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Fallen giants

Fallen giants

The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry has shown appetite to secure justice for aggrieved small businesses. But financial SMEs who have been acting unethically still have much to fear from the inquiry.

  • Aleks Vickovich
  • August 17, 2018
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They say that journalism is the ‘art of turning up too late very quickly’.

And so it was that your humble correspondent fortuitously found himself in Canberra for a conference of independent financial advice firms on the very day that the royal commission was finally announced by the federal government.

Despite the public claims of figures like former Labor MP Bernie Ripoll that the royal commission was “inevitable”, given the mounting public support, for those that follow Australian politics reasonably closely, it still came as somewhat of a surprise.

For years, Coalition financial services ministers and MPs have opposed a royal commission, arguing that such an expensive and powerful probe into the banks is not necessary, including top brass figures like Scott Morrison and Mathias Cormann.

As the news broke over the radio, I politely excused myself from an ironically appropriate session on ethics and trudged up the hill to Parliament House, finding the place buzzing with anticipation after a big announcement.

I was able to secure an interview with John ‘Wacka’ Williams, a Nationals senator from country NSW who has been lobbying for a banking royal commission for almost a decade on behalf of ripped-off individuals in his constituency, including farmers and small business owners.

Without the efforts of Wacka and his band of outspoken Nationals colleagues inside the Coalition party room, there very well might not have been a royal commission.

From the outset, the straight-talking senator made it clear that the inquiry was not meant to be yet another beat up on small businesses. Indeed, it was intended to focus squarely on the big end of town and hold them to account for misconduct affecting consumers, including SME customers.

However, while the rhetoric around the royal commission has been all about tackling the big banks, super funds and financial institutions, the terms of reference are far more nebulous, referring instead to “financial services entities” without any consideration of size.

As a result, while the banks have been a major focus, some small businesses have also caught the commissioner’s ire, with many lessons for their peers.

Henderson's harangue

Perhaps the most significant case study for small businesses, especially those providing accounting or financial advice or other professional services, is the unfortunate case of Henderson Maxwell.

Before the royal commission, this accounting and financial advice boutique would undoubtedly be considered best of breed. It has its own AFSL and was vocal against conflicts of interest in the industry; it had a suite of services aimed at professionals and high-net-worth investors and was led by a chief executive who had gravitas and respect.

Sam Henderson is well-known in both accounting and advice circles as the jovial former host of ‘Your Money, Your Call’ on Sky News Business and a regular speaker and MC at industry events and conferences.

When it came to the crunch at the royal commission, none of that former profile and reputation helped him. In fact, it may have had the opposite effect.

The commission heard that advice provided by Mr Henderson and his staff to a client, former Fair Work commissioner Donna McKenna, may have amounted to conduct below community expectations, if not misconduct or illegality.

Among other pieces of evidence, the commission heard that Henderson Maxwell staff members had impersonated Ms McKenna in correspondence with her super fund without her permission, that she was advised to invest in a product in which Mr Henderson had undisclosed shares, and that Mr Henderson had made false and misleading statements in a financial services guide (FSG), including a number relating to his own personal qualifications.

The fallout for Mr Henderson has been significant. He was dumped from his television show and became the subject of criticism from many peers and former friends.

The proceedings against Mr Henderson are ongoing, and, therefore, Public Accountant would not deign to make any comment about the alleged misconduct itself.

But the lessons for SMEs are clear. No matter how successful your marketing operation or how much respect you may have earned inside your own niche, honest and transparent business operations are paramount and, in the current environment, any conduct to the contrary will likely be uncovered.

Dover's demise

The royal commission has not only affected those that have been directly hauled before it but also a great number who face the inglorious circumstance of being guilty by association.

This could arguably be true of the almost-400 small businesses who are authorised to provide financial advice by Dover Financial Advisers, many of which are SME accounting firms.

The appearance of Dover director Terry McMaster before the royal commission’s second round will surely go down as one of the more dramatic episodes ever to occur in televised legal proceedings.

Under intense cross-examination from counsel assisting Mark Costello QC, Mr McMaster physically collapsed in the stand before being hospitalised.

The commission heard evidence of a client liability in place at Dover which Mr Costello described as “Orwellian”.

Just weeks later, Momentum Media, publisher of Public Accountant, exclusively reported the news that Dover would be closing, with Mr McMaster informing hundreds of authorised representatives via email.

The email said a secret ASIC “negotiation” and “agreement” precluded him from explaining the reasons behind the shock closure, but hinted that the royal commission evidence played a role.

“As you know, our business has been under substantial public scrutiny in recent months,” Mr McMaster said.

“If the last six weeks have shown us anything, it is that it is easy for statements to be interpreted in ways other than how we expect.” The email informed them that they were prohibited from providing any new advice to clients effective immediately and announced they would have a period of just four weeks to secure alternative licensing arrangements.

This is but one example of the widespread SME fallout sparked by royal commission evidence.

Lending a hand

Despite the adverse impact the royal commission has had on the aforementioned SMEs (whether warranted or otherwise), the inquiry has also shown a steely determination to stand up for small business owners who have been wronged by financial services providers.

The royal commission’s third round of hearings focused specifically on the practice of SME business lending - an area that is fundamental to stimulating the small business backbone of the economy, but also (as the inquiry heard) fraught with misconduct.

Over the course of that two-week period, the commission put SME owners and franchisees front and centre, hearing out their desperate stories of hard times, closure and injustice. It also found serious cases of potential illegality, in which small businesses were the victims.

In his closing address, counsel assisting Michael Hodge QC submitted that it was open to commissioner Ken Hayne to find that, in relation to cases involving ANZ, Westpac and Bank of Queensland heard by the commission, the lenders had breached their responsible lending obligations under the Code of Banking Practice and as members of the Financial Ombudsman Service.

The banks are now providing their responses to the findings, but the third round showed that the royal commission intends to stay true to the original thinking of the political advocates of its establishment, rather than focus entirely on easier targets.

The royal commission now moves from Melbourne to Darwin and Brisbane, with a specific focus on financial services misconduct in rural and regional communities.

SMEs would be well-advised to pay attention.

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