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Bankers must realise they are fiduciaries

As a ‘banker’ for half of the past 30 years (Citibank, HSBC/Midland, ANZ) including at senior executive levels reporting directly to the Group Chief Executive, I conclude that ‘culture’ comes mainly from personal principles and ethics. And these mainly come from within, driven by childhood and family values. In the old days of ‘careers for life’, some culture might have come from the formative years in a career job. Now, in the era of frequent job and company hopping, it is more about beating the numbers to look good for the next bonus or employer, which inevitably means short-term gains. These often involve papering over problems, deferring expenses, accelerating revenues, etc. Just like short termism with our two- to three-year election cycles, it is extremely difficult to change.

Remuneration is key

Add the 20:1 to 30:1 gearing in banks plus the leverage in executive option packages, there is the potential to make big dollars fast, as rewards guide behaviour. That will only change when fractional reserve banking is radically wound back to say 5:1 gearing (such as former Bank of England Mervyn King’s plan) and either banks or bank salaries are nationalised, which tends to be the European way. I believe both of these radical outcomes (nationalisation and lower gearing) will eventually happen, but only after a very major crisis, much more serious than the GFC.

An early sign what is coming is the statement by the Australian Bankers Association, in response to the call for a Royal Commission, which includes:

“We intend to strengthen the alignment of remuneration and incentives and customer outcomes. We will work with regulators to implement changes and, where necessary, seek regulatory approval and legislative reform. Each bank commits to ensure it has overarching principles on remuneration and incentives to support good customer outcomes and sound banking practices.”

The model of choice today is denial and doing the minimum to delay the problem as much as possible (Japan, Europe approach) or water down reforms so they are minimalist (US approach). The same old banks are even bigger and badder than they were before the GFC and the regulators have not helped. We will see what is achieved by the new funding and determination by ASIC and its boss Greg Medcraft.

The economic system relies on public confidence in banks

I think banks already have a super-fiduciary duty. Not legislated but implied by their central role in the whole economy. Banks (not governments) create most of the money in the economy, and bank deposits (ie unsecured bank debt) are assumed blindly by the public to be ‘cash’ and unquestionably reliable, liquid and safe. Maintaining public confidence in bank debt (deposits) as cash is the central core of all public confidence in money, and underpins all spending, which in turn underpins employment. Bankers should not forget their fiduciary role, or the economy will fail.

What does that mean? Recall that the evaporation of confidence in money thanks to the money-printing inflation in the later years of the Roman Empire plunged Europe into a thousand years of barter and feudalism (5th century to the 15th century, aided and abetted by the Catholic Church’s outlawing of lending at interest). Trade and commerce ground almost to a halt for a thousand years in Europe. Most people returned to living from hand to mouth and there were no economic surpluses to fund arts and sciences, so innovation and productivity gains stopped (hence the ‘Dark Ages’). China and India flourished far better than Europe until Marco Polo brought back tales of wealth and wonder and triggered a resurgence and renaissance in Europe in the 15th century.

The fragile myth that allows society and the economy to function

Today, everybody is paid their wages in bank deposits, and people believe that bank debt is cash. Public confidence in bank debt is absolutely critical to the functioning of the entire economy. If today’s bankers’ greed and self-interest results in a breakdown of public confidence in banks (ie money), people will once again resort to barter. It will encourage alternatives to banks, such as peer-to-peer lenders, bitcoin, etc.

Thus far, the banks have managed to keep public confidence but assisted materially by the government guarantee. This must be removed. It creates a moral hazard and take bankers’ minds off the central importance of their super-fiduciary duty.

Thus far all the bank scandals in Australia have been at the periphery – financial planning, FX trading, bank bill swap rate rigging, over-charging of fees, credit card interest rates, isolated cases of staff skimming from accounts, isolated rogue traders, occasional insider traders, etc. People don’t regard these as important enough to erode their basic view of bank debt as ‘money’, which is the core of banker’s super-fiduciary duty. The core asset and liability management of Australian banks is still pretty sound.

Bankers’ memories fade over the decades

The core of banking is asset and liability management (ALM), ensuring bank assets (mainly loans) are there to meet liabilities (mainly deposits) when they are needed. In my experience on ALM committees, most of the attention is on the liability side. The process is usually run by the bank treasury departments (liability side of the equation). The problem is that the rogue element is credit growth, which is on the asset side of the balance sheet.

Australian banks learned the lessons from the disastrous experience of the 1893-94 bank collapses, and this served them well in the 1930s depression when they were the bastions of conservatism, unlike US banks at the time. But after 50 years, memories fade. Westpac and ANZ came near to insolvency in the early 1990s recession following the late 1980s lending binge. It was pure luck that it wasn’t worse. RBA Governors Bob Johnston and Bernie Fraser (whom Paul Keating boasted was ‘in his pocket’) defied Keating and fortunately jacked up interest rates fast enough in 1988 and 1989 to stop the mad bank lending binge just in time, otherwise AGC (Westpac) and Esanda (ANZ) would have blown up their parent banks.

The RBA would have been stretched to bail out depositors. In the late 1980s lending binge, not only did Westpac and ANZ do their best to blow themselves up with bad lending, the state banks of every state of Australia (except Queensland, which didn’t have a state bank) also went mad and were closed and sold off by governments. Most of their assets were picked up by CBA (then owned by the Commonwealth Government) without loss to depositors but at great cost to state governments and their tax payers. The early 1990s experience following the late 1980s bank lending binge taught us that we cannot rely only on central bankers to watch over and regulate the banks. Monetary policy saved the day but the supervisory function was asleep.

Rather than rely on well-meaning but under-resourced regulators and legislators, the most powerful force is the bankers’ existing super-fiduciary duty, which is implied by their role as creators of money and custodians of the illusion of the safety and unquestioned liquidity of bank deposits.

Credit and ALM are all that really matters

Credit quality and growth are the key to the asset side of the balance sheet, but it is overall ALM that sets gearing and exposure levels. It is essential that the top levels of all banks understand the power of strong ALM.

The problem is three-fold. First, the current batch of bank CEOs have no deep experience in either credit or liability management. Second is the highly geared nature and short-term structure of their remuneration packages and this cannot help but skew their decision-making. Third is the existence of the government guarantee and the implied guarantee of their jobs and bonuses, which takes their mind off balance sheet management. The guarantee was probably warranted for a very short period in late 2008 but it entrenches complacency.

The current level of gearing is scary. Take no notice of those fictitious ‘risk-weighted’ capital ratios. They are artificial numbers based on banks setting their own rules and ratings, and on ridiculous myths like ‘you can’t lose money on housing loans’. What about the US sub-prime crisis, or in Portugal, or in Ireland, or in Greece, or in Spain, or in Iceland?

Unfortunately, the free market does not work, especially in Australia where we have a cosy cartel of four big banks controlling the market. The bank ‘culture’ issue would be solved if all bankers understood their existing super-fiduciary duties to the whole community. They are simply not equipped to handle the current 20:1 to 30:1 gearing ratios without tax-payer funded safety nets. Until they are, we need tighter regulations to restrict the damage they can do to the economy.

 

Ashley Owen (CFA, BA, LLB, LLM, Grad. Dip. App. Fin) has been an active investor since the mid-1980s, a senior executive of major global banking and finance groups, and currently advises wholesale investors and advisory groups. This article is a personal opinion and the general information and historical facts are for educational purposes only.

As with all articles in Cuffelinks, we welcome any contrary views.

 

5 Comments
Ken Ellis
April 29, 2016

Great article and I agree with the removal of the guarantee. Only to be implemented in extreme situations

Gary Judd QC (formerly chairman of New Zealand's A
April 29, 2016

Mr Owen states

"I think banks already have a super-fiduciary duty. Not legislated but implied by their central role in the whole economy. Banks (not governments) create most of the money in the economy, and bank deposits (ie unsecured bank debt) are assumed blindly by the public to be ‘cash’ and unquestionably reliable, liquid and safe. Maintaining public confidence in bank debt (deposits) as cash is the central core of all public confidence in money, and underpins all spending, which in turn underpins employment. Bankers should not forget their fiduciary role, or the economy will fail."

He is wrong. Australia has a great bank-bashing tradition but fortunately for commerce the law doesn’t endorse Mr Owens’ claim. What the law does say is that there may be particular situations where the relationship between the bank and a particular customer in connection with a particular matter may give rise to fiduciary obligations. But in the context of ordinary banking business there is no fiduciary relationship between a bank and its customers. The relationship is a contractual relationship.

A fiduciary must always act in the best interests of the beneficiary and must never place himself in a position where there is a conflict between his duty to do so and his own interests.

The reason for the nonexistence of any general fiduciary duty is obvious. At the most extreme the bank would be prevented from making a profit from its dealings with its customers and would have to disgorge the profit (as a trustee must do with the consequence that the trustee's profit must go to the beneficiary even if the beneficiary couldn't have made the profit himself).

As said by law Professor John Glover (at Monash then but now at RMIT), a distinguished author of many works on equity and fiduciary relationships (http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1099&context=blr) —

"It would be the very height of altruism for a bank in its relation with a customer to look only to the customer's interests. It is, accordingly, quite uncommercial to expect a bank to advise and lend money with only the interest of the customer in mind, no matter how much the customer may rely. A bank, we are reminded in National Westminster Bank plc v Morgan, 'is not a charitable institution'. The United States decision in Klein v First Edina National Bank was concerned with an alleged fiduciary duty to disclose and expressed the matter as follows.

"We believe the correct rule to be that when a bank transacts business with a depositor or other customer, it has no special duty to counsel the customer and inform him of every material fact relating to the transaction - including the bank's motive, if material, for the transaction - unless special circumstances exist, such as where the bank knows or has reason to know that the customer is placing his trust and confidence in the bank and is relying on the bank'." "

Mr Owen is correct when he says that banks create most of the money in the economy and that they have a central role in the economy. But that doesn’t make them fiduciaries for their customers.

Graham Plowman
August 23, 2020

I had a situation where a well known bank allowed a loan application to proceed on a property which their own valuation had valued at $90,000 less than the sale price. It was only a year later when I had a valuation done and I made a FOS complaint that I obtained a copy of the bank valuation. The bank's independent valuer had even written on the valuation that the property was so grossly overpriced that he couldn't reconcile it with the market. This was because it was the classic QLD developer jacking up prices for southern buyers - the 'southern sales scam' - which the bank was knowingly participating in and relying on 'no fudiciary responsibility' as its get-out clause.

I fully understand that banks are businesses and not charities, but are we seriously saying that banks have to be able to act dishonestly to be profitable and to look after their shareholder's interests ? And why can't a bank be held accountable to its own valuation ?

Jason
April 29, 2016

Fantastic article Ashley. Banks are over geared and largely unaware of the risks they are taking. How many bank board members, CEOs or CFOs have ever had to clean up bad loans before and learnt the lessons of how loans go bad? Likely none. The banks and their regulators have become complacent, assuming that that our better performance after 2008 proves everything is ok here. The warnings signs are clear, but few are heeding them. Do we need a crisis before action is taken?

drey
April 28, 2016

Let's legislate for gaol terms. That would concentrate their minds wonderfully.

 

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