The Foreign Currency Loan Experience in 1980s Australia with particular reference to the Commonwealth Bank of Australia: bank documents, bank culture,  foreign currency loan litigation

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School of Economics and Political Science
Working Papers

The ‘foreign currency loans’ saga was a significant feature of the 1980s, following financial deregulation in Australia.  It involved significant financial losses and personal suffering for many borrowers.  Perspective on the origins and character of the foreign currency loan facility may be gleaned from internal bank documents and contemporary legal commentary.  This paper reproduces selective excerpts from Commonwealth Bank documents (the ‘G’ documents).  The documents highlight the early ambitions to create a foreign currency loan clientele in the face of official monetary policy restraint.  They also highlight the erratic state of expertise within the Bank regarding both the foreign currency market itself and the management of borrowers.  The juxtaposition of bank document content with judicial treatment of litigants provides a vehicle to discuss fundamental issues of principle – the nature of the foreign currency facility and the nature of the bank-borrower relationship.  One important lesson is that regarding the character of legal culture itself.  One finds a clash between the context that gave rise to the foreign currency facility and the general legal culture that prevailed over the ensuing litigation.  The passage of foreign currency litigation through the courts provides an exemplary study in the conventions and tensions of the law.  The tension between judgments provides an exemplary case study in banking law in Australia.

 

Table of Contents

Bank Fraud Exposed - Money out of YOUR Pocket!

Australian Bank Malpractice: Crucifixion and Resurrection

Australian Justice, Court Jesters, and Constitutional Crisis

Unfinished Business: Searching for a National Conscience

The Australian Bank Heist Condoned by Reserve Bank Watchdog

Bank Fraud in Australia is Systemic - part 2 - part 3

The Foreign Currency Loan Experience in 1980s Australia: Dwyer v Commonwealth Bank of Australia -  2 - 3 - 4 - 5

The Quade Appeal on Decision vs CBA - 2 - 3 - 4 - 5 - 6 - 7

Jones Letter to CBA Noting Hypocrisy concerning Dwyer

Dwyer Letter to Kevin Rudd

Dwyer Letter to Malcolm Turnbull, MP

Malcolm XXX Finally Rings at Election Time

WestPac Letter Warning of Foreign Currency Loan Risks

Clive Alexander Affidavit about Fraudulent Practices by Westpac Bank

Here Is How ANZ Handled the Withholding Tax Issue

ANZ Bommakanti to Ries

Bank Fraud in Australia Is a Step Toward Controlling the Economy and the People

Bank Fraud in Australia Is Systemic and Affects All Australians

A Case Study in the Adverse Small Business Environment in Australia

The Walter Family and the National Australia Bank - part 2

The Victorian Courts  - part 2

The Industry and the Federal Authorities

The State of Victoria and the Bracks Government

The NAB and the New Public Relations Program

The Regulators, the Law and Bank Malpractice - part 2

Conclusion and References

The Banks and Small Business Borrowers: case studies of adversity

by Evan Jones

1  - Introduction
2 - Goonans
3 - Paul Buckman
4 - The Walter family
5 - The McMinns
6 - Lynton Freeman
7 - Ross Delahunty
8 - Keith Smith
9 - The Somersets
10-Conclusion

Articles by Evan Jones

The NAB and Its Publicity Grabs

Innovation at the NAB and Grab

NAB accused of dirty tricks in Queensland

Bank Fraud and John Howard

Australian Four Pillars Bank Policy

Document Discovery and the Australian Courts

Final Warning: A History of the New World Order

Banks Behaving Badly

When the Bankers became Con-men

NABbed - an overcharging scandal involving the biggest Australian bank

Tony Rigg -Never in Default

1 - NEVER IN DEFAULT - Rigg

2 - Fraudulent Swiss Franc loans

3 - Insider Trading within a Secret Society

4 - Corrupt Receiver and Illegal Eviction

5 - Collusion in Government

6 - Commonwealth Bank Code of Practice

7 - Pioneer in Steel Structure Building

8 - Summary of Argument on Appeal from Federal Court

9 - Brief for Joanna Gash, Federal MP from Gilmore

Steve Heinrich's Last Submission to Federal Court

Wilfred Taylor

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HISTORY OF COMMERCE
3 RESPONSIBILITY
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7 BEING A SOVEREIGN
8 PRIVATE BANKING

Drug Smuggling

Stopping an IRS Audit with 32 questions

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Recording a Notice of Lien as a Lien

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Debt Collection Practices: When Hardball Tactics Go Too Far

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Patricia Poulos, Senior Consultant and Head of Litigation

The plight of Tony Rigg and others is a disgrace.

What a blight on the Legal System and the government, when the likes of successful businessman Tony Rigg has had to assume the role of his own lawyer.

Try though they may, these wonderful Australians are no match for those who act for the banks and other lending institutions and who, without
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With my knowledge and experience, no stone will be left unturned in researching documents in order to uncover the truth and put it before the
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Patricia Poulos

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Secrets of the Federal Reserve by Eustace Mullins

Eustace Mullins' carefully researched and documented treatise picks up from Walbert's expose' and brings it to the mid 1980's

The World Order by Eustace Mullins

How control of the world's money has inexorably led to an ever tighter grip on control of the world's people.

Propaganda by Edward Bernays

Walter Lippmann's book, Public Opinion, published in 1922, detailed the study in which he and Edward Bernays were involved while in London during the First World War. It had to do with painting pictures inside people's heads, which were cunningly and deliberately designed by expert craftsmen to mislead not only individuals but entire societies.

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 Faculty of Economics and Business

ISBN      1 86487 791 X                                                                 ISSN 1446-3814

December  2005

The Foreign Currency Loan Experience in 1980s Australia

with particular reference to the Commonwealth Bank of Australia:

bank documents, bank culture, and foreign currency loan litigation

Evan Jones

School of Economics and Political Science

University of Sydney

Disclaimer Notice : The responsibility for the opinions expressed in these working  papers rests solely with the author(s). The School of Economics and Political Science gives no warranty and accepts no responsibility for the accuracy or the completeness of the material.

 

1.

Introduction and Background

2.

The initial context and the decision to introduce and market the facility

 

3.

The foreign currency markets and the state of Commonwealth Bank expertise

4.

Rogers J. and the G documents

5.

Quade and the G documents

6.

The foreign currency loan as dangerous product?

7.

The bank-borrower relationship

 

8.

The definitive Dodd affidavit

 

9.

Conclusion

10.

References

 

1. Introduction and Background

The ‘foreign currency loans’ saga was a significant feature of the decade following the deregulation of the finance sector in Australia in the 1980s.  In a companion paper to the current paper, I briefly describe the rise of this phenomenon (Jones, 2005b: 1):

Beginning in 1982, and with impending deregulation of the Australian financial sector, three major banks (and some lesser players) fashioned loan products denominated in foreign currencies for small business borrowers. Australian interest rates were high; interest rates in some other countries (notably Switzerland) were significantly lower (roughly 7% compared to 13%). The number of such loans was never established with any accuracy, but it is estimated that between 3000 and 5000 such loans were made, mostly in the 1982-1985 period. The Australian dollar plummeted in 1985, and the principal owing blew out dramatically. A million dollar loan in Australian dollars (a not unrepresentative sum) blew out to over two million dollars as the Swiss franc appreciated against the Australian dollar. 

Disbelief on the part of borrowers led to meetings seeking clarification and reassurance or instructions to cope with intolerable debt burdens. Disputation between borrower and lender escalated in the late 1980s and, in many instances, ended up in the courts. A small handful of borrowers were successful litigants, especially against Westpac, but the typical litigating borrower was unsuccessful, especially against the Commonwealth Bank of Australia.  …

With superior resources, the banks were successful in many court cases in centring and limiting judicial wisdom to the issue of information and knowledge – what did the borrowers know about the nature of the product they had signed up for. The nature of the facility itself was removed from consideration. By contrast, at the centre of court litigation over foreign currency loans was whether the borrowers went into the contract with ‘eyes wide open’, the nature and extent of information imparted by bank personnel, and whether bank lenders had a fiduciary duty to their borrowers regarding the viability of the foreign currency loan in the hands of the borrowers.

Perspective on the origins and character of the foreign currency loan facility may be gleaned from internal bank documents and contemporary legal commentary.  Remarkably, bank documents played a minor role in many court cases.  For example, they were not available in David Securities and Rahme v Commonwealth Bank of Australia (1989), and they made only a cameo appearance in Ralik v Commonwealth Bank of Australia (1990) and Dwyer v Commonwealth Bank of Australia (1991a; 1991b). 

This paper reproduces selective excerpts from documents of the Commonwealth Bank (the ‘G’ documents).  The paper is intended to complement a companion paper specifically on the Dwyer litigation proceedings (Jones, 2005b), and to provide insight into the lacunae in those proceedings that allowed the straightforward success of the Commonwealth Bank in that instance. 

Section 2 highlights the early ambitions to create a foreign currency loan market and clientele in the face of official monetary policy restraint.  It also highlights staff’s vision of the prospective market as an exceptional profit-earner.  Section 3 highlights the erratic state of expertise within the Commonwealth Bank both regarding the foreign currency market itself and regarding the management of foreign currency loan borrowers.  The excerpts expose the unpreparedness, rising frustration, indecision and fear for the Bank’s security position during 1985-1989, following the fall of the Australian dollar as borrowers clamoured for assistance, before many turned to litigation.  Sections 4 and 5 outline the critical perspective, arising from examination of Bank documents, taken by Justices Rogers, and Burchett and Einfeld after their Honours’ experience in presiding over Mehta and the Quade appeal in particular.

The juxtaposition of the content of bank documents with the judicial treatment of borrower litigants provides a vehicle to discuss fundamental issues of principle – the nature of the foreign currency facility (Section 6) and the nature of the bank-borrower relationship (Section 7).  This paper takes a jaundiced view towards the conventional judicial treatment of these issues.  Section 8 offers a damning summary of the Commonwealth Bank’s role in the foreign currency loan affair, courtesy of a 1998 affidavit of a sometime experienced Commonwealth Bank officer.  

2. The initial context and the decision to introduce and market the facility

The report of the Campbell Committee inquiry into the Australian Financial System had been published in September 1981 (an interim report appeared in May 1980), promoting financial deregulation and the dismantling of the old rules ([Campbell] Committee of Inquiry into the Australian Financial System, 1981). 

Deregulation offered the promise of new opportunities and the threat of new competitors.  There was the felt necessity to plough new ground.  One might label the ascendant mentality hubris or desperation, but the attendant risks appear to have been subsumed as unavoidable.[1] 

There was a certain irony to the occasion in that the opportunities from deregulation were met with new constraints on lending.  Contemporaneously the Reserve Bank had implemented a credit squeeze in late 1981 (a byproduct of the ‘resources boom’).  The early CBA G documents are preoccupied with official restrictions on its profit-making ambitions.

Thus Clark to NSW State Manager Gerathy in early May 1982 (Clark, 1982):

      You are also aware that the CTB [Commonwealth Trading Bank] has found it necessary in recent times, in its endeavour to adhere to Reserve Bank of Australia guidelines, to request clients to refinance cash funded advances by the execution of bill options at the CTB’s cost. Under the present difficult lending conditions it is necessary to explore alternative means of meeting the requirements of CTB clients and enabling the expansion of corporate lending business.

      You will recall that at our recent conference attention was drawn to the scope for the CTB to make greater use of foreign currency lending for both trade financing and proposals of a capital nature. Indeed this medium may be the only way in which some customers will be able to be assisted in the foreseeable future.

      The present high level of domestic interest rates is creating an awareness of the availability of foreign currency loans, which is being exploited by merchant banks and foreign banks. It is important that the CTB fully exploits this area of business, particularly at a time when lending in traditional areas is being contained. (p.1)

In the space of two weeks, the urgency has increased.  Thus Clark to State Managers (O’Brien, 1982):

      Wherever possible applications for Item 8 type facilities [i.e. overdraft, farm development loan and term loan] should only be approved on a foreign currency basis unless exceptional circumstances exist. In the latter cases, a foreign currency option should attach to the domestic facility with, wherever practicable, activation being at the CTB’s discretion and costs for customers’ accounts. … (2)

      Although customers may resist such action I would expect waivure (sic) of the foreign currency option to be an exception rather than the norm. You may be assured that in many instances the CTB would not be placed at a competitive disadvantage as other Australian banks have been vigorously directing their clients to borrow offshore in recent months. …

      I am sure you would have declined many attractive proposals in recent times on the grounds of either quantitative or qualitative lending restrictions. No such restrictions apply with foreign currency loans and I would see great scope for providing foreign currency loans for proposals for specific projects which can stand alone. In most of these latter cases, the borrower will generally not wish to hedge his foreign exchange exposure and we should take a more relaxed attitude in this regard provided the CTB is adequately secured (ie on approved lending margins) and the risks have been fully explained to the client. … (3)

      Unfortunately the number of staff available to me with the required expertise is not large and for this reason it is proposed to initially concentrate on NSW and Victorian clients. … (4)

      Initially marketing efforts should be concentrated on the small to medium sized customer with needs/facilities ranging between $250,000 and $5m … I would like you to prepare a list of accounts which you consider could be diverted into foreign currency loans together with a list of possible prospective clients so that necessary plans can be made to implement a calling programme. … (5)

      I know I can rely on you to encourage use of this facility in your State and I look forward to seeing a significant escalation in foreign currency accommodation to our clients. (6)

Head Office had already been promoting the facility in mid-April.  From a Hulme (1982) memorandum:

      Act to ensure that all appropriate new applications are approved subject to an offshore option … Identify existing customer targets … We will want to avoid large prime companies and concentrate in small/medium company range. (1)

In early May, the Head Office international currency team (of two) had summarised the evolving strategy initiated in March[2] and cemented at two meetings chaired by Hulme (O’Brien & Knezevic, 1982).  Quoting selectively:

      Rather than delay promotion of the facilities until all procedures etc were in place, a letter be immediately forwarded to State Managers under the General Manager’s signature [resulting in Clark, 1982]. …

      It would be necessary for the marketing team to have access to all NSW clients for the promotional drive to be a success … (1)  

      One aspect that should be emphasised is that it is highly unlikely clients [for new facilities] would readily accept foreign currency loans in lieu of item 8 type facilities unless they and the CTB are prepared to allow the facility to proceed on an unhedged basis. The statement is regularly made that the cost of hedged foreign currency loans is approximately equal to the cost of borrowing funds in Australia. … (2)

      While the CTB does not have a published policy on hedging when providing foreign currency facilities to customers, it would be safe to say that the majority of management consider hedging to be an essential ingredient to any foreign currency proposal. There are obviously moral considerations at issue as well as the safety of the CTB’s security position.

      On the moral issue, it is felt that the CTB would protect its banker/customer relationship by fully explaining the inherent risks in borrowing in a foreign currency on an unhedged basis. If after hearing of the risks involved a client wishes to borrow on an unhedged basis then it is not necessarily the CTB’s right to dictate otherwise. …

      This leaves the CTB’s security question. Foreign exchange rates can move sharply at little notice and therefore regardless of the level of allowances made for this risk, the allowance may be insufficient. One argument is that an allowance similar to hedge exposure guidelines should be made for possible adverse affect (sic) on security (hedge exposure guidelines – 10% allowance for up to 12 months, 15% allowances for 12 months to 24 months and 20% allowance for over two years). … (3)

As a further protection, the CTB could include a ‘claw back’ clause in the loan agreements covering foreign currency borrowings. … It of course follows that this could create liquidity problems for the borrower. However, it would protect the CTB’s security position, assuming of course the CTB was prepared to realise on security if need be. … (4)

      It is felt that there is no real prospect of clients readily accepting a foreign currency loan option where they have item 8 type facilities unless they are prepared to carry the foreign exchange risk (the interest rate differentials between item 8 facilities and hedged/covered offshore borrowings are too great). It would seem that the decision is therefore to reduce/cancel item 8 facilities and offer bill/foreign currency options instead. … (8)

      [Under the sub-heading ‘Preparation of Submissions/After-Care (a) Existing Clients] … The role of the account officer at point of control is seen as the after-care centre which would respond to Head Office directives concerning lending policy. In many respects the account officer should have indicative interest rates for both domestic and offshore markets at 11am each morning. The account officer should have contact with the client at least twice weekly to give a rundown on rate movements and find out if there are any transactions coming up which the Bank could/should become involved in. [A senior manager has made annotations on the margin, partly indecipherable, to the effect that this proposal is not workable ‘on a cost/benefit basis’, and that approaches by customers to staff can not be encouraged at this stage.] (9)

      [The following are hand-written comments by an unknown senior manager]

      I am in general agreement with the whole thrust of this paper. … the one area requiring a basic policy decision now seems to me to be the question of security in any unhedged situation. …As a general guide, I would prefer to look for security on margins, plus some added allowance – say 10% – for reasons similar to those applicable to hedging limits approvals. …

[There follows hand-written comments by another senior manager] After discussion with Mr. Hulme – we will agree to a 10% margin (extra) for time being subject to Capitals being initially informed as to its application, and the need to keep movements in exchange rates under periodical review. (unnumbered attachment)

There were opportunities to not merely transcend lending restrictions but to enhance profit margins as well.  From Johnson in March 1982 (1982):

      This lending could be directed to the small and medium size business area for development, investment and other financing requirements as distinct from loans to State Governments and prime corporate names which is a highly competitive area offering a comparatively lower rate of return. I would see this lending attracting fees and margins a good deal higher than those for existing borrowers … and without being specific, it is felt that fees and margins could be pitched at levels to match or better those applying for domestic bill facilities. (3)

And from O’Brien & Knezevic (1982):

      The prospect of writing offshore loans for clients creates an opportunity for the CTB to earn income in our overseas branches at considerably better after tax margins … (7)

Thus by October (Moran, 1982):

      The CTB in recent months has actively promoted foreign currency lending facilities. (1)

In the September 1984 issue of Rydge’s magazine there appeared a bold 2-page advertisement by the CBA with wide-angle photographs of multiple dealers hard at work, and the following text, under the title ‘A bid for world supremacy’:

      This is the most advanced foreign exchange dealing room in the southern hemisphere.

      In fact it’s equal to anything in the world.

      It’s been built to help give our forex dealers superior information and communication when dealing in world currency transactions.

      This means more competitive quoting and superior efficient service. Without loss of reliability or safety.

      How can you utilise such a sophisticated operation?

      Just pick up the phone and ask for a quote.

When Geoff Dwyer, with solicitor Baird, went to the Commonwealth Bank for the decisive meeting with Messrs Savell and Fuller on 1 August 1984 to discuss their loan, they were subsequently taken to the dealing room.  In the trial Court proceedings, Dwyer noted (Dwyer & Anor v Commonwealth Bank of Australia, 1991a: 321):

      I was told by Mr Savell it was the best dealing room in the Southern Hemisphere and I was quite taken with the fact that you could call up [interrupted] …

Dwyer recalls that he and Baird were mightily impressed by the seeming sophistication of the edifice and it gave him confidence that he was in good hands.  Here was an institution seemingly in command of its operations, albeit the dealing room’s activities were in practice of no relevance to Dwyer’s prospective loan.  In cutting off Dwyer’s account of the visit to the dealing room, the Bank’s counsel evidently attempted to minimise attention to the propaganda significance of the room and that particular visit.

What was the outcome of this early ambition to actively market a new product (indeed foist it on customers)?  Two years later, from Edwards (1984):

      In 1982, Combank set out to achieve an increase in the smaller/higher yielding F/C/L’s to Australian customers. … Despite the increase in outstandings since 1982, it would be fair to say F/C Loan marketing has been only moderately successful … it would be fair to say that the concept of F/C Loans was never totally embraced by senior loans staff. 

      The F/C/L concept seems to attract large numbers of fringe type borrowers (entrepreneurs, developers, etc). My assessment would be that a considerable number of potential borrowers would not meet CBA standards. Nevertheless, there is an element of sound business available. It seems imperative that CBA has the expertise available to service inquiries. … (1)

      F/C Loans and simulated loans should not be aggressively marketed. (2)

In comments on Edwards’ memo, Long (1984) concurred as basis for a revitalised roll-out of foreign currency loans:

      F/C/Ls may be marketed to those clients who it is considered may utilise them and who would have the capacity to manage their exposures or meet exchange losses which may occur. F/C/Ls are not a facility for weaker clients. (1)

As background to his recommendation, Long noted:

      Some of the confusion which currently exists is due to discussions held at credit committee some weeks ago. The Chairman raised a few doubts about the desirability of lending to the small end of the market and in the discussion which ensured it was agreed that care needs to be taken to ensure that the inexperienced are not assisted or encouraged into a situation they cannot handle. However my understanding of the discussion is such that we were not instructed to hold back from F/C/Ls but merely to lend judiciously. (1)

Long emphasised that the education of staff remained a daunting task.  These comments were written precisely at the time that the Dwyer loan was established in July/August 1984. 

 

 

3.          The foreign currency markets and the state of Commonwealth Bank expertise

1985 saw the free fall of the Australian dollar against the Swiss franc in which the bulk of the CBA’s foreign currency loans were written.  What was the state of expertise in the Bank?  The Bank’s Investment and Economic Research Department wrote a substantial report in June 1983 (Investment and Economic Research Department, 1983):

      Over the period from 1983 to 1986 the Deutschemark (sic) is forecast to appreciate by more than 10% against the US dollar. … (1)

      Over the period to 1986 [the Australian dollar] is expected to appreciate noticeably against a declining US dollar and pound sterling, but to fall substantially against the yen and Deutschemark. Exchange rates are expected to continue to exhibit a high degree of volatility. (2)

This from the International Division (1984) in June 1984:

      Strong economic fundamentals, a CHF6 billion current account surplus in 1984, and investor confidence in the Swiss central bank’s anti-inflation stances augers well for appreciation of CHF against the US Dollar. … The Swiss France traditionally tends to track movements in the Deutschemark/US Dollar exchange rate and is expected to strengthen in the second half of 1984 in tandem with the mark. (1-2)

      The Australian dollar has weakened since April due to the rising trends in US interest rates, an easing in local bill rates and resurgence of the US Dollar. … However, we expect the AUD to recover from current low levels in the second half of 1984 … (2)

      Relative movements of AUD and CHF against the USD is expected to result in an overall moderate strengthening of the Swiss franc against the Australian dollar over the next 12 months.

      Historical and forecast trading levels of Swiss Franc against the Australian Dollar are as follows: June 1983 1.8434 … June 1984 2.0100 … June 1985 1.93-1.95 [i.e. an estimate of 3-4% depreciation of the Dollar against the Franc in twelve months to June 1985].

      In summary, therefore, exchange rate movements are likely to offset, to some extent, the interest rate benefit of borrowing in Swiss Francs. However, an overall lower cost of funds should still be provided by borrowing in Swiss Francs which also offers the advantage of lower withholding tax cost than other foreign currency alternatives. (3)

February 1985 witnesses the unexpected.  This from Edwards (1985), of Head Office International, to State offices:

      The recent substantial depreciation of the Australian dollar against overseas currencies, especially the US dollar, raises the question of the increased AUD exposure that each F/C/L borrower could have to CBA. … in view of the extent of the AUD depreciation which has occurred – around 26% over 12 months for the USD and 6% over 12 months for SFR – it is prudent that the position of each client be reviewed and, if considered warranted, the client put “on notice” that the parity adjustment will be sought at the time of next rollover if the AUD exchange rate remains at its depreciative level or deprecates further. (1)

A hand-written annotation from a senior manager notes that as ‘most if not all of our F/C/Ls are in CHFs’, then CBA borrowers are ‘not too affected’. 

Edwards’ memo was paralleled by a circular from Treasury (Hulme, 1985a), the essential ambition of which was to hose down concern:

      The attached memoranda prepared for internal use are circulated as a matter of information in view of the confusing, conflicting and misleading commentary on this matter over the past couple of weeks. (cover sheet)

      All that can be said about attempts to apply neat economic theories to rationalise the extraordinary decline in the AUD over the past couple of weeks, is that they have been entertaining. Most have also been ill-informed and misleading. … There was not science in, or economic rationalisation for what followed over the next couple of weeks … The level of uncertainty in the market was such that it became a game of pass-the-parcel. No-one wanted to be caught holding AUD when the music stopped. AUD had become a hot potato. Seeing this strong downward trend in the AUD, a very interesting array of pure speculators entered the arena looking for capital gain. Contrary to economic theory, the speculators served only to exacerbate the situation. … (2)

      Finally, it is worth reiterating just two points made by the bank during the height of the highly charged (and mostly emotive) debate on FX licences in 1983:

      (a) Because of the relatively small volume of genuine commercial business and the uneven, often very lumpy, trade flows in Australia, speculators would tend to be all on one side or all on the other. Speculation would thus be inherently destabilising in the AUD market. …

      (b) Increasing the number of FX licencees may bring artificial depth to the market but would add little, if any, real depth. …

      Market behaviour has attested to the validity of these points. Much of the recent volatility has been the result of dealers playing banks amongst themselves. … When the market does settle down, at whatever price level, then this will provide the time necessary (or rather essential) for rational assessment to be made so that the price can move smoothly to a level determined on the basis of fundamental economic factors such as balance of payments, internal economic performance and relative inflation rates. … (2/3)

      For the longer term outlook, it should be noted that fundamental economic factors have changed little in the midst of the events of the past three weeks. … By mid-1985 the domestic currency market is expected to have readjusted to recent events and the Australian dollar should trade with increased steadiness. However, it is difficult to assess what will be the longer term damage on confidence in the AUD as a result of the destabilising events of the recent weeks. Overall, fundamental factors suggest the underlying trend of the AUD will remain relatively weak over the remainder of 1985, unless the upward course of the US dollar reverses. (second section, 2)

The Bank’s chief economist, R. H. Dixon, conceded that what was needed to be known was perhaps in the realm of the unknowable:

      There is no simple answer to the reason behind the fall in the value of the Australian dollar and behind movements in foreign exchange values generally. … Because of the complexity of the issues involved it is virtually impossible to forecast exchange rates. It is fair to say though that the Australian dollar will remain volatile over the next few months with a possibility that it may fall further. (13)

      I think the lesson learnt over recent times is not to dabble in foreign exchange speculation unless you have the resources to back up a bad punt. Rather, every effort should be made to insure risks which can be arranged through facilities such as forward cover and hedging. (14)

Dixon then highlighted his detachment from the peculiar state of his employer’s ‘dabbling’ in foreign exchange speculation by concluding:

      I conclude with the thoughts that deregulation has been of benefit to all parties and we can look forward to a shake-up in the finance industry. And in line with life in general, life in the financial world, which has become more complex, will continue to do so. (14)

F J Hulme, Group Treasury head, was not in a position to join Dixon in his detachment.  Hulme wrote to the Chief General Manager of Corporate & International in October 1985 (Hulme, 1985b).  Hulme noted the recent creation of a Risk Management Advisory Service within Treasury.  ‘Because of the significant paper losses incurred over the past year by borrowers of foreign currency … it was decided that RMAS would extend its services from the outset to incorporate clients with borrowings in foreign currency for purposes other than trade’. 

      From the types of questions being asked of RMAS personnel by either existing borrowers or prospective borrowers with approved but undrawn loans, it would appear that there could have been deterioration in the quality of advice/information provided by CBA staff generally regarding the risks associated with such loans and other related matters. [A hand-written marginal annotation notes: ‘At grass roots levels the quality of advice has probably never been sound!’] (3)

      If an overall review of foreign currency loan policy etc is to be undertaken, we strongly believe that the first issue to be decided should be the degree of advice/information, etc, you desire to be given to borrowers. …

      Should [your leaning be to the view] to provide advice and let clients deal through the Bank to manage exposure, it would be necessary to set down some guidelines for our dealers … Obviously the resources of RMAS would need to be increased substantially to handle the business and may necessitate the recruitment of additional expertise from the market. As we see the situation, the big danger with this development would be that probably 80% of the clients with foreign currency loans would not really understand what they were doing. While this would not represent a problem if the client won, it is not difficult to envisage the complaints if losses occurred. To proceed on this course, the Bank would need to undertake a massive client education programme and obtain water-tight and wide-ranging indemnities. (4/5)

      The remaining course of action is to provide professional management for a fee. … We have taken a policy decision within Group Treasury not to pursue this course for the present.

      As an aside, but very much related issue, RMAS is in the process of establishing a computer-based profile on foreign currency borrowers. … We would also stress that this RMAS programme is a stop-gap rather than a final solution to existing reporting deficiencies relating to foreign currency loan usage. … (7)

      For what it is worth the Group Treasury view is that the CBA should not be actively encouraging borrowers to take open foreign exchange risks in situations where we know now that these borrowers have no foreign exchange cash flows and are instead wholly speculative in motive. There is a widespread lack of understanding of the magnitude of risk, and the short-sighted attraction of lower foreign currency interest rates has proven disastrous to many of our clients.

We would recommend that any revised policy on foreign currency lending take particular account of the term of the proposed advance. Also, you may wish to consider a system wherein a client’s foreign currency borrowing ceiling would be established by discounting his aggregate Australian dollar borrowing capacity … [A marginal annotation notes: ‘We would surely only need to consider such system if we waive parity adjustment requirements’.] (8)

L. G. Watson (1985), Corporate Administration, summed up the state of play in October:

      It is probably not putting it too strongly to say that [point of controls] are approving F/C/L’s, S/L’s etc far too freely in the present climate, particularly having regard to the outlook for the Australian dollar. It seems reasonable to assume that there is not a full appreciation of the risks involved. In the circumstances a complete overhaul of the policy guidelines is seen to be necessary. (1)

Corporate Head Office (1985) sent out a document outlining the revised more stringent guidelines for potential FCL borrowers.  The motivation was the fear that ‘borrowers with very limited capacity to absorb exchange losses, may expose the Bank to an unacceptable level of risk in the event of any further devaluation in the Australian dollar’.  The document continues:

      It should be borne in mind that because of the impossibility of accurately forecasting exchange rates and the inherent dangers associated therewith, the views expressed by Group Treasury will be more of a general nature. … (4)

      While it is acknowledged that there is a need to provide some exposure management advice on request to F/C/L borrowers during the course of a loan, we would not at present wish to advertise the availability of such a service.[[3]] Further, it should be emphasised that the CBA does not wish to provide a comprehensive foreign exchange exposure service which could involve the assumption of responsibility for currency management and this needs to be kept prominently in mind when discussing exchange rate movements with clients.

      Because of the above mentioned limitations on the involvement of RMAS and the general complexities of F/C/L’s, we would see considerable merit in each point of control identifying one/two officers as the initial referral point for branches/clients with respect to all aspects of F/C/L’s. In this manner the required level of expertise could be quickly built-up and, if considered appropriate, passed on to other lending staff. It would of course be a pre-requisite for such officers to have a reasonably sound understanding of basic foreign exchange transactions (eg forward cover/hedging principles, switching currencies, exchange rate withholding tax, interest rates, etc. (5)

P. R. Hamilton (1986), Corporate Head Office, evaluated the failings of previous lending practices:

      Our review has indicated that although the standard of creditworthiness under which approvals were given was generally satisfactory given the guidelines under which branches and points of control were operating, a very large percentage of borrowers were ill equipped to accept the exchange risks involved. It is now apparent that many of our own staff do not have an adequate understanding of the risks involved and were not well placed to advise potential FCL borrowers. The problems experienced have, in some instances been compounded by the introduction of borrowers through brokers who have insulated our staff from direct dealings. … (2)

      Administrative management responsibility for CBA’s FCL exposure to domestic borrowers is currently divided on an ill defined basis between Corporate, International and Group Treasury. This division of control has been a contributing factor towards delay in consideration of many matters now being addressed in the current review … (4)

As part of the data attached to Hamilton’s review, it was noted (without comment) that ‘NSW and ACT account for 64% of the total number of F/C/L’s and 69% of the total amount of F/C/L’s outstanding’.  This statistic does not sit comfortably with the notion that the extent of FCL loans outstanding was the product of customer demand; nor does it sit comfortably with the presumption that Sydney was the fulcrum of expert advice on and administration of the facility.

By mid 1986, CBA memoranda reflected the extent of the calamity.  Corporate & International produced an extensive report in July (Lawrence, 1986).[4] A certain displacement of responsibility, without evidence, for the dilemma pervades the report, but acknowledgement of the failure of the Bank’s procedures is transparent.

      … the effluxion of time and a relatively stable AUD during 1982/1983 and 1984 lulled many borrowers and staff into a false sense of security, particularly as the AUD had been floated in December 1983. Consequently, many FCL’s were provided to clients who perhaps should not have borrowed in that manner; albeit in most instances, the CBA actively tried to discourage such loans.  However, competition and the threat of the loss of connections to other financial institutions/banks … saw a rapid escalation in the Bank’s FCL portfolio during 1984/early 1985 from a level of around AUD100m in late 1983 to current position of around AUD 770m (excluding major corporates/semi-governments/NBFIs).[[5]] Unfortunately, growth outstripped any previously established general monitoring/control mechanisms and as a consequence many loans were allowed to continue unchecked (parity adjustments were waived) in the belief/hope that the exchange rate would improve. … (1)

      Under current monitoring/control systems it is very difficult to readily obtain/gauge the state of the portfolio. … (3)

      [Under the heading ‘Customers’ Expectations/Reactions] Almost all customers believe they have a commitment from the CBA to provide and continue their FCL for the agreed term. … in many instances the Bank was aware at the outset that cash flows were insufficient to meet domestic interest rates and therefore must have encouraged customers on the basis of “riding the exchange rate out on the back of security” in the event of any adverse movement in the exchange rate. … (7)

      There is no doubt that borrowers hold the attitude that should the CBA force them into domestic finance we could be denying them the opportunity to take advantage of any upturn in AUD over the full term of the loan and crystallising capital losses which, for other than new loans (after 2/86), are non tax deductible. …

      There are instances of threatened litigation … The level of complaints from customers has escalated dramatically recently since the extent of the problem has been recognised by points of control/branch managers and the attempted adoption of a more rigorous application of the loan terms and conditions. Given the scenario outlined above regarding customers’ criticisms on provision of information and after care generally, there must be some uncertainty as to the Bank’s ability to successfully defend litigation. There is a need for extreme