1.3 What the case study showed

1.3.1Conduct in respect of PSFs

As noted above, I make no findings about the matters alleged by ASIC in its proceedings against NAB in relation to PSFs. I do, however, wish to say something about the actions of those within NAB Wealth after the identification of issues about PSFs and about NAB’s dealings with ASIC at the time of ASIC’s publication of its Report 499: Financial Advice: Fees for No Service.

In the written submissions of NAB and NULIS, and in the evidence, it was said that NAB Wealth had undertaken ‘an investigation to identify the nature and character of the PSF’.[1] I do not consider this a sufficient or accurate description of what was done. The description is incomplete, and to that extent inaccurate, because it ignores the purpose for which the inquiries were being made. The overall purpose was to minimise the amount that NAB would have to repay. That purpose was effected in two ways: first, by trying to find some legal basis for retaining what had been paid; second, by devising a remediation approach that would minimise the amount to be repaid.

The former is evident from the documents that discussed whether any of the services provided by the administrator could form a basis for charging PSFs.[2] The latter is clear from the documents that proposed an opt-in approach to any remediation for unadvised members.[3]

The steps taken by NAB showed either that NAB did not grasp that it had charged fees for services it had not provided, or that NAB was unwilling to face the consequences of having agreed to provide services to clients, having not provided the services, and yet having charged clients for what it had not done.

As I said in the Interim Report, charging for what you do not do is dishonest.[4] That NAB either did not grasp this basic proposition or was unwilling to face the consequences of having done so is troubling. That its General Counsel should be complaining to ASIC, as recently as April 2018, that having to pay back what had been taken was unfair to NAB, is, if anything, even more troubling. It suggests an abiding blindness to the seriousness of the underlying conduct.[5]

Like any listed company, NAB owes obligations to its shareholders. NAB, like any listed company, is not just entitled, but is bound, to consider carefully whether it should pay compensation to others. And it is entitled, and bound, to take proper steps to pay only such compensation as can be shown to be justified. But NAB’s conduct in connection with fees for no service went beyond taking proper steps to ensure that it paid no more than was proper compensation for its wrong. It sought to avoid repaying to customers money to which it was not, and never had been, entitled.

Until it agreed to make full compensation, NAB’s conduct fell short of community standards and expectations. Moreover, the conduct that has been described reflected a culture, demonstrated by senior executives within the NAB Group, of unwillingness to put right, wholly and promptly, what was evidently wrong conduct. And the conduct had been allowed to continue for many years.

It is now necessary to say something about NAB’s dealings with ASIC in connection with ASIC’s publication of its Fees for No Service report.

Both NAB and Mr Hagger described NAB’s communications with ASIC as ‘open and transparent’. NAB and NULIS submitted that Mr Hagger’s communications with ASIC demonstrated ‘a willingness to engage in proactive and transparent communications with the regulator’.[6] NAB and NULIS submitted that there was no reason to doubt Mr Hagger’s account of his conversation with Mr Tanzer and that no ASIC witness offered or was asked to provide any criticisms about the conduct of Mr Hagger or NAB more generally.[7]

I accept that Mr Hagger believed what he said to the Commission in evidence. But, given what was known at the time, I do not accept that what he said to Mr Tanzer is properly described as ‘open and transparent’. I do not accept that Mr Hagger told Mr Tanzer that NAB had revised estimates of the amount it would have to pay as compensation. The evidence demonstrates, in my view, that Mr Hagger did not tell Mr Tanzer that the board of NWMSL had decided, by the time of the conversation, to recommend to NULIS that it make full remediation and that NWMSL would indemnify NULIS for the whole cost of that remediation. Instead, he left Mr Tanzer with the impression that these issues had not yet been decided by either the board of NWMSL or the board of NULIS. And that was not right. Why not tell ASIC what had transpired that morning in the board meeting from which Mr Hagger had emerged to make the call?

If, as Mr Hagger may be understood as having suggested, he said enough to allow Mr Tanzer to draw his own conclusions about how much would have to be paid out, why not just tell ASIC the truth? His evidence could be understood as saying that he somehow was inviting Mr Tanzer to ‘ask the right questions’. If that is the case, how was that ‘open and transparent’? Why not tell ASIC of the internal estimates?

The answer to all of these questions can only be that NAB wished ASIC’s report to still show the bank’s conduct as ‘middle of the pack’, regardless of NAB’s knowledge when it responded to ASIC’s inquiries about the draft report and when Mr Hagger spoke with Mr Tanzer. And NAB wanted to remain ‘middle of the pack’ lest news of what it had discovered overshadow its CEO’s announcement of full year results.

NAB told ASIC of its revised estimates on 3 November 2016, a week or so after Mr Hagger had spoken to Mr Tanzer. ASIC’s reaction to these later disclosures tells of the quality of the communications that had taken place before ASIC published its report. ASIC was not satisfied with NAB’s dealings with it, and rightly so.

NAB’s conduct fell short of what the community would expect of NAB, or any other large financial entity, in dealings with ASIC of the kind under consideration.

1.3.2Misconduct in respect of fees for no service

In NAB’s initial submissions to the Commission in January 2018, it acknowledged misconduct concerning ongoing ASFs charged without the provision of services to primarily retail customers between 2008 and 2015.[8] In their written submissions to the Commission dated 31 August 2018, NAB and NULIS submitted that they fully accepted the seriousness of the matters that were the subject of the breach reports tendered concerning ASFs, and that these events involved previously acknowledged and reported instances of misconduct, and conduct falling below community standards and expectations.

The notifications lodged with regulators contained acknowledgments of a breach or likely breach of section 912A(1) of the Corporations Act and section 52(2)(b) of the SIS Act by the relevant RSE licensee. In its written submissions, NULIS accepted that, on the evidence, it was open to the Commission to find that there had been a breach or likely breach of section 912A(1)(a) of the Corporations Act with respect to each notified event.

I agree.

More must be said, however, about fees for no service and the trustee’s covenants set out in section 52(2)(b) and 52(2)(c) of the SIS Act. The first of those covenants requires the trustee ‘to exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as a prudent superannuation trustee would exercise in relation to an entity of which it is trustee and on behalf of the beneficiaries of which it makes investments’. The second requires the trustee ‘to perform the trustee’s duties and exercise the trustee’s powers in the best interests of the beneficiaries’.

In their written submissions, NAB and NULIS submitted that there was no support in the text of the Act or in prior authority that the care, skill and diligence covenant imposed an ‘absolute standard’ on a superannuation trustee in NULIS’s position to ‘ensure’ that a service is provided in each case where there was an arrangement between an adviser and a member by directly monitoring advisers.[9] They submitted that the evidence demonstrated that MLC Nominees or NULIS (as applicable) had complied with the covenant because:

• first, controls existed in the form of underlying contractual obligations and at the point of the member and the adviser agreeing to the payment;[10]
• second, an administrator was legally liable for breaches of its contractual obligations, which were required to be reported to the trustee under the Administration Agreement;[11] and
• third, when specific controls with respect to delivery of service were found to be deficient, measures were put in place to remedy those deficiencies. More generally, it was submitted that measures were taken in response to failures in controls, and to uplift the control environment and introduce reforms (such as an independent customer advocate program).[12]

The general law requires a trustee to discharge its duties to the standard of what an ordinary prudent person of business would do in managing similar affairs of his or her own.[13] The statutory covenant refers to the ‘care, skill and diligence … a prudent superannuation trustee would exercise in relation to an entity of which it is trustee’. On its face, the statutory covenant permits, perhaps requires, reference to the fact that NULIS and other RSE licensees are professional trustees.[14]

In the present context, the question may become whether a prudent person of business, who acts as a professional trustee, would allow payments to be made to a service provider without first verifying that the services have been provided? In this regard, it may be noted that Ms Smith said that, in her view, the trustee had owed members a duty of care – to consider whether services had been provided in exchange for the ASFs and PSFs that had been charged.[15]

NULIS did not monitor advisers or the provision of specific advice. When fees were paid for no service, the trustee had no controls that prevented charging fees for no service. The Risk Review of ASF Controls paper given to NULIS’s board recorded many respects in which controls were deficient.[16] The bare fact that the trustee, the administrator, the adviser and the ultimate client were each a party to one or more contracts regulating the charging and payment of fees does not conclude any issue about the trustee taking reasonable care. Whether the trustee exercised reasonable care, skill and diligence asks whether the trustee should have taken steps to determine whether the contracts that had been made were performed in accordance with their terms. And in that regard, it may be that different considerations would arise in cases where the adviser charging the fees in question was an authorised representative of a NAB advice licensee.[17]

What the trustee should have done in the exercise of the required care, skill and diligence should be considered in the light of another and fundamental obligation of trustees. A trustee must not allow the trust fund to be dissipated in an unauthorised way.[18] A trustee who wrongly pays away trust money, like a trustee who makes an unauthorised investment, commits a breach of trust.[19]

Absent express provision to the contrary, the authority a member gives to a trustee to pay an advice fee would be construed as authorising payment in return for the provision of service. (From time to time, advice licensees have suggested that their advice agreements permitted deduction of a fee in return for the offer to provide advice. But even in that case, the authority would ordinarily be understood as requiring that offer be taken up before the adviser would be entitled to receive the fee.)

Some of the events reported by NAB and NULIS concerned cases where requests had been received to remove the adviser from members’ accounts. In cases of that kind, a necessary part of the contractual foundation for deduction of fees has gone and the trustee has been told that it has gone. Paying away trust money in payment of advice fees in those cases appears to me very likely to be a breach of trust. If it is a breach of trust it would be misconduct.

The trustee’s covenant in section 52(2)(c) is to perform its duties and exercise its powers in the best interests of beneficiaries. When the purpose of a trust is to provide financial benefits for beneficiaries, as it is with a superannuation fund, the best interests of the beneficiaries are normally their best financial interests.[20]

NAB and NULIS submitted that the ‘best interests’ duty, both in the SIS Act and at general law, operates to qualify the performance of a particular specified duty or the exercise of a specified power and that no relevant duty or power had been identified in connection with the payment of fees for no service.[21] As I have explained elsewhere, this may not be a complete statement of the general law, or of the operation of the covenant.[22] But when fees were paid for no service, the relevant duty was the trustee’s duty to preserve the trust fund (not paying it away without authority) and the relevant power was to make proper payments on behalf of members by deducting the payment from the member’s account.

NAB and NULIS did not dispute that the trustee deducted the ASFs from members’ accounts and did not contend that the trustee lacked power under the trust deed[23] to deduct ASFs (if the deduction was authorised by the member).

NAB and NULIS pointed out that it has been said that the best interests test is concerned with process, not outcome.[24] Like all aphorisms, the proposition may very well be too compressed, and obscure more than it reveals. But even if it does sufficiently capture a relevant point, the fact remains that the contractual and other controls that NULIS submitted were in place to ensure proper deduction of ASFs were not sufficient to protect the financial interests of members.

One other, statutory, obligation of the trustee should be mentioned. Section 62 of the SIS Act obliges the trustee to ensure that the fund is maintained solely for the purposes identified in that section.

I consider that it is arguable that the trustee’s conduct in using trust funds to pay for services to members that had not been provided may have been a breach of one or more of the covenants that have been mentioned and of the statutory obligation. That conclusion rolls up consideration of several distinct obligations. But separate and sequential consideration of the obligations runs a real risk of attributing to each too confined an operation. Each of the covenants, like the statutory sole purpose obligation, takes its operation and content from the context within which it is to operate: a context in which the trustee has several, related obligations designed to ensure that the funds that the trustee holds are applied only for proper purposes. And the central complaint being considered is that the trust funds were not applied for a proper purpose; they were applied to pay amounts that were not properly charged and payable. A conclusion that the trustee did not breach its duties when it permitted that to occur would be surprising. A conclusion that the trustee did breach one or more of the obligations that have been mentioned would not.

The conduct of the NAB trustees in connection with the payment of fees for no service might have been a breach of obligation and therefore constitute misconduct. These matters having already been reported to ASIC, it must decide what, if any, further action should be taken.

Next, it is necessary to consider the conduct of NULIS and other NAB entities in connection with remediation.

NAB and NULIS submitted that there was no evidence that MLC Nominees or NULIS had inappropriately failed to exercise any discretion independently of NAB with respect to the remediation of ASF events. It will be recalled that when Mr Hagger gave evidence about these matters, NAB had not at that point agreed to full remediation by all of its licensees. Indeed, much of NAB’s and NULIS’s correspondence with ASIC involved negotiations toward a different outcome.

I consider that, in allowing remediation proposals to be put forward to the regulator that did not provide for full compensation, it is arguable that the board of NULIS prioritised the financial interests of others within the NAB Group over the interests of members. If the board did this, it may have been a breach of the covenant prescribed by section 52(2)(c). But, if it was a breach, later events overtook it and nothing came of it.

NAB and NULIS submitted that the progression of discussions over time with ASIC with respect to the remediation approach neither established any intention or effect of minimising the quantum of remediation, nor was it ‘ethically unsound’.[25] To repeat a point already made, the submission is consistent with NAB either not grasping that to charge a fee for a service not provided was dishonest, or being still unable or unwilling to accept the consequences that follow from its conduct.

One consequence of NAB’s protracted negotiations with ASIC was that customers have not been compensated promptly. NAB and NULIS accepted that the ASFs events took too long to discover, investigate and remediate.[26] I agree. But NAB’s conduct prolonged the process. The public would rightly have expected NAB not to do that.

1.3.3Misconduct in relation to reporting of breaches

As noted above, in its communications with ASIC, NAB agreed that 84 significant breach notifications were provided by NAB entities later than the 10 business days required by statute.[27] I have no reason to doubt that this represents at least the minimum number of such cases. Although the number of cases acknowledged by NAB is 26 less than ASIC’s calculation of 110 breach reports, the figures are troubling. Each departure from the legislative requirement is a breach of section 912D(1B) of the Corporations Act. The breaches acknowledged in the breach reports were breaches, or likely breaches of sections 912A(1)(a), 912A(1)(c), 912A(1)(ca) and 912A(1)(h).

Each failure to report within the stipulated timeframe is conduct amounting to misconduct. Each breach or likely breach that is the subject of each report might itself amount to misconduct.

As has been mentioned already, ASIC’s report into selected financial services groups’ compliance with the breach reporting obligation found that industry is taking far too long to identify and investigate potential breaches. At the time the report was released, Mr Shipton observed two related problems:[28]

The first is that industry is taking far too long to identify and investigate potential breaches. Whilst this is not of itself a breach of the reporting requirement, this is the greatest source of delay and thus of most significant detriment to consumers.

The second problem is that even having identified an issue and concluded, following an investigation, that it is a breach, institutions are failing to then report it to ASIC within the required 10 business days. The delays here are much shorter (75% were late by 1–5 days) but still represent a breach of the legal requirements.

NAB’s conduct in respect of breach reporting accords with those observations.

Failing to comply with the statutory breach reporting requirements showed NAB to be unwilling, in that respect at least, to obey the law. That is a troubling observation. That the failures to obey the law were so many and occurred over so many years is more troubling because it bespeaks a culture that treated not only the immediate breach (constituted by failure to report), but also the breaches or likely breaches that gave rise to the obligation to report as either matters of no real importance or as matters that need not be brought to the regulator’s attention.

When these observations are joined, as they must be, to the other criticisms I have made about NAB’s response to fees for no service, they speak poorly of NAB’s regard for compliance with the law, they speak poorly of NAB’s willingness to face the consequences of breach of the law, and they speak poorly of NAB’s willingness to do all things necessary to ensure that the financial services it provides are provided efficiently, honestly and fairly.[29]

1.3.4Misconduct in relation to grandfathered commissions

In their written submissions, NAB and NULIS submitted that the board resolution approving the maintenance of grandfathered commissions cannot be divorced from its context.[30] They submitted that the SFT involved a package of changes that NULIS considered, overall, to be in the best interests of members.[31] They noted that the equivalence of rights was maintained and members were no worse off.

I should say at once, in response to the last point about equivalence of rights, that the best interests duty, whatever its content, cannot properly be understood as no more than an obligation ‘to do no harm’.

A trustee has a duty to identify relevant considerations before making a decision and to use all proper care and diligence in obtaining the relevant information and advice relating to those considerations.[32] It has been said that if the consideration of the trustee is not properly informed, it is not genuine.[33] The duty to take these steps flows both from the best interests obligation and also from the duty of care, skill and diligence.

There are at least two things that are troubling about the management paper upon which the decision was taken to maintain grandfathered commissions. First, the paper focused closely upon the possibility of increased costs due to member attrition because of financial adviser dissatisfaction. No estimates of that loss were attempted. And no particular attention was given to the amounts members would continue to pay if commissions were maintained. Second, the paper identified the need for separate legal advice about claims by advisers if commissions were not to be maintained. Yet management did not obtain this advice before making its recommendation. By contrast, management obtained legal advice about the legality of maintaining commissions.

The relevance and importance of these issues to the decision-making process would seem obvious. It may be that the absence of legal advice about claims by advisers points towards the trustee not having performed its duties properly.

As the High Court has observed, ‘superannuation is not a matter of mere bounty, or potential enjoyment of another’s benefaction … It is “deferred pay”. The legitimate expectations which beneficiaries of superannuation funds have that decisions about benefit will be soundly taken are thus high. So is the general public importance of them being sound’.[34] I consider this reasoning to be no less forceful when it comes to other decisions that will affect member benefits. The trustee may have breached its duty to act in the best interests of the affected members. The matter not having been drawn to the attention of the regulators so far, I will refer the matter to APRA to consider whether to take action.

1.3.5Misconduct in relation to MySuper and transition of accrued default amounts

In respect of the transition of ADAs to MySuper, it is to be remembered that the statute required trustees to attribute default contributions to their MySuper products and to do this by 1 July 2017.

In its written submissions, NULIS submitted that the evidence as a whole did not establish that either MLC Nominees or NULIS delayed the MySuper transition.[35] NULIS submitted that the transition of all ADAs was completed by 31 March 2017, in advance of the 1 July 2017 deadline, and that the majority of ADAs were transferred to ‘transition investment options’ in June and July 2017.[36] NULIS referred to a number of impediments to an earlier transition, including the complexity of and risk associated with the exercise.[37]

To observe that ADA balances had to be transferred by 1 July 2017 puts unwarranted emphasis on the date fixed as the outer limit for compliance and does not take account of trustees’ other obligations in the Act, in particular the covenant prescribed by section 52(2)(c). The considerations identified in NULIS’s submissions were to be considered in light of the fact that commissions, PSFs and other payments to advisers would continue to be paid by members whilst the transition of their ADAs was delayed. Ms Smith acknowledged that one of the consequences of the delay was that members paid higher fees for longer than they would have had their ADAs been transferred earlier.[38] For some members, this was not merely a risk, but a certainty. Advisers, including advisers within the NAB Group, stood to benefit from this to the financial detriment of those members.

Taken as a whole, the evidence shows that NAB and NULIS (and before NULIS, MLC Nominees) did not move with all deliberate speed to effect the transfers. I consider that they did not do that for fear of how advisers would react to the loss of commissions that would follow from the transfer.

I consider, then, that the better view of the evidence is that the trustees did not pay sufficient regard to the financial interests of those members affected by adviser payments and, instead, prioritised the commercial interests of the NAB Group or the interests of advisers, or more probably, both. It would further follow that the trustee might have contravened the covenant set out in section 52(2)(c) of the SIS Act. I refer the conduct to APRA under paragraph (a) of the Commission’s Terms of Reference for the agency to consider whether to take action.

1.3.6Conclusion

This case study demonstrates two things.

First, lack of insight and accountability on the part of those most senior in a retail group can lead to delayed and poor outcomes for the members of a fund. NULIS and other NAB entities were aware of the ASF and PSF issues from at least 2015. Rather than remediate promptly at that time, management and senior executives took steps to negotiate an outcome with ASIC that would minimise the financial and reputational fall-out for the NAB Group. NAB was unwilling to acknowledge that this behaviour was wrong. That in itself is telling.

Second, the case study highlights the importance of a regulator monitoring and enforcing trustees’ compliance with their duties. Taking action in response to misconduct is backward-looking. The conduct that gives rise to the action has already occurred. The purpose of taking the action, on the other hand, is forward-looking. It sets the standards for trustees’ conduct in the future. It should prompt trustees to take steps to embed those standards, and respect for them. Monitoring and enforcement by a regulator play an important role not only by dealing with poor outcomes for members, but also by seeking to prevent them in the future.

APRA has the general administration of important parts of the SIS Act. In particular, subject to some exceptions that need not be noticed, section 6 of the SIS Act gives APRA the general administration of part 6, which provides, in section 52, that the governing rules of an RSE are taken to contain the covenants set out in that section. It also gives APRA the general administration of part 7, which includes the sole purpose test prescribed by section 62. As already noted, the covenants set out in section 52 include the covenant to exercise care, skill and diligence,[39] the best interests covenant,[40] and the covenant about conflicts of interest that obliges the trustee to give priority to the duties to and interests of the beneficiaries over the duties to and interests of others.[41]

So far as the evidence goes, APRA has taken no step in response to the reports it received, from NAB entities and from others, about fees for no service. It should be said at once that section 62(1), prescribing the sole purpose test, is a civil penalty provision, but section 52 is not. Hence, contravention of section 62(1) may attract civil and criminal consequences.[42] By contrast, breach of a section 52 covenant is not an offence.[43] A person who suffers loss and damage as a result of conduct that contravenes a covenant may recover the amount of the loss or damage by action against the contravener or against any person involved in the contravention.[44]

APRA is tasked to regulate the conduct of superannuation trustees under the SIS Act. Yet APRA was invisible after repeated instances of fees for no service conduct were reported to it by NAB entities and by ASIC publicly in 2016. Fees for no service conduct is, as I have said already in this report and the Interim Report, conduct that is dishonest. A trustee that stands by whilst advisers or advice licensees – particularly related parties – engage in dishonest conduct at the expense of its members is failing in its promise and duty to act in the best interests of members.

In its submissions, APRA said that it intended to carefully evaluate the evidence that has emerged from this case study and to seek further information to determine the relevant facts and whether there is a need for further action on its part. That submission is surprising when important evidence – the trustee’s own admission – has been in APRA’s possession all along. APRA did not point to what it had done in response to the notice.