W[h]ither Australia? Will Parliament Act?

Australia is replete with commissions and inquiries into egregious behaviour in its financial sector. This author has quantified the effects of those behaviours on individuals and the wider economy. 1 These investigations include Heydon 2 (elimination of unhealthy culture), Hayne 3 (confluence of law and morality) and the Productivity Commission 4 (trust). The most important Hayne recommendations 5 – which would reduce Australia’s international reputation as a regulatory outlier and better reflect community expectations remain unresolved. Confused parliamentary leadership has facilitated corruption of the financial regulatory system which has for many people been an abject disaster. 6 The Australian government must act. It must do so strategically. It must establish the nexus between the intent of the law and its practical implementation for those it purports to serve. Parliament has yet to debate the underlying causes focussing instead on tactical and punitive responses. If it does, then it must confront the distinction between prescriptive statute and principles-based supervision, recognising the power of antecedent fiduciary law. These are philosophical as well as legal questions. Hayne pointed to the need for a framework for the re-integration of the intent and spirit of the law with its statutory manifestations, presently scattered and inconsistent. This paper is that framework. Without it, much of the financial services and products sectors may continue their descent into the Stygian gloom of costly and inconsistent multi-layered bespoke regulation. An unintended consequence of paternalist policy will be fewer market participants, less choice and fewer opportunities to develop financial literacy.