"...Why did it happen? What can be done to avoid it happening again? These are now the key questions...But it is necessary then to go behind the particular events and ask how and why they came about...Should the existing law be administered or enforced differently?..." Commissioner Hayne stated in his executive summary:
Although at the time of writing this article, the interim report had not been read in its entirety, on a cursory glance and a search of key words the answers to the commissioners's questions are absent.
Rule 3 of the Queensland Law Society Ethics Centre Australian Solicitors Conduct Rules 2012,
"paramount duty to the court and the administration of justice" states in its only sub section3.1; "a solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty".
It is understood that there is the equivalent rule in all other jurisdictions.
What this rule says; an officer of the courts paramount duty is, "the administration of justice" and that this duty takes precedent over their duties and obligations to their client.
Although the Financial Services Royal Commission (FSRC) has only uncovered the tip of the iceberg, one would think that out of the many thousands of lawyers that act as intermediaries for financial services there would have been a flood of lawyers and other officers of the court acting in a totally different way than they have.
Like the commissioner I ask the same Questions:
"...Why did it happen? What can be done to avoid it happening again? These are now the key questions...But it is necessary then to go behind the particular events and ask how and why they came about...Should the existing law be administered or enforced differently?..."
What is telling is the omission of lawyers and other officers of the court in the list of intermediaries in chapter 8.1.2 where the following questions are asked:
"For whom do the different kinds of intermediary act?...For whom should each kind of intermediary act?...If intermediaries act for the consumer of a financial service...What duty do they now owe the consumer?...What duty should they owe?...Who is responsible for each kind of intermediary's defaults?...Who should be responsible?...How should intermediaries be remunerated?...Are external dispute resolution mechanisms satisfactory?...Should there be a mechanism for compensation of last resort?...
So many questions and so few answers!
The commissioner has quite rightly called out the abject failure of regulators such as ASIC and APRA. Even if they were effective, from the perspective of Financial Service clients, they are ambulances at the bottom of the cliff. The Commissioner fails to make mention of the unaffordable and out of reach justice system, the fence at the top of the cliff that is in such a state of disrepair it is not fit of purpose.
Why did it happen?
The Financial Services are able to act with impunity with the knowledge that because there is no timely, proportional, and equitable mechanisms for redress for consumers of financial services who suffer detriment as a result of misconduct by financial services entities.
What can be done to avoid it happening again?
Ensue there are a timely, proportional, and equitable mechanism's for redress for consumers of financial services.
But it is necessary then to go behind the particular events and ask how and why they came about?
Behind the vast majority, if not all events is the abject failure of redress mechanisms, the apex of this failure is the monetarised, not fit for purpose justice system.
Should the existing law be administered or enforced differently?
Needed is a bank funded independent specialist elite federal legal aid team of incorruptible lawyers to battle the organised impunity within the financial services sector which is facilitated by an inequitable not fit for purpose monetarised justice system infected by self-serving lawyers.