Banking code remains unfair to small business says Ombudsman

- October 30, 2018 2 MIN READ

The banking code needs a major overhaul to address unfair treatment of small businesses, according to a submission lodged by the Australian Small Business and Family Enterprise Ombudsman, Kate Carnell, on the interim report of the Banking Royal Commission.

“Commissioner Hayne reported that the ‘chief protection for small business borrowers … remains the code’, so unless the code delivers fair and equitable outcomes for small business, what’s to stop the banks reverting back to the aggressive behaviour and questionable conduct revealed during the royal commission?” Carnell asked.

The submission on the interim report of the banking royal commission, lodged by the Australian Small Business and Family Enterprise Ombudsman (ASBFEO), dissects the Australian Banking Association’s (ABA) Code of Banking Practice, highlighting where it still falls short of addressing the imbalance of power held by the banks.

“We have examined the code clause by clause and found banks can still change their risk appetite, call in loans with no notice and choose not to work with small businesses to return a loan to performing when impairment has been caused by factors outside the control of small business,” Carnell said.

The Ombudsman said while clauses had been put into place to address notice periods before calling in a loan, these new notice periods were offset by further clauses which gave the banks the right to disregard the notice period if in their opinion they deemed it necessary.

“For example, Clause 77 says: ‘we may give you a shorter notice period, or no notice period, if: based on our reasonable opinion …’. Clause 155 says: ‘We may give you a shorter notice period, or no notice, of an unfavourable change if: a) we believe doing so is necessary for us …’.

Carnell suggested the code needed to be revisited and a code of conduct for dispute resolution needed to be applied across all levels of financial services. 

“Administration and enforcement of the code should be revisited. We want the code enforced by a truly independent body, which the Banking Code Compliance Committee is not,” Carnell said.

“Another concern is there are many financial service providers who do not subscribe to any code of conduct and are not members of any external dispute resolution scheme, such as Australian Financial Complaints Authority.

“We also recommend looking at how a code of conduct and access to dispute resolution can be applied broadly across the financial service sector.”

The Ombudsman is pleased Commissioner Hayne supported the view that the small business definition of a loan facility in the code be $5 million and not the current $3 million, as was recommended in the ASBFEO Small Business Loans Inquiry.

“Importantly, the interim report has identified misconduct that breached the code or fell below community standards and expectations,” Ms Carnell said.

“When the royal commission has completed its work, we call on the government to respond to Professor Ramsay’s recommendations on a scheme for redress of past disputes which avoids costly court action.”


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