Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited (No 3)

The Australian Securities and Investments Commission (ASIC) brought proceedings against Australia and New Zealand Banking Group Limited (ANZ) in relation to the bank's charging of fees for periodical payments. ANZ admitted to charging non-payment fees for failed periodical payments due to insufficient funds, transaction fees for successful periodical payments, and same-name fees for periodical payments made between accounts in the same name. ASIC alleged that ANZ's conduct contravened section 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) and sections 912A(1)(a) and 912A(1)(c) of the Corporations Act 2001 (Cth) by charging certain same-name fees and not making certain remediation payments. Both parties sought declarations and orders for agreed penalties.

The court considered the principles and considerations relevant to the imposition of penalties, including ANZ's conduct, the degree of culpability, the benefit obtained by ANZ, and the need for deterrence and denunciation. The court found that each proposed agreed penalty was an appropriate sum in the circumstances, taking into account the factors mentioned above. The court made agreed declarations and orders, including a pecuniary penalty of $10 million to be paid by ANZ within 30 days, a requirement for ANZ to publish a notice at its own expense, and a contribution to ASIC's costs of $1 million within 30 days.

The court's orders reflect the seriousness of ANZ's conduct and the need for deterrence and denunciation, while also taking into account the factors relevant to the imposition of penalties. The court's decision highlights the importance of financial institutions complying with relevant laws and regulations, and the consequences of contravening those laws.