Injustice for all while corporate crime flourishes

Photo: Steve Buissinne / Pixabay

Justice (noun): the fair treatment of people; the quality of being fair or reasonable.

In September 2012, the Commonwealth Bank of Australia (CBA) made a $136 million deal with corporate regulator the Australian Securities and Investments Commission (ASIC) over the collapse of financial advisor Storm Financial. It allowed the bank to cap its liability, avoid a class action from victims — many of whom lost everything — and face no further legal action from ASIC.

It was supposed to be a watershed case, shining a light on banking malpractice and improving conditions for customers.

Evidently, it had the opposite effect.

The systemic injustice and financial carnage wrought by deregulation is spelt out in Jim Mcllroy’s Nationalise the banks: public control needed to end rip-offs. It recounts the greed and dishonesty in Australia’s financial sector, weak regulatory action and the scandalous lack of improvement.

It never changes because the regulators continue to fine the corporations and banks, but leave the perpetrators — the directors and executives responsible — largely untouched. They are almost never held directly accountable for the outrageous criminal conduct they knowingly engage in, sign off on and preside over.

The lack of accountability is driven directly by regulatory acquiescence.

Australian Transaction Reporting and Analysis Centre (AUSTRAC) is supposed to be responsible for preventing, detecting and responding to criminal abuse of the financial system. Yet, when it is criminal conduct by the bankers themselves, AUSTRAC is known for for issuing big fines, but at the expense of justice for the broader community.

Westpac’s recent involvement in child exploitation transactions is a case in point.  

Our other major regulators follow suit. Despite having all the necessary powers to refer matters for criminal investigation, Australia’s banking regulator, the Australian Prudential Regulatory Authority (APRA) and ASIC both favour “enforceable undertakings” —  the corporate governance equivalent of a plea bargain. 

The bank or corporation pleads guilty (usually after a ludicrously expensive audit) and negotiates a remedial program the board and shareholders can live with. The regulator then negotiates a financial penalty, such as a fine or increased capital requirements. The board, auditors, consultants and regulatory representatives, from both sides, then enjoy a fully-funded dinner, before everyone flies home, often in business class.  

This “pay the fine and move on” mentality, with no real personal consequences to the directors and executives making the decisions, is clearly working for them. 

It is not working for everyone else.

It is a matter of public record that Australian banking and corporate crime has reached an industrial scale in the last decade. The 2019 Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was scathing, revealing gobsmacking cartel-like and criminal behaviour on a massive scale.

There were some CEO resignations, notably at the National Australia Bank (NAB), and the early retirement of CBA CEO Ian Narev. Insurance behemoth AMP lost a few executives too, driven more by shareholder dissent than anything else. 

All, however, received multi-million dollar contract payouts: not one will serve a custodial sentence. Without criminal convictions, they simply move on to the next high-paid role. 

It’s not like that for the rest of us who are subject to the Crimes Act, rather than the Corporations Act.

If you are a bank CEO, knowingly presiding over laundering mob money and charging fees for child exploitation transactions, you can fly home on a corporate jet. Whereas, no one has been held criminally responsible for the 437 Aboriginal deaths in custody, between 1991 and June.

No amount of rabid right-wing ideology misrepresenting indigenous incarceration statistics, can ever justify such a yawning chasm between justice and reality. It is born of a classist, racist, unjust system, gamed by perpetrators and facilitated by gutless regulators. It is perpetuated by self-interested governments lacking real leadership, revenue-focused law enforcement and a deafening electoral silence. 

At a minimum, we need a change of government. The Scott Morrison government has recently watered down hard-won responsible-lending laws to protect bank customers, and relaxed insolvency restrictions, allegedly on the grounds of COVID-19. 

It has no intention of carrying its obsession with law and order over to the corporate column. 

The other change needed is to end the electoral silence. Silence is violence, whether it is about corporate crime, pathetic leadership and regulation or systemic injustice and racism in law enforcement.

The cycle will never be broken unless more of us stand up and call it out. Hammer your elected representative. Protest in the streets. Keep speaking truth to power until we drown it out whenever money talks too loudly. We must make ourselves heard.

Because, in the end, corruption happens when good people do nothing.