I SIGNIFICANT RECENT CASES

A number of significant banking litigation cases have been heard by Australian superior courts over the past year, although judgments in some of these have not yet been handed down. A number of important banking law cases are also currently before Australian courts. Current significant cases are focusing on issues such as benchmark manipulation, financial advice models and responsible lending practices.

Australian banks have experienced unprecedented parliamentary and regulatory interest in recent years, peaking with the commencement of a Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (discussed further in Section IX, below). Once this process has completed, there will almost certainly be follow-on litigation in relation to areas of misconduct identified in the course of the Royal Commission process.

i Alleged failure to comply with anti-money laundering obligations – AUSTRAC v. CBA

In August 2017, the Australian Transaction Reports and Analysis Centre (AUSTRAC), which is Australia’s financial intelligence and regulatory agency, commenced proceedings against the Commonwealth Bank of Australia (CBA) for serious and systemic non-compliance with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act).2 The claim alleges over 53,800 contraventions of the AML/CTF Act, including in connection with CBA’s intelligent deposit machines (IDMs). AUSTRAC alleges, among other things, that CBA failed to properly assess the risks associated with IDMs before they were rolled out in 2012 and subsequently failed to give threshold transaction reports in respect of certain transactions either on time or at all. The maximum penalty for an individual contravention alleged in the amended statement of claim is up to A$21 million.

On 4 June 2018, AUSTRAC and CBA announced that the parties had settled the proceedings on the basis that CBA would pay a penalty of A$700 million. The parties will appear before the Federal Court seeking orders to give effect to the settlement sometime in the coming months. If approved by the Court, this will be the largest civil penalty in Australian corporate history.

ii Personal advice and failure to act in customers’ best interests – ASIC v. NSG Services Pty Ltd and other undecided matters

A significant volume of banking litigation in Australia is commenced by the Commonwealth financial conduct regulator, the Australian Securities and Investments Commission (ASIC), for breaches of the Corporations Act 2001 (Cth) and other legislation. The Corporations Act contains provisions, among other things, governing financial conduct. Where those provisions have been contravened, a court may grant relief including declarations, injunctions and, for some provisions, orders for compensation and civil penalties.

ASIC has now taken steps against several parties in respect of their compliance with the obligations amended into the Corporations Act in 2012 as part of the Future of Financial Advice (FOFA) reforms.3 The FOFA reforms introduced a duty for financial advisers to place the best interests of their clients ahead of their own when providing personal advice to retail clients.

In October 2017, the Federal Court imposed a civil penalty of A$1 million against Melbourne-based financial advice firm NSG Services Pty Ltd (NSG) for breaches of the best interests duty introduced under the FOFA reforms.4 This represents the first finding of liability against a licensee for breach of the FOFA reforms, although the matter was resolved on a consensual basis so is of limited precedent value.

In December 2016, ASIC commenced proceedings in the Federal Court against two companies that operate as part of the Westpac group’s wealth management business.5 The claim alleges that the companies provided ‘personal advice’ as defined in the Corporations Act, and, accordingly, failed to act in the customers’ best interests as required by the Act. The concept of ‘personal advice’ has not previously been considered by the courts. The Court heard closing arguments on 16 February 2018 with judgment reserved.

iii Alleged manipulation of bank bill swap reference rate – ASIC v. Westpac Banking Corporation

In early 2016, ASIC commenced proceedings in the Federal Court against three of Australia’s major banks, ANZ, Westpac and NAB, for alleged manipulation of the bank bill swap reference rate (BBSW).6 The BBSW is the primary interest rate at which banks lend to each other over short periods. It is an important interest rate in the Australian economy, providing a benchmark for the setting of various business loan rates.

ASIC claimed that each bank traded in a manner intended to create an artificial price for bank bills on multiple occasions. ASIC alleges that on these occasions each bank:

  1. had a large number of products that were priced or valued with reference to the BBSW;
  2. traded in the bank bill market with the intention of moving the BBSW higher or lower; and
  3. sought to maximise profit or minimise loss to the detriment of those holding opposite positions to their own.

ANZ and NAB entered into enforceable undertakings with ASIC in relation to each bank’s bank bill trading business and their participation in the setting of the BBSW. The Federal Court found that both ANZ and NAB had attempted to engage in unconscionable conduct, and imposed pecuniary penalties of A$10 million each.7 The Court also noted that ANZ and NAB will give enforceable undertakings to ASIC to take certain steps and to pay A$20 million applied to the community benefit and A$20 million towards ASIC’s investigation and other costs.

The Westpac proceedings proceeded to trial in October 2017. On 24 May 2018, Justice Beach handed down a 643-page judgment in the proceeding.8 In summary, Beach J:

  1. rejected ASIC’s case that Westpac contravened Sections 1041A and 1041B of the Corporations Act, finding that Westpac did not engage in market manipulation or market rigging on any of the specific contravention dates alleged by ASIC;
  2. rejected ASIC’s general allegation that Westpac had systematically traded with the sole or dominant purpose of influencing the level at which the BBSW was set in a way that was favourable to Westpac and that therefore resulted in yields that did not reflect the forces of genuine supply and demand;
  3. found that Westpac had contravened the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) by engaging in unconscionable conduct on four occasions in 2010, when Westpac traders traded with the dominant purpose of influencing the level at which BBSW was set on those dates. In making this finding, his Honour did not find that Westpac had in fact affected the level of BBSW on those dates; and
  4.  found that Westpac had contravened its supervisory duties as an Australian financial services licensee under Section 912A of the Corporations Act.

The matter will now go to a hearing on penalty. The maximum penalty for contraventions of the relevant sections of the ASIC Act is A$1.1 million per contravention.

ASIC commenced similar proceedings in the Federal Court against CBA on 30 January 2018.9 CBA and ASIC have agreed an in-principle settlement, which is subject to approval by the Court.

iv Alleged breach of responsible lending obligations in relation to home loans – undecided

In March 2017, ASIC commenced proceedings in the Federal Court against Westpac for alleged breaches of laws relating to responsible lending.10 The National Consumer Credit Protection Act 2009 (Cth) (NCCPA) contains consumer protections to ensure that credit providers make reasonable inquiries about a borrower’s financial situation and assess whether a particular loan will be unsuitable. ASIC alleges that between 2011 and 2015 Westpac failed to assess properly whether borrowers could meet their repayment obligations before allowing those customers to enter into home loan contracts.

ASIC states that the bank:

  1. used a benchmark instead of the actual expenses declared by borrowers in assessing their ability to repay the loan;
  2. approved loans where a proper assessment of a borrower’s ability to repay the loan would have shown a monthly deficit; and
  3. for home loans with an interest-only period, failed to have regard to the higher repayments at the end of the interest-only period when assessing the ability to repay.

Westpac is defending the claim. The hearing will commence in September 2018.

ANZ has also been the subject of proceedings in relation to breaches of the responsible lending provisions under the NCCPA by its former car finance business, Esanda.11 ASIC alleged that ANZ failed to meet its responsible lending obligations when relying only on payslips to verify the consumer’s income, in circumstances where it knew that payslips could be easily falsified and it had reason to doubt the reliability of information from the particular broker businesses. ASIC and ANZ filed a statement of agreed facts and admissions and the Court ordered ANZ to pay a penalty of A$5 million.

II RECENT LEGISLATIVE DEVELOPMENTS

The Treasury Laws Amendment (Banking Executive Accountability and Related Measures) Act 2018 (BEAR) came into force on 1 July 2018 for large authorised deposit-taking instructions. Under BEAR, senior executives must be registered with the Australian Prudential Regulation Authority (APRA) along with details of their specific responsibilities. The APRA has been provided with increased powers in order to strengthen its ability to hold banks and their executives accountable, including the ability to charge fines, disqualify individuals and impact remuneration policies. It remains to be seen what litigation may arise as a result of the introduction of these new requirements.

Amendments have also been made to the Corporations Act 2001 (Cth) in order to address the alleged conduct that was the subject of the proceedings in relation to manipulation of the benchmark rate.12 The amendments establish a new licensing regime requiring administrators of designated significant financial benchmarks to obtain a ‘benchmark administrator licence’ from ASIC.13 Under this new regime, there are new offences and penalties for manipulation of financial benchmarks14 and ASIC has new powers to make rules imposing a regulatory framework for licensed benchmark administrators.15

III CHANGES TO COURT PROCEDURE

In October 2016, the Federal Court implemented a series of new practice notes, including the ‘central practice note’ and a practice note for the ‘commercial and corporations’ practice area (C&C-1). As set out in C&C-1, the Court is currently experimenting with a new form of commencing proceedings, which it is thought will make it easier for parties, including ASIC, to commence proceedings.

The Federal Court now provides an option for an applicant to commence proceedings by way of a ‘concise statement’, not exceeding five pages in length, and summarising the important facts giving rise to the claim, the relief sought, the causes of action for the relief sought and the alleged harm suffered. The judge at the first case management hearing maintains a wide discretion in deciding how the case should proceed thereafter.

IV INTERIM MEASURES

Acts and court rules across the various Australian jurisdictions provide that a court may grant an interim injunction where there is an urgent need to maintain the status quo. They operate to prevent a person from acting in a way that would cause irreparable damage to the applicant before a judicial decision can be obtained. A party will ordinarily make an application for an interim injunction ex parte and, as such, will be under an obligation to disclose all relevant facts. The court will require that the applicant provide an undertaking as to damages to ensure that the respondent can be compensated for any loss flowing from the award of the injunction.

Australian courts also have jurisdiction to award Mareva orders16 (freezing orders), which restrain a defendant from dealing with assets in such a way that would defeat the effect of a judgment favourable to the plaintiff. Court rules across the jurisdictions create distinct and additional powers to grant freezing orders.

V LAWYER–CLIENT PRIVILEGE

Parties to litigation in Australia may be required to disclose documents in their possession or control that are relevant to the issues in dispute. At the investigation stage, most regulators also have the power to compel persons to produce documents.

Lawyer–client privilege, however, operates to allow persons to prevent the disclosure of certain documents. A client may claim privilege in relation to confidential communications between a client and lawyer made for the dominant purpose of the client seeking or being given legal advice (client legal privilege). Similarly, confidential communications between a client and another person, or the lawyer and another person, for the dominant purpose of the client receiving legal services in relation to actual or anticipated litigation are also protected (litigation privilege).

Privilege can be waived at any time by a party acting inconsistently with the maintaining of privilege, including by disclosing the substance or effect of the relevant communication.

In-house lawyers are accorded the same status as external lawyers for the purposes of privilege protections. That said, claims for privilege involving in-house lawyers can be the subject of additional scrutiny in circumstances where it is questionable whether the lawyer has the necessary degree of independence or also has a non-lawyer role within the company.

VI JURISDICTION AND CONFLICTS OF LAW

Banks and other financial institutions in Australia are largely governed by federal legislation.17

Banking litigation may be commenced in either the federal or state courts, depending on whether it arises as a result of legislation, common law or in equity. Although the majority of relevant legislation is federal, there remains an active banking litigation practice in state courts dealing with a range of matters, including the enforcement of loans and questions of fiduciary duties. State courts are also able to exercise limited federal jurisdiction under the principle of accrued jurisdiction.

Few conflicts of law issues arise in banking disputes. In circumstances where a conflict exists between the applicable law of a state or territory and a federal law, pursuant to Section 109 of the Australian Constitution, the federal law prevails to the extent of any inconsistency. Where a conflict exists between two state or territory laws, the issue is usually determined by reference to similar choice of law considerations that apply to the determination of whether a foreign jurisdiction is the most appropriate forum.18

Many disputes between consumers and financial services providers are not determined in courts but by external dispute resolution (EDR) schemes with jurisdiction to determine disputes between consumers, including small businesses, and financial services providers.19 These include:

  1. the Financial Ombudsman Service, an ASIC-approved EDR scheme that considers disputes relating to banking and finance, insurance, financial planning, funds, mortgage and finance broking, estate planning, and management and trustee services;
  2. the Credit and Investments Ombudsman, a separate ASIC-approved EDR scheme; and
  3. the Superannuation Complaints Tribunal, a statutory body established under the Superannuation (Resolution of Complaints) Act in 1993 (Cth), which deals with decisions and conduct of trustees, insurers and other decision makers in relation to regulated superannuation funds.

VII SOURCES OF LITIGATION

Banking litigation is frequently initiated by individual customers, but over the past decade there has been a marked increase in customers challenging financial services firms by initiating class action proceedings. Adverse regulatory findings by regulators, such as ASIC, have also been a fertile source of banking litigation.

i Misleading or deceptive conduct, or unconscionable conduct

Allegations of misleading or deceptive conduct, or unconscionable conduct, are frequently raised in banking litigation.

The Corporations Act prohibits a person engaging in conduct, in relation to a financial product or a financial service, that is misleading or deceptive, or likely to mislead or deceive. The Act also prohibits a financial services licensee from engaging in conduct that is unconscionable. These prohibitions are also reflected in the Australian Consumer Law and ASIC Act. In addition to statutory claims, a claim in equity may be brought for unconscionable conduct.20

If the court determines that misleading or deceptive, or unconscionable conduct (or a combination of these) has occurred, remedies may include compensation, financial penalties, variation or voiding of a contract, or a refund or performance of specified services.

By way of example of these claims, in ASIC v. GE Capital Finance Australia Pty Ltd,21 the Federal Court found that GE Capital had impliedly represented to credit card holders that they could not activate new credit cards, or apply for or obtain an increased credit limit, unless they agreed to receive invitations to do so. The Court held that this contravened provisions in the ASIC Act prohibiting misleading or deceptive conduct. A penalty of A$1.5 million was imposed owing to the deliberate and systematic nature of GE Capital’s conduct.22

In addition, in Violet Home Loans Pty Ltd v. Schmidt,23 the Victorian Court of Appeal held that the conduct of a mortgage originator and manager who had processed a loan application on behalf of a mortgagee was unconscionable under Section 12CB of the ASIC Act on the basis that the mortgagee was vulnerable and an ‘unsophisticated and naïve man who had little financial nous’,24 and the mortgage originator was aware of irregularities in the loan application but had made no efforts to investigate them.25 The Court held that while the conduct in question had to be more than negligent, ‘recklessness, in the form of wilful blindness, may… supply the necessary element of moral obloquy’.26 The Court affirmed the order to set aside the loan and mortgage.

ii Contractual disputes

A large number of banking disputes arise in the context of financial institutions enforcing their rights under loan agreements, and defending cross-claims by borrowers with respect to the validity or enforceability of such loan agreements. These contractual disputes often raise issues of greater significance to banking institutions.

Australia’s unfair contract terms legislation,27 which was extended in November 2016 to apply to standardised contracts with small businesses, is likely to continue to be a source of disputes between consumers, small businesses and financial institutions. Lenders have come under increasing pressure from regulators to review their standardised lending terms in light of the legislation, particularly in relation to entire agreement clauses, indemnification clauses, terms relating to financial indicator covenants and unilateral variation clauses. In March 2018, ASIC released a report in respect of the changes to unfair contract terms in small business loans and noted that, as a next step, the banks were required to communicate these changes to small businesses via multiple channels and ASIC will continue to monitor the use of the changed terms going forward.28

iii Regulatory investigations

Both ASIC and APRA have extensive powers to investigate financial institutions. These investigations may come about as a result of:

  • a monitoring and surveillance work;
  • b a member of the public, or a whistle-blower, reporting a financial institution’s perceived misconduct;
  • c referrals from other regulators; or
  • d a financial institution’s self-reporting.
iv Class actions

Australia has a well-developed class action regime and has seen a significant increase in the number of class actions over the past decade, particularly with the development of an active litigation funding industry and the promotion of claims by plaintiff law firms. Long-term trends of class actions in Australia suggest that financial institutions are the most frequent targets of class actions, with claims relating to the mis-selling of financial products, the rating of financial products, lending practices and compliance with trustee obligations most commonly in issue.

In October 2017, class action proceedings were filed against CBA, in connection with the AUSTRAC case discussed in Section I, above. The class action alleges that CBA engaged in misleading or deceptive conduct and that it failed to disclose material information to the market in relation to the aspects of its AML/CTF controls that are the subject of the AUSTRAC proceeding.

With the intense scrutiny on the financial services industry as a result of the Royal Commission (discussed in Section IX, below), there are already reports of pending class actions in relation to the areas of misconduct that have been the subject of the Royal Commission to date. For example, AMP is currently facing four class actions that allege, among other things, that it charged financial advice customers ongoing service fees where it was not providing any services; it made false or misleading statements to ASIC in respect of this practice; and that this conduct arose from inadequate monitoring, reporting and governance controls.

As the Royal Commission continues to explore instances of misconduct by financial institutions, there remains a very real risk of further class actions.

VIII EXCLUSION OF LIABILITY

Exclusion of liability is most relevant to disputes between financial services providers, rather than disputes with consumers, given the operation of the unfair contract terms legislation29 described in Section VII.ii, above. In this context, exclusion clauses in consumer and small business contracts purporting to disclaim liability for representations made to prospective borrowers, including innocent and negligent misrepresentations included in a loan agreement, mortgage or guarantee are likely to be held unenforceable as a consequence of the unfair contracts legislation.

Unlike contracts between consumers and financial services providers, contracts between financial services providers themselves are generally not protected by consumer legislation. Financial services providers are viewed as often having equal bargaining power and not in need of the same kind of statutory protections afforded to consumers. At common law, operation of an exclusion clause is defined by the ordinary rules of contractual interpretation. Clear words are needed to rebut the presumption that contracting parties would not seek to abandon any remedies accruing from a breach of contract.30

IX REGULATORY IMPACT

Increasing scrutiny by regulators and Parliament on financial institutions and their senior executives, as well as moves to provide regulators with broader powers (see Section II, above), feed into an active Australian litigation environment.

At present, the main focus for the banking and financial services industry is the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. The Royal Commission’s terms of reference require the Commissioner, the Honourable Kenneth Hayne AC QC, to inquire into a broad range of matters, including:

  1. whether any conduct by financial services entities might have amounted to misconduct;
  2. whether any conduct, practices, behaviour or business activities by financial services entities fall below community standards and expectations;
  3. whether any misconduct is attributable to the particular culture and governance practices of a financial services entity or broader cultural or governance practices in the relevant industry or subsector; and
  4. whether any changes to the legal framework, practices within financial services entities and the financial regulators are necessary to minimise the likelihood of misconduct by financial services entities in the future.

The Commissioner’s final report is expected no later than 1 February 2019. The conclusions reached by the Commission will have significant implications for all of the areas considered in this publication going forward, including the regulatory landscape, the legislative framework and potential future court proceedings that may arise in connection with misconduct considered by the Royal Commission.

In 2015, the federal government set an agenda for improving the Australian financial system in response to the findings of the Financial System Inquiry.31 In connection with this agenda, the government established the ASIC Enforcement Review Taskforce to review ‘whether there is a need to strengthen ASIC’s enforcement toolkit and if so, what that might look like’.32

In December 2017, the Taskforce released its report, which included 50 recommendations. On 16 April 2018, the government responded to the report and noted that it agreed, or agreed in principle, with all of the recommendations.33 A further media release on 20 April 2018 announced an intention to prioritise 30 of the recommendations that would see significant increases to ASIC’s powers. The remaining 20 recommendations will be considered alongside the final Royal Commission report.34

ASIC is involved in ongoing litigation with a number of banks, and more proceedings are expected with many investigations underway. In its report on enforcement outcomes for the second half of 2017, ASIC noted that, over the next six months, it would have a particular focus on, among other things, responsible lending practices in the consumer credit industry, financial advisers’ compliance with the best interests duty and their obligation to provide appropriate advice to clients and financial services licensees’ failure to deliver ongoing advice services to financial advice customers who are paying fees to receive those services.35 In 2017, Australia’s competition regulator, the Australian Competition and Consumer Commission (ACCC), established a permanent Financial Services Unit (FSU) to monitor and promote competition in Australia’s financial services sector by assessing competition issues, undertaking market studies and reporting regularly on emerging issues and trends in the sector. The FSU’s first task was the Residential Mortgage Price Inquiry. An interim report, released in March 2018, identified signs of less-than-vigorous price competition, especially between the big four banks and a final report is due later in 2018.36 It is not yet clear what litigation may follow the release of the final report.

In May 2018, APRA released the final report of its prudential inquiry into CBA.37 The Prudential Inquiry was announced in August 2017 to examine governance, culture and accountability issues within the CBA group. The report identified a number of shortcomings in CBA’s governance, culture and accountability frameworks, particularly in dealing with non-financial risks, and made recommendations to strengthen these frameworks. On releasing the report, APRA noted that all regulated financial institutions would benefit from conducting a self-assessment to gauge whether similar issues might exist in their institutions and it would expect institutions to be able to demonstrate how they have considered the issues within the report.38

With Australian financial institutions coming under significant scrutiny as a result of the Royal Commission, Australia can expect private litigants (including litigants funded by litigation funders) to continue to focus their attention on the potential wrongdoing of financial institutions.

X LOOKING AHEAD

Banking litigation in Australia most commonly arises in relation to regulators and consumers, rather than between financial institutions themselves, which are seen to enjoy more equal bargaining power and may be more motivated to reach confidential settlements than pursue dispute resolution through the courts. Current increased regulatory and public scrutiny on banks contributes to an environment that is more susceptible to litigation. In light of the increased scrutiny as a result of the Royal Commission, as well as Australia’s active class-action environment, the banking sector in Australia is likely to remain an active area for disputes for quite some time.

1 Ross Drinnan and Alexandra Mason are partners, and Laura Hablous is a senior associate, at Allens.

2 NSD 1305/2017.

3 See Corporations Amendment (Future of Financial Advice) Act 2012 (Cth).

4 Australian Securities and Investments Commission, in the matter of NSG Services Pty Ltd v. NSG Services Pty Ltd [2017] FCA 345 (30 March 2017 – judgment); Australian Securities and Investments Commission, in the matter of Golden Financial Group Pty Ltd (formerly NSG Services Pty Ltd) v. Golden Financial Group Pty Ltd (No. 2) [2017] FCA 1267 (proposed pecuniary penalties and costs orders).

5 NSD 2204/2016.

6 VID 197/2016, VID 282/2016; and VID 604/2016 respectively.

7 Australian Securities and Investments Commission v. National Australia Bank Limited [2017] FCA 1338; see also ASIC Media Release dated 20 November 2017.

8 Australian Securities and Investments Commission v. Westpac Banking Corporation (No. 2) [2018] FCA 751.

9 Australian Securities and Investments Commission v. Commonwealth Bank of Australia (VID65/2018); see also ASIC Media Release dated 30 January 2018.

10 NSD 293/2017.

11 ASIC v. ANZ [2018] FCA 155.

12 Corporations Act 2001 (Cth), Part 7B.

13 Corporations Act 2001 (Cth), Section 908BA.

14 Corporations Act 2001 (Cth), Sections 908DA and 908DB.

15 Corporations Act 2001 (Cth), Sections 908CA and 908CD.

16 As recognised by the English Court of Appeal in Mareva Compania Naviera SA v. International Bulkcarriers SA [1980] 1 All ER 213.

17 See, e.g., Banking Act 1959 (Cth); ASIC Act; Corporations Act 2001 (Cth); Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law); National Consumer Credit Protection Act 2009 (Cth) and Schedule 1 (National Credit Code); Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth); Personal Property and Securities Act 2009 (Cth); Privacy Act 1988 (Cth), Schedule 1 (Australian Privacy Principles).

18 For example, in John Pfeiffer Pty Ltd v. Rogerson [2000] HCA 36, the High Court held that the relevant choice of law consideration was where the tortious act occurred, rather than the forum that provided the greatest convenience to the parties.

19 If providing financial services to retail clients, financial services licensees are required by Section 912A(1)(g) of the Corporations Act to have adequate internal dispute resolution procedures and be members of an EDR scheme.

20 See, e.g., Commercial Bank of Australia Ltd v. Amadio (1983) 151 CLR 447.

21 [2014] FCA 701 (GE Capital).

22 GE Capital [2014] FCA 701, [80], [93]–[94].

23 [2013] VSCA 56 (Violet Homes).

24 Violet Homes [2013] VSCA 56, [34].

25 Violet Homes [2013] VSCA 56, [68].

26 Violet Homes [2013] VSCA 56, [58].

27 Australian Consumer Law, Section 24; ASIC Act, Section 12BG.

28 See ASIC, ‘Unfair contract terms and small business loans’ (Report 565, March 2018).

29 Australian Consumer Law Part 2-3; ASIC Act Part 2, Division 2.

30 Concut Pty Ltd v. Worrell [2000] HCA 64, [23].

31 See D Murray et al, ‘Financial System Inquiry: Final Report’ (November 2014).

32 Minister for Revenue and Financial Services, Media Release: ASIC Enforcement Review Taskforce (19 October 2016), the Treasury, http://kmo.ministers.treasury.gov.au/media-release/095-2016.

33 Australian government response to the ASIC Enforcement Review Taskforce Report (16 April 2018), https://static.treasury.gov.au/uploads/sites/1/2018/04/Aus-Gov-response-ASIC-Enforcement-Review-Taskforce-Report.pdf.

34 Minister for Revenue and Financial Services, Media Release: Boosting penalties to protect Australian consumers from corporate and financial misconduct (20 April 2018), http://kmo.ministers.treasury.gov.au/media-release/039-2018/.

35 See ASIC, ‘ASIC enforcement outcomes: July to December 2017’ (Report 568, February 2018).

36 See ACCC, ‘Residential mortgage price inquiry: interim report’ (March 2018).

37 See APRA, ‘Prudential Inquiry into the Commonwealth Bank of Australia’ (April 2018).

38 APRA, Media Release ‘APRA releases CBA Prudential Inquiry Final Report and accepts Enforceable Undertaking from CBA’ (1 May 2018), www.apra.gov.au/media-centre/media-releases/apra-releases-cba-prudential-inquiry-final-report-accepts-eu.