This report has its genesis in submissions sent to Jan McClelland on 11 March 2008 by the Bankers' Code Compliance Monitoring Committee. The Committee members noted in their submissions to Ms McClelland, the code reviewer, that their authority set up under clause 34 of the code to monitor bank compliance was undermined by the Bankers' unpublished constitution which imposed qualifications and restrictions on them. The Committee stated its 'firm view is that the constitution is problematic'.

The Committee expressed views that its powers were inappropriate and inconsistent with its advertised role and did not reflect the unworkable practices (page 5).

The code of Banking Practice (the code) which has evolved over the past 20 years was intended to balance the unequal playing field but has somehow become the exclusive tool of the banks (page 14). Part 2: Explains how the banks wrested control of consumer protection from legislators and regulators by taking advantage of deregulation and their increasing wealth (page 15).

As it stands, the revised 2003 and modified 2004 codes are monitored by the code Compliance Monitoring Committee (the Committee) which has the bankers' compulsory unpublished constitution imposed on it by the code Compliance Monitoring Committee Association (the Association). This limits the powers, independence and authority of the Committee by 'identifying ways in which the Committee will carry out its role (page 16).

The need for affordable remedies to enable customers to resolve disputes against bankers, outside of the Courts, remains unsatisfied and with the government regulators failing to enforce the code's principles, customers of subscribing banks have to again risk using the Courts to remedy differences. This is generally difficult due to the high chance that such remedies will be costly and time-consuming; exactly what the proponents of the code and submissions referred to the Martin Committee in 1991 set out to avoid.

The conflicts inherent in the appointment of the Committee bound by the Association's constitution means that the code continues to be unbalanced, favouring the banks with unfair and unjust potency. Customers cannot make the Committee effectively police any allegations of Banker misconduct. As such, the Martin Committee ambition---that no-one-is-taken-for-a-ride---remains an unrealised aspiration (page 17).

This report suggests that nearly all of the high principles in the modified code intended to protect customers from mischievous bankers and set out in the 250 clauses and sub-clauses in the revised and modified codes were virtually meaningless (page 32).

This report will consider whether, by offering on its terms and conditions with no reference to the Association's constitution, the 12 major deposit-taking institutions, acting as one entity, conducted themselves as to constitute misleading and deceptive conduct under the Trade Practices Act 1974 (page 26).

This report will raise a concern that Association members by their conduct limited or withdrew crucial services provided to customers and ask if such actions constitutes cartel conduct (page 27).

An independent audit of subscribing banks complaints might find that some Bankers have not acted honestly or some banks and the Committee's records might show that other parties have promoted code compliance when they have, by deception, acted dishonestly to cause financial disadvantage to their customers (page 31).

... the 1993 code failed clearly to define the dispute resolution the banks subsequently relied on to justify their failure to investigate all complaints. These failures had the effect of providing banks unfettered discretion in interpreting the meaning of the word 'complaints' for breaches of the high standards set out in the code. It therefore allowed the banks to hand-pick complaints that they were willing to investigate rather than being obliged to investigate all complaints relating to their contraventions of the code (page175).