Perhaps the most damning allegations contained in ASIC’s civil action against Westpac are those relating to how the bank treated its corporate client, the investment consortium that acquired control of Ausgrid in 2016.
There are several big names who participated in that consortium including Australian Super and IFM Investors.
The regulator’s statement of claim describes a litany of alleged misconduct and process failings which, if proven, would turn a harsh spotlight – again - on the practices and culture of Westpac’s institutional bank.
ASIC’s allegations raise fresh questions about how the bank regards disclosure in institutional banking deals it strikes with corporate customers and whether it acts in their interest or primarily its own.
In a nutshell, does Westpac’s institutional bank conducts its business in an unconscionable manner?
In 2018 the Federal Court found the bank engaged in unconscionable conduct by attempting to manipulate the bank bill swap rate four times during 2010.
Justice Beach’s assessment of Westpac’s conduct was a humiliating moment for the institutional bank on the BBSW matters:
'Westpac's misconduct was serious and unacceptable…Westpac has not shown the contrition of the other banks. Moreover, imposing the maximum penalty is the only step available to me to achieve specific and general deterrence.”
A potentially important aspect of the latest civil action brought against Westpac’s institutional banking arm is the timing of the insider trading and unconscionable conduct allegations.
They are alleged to have occurred in October 2016 – about four months after the bank was sued by ASIC for unconscionable conduct relating to BBSW.
If ASIC’s latest case is vindicated by the court this might indicate a high degree of cultural resistance within the institutional banking arm to regulatory concerns about its conduct.
The statement of claim in the Ausgrid Consortium case asserts that Westpac never disclosed to its corporate client that it planned to pre-hedge for the counterparty risk it was taking on by agreeing to execute the interest swap request.
ASIC also alleges that executives and staff in the bank’s institutional arm appeared to have no regard for how their trading – informed by inside information provided by a client – could impact the interests of the same client.
These claims will now be tested by the Federal Court if Westpac decides to mount a defence.
If they are found to be true then Westpac’s recently appointed chairman John McFarlane should be asking whether dealers employed in his institutional bank are adhering to best practices in derivatives trading.
In December 2018 the Australian Financial Markets Association published guidelines for dealers to manage swap reference price transactions.
If they had been followed by Westpac in October 2016 then the Ausgrid Consortium case might not be happening.
Here’s how AFMA summarises its guidelines:
•Dealers may hedge for such purposes and in a manner that is not meant to disadvantage the Client;
• Dealers should be aware of and manage the possible conflicts of interest related to the formation and observation of the reference price inherent in reference price transactions;
• Dealers should communicate their hedging practices to their Clients in a clear manner meant to enable Clients to understand their actions in the market; and
• Dealers should ensure that the sole intention behind their hedging is risk mitigation.