Royal commission confusion over non-disclosure

The Australian 12:00am February 9, 2018

Ben Butler

Confusion reigned at the royal commission into the banks last night, just days ahead of its first day of hearings, after the Kenneth Haynes-helmed inquiry was unable to say whether it stood by a statement warning financial services victims against making submissions to it that breached non-disclosure clauses in settlement deals.

The big four banks yesterday scrambled to pledge they would not enforce confidentiality clauses against witnesses to the commission after influential Nationals Senator John Williams warned that if they did not do so he would set up a parallel Senate inquiry. This would be able to receive evidence under parliamentary privilege that could then be passed on to the royal commission.

Under privilege rules, witnesses to a Senate inquiry are immune to lawsuit over their evidence, even if it breaches a non-disclosure agreement.

The royal commission, which is due to open on Monday in Melbourne, initially refused to provide The Australian with a statement given to Fairfax Media this week warning victims of the financial sector’s many scandals not to give submissions to it that breached non-disclosure agreements.

“The Commissioner will be addressing this issue on Monday at the initial hearing,” a spokesman said.

He did not respond when asked whether the royal commission stood by its earlier statement, who had ordered it not be repeated, and why.

A commission spokeswoman later provide the statement, which tells would-be witnesses that “at this stage of the inquiry, we would not want individuals to provide information that may be in breach of legal obligations by voluntarily providing such information”.

Meanwhile, the big banks moved quickly to rule out enforcing confidentiality clauses.

ANZ spokesman Stephen Ries said: “ANZ will not rely on confidentiality agreements it has entered into with customers who want to either make a submission or appear before the royal commission.

“We would also not block current and former employees from making a submission or appearing at the royal commission regardless of any confidentiality agreements.”

NAB chief counsel Sharon Cook said the bank encouraged unhappy customers to make a submission “and we will waive any confidentiality obligations they have agreed to when resolving an issue with NAB”.

A Westpac spokesman said the bank “will not be enforcing any confidentiality or non-disclosure agreements should a person want to make a submission to the royal commission.”

And a spokesman for Australia’s biggest — and most scandal-prone — bank, CBA, said it “will not enforce confidentiality obligations in non-disclosure or other agreements to prevent people from making a submission to the royal commission”.

“This waiver only relates to submissions made to the royal commission,” he said.

Senator Williams, who has long pushed for a royal commission and was one of the driving forces behind a series of Senate inquiries into financial sector scandals, said he was concerned by the commission’s previously reported position.

“I’m calling on all the major financial institutions to come public and detail that any people who come forward with evidence will not be sued,” he said.

“If they don’t we may have to start a Senate inquiry where people will be covered by parliamentary privilege.

“That will be onerous, costly and a burden to the Senate.”