CHAIR —I welcome to the table officers of the Australian Prudential Regulation Authority—Dr Laker, gentlemen. Dr Laker, do you have a brief opening statement?

Dr Laker — I could say, Mr Chairman, I had a one-hour statement I was going to read. But on this occasion, no, we are quite happy to go straight to questions.

Senator SHERRY —First, I just want to revisit briefly one aspect of the Westpoint matter. I know you were here when I raised the issue of the Kebbel bank in the context of Westpoint. The Kebbel bank was promoted as a financial institution involved in Westpoint activities. It is obviously not an area for ASIC in the sense of the existence licensing of Kebbel bank, but was APRA consulted at any time about the existence of a Kebbel bank?

Dr Laker —Kebbel bank was never authorised by APRA to operate as a bank in Australia. It was drawn to our attention that it was purporting to be an investment bank, Kebbel Investment Bank. We guard the use of the word ‘bank’ very carefully. We issued a cease and desist order, which was responded to by Kebbel. We then followed up by visiting its offices in Sydney, Melbourne and Perth to satisfy ourselves it was complying with the Banking Act, and we saw no problems at that point.

Senator SHERRY —Approximately when did that occur, Dr Laker?

Dr Laker —In May and June last year.

Senator SHERRY —I am not aware of the precise provisions about the use of the word ‘bank’, but my assumption is, and you may be able to inform me about this, that the word ‘bank’ cannot be used in a descriptive title involving financial institutions unless it is properly licensed by APRA, presumably.

Dr Laker —Unless it is authorised by us or there is an explicit exemption to use a particular phrase. But, no, as I say, that term is carefully guarded.

Senator SHERRY —Was any explanation given as to why the term ‘bank’ was being used by the persons who were visited by APRA officers?

Dr Laker —I do not know. We responded only to the way in which the institution purported itself. We do not actually have powers to investigate an institution that is not authorised by us. We make sure that nobody is misrepresenting their status as a bank.

Senator SHERRY —But in the course of those visits there may—I use the word ‘may’—have been an account as to why how the term ‘bank’ was being used. Perhaps you could take on notice whether there is any further information you can provide.

Dr Laker —I will take that on notice. Our first response was the cease and desist order. Our second response was to follow up to ensure that when we were on the ground we saw the way in which the institution was representing itself. Our inquiries would normally stop at that point.

Senator SHERRY —I accept that. But there may have been an outline of the circumstances during those investigations that would be useful to know.

Dr Laker —Okay.

Senator SHERRY —What institution were you visiting? Was it a registered company? Was it the ‘Kebbel Bank’, an office with signage? Did you know what was being visited?

Dr Laker —Unless my colleague has the answer, I would take that on notice.

Mr Khoo —We visited their offices, but I cannot tell you any more than that. We would have to take that on notice.

Senator SHERRY —Perhaps you could take on notice whether it was a company entity of some kind and the individuals who were given the cease and desist order. Presumably there are some individuals to which it was given who gave an undertaking, presumably, to cease and desist, describing themselves and/or their financial institution as a bank. Just on this matter finally, ASIC has taken some action in respect of a range of Westpoint entities. Is APRA involved in the preparation of material for those actions? They are to be heard at some later date; I am not sure what date. I understand a receiver has been appointed as well. Is APRA involved in any of these activities at all?

Dr Laker —No.

Senator SHERRY —You might recall on at least two occasions I have raised the issue of the reporting in your quarterly reports of fees and charges but particularly the issue of commissions. I think this time last year—it may have been a little earlier—there was an exchange concerning the nonreporting of some data for a range of reasons disputed not by me but by industry. It concerned the nonreporting of some aspects of fees and charges and particularly commissions to APRA and the subsequent inability of APRA to publish some details. The descriptor was not made available in the APRA quarterly data. Can we get an update of where we are at with the collection of the data that was not provided and when it will be published in the APRA quarterly data?

Mr Khoo —I will try to pick that up. That is the area of my colleague Mr Littrell. We amended our instructions for the 2005 returns.

Senator SHERRY —When did you do that, approximately?

Mr Khoo —That would have been around mid-2005. My understanding is that in the returns for that year we have not seen any substantial improvements in that area in terms of the data being reported. We are at this point, however, working with IFSA to try to improve that issue now.

Senator SHERRY —I am concerned because it is now a year, perhaps a little more than a year, since this issue was discussed. You have done the right thing. I think you actually had done the right thing anyway. I am not criticising APRA. I think you actually had made it clear, but that is disputed by some in the industry. So you have issued the instruction in mid-2005. You seem to be indicating that, despite that, some are not providing the information that you believe should be required under that order of seven or eight months ago.

Mr Khoo —I think that would be a fair statement.

Senator SHERRY —Reflecting back on the conversation that occurred on this matter, what struck me was that some institutions, major and middle range, did provide the data requested; others did not, for a whole range of reasons and excuses. When will APRA require the production of this information?

Mr Khoo —I might have to take that one on notice and refer that back to my colleague. As I said to you, we are actively working now with industry to try to get that resolved.

Dr Laker —It may well be that we have to go back and look at the way in which that particular return has been set up and make an amendment through the Financial Sector (Collection of Data) Act. That is a more formal process, and that takes time. So we need to look at whether or not we can work within the existing reporting framework or whether or not we need to go through the formal consultation steps to make that return clear in what it is seeking from the superannuation industry.

Senator SHERRY —As I say, I am not being critical of APRA. I congratulate you on your attempts to collect what I think is important data. I just make the observation that I understand consultations took place with industry prior to the original data being requested. Some in the industry were able to respond, and respond appropriately. You issued a new instruction in mid-2005. There has been obviously further discussion with some elements in industry, and yet it appears the data is not forthcoming from some. As much as I matter, I would support your continuing efforts in this regard and hope that we will see published the full data as soon as possible.

Dr Laker —That is certainly our intention.

Senator SHERRY —Could you give me a relatively brief update, if that is possible, on the progress of the licensing that is taking place at the moment?

Dr Laker —Certainly. The window for receiving applications for a RSE licence from existing trustees will close tomorrow. At this point there are only a very small number of potential applications outstanding—I am talking on one hand now. So we believe by the close of business tomorrow we will be processing 320 or thereabouts applications. We started batting like Simon Katich, but we are building up a good score at the moment. We have issued in the order of 90-plus RSE licences, and we are on course to complete the review of the remaining 200 or so by the end of June.

Senator SHERRY —There are varying degrees of investigation obviously in terms of the detail you will have to check. That will vary from application to application. Have you given any consideration to what practical course will need to be followed if an entity has applied for a licence but it is not granted?

Dr Laker —I think the broader question relates also to those who have said they do not want to be licensed but have not exited, because that is the bigger group.

Senator SHERRY —I was going to get to that point.

Dr Laker —But they are very similar issues for us.

Senator SHERRY —Yes, and obviously a much bigger group, I suspect.

Dr Laker —From 1 July this year, if an entity is not licensed by us to accept superannuation moneys, it is against the law for them to do so. We have given quite a lot of thought to how we would handle that period after 30 June—whether, for example, one may need to appoint acting trustees who are authorised by us to handle any transfer of moneys across to a licensed trustee. Clearly, we would prefer to work very hard now to exit all of those who have indicated to us they do not want to stay in the business by 30 June. That is really a major part of our resourcing at the moment. We are about halfway through that process.

Senator SHERRY —Just before you go on, I take it you have perhaps an authorised list of potential acting trustees?

Dr Laker —That is what we have been looking at.

Senator SHERRY —Does that list exist at the moment?

Mr Khoo —No. We are working on that at this point in time.

Senator SHERRY —You have your 320 applications, subject to whatever happens tomorrow. Have you been notified by those current funds who are not going to apply, and have they indicated what the arrangements will be after 1 July?

Dr Laker —As I say, that has been a major part of the dual process. One is authorising those who want to; the other is exiting those who do not. We have been working with the trustees quite intensely and reminding them that the clock keeps ticking down. But they know full well that from 1 July it becomes illegal for them to accept further moneys. So it is a matter of our keeping the pressure on to exit in an orderly way those several hundred or more that are still to exit.

Senator SHERRY —Do you have any idea about what that represents in terms of assets and/or members?

Mr Khoo —No, I cannot respond to that in terms of assets or numbers. I can tell you that we have approximately 400 funds left to exit. But, in dollars and numbers of members, no, I cannot.

Senator SHERRY —Where they indicate what they are going to do, are there any guidelines/parameters they will have to follow for the transfer of assets and members to another fund? Let us say that fund ABC is getting out, that the trustees are ceasing. Do they need to report to you what they intend to do with the trust, the members and the assets?

Mr Khoo —We are aware of that because we have been proactive in this process. We are in communication with every one of our trustees. We are trying to stay across exactly what they are actually doing in winding up their funds or transferring funds.

Senator SHERRY —It is not an easy process, but it is easier with DC. What about with respect to DB benefits where the trust is being wound up, which I think is a lot more complicated in the liabilities to members and the protection of both their existing members and members who left but not retired their existing benefit, if you like, on the DB side?

Mr Khoo —Ensuring that their members will not be disadvantaged is very much a role for the trustees. At the end of the day, that is also an issue which interests us. But, in terms of the actual specifics of the issue, that would be on a case-by-case basis. That is about as much as I can say on that. Was there a specific issue that you wanted to—

Senator SHERRY —No, I am not raising a specific issue. I am just raising the principles and what I think are some difficulties for the member. Just so I am clear on this: where they inform you and let you know, you presumably have some sort of action register of what they intend to do?

Mr Khoo —Yes.

Dr Laker —Yes.

Senator WATSON —Everyone?

Mr Khoo —We have to take into account the fact that some of those have yet to determine how they are going to exit. But, for the ones that we are aware of, yes.

Senator SHERRY —Could I suggest after all this is completed—I do not want to give you extra work now—the publication of what has happened to those that have exited: for example, ‘They have gone to’ in some sort of report format.

Dr Laker —It had been our intention, once the licensing process was complete, to actually publish a broad overview of what the superannuation industry looks like post licensing, because the industry has changed quite a bit in the way it looks. That is something which we could include in that overview. I am happy to do that.

Senator SHERRY —I think it would be useful to know where the funds have gone.

Dr Laker —Where the funds went, yes.

Senator SHERRY —I think it is in the public interest and the members’ interests. There are some issues around self-election or so-called choice of fund and how that is exercised in this context which I think are of great interest. In the event that there is not a successful wind-up of an existing scheme by 1 July, I take it from what you are saying that there may be circumstances where the entity will continue; however, acting trustees will be put into the entity until such time that it is wound up.

Dr Laker —Yes.

Mr Khoo —It would depend on the specific circumstances, but I would think by the end of May we would have a pretty good idea of which funds we think are going to be problems. If a fund has failed to actually wind up or transfer out by 30 June, then on 1 July, as Dr Laker said, it becomes illegal for them to accept contributions, which means that the contributions would then have to be diverted to an RSE under a licensed trustee. If the trustees were difficult and were trying to accept further contributions, we would injunct them from accepting further contributions. Once we have dealt with that, obviously we would then seek to remedy the problem. It could involve the transfer to an acting trustee.

Senator SHERRY —I think, because we have discussed this on a previous occasion, there will have to be an entity for employer and employee contributions to be received. It just cannot sort of end up in the ether.

Mr Khoo —That would be correct.

Dr Laker —A licensed RSE.

Senator SHERRY —At the moment you have hybrid schemes—DB, DC. They have been shut. They are just reported as hybrid.

Dr Laker —Yes.

Senator SHERRY —You have the members of the hybrid, but there is no breakdown as to who is in the DB section of the hybrid and who is in the DC. I would stand corrected, but it is in the millions that are classified as hybrid. In this context it would be useful to know, although I am conscious of the work you have to do, who within a hybrid is an active member of a DB as distinct from the DC section. In relation to this description of hybrid, you just cannot determine, for example, how many people are still in a DB in Australia, both public sector and private sector for that matter. It is useful to have that. Perhaps if you could examine that at least in the context of later data that would be produced.

Dr Laker —Yes.

Senator SHERRY —It seems to be a convenient time to do it. I do not have any further questions, Acting Chair.

ACTING CHAIR (Senator Chapman) —Dr Laker, are you or your associates in APRA aware of comments made in December 2005 by Federal Reserve Bank governor Susan Bies regarding the Basel II framework for reform? Although she said the reforms were necessary, she also went on to say:

Governor Bies also said that the Federal Reserve would be taking a conservative approach to implementing changes in the Basel framework. What is your view as to why the United States and I understand also other jurisdictions, including the UK and the European Commission, are delaying the introduction of the Basel II reforms and are particularly expressing concern about the possibility of unintended consequences which premature implementation might create?

Dr Laker —I cannot offer you a view as to why the US has taken the path that it has taken. But I think it is fair that all jurisdictions are carefully reviewing the framework. It is a framework. It is not a very specific set of rules, and all jurisdictions are at the moment engaged in further quantitative work to understand the implications of the proposals as they now stand. All regulators are working their way through these proposals. I think I said to you earlier that nothing is set in concrete in this process. But countries have made their own choice about their sort of timetable, and our choice was dictated by what was then the consensus timetable. The US subsequently chose for their own purposes to follow a slower timetable than what had been the earlier consensus.

ACTING CHAIR —In light of that, has any reconsideration been given to our timetable?

Dr Laker —Not at this stage, no.

ACTING CHAIR —Why not?

Dr Laker —One main reason was that our institutions are keen for us to keep working on the timetable established. The Basel II projects in each institution, particularly the larger institutions, are quite substantial projects. The feedback to us is that they have momentum and commitment from the organisation and they wish to keep going.

ACTING CHAIR —Given the responses you gave to the questions I asked at the last round of estimates, could I perhaps have an update as to where APRA is with its consideration of the concerns that have been expressed by some of the affected parties in Australia and how that might affect the proposed January 2008 implementation date?

Dr Laker —Since we spoke in late November, the papers that we had out for discussion reached the closing date for submissions. We have now had submissions from a number of parties. We are currently consulting with them. We met with representatives of the lenders mortgage insurers, for example, last week. We have further meetings under way. We are also taking part in what is called a quantitative impact study, QIS 5, with other major regulators. We have said that we will wait to see the results of that work and the consultations we have with various parts of the industry and also with other regulators about what they are doing. We will wait to see all of that before we make final decisions.

ACTING CHAIR —Has APRA itself undertaken or commissioned any economic analysis or modelling on the likely effects of the proposed changes?

Dr Laker —We, as you may recall, had undertaken quite a substantial stress test of lending to the household sector by our deposit-taking institutions in 2003. That was a very illuminating stress test, and it has been one of the factors that have influenced the approach we have taken to the setting of risk weights in Basel II. We are, as I said, participating in the QIS 5 exercise as well, and that will also be relevant to us. This is an international exercise looking at how those risk weights are calibrated. To the extent we are able to share results, we will certainly be sharing those with the industry.

ACTING CHAIR —What is APRA’s view of other economic analyses that have been undertaken of the likely impact of the changes?

Dr Laker —In general, when we put out proposals of any type for consultation we get a range of points of view put to us. We go through each of those points of view so that we can make sure that we understand from the industry’s perspective what is the impact or likely impact of our proposals. We do that with all of our proposals. Where we are persuaded that we can do things differently or achieve our ends in other ways, we are prepared to do so. Where we are unpersuaded and we believe that public policy requires a certain approach, I have a mandate to honour and I take a decision—or at least we put out for final discussion—that we will go down a certain route. That is the process we always go through. On Basel II we have a number of submissions that we are working our way through.

Senator WATSON —Does APRA insist that all regulated funds have an independent custodian?

Mr Khoo —No, we do not.

Senator WATSON —It is not a condition of licence?

Mr Khoo —No, it is not.

Senator WATSON —Why not? Would you like to take it on notice?

Mr Khoo —Yes. Is there a context which you would like us to respond to or are you asking the question in general?

Senator WATSON —I would have thought that it would have been a prudential requirement for licensing. I am happy for you to take the question on notice, because I think it deserves a serious response. I congratulate APRA on having a complete registry of all funds not intending to be licensed as at 30 June. Are you satisfied that all transfers and windings-up will be completed in an orderly manner and in an orderly time frame?

Mr Khoo —By 30 June?

Senator WATSON —Yes.

Mr Khoo —The best response I can give to you is we are hopeful of that, but I expect there is a reasonable probability that there may be a very small number of problems which carry over beyond that date. As I responded earlier to the question from Senator Sherry, we have plans on how we will deal with that.

Senator WATSON —A small number being what you could count on one or two hands—something of that order?

Mr Khoo —I would hope so. At the end of the day, the process of winding up or transferring is a trustee responsibility. All APRA can really do is encourage them, stay on top of them and push them as hard as we can. But we cannot act until the licensing period is over.

Senator WATSON —I am worried about the consequences for the members. If you insist that they go into a temporary fund, there are going to be additional fees for those members, aren’t there?

Mr Khoo —That is a possibility, and that is why we have been pushing trustees to try to deal with the issue. Unfortunately, if we do get to the point where the trustees are intransigent or they have not met their responsibilities, then, yes, there is a possibility that that could occur.

Senator WATSON —But they might be negotiating with several funds in terms of merger and it is possible that those discussions, if they involve two or three funds, may go beyond 30 June. I am very worried about this very arbitrary deadline that you have imposed on the—

Mr Somogyi —It is legislation that has imposed the deadline, not APRA.

Dr Laker —And the deadline has been known for two years. This is not coming as a surprise or a rush to trustees.

Senator WATSON —The numbers are still quite significant as to what they were compared with what you anticipate them to be. So it will result in major changes occurring within the industry.

Dr Laker —Yes.

Senator WATSON —Some firms will have to consider their capacity to accept that within the time frame, if you are going to suddenly accept another fund using different systems. It just does not happen overnight.

Mr Khoo —This is not a new process. Funds have been winding up and transferring into successor fund arrangements or under new trustees for a very long time. Licensing is accelerating the process. We have a two-year time period and we have been continually in contact with trustees. Any trustee which fails to meet it by 30 June, in my view, will not have been particularly proactive. I am reasonably confident that the ones who will be left over by that point will not be the ones who have been actively out there trying to do the right thing by their members.

Senator WATSON —As at 1 July we need to allow unlicensed funds in the process of bona fide winding up or transferring to another fund—whether it be a master trust, an industry fund or a merger—to accept contributions until such time as they have been transferred in an orderly manner. I am worried about the orderly manner of the process, the time frame and the cost to members. It is all very well to bring down this heavy hand of the law, but there has to be a sensible and human approach to this sort of thing.

Mr Somogyi —Perhaps I could answer a couple of points there. Firstly, the focus of the super licensing team is to ensure that the funds of as many members as possible affected by exiting trustees are transferred through the process before the end of June. There are a number of steps in winding up an unlicensed trustee. Some of those steps in winding up can occur after 30 June because they do not involve any funds of members. We are following that orderly process. The team is focusing on looking after the members’ funds as a priority. As my colleague Mr Khoo pointed out, a lot of the actions are of course in the hands of the trustees. We are pushing them as hard as possible.

The second point is that we have been working with industry and all of these funds now for over two years. The vast majority of them have done the right thing and are doing the right thing. There will be only a handful in the situations that you describe if everything goes according to the current plans. No-one can guarantee that there will not be the odd uncooperative or intransigent trustee. But we are doing everything possible to look after the funds of the members and subsequently to complete the process of winding up which does not involve member funds.

Senator WATSON —And to ensure that they are not going to be charged additional fees.

Mr Somogyi —Yes. To the extent possible, we are trying to look after their best interests, which the trustees ought to be doing as well. After all, that is what the legislation asks of them and requires them to do. With respect to the ability to stretch the timetable, that is defined in the legislation, as was pointed out in an earlier answer, and that is not available to the regulator who administers that legislation.

Senator WATSON —What will be the impact on APRA fees for the remaining funds in 2006-07? Your numbers are down enormously. Will we find some funds having their fees increased threefold, fourfold or fivefold?

Dr Laker —While it is true that the numbers are down, the assets in the regulated superannuation sector are not down. We are still looking at the same very large pool of assets being managed by trustees, and the complexity of the funds that remain in the system is much higher in degree than previously. So we clearly will be working with industry on the question of what is the appropriate commitment of resources to the supervision of a sector which may have fewer numbers, but larger funds in many cases and much more complex funds in many cases.

Senator WATSON —So you do not think there will be any impact because you will increase the fees to remaining funds on the basis of their assets?

Dr Laker —This has not been decided. There is a very formal process by which APRA levies are set, and they are set in consultation with industry. That process will take place within a few months where the minister will release a discussion paper in which we will look at how these various forces work their way out—the smaller number, the more complex structures, the larger the size of individual funds. So it would be premature for us to comment on how that dialogue with industry will go. It will be based on a considered paper, to which industry will be invited to respond, and the minister will then make a call.

It is important to distinguish between the levies set in terms of a percentage of assets and the levy in absolute terms, because some funds will be much larger as a result of licensing than they were before. Since levies are set in relation to assets, you would understand that on that factor alone the total levy would be higher but it would be over a much bigger fund. What we do need to discuss is what the percentage would be, and I think at this stage it is too early to guide you on that.

Senator WATSON —In the longer term, once all of this has settled down and we have larger and, on average, better run and better controlled funds, won’t APRA’s resources decrease by some amount? It is a greater task controlling and managing a thousand or so funds than 320 funds. So I would expect a significant drop in the regulator’s costs associated with such a huge drop in funds under your control through licensing.

Dr Laker —In the end, it is not for APRA but really for government to determine the commitment of resources to the supervision of any of our regulated areas. So, at this stage, I cannot indicate to you where I think we would be pitching our commitment of resources to superannuation. That is a dialogue that APRA needs to have with government and with industry. But our mandate to promote and protect the savings of superannuation fund members is still a strong mandate. In a more complex world, it takes skilled resources to honour that mandate. On the other hand, we acknowledge that there are substantially fewer funds. But there is no simple mechanical formula that produces the outcome.

Senator WATSON —Of your long-term planning and budgeting of staff needs, you obviously will not need the same number of people because of significantly fewer licensed funds.

Dr Laker —We are at this very moment looking at the question of what our resource needs are for that sector and for other sectors as well going into the future.

Senator WATSON —I do believe you have a responsibility to act in a cost-effective manner in discharging your responsibilities. If your mandate has been reduced by the changes of laws and requirements, I would expect some sort of reduction in your resources; otherwise, you will just be manufacturing work for the existing staff, if you are not careful, and I do not think that is in anybody’s interest.

Dr Laker —Rest assured, I have no interest in manufacturing work. We have a large amount of work on our plate as it is.

Senator WATSON —I am not denying you have at the moment. You require properly the resources you need. But, taking it into the future, I would expect that with such significantly reduced clientele that must be reflected in workload, staff employed and budget allocations.

Dr Laker —I take your point that we need to be cost effective. I agree with you on that. I would only caution that it is not a mechanical relationship between numbers of funds and the number of APRA staff. It is a more complex set of considerations. We are starting that debate. We have been looking very closely at that within APRA. I am well aware of the constraints we are under in terms of the burden we impose on industry, and we will be working with industry on that as well. So all your issues are alive with us.

Senator WATSON —The reduced numbers cannot be ignored.

Dr Laker —No, I agree.

Senator WATSON —Industry feedback indicates that there is some concern about the value of APRA returns. It is alleged that at present they seem to require a lot of work at fund level, but industry believe they have not seen much output from APRA in relation to your use of this sort of information. I would like your response. It is quite a complicated form. It requires a lot of time.  Of your statistical output and what is fed back to industry, there is not a lot of information that seems to flow as a result of the compilation of all that information. That is why I am very concerned about creating work for the sake of creating work.

Dr Laker —A lot of industry consultation has gone into developing those returns for superannuation. As Senator Sherry has drawn out, notwithstanding all that consultation, it has not necessarily provided some of the data that he, for one, was looking for and that we wanted to produce. But these are not statistical returns imposed on industry out of nowhere. They are developed with industry, fully consulted about with industry. We do not hold data back for the sake of holding data back. I will take on board your comment about the usefulness, but we have been very keen to provide industry with much more robust numbers. The numbers coming out now may not satisfy everybody looking for stories in the data, but they are certainly a move comprehensive and robust set of data compared to what we have had in the past, and developed with industry consultation all the way through.

Senator WATSON —I now come to the situation of post APRA licensing. Do you plan to also rationalise the number of audit reports requested by superannuation funds? At present, public offer funds require 10 audit reports, which seems a very high number. Can there not be some rationalisation post licensing?

Mr Khoo —I am not of the view that there were reports of that number. Can we take that on notice, please?

Senator WATSON —Yes, I am happy for you to.

ACTING CHAIR —There being no further questions for APRA, you are excused. Thank you for your attendance, Dr Laker and your colleagues. That concludes the estimates of the Treasury portfolio.

[2.59 pm]