National Wealth Management companies reach agreement with ASIC and APRA on investor compensation - 3 September 2003

Wednesday, 3 September 2003

 

 

SYDNEY: Three National Wealth Management companies today finalised agreements with the Australian Securities and Investments Commission (ASIC) and the Australian Prudential Regulation Authority (APRA) in relation to compensation and associated undertakings and remedial actions for the October 2001 unit price reductions that affected certain superannuation and life insurance products.

The agreements include consent undertakings offered by the companies and received by the Federal Court, settling proceedings commenced by ASIC today.  The companies involved are National Australia Financial Management Limited (NAFiM), National Australia Superannuation Pty Ltd (NAS) and MLC Nominees Pty Ltd (MLC Nominees) (collectively "the Companies"). 

National Wealth Management's Executive General Manager, Mr Peter Scott said: "The agreements conclude investigations by the Companies and ASIC and an inquiry by APRA.  We will now commence processing compensation for investors on 6/7 September 2003."

"The entire process has been very complex and has taken longer than we anticipated when we first announced our intention to compensate investors and we thank them for their patience," he said.

In August 2002, NAFiM undertook to make full compensation to affected investors in 21 NAFiM personal and business superannuation and life insurance products.  No other National or MLC Group products were affected.

The total compensation being paid has increased to $67.2 million from the $60 million first announced by the Companies in August 2002.  The increase follows further investigations by the Companies, an independent actuarial assessment by Trowbridge Deloitte and input from both ASIC and  APRA . 

ASIC and  APRA  consider that Trowbridge Deloitte's assessment of compensation is appropriate to ensure that affected investors are fully compensated. PricewaterhouseCoopers has been engaged to audit the payment process.

The Companies undertakings to  ASIC  and the Court relate to an agreed form of disclosure to affected NAFiM investors about the reasons for the unit price reductions, various actions to ensure compliance with disclosure obligations and complaint handling procedures.

The Companies have also agreed remedial actions with both  ASIC  and  APRA  concerning enhanced unit pricing management and trustee compliance systems.

"We have worked closely with ASIC  and APRA  for some time on this issue and have now agreed on a program of actions and review to avoid such issues in the future," Mr Scott said.

The Companies acknowledge that the investor communication processes around the unit price reductions and around the closure of certain products as part of superannuation integration were not satisfactory. As a result, the Companies have offered, and  ASIC  and the Court have accepted, the undertakings and remedial actions around disclosure.

The undertakings and the settlement of  ASIC 's proceedings and the agreement with  APRA , do not involve any admissions by, or any findings against, the Companies.

"We welcome the agreements with  ASIC  and  APRA  and the conclusion of the regulators' investigations," Mr Scott said.

 

Media Enquiries Only:
Katherine O'Regan - 02 9957 8591 or 0419 411 801
Stacey Mitchell - 02 9966 3035 or 0400 305 446

 

 

 Explanatory Booklet for Investors

Please select a section of the explanatory booklet to view:

 Introduction
On 16 August 2002, MLC Limited, on behalf of National Australia Financial Management Limited ("NAFiM"), announced that it would compensate investors in a number of NAFiM products who had been affected by reductions in unit prices in October 2001 ("affected investors").

A leading firm of actuaries, Trowbridge Deloitte, has independently assessed NAFiM's commitment to compensate investors and confirmed that as a result of that compensation, no investor will be adversely affected by the unit price reductions of October 2001 and the unit pricing errors referred to below. Compensation is explained later in this booklet.

This booklet has been prepared by NAFiM, National Australia Superannuation Pty Limited ("NAS") and MLC Nominees Pty Limited ("MLC Nominees") in consultation with the Australian Securities and Investments Commission ("ASIC") and following the settlement of Court proceedings commenced by ASIC.

The purpose of this booklet is to provide affected investors with:

  • an overview of the circumstances leading to the unit price reductions in October 2001, including the relevant events arising from the integration of NAFiM with the MLC Group (the integration followed National Australia Bank Limited's acquisition of the MLC Group on 30 June 2000);
  • detail of the reasons for the unit price reductions in October 2001;
  • an overview of the reasons for the compensation announcement in August 2002; and
  • a description of the enhanced procedures that are being put in place to address the issues identified in this booklet.
This booklet was foreshadowed to affected investors at the time of the compensation announcement in August 2002 and, relevantly, through the annual reports issued in 2002.

NAFiM, NAS and MLC Nominees are collectively referred to as the "Companies" in this booklet. NAS and MLC Nominees are superannuation trustees.

 

 ASIC's concerns and action
ASIC commenced enquiries into the circumstances surrounding the October 2001 unit price reductions in July 2002. In September 2002,  ASIC  began investigating suspected contraventions of the law by the Companies in relation to:

  • the integration of the personal and business superannuation products offered by NAS with those offered by MLC Nominees ("superannuation integration");
  • unit pricing by NAFiM; and
  • the disclosure of information in relation to these matters.

ASIC's investigation has now concluded. ASIC acknowledges that the Companies co-operated throughout  ASIC's  investigation and demonstrated their commitment to fully compensate investors.

However, ASIC believes that some of the disclosures made to investors about the unit price reductions and superannuation integration were misleading or deceptive and did not meet the disclosure obligations under the Superannuation Industry (Supervision) Act 1993.  As a result, ASIC commenced proceedings against the Companies in the Federal Court of Australia.  The Companies do not agree with ASIC's  view but acknowledge that the investor communication processes around the unit price reductions and the closure of certain products as part of superannuation integration, were not satisfactory.

The Companies defended the claims made by ASIC  in the proceedings.

The proceedings were settled, without admissions, by the Companies giving undertakings to the Federal Court that:
  • this booklet be distributed to affected investors; and
  • the Companies take certain remedial action to prevent a recurrence of some of the issues identified in the investigation,
on the basis that:
  • the proceedings be dismissed;
  • there be no order as to costs.
The Companies have also offered an Enforceable Undertaking to ASIC, which ASIC  has accepted, under which they have agreed to take certain steps to ensure there are proper and improved processes and procedures in place in relation to:
  • the setting and monitoring of unit prices;
  • governance within NAS and MLC Nominees;
  • and complaint handling.
Further details of the Federal Court action brought by ASIC  and the Enforceable Undertaking can be found on ASIC's website www.asic.gov.au.

 

 Relevant events concerning integration and the unit price reductions
It has been agreed with ASIC that the following events represent the key matters to be explained to affected investors about the unit price reductions and superannuation integration.

Superannuation integration involved the following steps:

  • approval in September 2000 of a plan to integrate the operations of NAS and MLC Nominees, and their various products, including the affected NAFiM products;
  • closure of certain NAS products in May and June 2001 to new investors;
  • a successor fund transfer, and associated trust deed amendment, in June 2001;
  • trade-ups to existing MLC products in December 2001 and January 2002.

An unintended consequence of closure, as part of superannuation integration, was its contribution to the unit price reductions in October 2001.

Each of these events are outlined below.

 Integration - September 2000
On 30 June 2000, National Australia Bank Limited acquired the MLC group of companies. At that time, the National Group was essentially operating two distinct wealth management businesses. For example, in relation to superannuation, NAS offered a range of superannuation products, and MLC Nominees offered a range of different superannuation products.

The integration of the businesses of the National and MLC groups was announced in general terms to the public shortly after the acquisition in 2000.

The integration of the superannuation businesses of NAS and MLC Nominees achieved financial benefits for the National Group through operating synergies and the elimination of duplicated products and services, while seeking to maintain and improve rights for investors through product features.

In September 2000, NAFiM approved a high level plan for the implementation of an integration process. This plan followed detailed consideration and analysis of the cost savings of integration and the features of the respective product ranges. Implementation of superannuation integration was subject to, among other things, relevant trustee company approvals.

NAS and MLC Nominees were informed of the integration plan in November-December 2000. The Companies did not disclose that plan to investors at that time.  ASIC  considers that disclosure of the plan and its likely impact on investors should have been made in December 2000.

The Companies do not agree with  ASIC's  view because (among other things) the implementation of the integration plan was subject to relevant trustee approvals during 2001 and a number of recommendations in the plan, in particular relating to trade-up, have subsequently not been implemented.

 

 Closure to new investors of certain products
In March 2001, as part of the process of integration, NAFiM, in conjunction with NAS, announced to the National Group's financial advisers that it was closing some of its life insurance products to new investors.

From 31 May 2001, NAS closed to new investors the only open superannuation products within the National All in One Superannuation Fund ("NAIOSF"). NAS was, at that time, the trustee of the NAIOSF. Contributions made by investors into the NAIOSF products were invested by NAS into various life insurance products issued by NAFiM.

All existing investors (other than in one product) were told about closure in September 2001 when they received their annual report.

The decision to close the life insurance products to new investors caused, in part, the need for the unit price reductions in October 2001. However, at the time the decision was made, those responsible for the relevant NAFiM products did not foresee the possible implications of closure on the unit prices of those or other affected products.  As a result, it was not recognised that closure would (or could) bring about the need for unit price reductions.

Consequently, when the closure of these products was announced to existing investors in September 2001, those investors were not told of the likely implications of fund closure on the unit prices of those, or other, affected products.

 

 Successor fund transfer
In April 2001, as part of the process of superannuation integration, NAS and MLC Nominees approved a "successor fund transfer" of all members and assets of NAIOSF to The Universal Super Scheme ("TUSS"). MLC Nominees is the trustee of TUSS.

The Superannuation Industry (Supervision) Act 1993, and its regulations, permits the transfer of members and assets from one superannuation fund to another without the need to obtain member consent, provided that the members in the new fund receive rights equivalent to the original fund (successor fund transfer).  Member consent to the transfer only needs to be obtained where equivalent rights are not available. To enable this to occur, MLC Nominees replicated the products within NAIOSF under TUSS. As such, equivalent rights were provided (until trade-up did or was to occur).

In many cases, NAIOSF members were part of employer-sponsored superannuation schemes.  Before the transfer of these schemes occurred, NAS amended the NAIOSF Trust Deed (in accordance with the terms of the NAIOSF Trust Deed) to remove a requirement for employers to consent to the transfer of employer-sponsored members to other superannuation schemes. NAS made the amendment because it believed it would efficiently facilitate the transfer.

Investors were informed of the successor fund transfer, and the associated Trust Deed amendments, after they occurred, in the annual reports delivered to them in September 2001.

ASIC has a number of concerns about disclosure of superannuation integration. ASIC  believes that the Companies should have told investors about each step of superannuation integration, comprising closure of the products, the successor fund transfer, the trust deed amendments and the proposed trade-up of some superannuation products in the context of the integration plan before any of these steps occurred.

The Companies do not agree with ASIC  because disclosure of each of the steps of superannuation integration was considered and made after each step occurred, and in the case of trade up, in advance of it occurring. In addition, the integration of the businesses of the National and MLC groups was announced in general terms to the public shortly after the acquisition in 2000 and, in the Companies' present view, this created in the minds of investors an awareness of superannuation integration.

The Enforceable Undertaking contains a more detailed account of ASIC's  concerns and the Companies' responses to them.

 Unit price reductions
On 30 October 2001, NAFiM reduced the unit prices of units within certain investment portfolios into which investors' monies were placed. Across all of the portfolios, the total impact of the unit price reductions was about $60 million. They affected approximately 235,000 investors and 21 life insurance products. Attached to this booklet is a list of the affected life products.

 What caused the unit price reductions?
Investment-linked life insurance products buy and sell assets with investors' money. Costs are incurred when assets are bought and sold. Unitised life insurance products must ensure that transaction costs incurred in the buying and selling of assets are borne equitably. For NAFiM's products, this was usually done by incorporating an allowance for transaction costs into the unit price ("transaction costs factor").

For growing portfolios, some of the money from new investors is used to pay exiting investors, and the balance is used to purchase new assets. However, when a portfolio is contracting, assets must be sold in order to pay exiting investors as there is not enough new investors' money to meet the needs of exiting investors. This purchase or sale of assets incurs transaction costs. In the circumstances of a growing portfolio, the transaction costs factor should generally be set to raise the unit price so that new investors pay their share of transaction costs. Similarly, in the circumstances of a contracting portfolio, the transaction costs factor should generally be set to lower the unit price so that exiting investors receive less money for their investment in order to pay their share of transaction costs.

The October 2001 unit price reductions occurred following the movement of some of the investment portfolios to a net outflow position, which was substantially caused by the product closures referred to earlier.

However, the main reason for the size of the reductions (more than 80%) was two underlying historical unit pricing errors, which have only been identified recently.

The errors are that:

  • the transaction cost factors applied to the investment portfolios were higher than they should have been for most investment portfolios for significant periods between 1993 and 2001. (NAFiM has  been unable to locate records that would enable it to determine what the transaction cost factors were or should have been for significant times during that period, and has relied on estimates made by Trowbridge Deloitte for those periods); and
  • in relation to five life insurance products, NAFiM applied the wrong unit pricing methodology.

 


Communication about the unit price reductions
From 1 November 2001, NAFiM made a communication available to advisers informing them about some aspects of the unit price reductions. A more detailed communication was requested by advisers and made available to them from 30 November 2001.

Disclosure of the unit price reductions was intended to be provided, within three months, to approximately 150,000 of the 294,000 investors then considered to be affected by the unit price reductions, on the basis that NAFiM considered those investors to be materially affected by the unit price reductions. The disclosure was to be made by way of a flyer inserted in the "National Perspective" magazine in January / February 2002. Due to a breakdown in communication within NAFiM, only 30,000 investors actually received the flyer. Those investors not considered to be materially affected by the unit price reductions were to be informed of the unit price reductions through the annual reports. Those reports were issued in September 2002.

ASIC  has alleged that the communications sent to investors, advisers and employer sponsors in relation to the unit price reductions were misleading in a number of respects.

While the Companies do not agree with ASIC's  allegations in relation to those communications, the Companies acknowledge that they did not fully inform all investors about the unit price reductions following 30 October 2001. In particular, the Companies did not inform investors of the overall size of the reductions or the individual impact of the reductions on their investments. The Companies also did not inform investors of all of the causes of the unit price reductions because of a lack of understanding by the Companies at the time.

The Enforceable Undertaking contains a more detailed account of  ASIC's  concerns and the Companies' responses to them.

 Trade-ups
Trade-up was, and is, the proposed final step of the process of superannuation integration. Trade-up involves transferring members from the replicated NAIOSF product within TUSS into an existing TUSS product (with additional features to the replicated NAIOSF product), thereby altering members' terms and conditions. The power to trade-up is provided for in the TUSS Trust Deed.

MLC Nominees resolved (subject to certain conditions, which were subsequently satisfied) that the two trade-up proposals put to it were in members' best interests and, accordingly, approved them in July-August 2001. As a result:

  • approximately 30,000 members of Personal All in One Super and their assets were traded-up to MLC MasterKey Superannuation on 1 December 2001; and
  • approximately 90,000 members of FlexiSuper were traded-up to The Employee Retirement Plan on 1 January 2002.

 

 Compensation for affected investors
On 16 August 2002, having received complaints from investors and inquiries from  ASIC , MLC Limited, on behalf of NAFiM, announced that affected investors would be compensated a total of $60 million for the October 2001 unit price reductions. NAFiM made the decision to compensate because of the following concerns:

  • following the closure of various products, there had been an outflow of funds which led to the need for unit price reductions;
  • certain investors may have been adversely affected by a failure to adjust the unit prices sooner;
  • the communication processes around the unit price reductions were not satisfactory.

Since making that announcement, NAFiM has identified the two underlying historical unit pricing errors referred to earlier. NAFiM has also committed to compensate affected investors for the direct impact of these two errors, increasing the total compensation from $60 million as announced in August 2002 to $67.2 million.

NAFiM engaged a leading firm of actuaries, Trowbridge Deloitte, to independently assess its approach and confirm the adequacy of the overall compensation commitment.


Trowbridge Deloitte's opinion is that NAFiM's revised compensation commitment will ensure that all affected investors are fully compensated for the direct impact of the unit price reductions and the unit pricing errors.

 

 Enhanced Procedures
The Companies have implemented, and are in the process of implementing, a number of enhanced procedures.
These enhanced procedures include:

  • clear accountability for, and regular management review of, unit pricing processes and controls;
  • annual review of transaction costs by appropriately qualified and independent external experts and reporting to the relevant boards;
  • the implementation of a new policy for future product closures; and
  • revised staff training and processes to improve communication to all investors.

The Companies are incorporating these enhanced procedures into their ongoing continuous improvement programs.

In addition, as part of resolution of the Federal Court proceedings, the Companies have undertaken to implement a disclosure compliance program that includes regular external reviews of that program which are to be provided to ASIC.

Neither the compensation nor the external reviews will be paid from investors' funds.

Also, under the Enforceable Undertaking, the Companies have agreed to take certain steps to further ensure there are proper and improved processes and procedures in place in relation to:

  • the setting and monitoring of unit prices;
  • governance within NAS and MLC Nominees; and
  • complaint handling.
Further details of the Federal Court action brought by ASIC and the Enforceable Undertaking can be found on ASIC's website www.asic.gov.au.

 

 List of affected products
1 National Personal All in One Super
2 National Business All in One Super
3 National FlexiSuper
4 National FlexiSuper Plus (including National Business Super Plans 1, 2 and 3, which were previous versions of National FlexiSuper Plus)
5 National Flexible Pension Plan
6 National Personal Super Bond*
7 National SuperStar 1 and 2
8 National Business Super Bond
9 National Pooled Superannuation Bond
10 National Super Bond
11 National Asset Builder
12 National FlexiBond
13 National Investment Bond*
14 Tax-Paid Savings Bond*
15 Deferred Annuity Growth Bond
16 National Rollover Bond (Series 1)
17 National Rollover Bond (Series 2)
18 National Rollover Bond (Series 3)*
19 National Rollover Parking Bond*
20 National Flexible Income Plan
21 National Pooled Superannuation Fund

* An asterisk indicates that NAFiM applied the incorrect unit pricing methodology to at least some of the policies issued in relation to those products.

About National Wealth Management and MLC
A division of the National Group, Wealth Management manages and operates a diverse portfolio of financial services businesses. Through partnership with a range of financial advisers, it provides quality financial planning services and wealth creation (investments, financial planning, private banking), wealth protection (insurance), and wealth succession (superannuation) solutions to retail and corporate customers, as well as portfolio implementation systems and business coaching services to financial advisers.  Wealth Management, which includes MLC, is differentiated by its unique "manager of managers" investment approach and multi-channel distribution and advice capabilities.  Wealth Management has more than 2.8 million customers across Australia, Great Britain and Ireland, Hong Kong, Thailand, Indonesia, and New Zealand, and manages more than $64 billion on behalf of retail and corporate customers.

* The information contained in this media release is for media advice purposes only. The contents are true and correct at time of publishing/issuing, however may change over time. For further information about NAB products or rates, please go to Interest Rates, Fees & Charges