed upon and sold may well have sought legal advice by now. If you haven’t, you should.

For the bush and rural areas, a mediation scheme will be set up. Regulation of loan repayments in circumstances like drought will be re-visited. But that is all for the future. You may need advice now.

An early problem that the Federal Government ought to address straight up is how people who cannot afford legal services and advice can get it. A grossly under-funded legal assistance sector means that while a suggestion to get advice and to go and see a lawyer might be a great idea, in theory, it will remain just that – an idea – if someone cannot afford it. And if there are no government services to assist you in your area, then that’s just too bad. This situation is grossly unfair to the vulnerable who have suffered at the hand of this misconduct.

While everyone has the recourse of a complaint to the Financial Services Ombudsman, that office has limited jurisdiction (it also existed throughout the period when many of the the problems emerged). One can only imagine its workload now, but, clearly, an Ombudsman’s office alone is insufficient.

Meantime, there are lawyers in the private legal profession who may help, and Community Legal Centres, as well as the Legal Services Commission who provide some excellent general advice services. The Law Society of South Australia also runs a legal advisory service most evenings where lawyers provide initial advice to people needing it – it costs $35 for a 20-minute appointment (concession rates available).

A lot of people have been subject to the fees-for-no-service scam – advice paid for but not given. That is all going to change but in reality, your losses may have been relatively small (cumulatively, for the many Australians affected, the losses have been huge). ASIC currently has on foot a civil action seeking to recover up to $A1 billion. There may be others.

For people in such circumstances, it is imperative to keep abreast of current actions, including class actions, by which smaller losses may be recovered. Class actions can bring about different reactions in people, but this sort of situation is really what they are designed for so keep a look out. As the findings of the royal commission are considered, and criminal prosecutions investigated, it is likely civil remedies will be sought by classes of customers or investors who have been on the wrong end of a financial institution’s conduct.

That said, banks have in the past been shown to act in a way that doesn’t meet perceived community standards but still do so lawfully. Take the class action about ANZ’s late credit card fees, when it slugged customers $35 and later $20 for a service that only cost the bank 50c. It didn’t pass the ‘pub test’ but the High Court kicked the action out and found for ANZ. More fertile ground this time around may well be financial planning companies (some of which are owned by banks) and superannuation companies where they have broken regulations and law.

Fortunately, the royal commission has recommended that the Commonwealth establish a compensation scheme of last resort for those impacted. This is to be welcomed, but don’t hold your breath. The length of time it took to establish a redress scheme for victims of institutional sex abuse following that royal commission proves that it can be a drawn-out process. It is, nonetheless, needed. Additional to that is a recommendation to establish an external review panel for disputes and complaints, which is also welcome.

To wrap up, get used to ongoing media reports about how the federal parliament will respond, as well as the courts and the regulators. It will take a long, long time for this to all play out. There are many good recommendations in the royal commission’s final report, but without detracting from any of them, we should have a focus squarely on the victims of this unscrupulous behaviour and misconduct.

Prevention is better than cure, but proper avenues to compensation are the only way to really address those who have lost out. The federal parliament has a road map for the future but let’s not forget addressing the losses of the past.

Morry Bailes is managing partner of Tindall Gask Bentley Lawyers and immediate past president of the Law Council of Australia.

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