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A revolving door between the regulators and the biggest firms in the business has caught the eyes of those calling for reform.

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Down Collins Street, through the city's grey south, and up into the luxury outlets and expensive restaurants into the Paris End.

It is not so far from the gamekeeper cottage's to the poacher's den. This is a journey a young ATO employee by the name of Amita Pradhan may have taken herself, back in Febuary 2013.

Her story is, of course, unique to her. But in the broad strokes it is common.

A revolving door between the regulators and the biggest firms in the business has caught the eyes of those calling for reform, including former Commonwealth Bank boss David Murray in his sweeping review of the financial system. The government's response to that review is due any day.

The Abbott government only on Friday announced a full review of ASIC's capabilities, including the skills capabilities and culture of the commission and its staff. 

A Fairfax Media investigation harnessing social media profiles, interviews and publicly available career profiles has identified more than 200 professionals who have spun the turnstiles at public financial regulators and the big-four accounting firms.

"When you take that very weak culture and you mix it with a bunch of people who are coming directly from the banks or who are looking to go to the banks, it's absolutely poisonous and the public interest suffers," says James Wheeldon a former ASIC lawyer and Labor candidate at the recent state election in NSW.

The individuals identified by Fairfax Media are all currently working for the regulators or the big four accounting consultancies. It is not an exhaustive list, but it does illuminate the extent to which professionals in this sector drive both sides of the highway at different times in their career.

So what exactly was the route for Amita Pradhan? Her LinkedIn profile reveals that she left a role as an International Tax Technical Risks Advisor with the ATO in February 2013. In this role she was charged with "whole of international tax integrity and international tax governance".

In the same month she took up a role with  Ernst and Young as manager of international tax services – transfer pricing. 

According to her LinkedIn profile, EY's "transfer pricing professionals help you review, document, manage and defend your transfer pricing policies and processes – aligning them with your business strategy".

Transfer pricing is one of the most contentious areas of tax reform and for critics. This is a classic example of a problem in need of solving.

"You've got someone who works at the ATO and learns all of the priorities and how they do everything at the ATO, and then they head over giving them everything at the ATO and how it all works," says Mr Wheeldon, laughing.

"[The data] identifies a serious issue. But the results aren't actually that surprising."

Fairfax Media does not suggest any wrongdoing on the former ATO worker's part, nor on the part of EY. She declined a request to comment, or to confirm the information on her online resume, nor has she changed it in the weeks since she was contacted.

Some argue detailed knowledge assists all involved in an often complex system. But in the context of a recent senate inquiry which heard evidence of large multinational companies using complicated accounting arrangements and foreign subsidiaries to profit shift, it raises questions about who is manning our system. And she is not alone. Far from it.

Over at the Australian Prudential Regulation Authority (APRA), several officers charged with looking at the operational risk of the financial sector come to that role after having worked in-house at the nation's big four banks. 

Jeff Millard, the man managing supervision of "specialised institutions" – insurers, according to his LinkedIn profile – came straight from Deloitte.  Scott McIsaac went from being Operational Risk Manager at Commonwealth Bank to being Operational Risk Specialist at APRA. He declined to comment for this article. Michael Saadat, a senior executive leader at ASIC overseeing deposit-takers, was previously head of compliance at the local branch of Citibank. They all declined to comment for this article.

Several people now working as policy advisors for the regulators have worked in senior positions for accounting firms, posing, say critics, a clear risk of regulatory capture.

Fairfax Media asked media spokespeople for the big-four accounting firms – Deloitte, PricewaterhouseCoopers, Ernst & Young and KPMG – whether their recruitment teams specifically targeted former and existing public service employees.

A spokeswoman for KPMG issued the most comprehensive denial, saying: "No, KPMG does not target people from Australia's public financial regulators for employment".

"We are a large employer with a very diverse business in Australia. So it should not be surprising that some of our staff have previously worked for regulators in their career histories."

"It is incorrect to say that 'large numbers' of former KPMG staff have moved into Australia's financial regulators. We have and do employ many good people with great skills who do go on to make positive contributions to both public and private life."

A PwC spokeswoman said "We employ subject-matter experts from a academia, industry and a range of government departments from time to time to bring the right expertise to our clients."

In another case, Steven Casey went from the Commonwealth Treasury to working for two finance ministers in the last Labor government to his current position: director at KPMG. He referred inquiries to KPMG's media department.

The Assistant Director of the Department of Treasury and Finance in Victoria, Sam Abusah, left in March 2013 according to his LinkedIn profile, and moved immediately into a role as a director at PwC in Melbourne. He declined to comment.

Regulators captured?

Two forces, largely, spin the revolving door.

First, if the private sector is keen to lure away public talent, the public sector is almost more keen to do the reverse.

A career at an accounting firm like Deloitte, for example, lasts on average between four and five years, a company spokeswoman said. These people need somewhere to go.

"The great bulk of ASIC's staff have experience gained in the private sector – and that is exactly why we hire them," a spokesman from ASIC told Fairfax Media. He said ASIC had a strong code of conduct for employees and a well-established policy on managing potential conflicts of interest.

A spokesman for the ATO said that "all our employee engagement decisions are made based on merit".

"Not only would barring employees with private-sector experience breach this principle, it would severely restrict our potential employment pool. Such an approach would insulate the ATO from the realities of the "real world" and hinder our ability to deliver contemporary services that meet the expectations the Australian community we serve.

"Rather than being afraid of staff moving between the private and public sector, we view such exchanges as an opportunity to facilitate better relationships and understanding of the expectations and challenges of the other [and] enable a better understanding of the work of each other and build a stronger relationship."

In fact, the regulators claim, they often faces criticism for not having enough people with private experience on their books, because private experience theoretically allows them to better understand and serve the needs of business.

Certainly, the accounting firms love that idea.

"Our financial regulators will be at their most effective when their people have been well trained, have developed deep subject-matter expertise and have obtained the widest possible experience, both inside and outside the public sector," a spokeswoman for Deloitte said in response to The Age's questions.

The heads of the regulators certainly fit that mould.

Chairman Greg Medcraft has more than 30 years of banking experience with Société Générale. ATO boss Chris Jordan rose to partner at KPMG. APRA's chairman, Wayne Byres, stands out as having significant public sector experience before coming to the role – he was at the Reserve Bank for 13 years.

"I think if you were to speak to the regulatory agencies themselves, and discuss their thoughts on former employees moving into private sectors, I think you would find that they perceive it to actually strengthen the industry," said one senior staffer at a private firm, recently switched from a public career, who spoke under condition of anonymity.

"They would have an understanding of the regulator's expectations and requirements, and therefore those expectations and requirements are translated into the work that's undertaken by the professional services.

"And if they have gone straight into the regulated entities themselves, in applying those expectations and requirements."

The second force is the career goals of the people involved.

"It's legal. People are completely open about it. It's your selling point when you're applying for that job," says Mr Wheeldon.

One senior executive who recently switched to the private sector, speaking on condition of anonymity, told Fairfax Media he saw public-sector experience as a necessary prerequisite for a private career.

"To be able to consult to government, I think you've actually got to spend some time sitting in a government chair to understand the way they think and they operate.

"It's absolutely crucial to really understand it from the inside, because otherwise you can only ever second guess the way they think and operate."

The leaders of Australia's financial watchdogs have recently been on the front foot, speaking out on the need for improved culture within banks.

Speaking in Sydney in May, ASIC chair Greg Medcraft said of internal corporate banking culture, "when it is rotten it often is ordinary Australians who lose their money."

"Poor culture – such as one that is focused only on short-term gains and profit – drives poor conduct. The benchmark manipulation scandals all over the world, and problems locally in the financial advice sector, demonstrate this."

At the same time, APRA's Wayne Byres told a conference in Singapore that the banks he regulated couldn't continue to believe that their internal culture would be strong enough to uphold their integrity.

"Culture is a nebulous concept, much more difficult to define and observe than capital adequacy. But strengthening culture, like strengthening capital, is critical to long-run stability."

All of which sounds a little ironic to Dr Andy Schmulow. He's another system insider turned critic. Now at the University of Melbourne, he's comfortable calling out what he believes is a sick culture at his former home, APRA.

 "I've never in my life experienced such an environment steeped in groupthink, and openly hostile to anything that would challenge whatever their orthodoxies are."

He fears the revolving door is encouraging staffers at regulators to get way too cosy with those they are meant to be regulating.

"A great deal of circumstantial evidence has been put on the record in the US that people from the big banks would inculcate good relationships with the regulator in order to move there, and the regulator would inculcate good relationships with the bank so that people could move in that direction.

"So there is this mid-career change opportunity and it's always good if you have good relations with people on the other side. It's your selling point"

Mr Wheeldon worked at ASIC as a solicitor for a year almost a decade ago, before spectacularly blowing the whistle on his former employer last year. Among his charges against the corporate regulator was a secondment program that, he said, sometimes saw private industry professionals from banks working on policy that would end up regulating that bank.

All of which wouldn't be such a problem, he believes, if Australia's regulators had a stronger governance culture.

"At ASIC, where I saw that revolving door in play … the culture there was not a culture of doing things by the book, it was a culture of facilitating business. And that affected everything. Giving business what they want, and rolling over for business."

An ASIC spokesman said the organisation had strong practices in place to prevent regulatory capture.

"While ASIC workers at the coalface might be be close to the external people we regulate, they are generally not the final decision-makers on significant matters. For example, novel decisions or policies typically go through committees and ultimately get signed off by a range of people including ASIC's commissioners – people that are at arm's length to the original stakeholders.

"There is also a high level of transparency – for instance, almost all decisions around relief applications are published in the Government Gazette and group relief decisions are almost always legislative instruments, and subject to Parliamentary disallowance."

Too close to the big end of town?

Allegations of regulatory capture – where the regulator becomes too close to the regulated – were sharpened in the financial planning scandals involving the Commonwealth Bank of Australia and the National Australia Bank.

Despite several tipoffs by whistleblowers, ASIC was slow to act on the CBA's planners – and when it did act, it issued only an enforceable undertaking. This practise was lashed in the committee's report.

As one former ASIC employee, Anne Lampe told the committee: "These undertakings were discussed and fought over, over months, by armies of lawyers in secret behind closed doors and few details ever emerged".

Even as that financial planner scandal was breaking, ASIC gave NAB, one of the banks at the centre of the storm, the opportunity to review a media release ASIC planned to put out to journalists on the subject. The release was changed after the regulator received the bank's feedback.

A LinkedIn search reveals that there are at least 21 current employees at ASIC who have worked at the Commonwealth Bank in the past.

The senate's ongoing tax inquiry gives critics another forum for airing their grievances.

Amongst them, it was perhaps the former head of withholding tax at the ATO, Martin Lock, whose testimony in April was the most dramatic.

He told the assembled senators the ATO had all but given up the fight against tax shifters with their armies of expensive accountants and lawyers, preferring to tax them "by negotiation not legislation".

"Not until the ATO reasserts its independence will parliament and the public find out what the ATO really knows or doesn't about the scale of multinational tax avoidance in Australia," he later told Fairfax Media.

This raises a key question – how close do we want our regulators and the companies they regulate to be?

For at least the last 15 years, financial regulation in Australia has had a 'light touch' philosophy. The market is to be protected, and the most important thing is to ensure full disclosure – so that everyone has the same information, allowing all players to make rational decisions.

Such an approach encourages regulators to look for ways to facilitate business, rather than act as punitive cops on the beat.

And that's a good thing for society. At least, that's what the Financial Planning Association of Australia submitted to the Murray Inquiry.

"If financial capitalism is understood to be social, then financial regulation is a custodial enterprise in which bankers and their regulators come to mutually agreed understanding on how to manage assets. Thus the relationship between regulator and regulated could be transformed, from one of opposition to mutually reinforcing, and interdependent, participation in the custody of social assets."

One senior bureaucrat working at a financial regulator points out his organisation actually regularly cops criticism for not having enough staffers on their books with private experience – the theory being, who better to regulate than someone with an intimate knowledge of what is regulated?

 "When these people come to ASIC they are tutored in our well-established policy on managing potential conflicts, and this is understood by all staff."

For his part, Mr Wheeldon admits he doesn't have a solution. The simple hard-line approach of banning people who work for a regulator from working for a company they regulate for a couple of years would seriously discourage anyone of any real talent from joining the public service, he fears.

"You want the good people to be working at the regulators. And it's tough if you're then going to say, you're not ever going to end up working at a big accounting firm. What does that do for the quality of people you recruit?"

Mr Schmulow takes a harder line. Ban regulators from hiring people from companies they regulate for six months, and ban public service leavers from moving straight into regulated jobs, he says.

David Murray's Financial System Inquiry recommended the creation of a Financial Regulator Assessment Board, which would oversee the governance of each of the financial regulators.

The board would conduct annual reviews of each of the regulators to see they were doing their jobs effectively, and its establishment was immediately backed by the Financial Services Council, the financial industry's peak body.

"ASIC must be focused, it must be nimble, but its first job is to enforce the law that the parliament gives it to enforce," FSC director of policy Andrew Bragg said.

"We propose an independent body to set the standards so that ASIC isn't judge and jury because ASIC's job is to be the jury."

TAPRA chairman Wayne Byres said the regulator didn't object in principle to the proposed board.

So far, the government is yet to commit to setting one up as it continues to consider Mr Murray's recommendations  – but that, Mr Schmulow believes, would be a real signal of intent.



Source: http://www.smh.com.au/business/revolving-regulators-how-one-door-opens-another-in-australias-financial-system-20150724-ghb6n4.html#ixzz3h7bwE5fC