Bank of England Governor, Mervyn King hit the nail on the head when he said that "it has been a year to remember, but not to repeat". The risk of institutional or systemic failure receded, but the risk of over-regulation emerged. And that is a risk that we think is potentially more damaging in the long term to Australia and its economy than the GFC itself.
Government and the regulators are forcing the financial services industry to react to a myriad of enquiries, discussion papers, proposals and reports. Driven by our Government's perception that we need to be ahead of the G20 curve, we are seeing - and will continue to see - changes in executive and employee remuneration, consumer credit laws, capital and liquidity requirements for banks, as well as leverage ratios and charges for systemically significant bodies, trading and clearing systems for derivatives, risk retention and disclosure requirements for securitisation, the reform of the funds management and superannuation industry and last, but not least, the pending taxation review. There are many others.
At the same time, we are a capital importing nation that relies on the banking system to fund not only the credit in the Australian economy but the necessary offshore investment through our current account. Banks and other financial institutions are in a race for deposits and funding, while at the same time staring down the barrel of competing on an uneven playing field with offshore institutions as we transition from a government-guaranteed funding model to a stand alone model. If Australian banks are to be regulated to the same or higher levels as offshore banks, they need to have available to them the full range of capital and funding sources - covered bonds is just one example of this.
There has also been unprecedented consolidation in the financial services industry in 2009. The industry has been reshaped, as have its competitive forces.
Our main focus for 2010 needs to be on "connecting the dots". Each of the Government's reforms is, of itself, valid but the combined effect is worrying. We think the combination will lead to reduced competition, a higher cost of business and a higher cost but lower supply of credit. This will adversely affect the recovery in Australia and our long term growth. We are committed to working with our clients, and in industry bodies, to identify these issues and to shape a better form of regulation for our market in the years ahead.
Finally, to celebrate the festive season and to thank you for your support during 2009, we are giving away copies of Andrew Ross Sorkin's book on the Wall Street meltdown, "Too Big to Fail". The first 10 Regulator readers to reply to this email will receive a free copy of "Too Big to Fail". Winners will be announced in our January edition.
In closing, let me thank all of our clients for their support this year, and wish you and your families all the best for the festive season.
Mallesons Stephen Jaques Mergers & Acquisitions partner, Tim Bednall, will become the next Chairman of the firm.
The appointment, effective 1 January 2010, was confirmed at the December meeting of the Mallesons Board, following a recommendation by the Board's succession committee. Current chairman, Frank Zipfinger, will end his five-year term on 31 December.
49-year-old Mr Bednall has a leading market reputation, being described by Chambers Global Guide 2009 as "one of the top M&A experts in the country".
Mallesons' Chief Executive Partner, Robert Milliner, congratulated Mr Bednall on his appointment and offered the firm's thanks to Mr Zipfinger for his significant contribution as Chairman since 2005.
“I am looking forward to working with Tim and our partners in continuing to develop Mallesons as Australia's leading law firm. On behalf of the firm, I would like to thank Frank for his leadership of the Board and, at a personal level, for his unstinting support and wise counsel over the last five years," Mr Milliner said.
Mr Zipfinger will continue as Chairman of the “Mallesons in the Community” Board, which oversees the firm's community and charitable programs.
“Each of the Government's reforms is, of itself, valid but the combined effect is worrying. We think the combination will lead to reduced competition, a higher cost of business and a higher cost but lower supply of credit.”
The Panel charged with conducting the Super System Review has released its first Preliminary Report. The Report responds to the issues raised by the Panel in its Phase 1 Issues Paper on Governance. Like the Issues Paper, the Preliminary Report is internally focussed, primarily examining the superannuation fund, the trustee and the members. Read more
2009 has been tumultuous for the financial sector globally, with Government support in the form of guarantees, equity injections or nationalisations. In Europe especially, Government support has been extensive and the ramifications of receiving ‘state aid’ have started to become public, with European Commission restructuring divestments required of Royal Bank of Scotland plc and Lloyds TSB plc. Read more
The headline recommendation of the Parliamentary Inquiry into financial products and services (the “Ripoll Inquiry”) is that: “The Corporations Act be amended to explicitly include a fiduciary duty for financial advisers operating under an AFSL, requiring them to place their clients’ interests ahead of their own” (Recommendation 1). Much has been written about what it means to be a fiduciary. However, not a lot of attention has been given to how a fiduciary duty will affect what a financial adviser does. Read more
Our alert dealing with the Parliamentary report on financial products and services in Australia (see here), commented that “the recommendation that payments from product manufacturers cease … has far reaching implications for the way in which financial products are distributed and financial services businesses are structured. We see the PJC’s report as another step on the path to a new paradigm for the financial services industry where fees paid for a product are transparently distinct from the fees paid for advice. This will dramatically alter the financial services industry over the long term ”. Read more
The Personal Property Securities Act 2009 (Cwlth) is now law.
The Personal Property Securities (PPS) legislation will establish a national system for the registration of security interests in personal property. It sets out new rules for the creation, priority and enforcement of security interests in personal property. This will affect the way security is taken over almost every form of property other than land. It will also affect transactions that are currently not regarded as “securities”, and transactions that are currently not registrable. The new system is expected to be in place by May 2011 (Start Date), with a two year transitional period. Read more
The spate of proposals, consultations and discussion papers linked to reform of bank capital requirements has continued to gather momentum across the globe. This is not a surprising development in the wake of the GFC. A bank’s ability to access liquidity to meet claims as they fall due in times of crisis is fundamental to its survival. Read more
In a decision likely to be of great interest to card issuers in Australia, the Federal Court on Tuesday found for Westpac in a case brought by ASIC on the substitution of cards under section 12DL of the ASIC Act. We expect that this decision will have important consequences across all issuers of both credit and debit cards that have considered substituting existing cards with cards with new features, such as a card that is linked to the Visa or MasterCard networks. Read more