ANZ’s Fairness Fantasy

John Bowie, LawFuel publisher

Few corporate moments are more revealing than watching a major bank discover that equality before the law cuts both ways, especially when the cutting edge is pointed at them.

ANZ’s reaction to this week’s Finance and Expenditure Committee report offers a masterclass in selective principle. The bank appears to embrace the rule of law right up until it demands actual compliance and consequences for failing to meet it.

The Retrospective Clause That Never Should Have Been

The Committee has recommended Parliament strip a peculiar provision from the Credit Contracts and Consumer Finance (Amendment) Bill. This clause would have handed ANZ and ASB a get-out-of-jail card, capping or eliminating their liability for alleged disclosure failures between 2015 and 2019, a period when lenders were legally barred from charging interest or fees if they botched loan disclosures.

While ASB has agreed to a $135.6 million settlement pending court approval, ANZ continues to fight. And now it’s fighting the Committee’s recommendation too.

The legal battle against the banks has been fronted by Scott Russell (pictured).

ANZ’s Equality Argument Doesn’t Survive Scrutiny

ANZ chief executive Antonia Watson has decried the Committee’s stance, arguing it undermines “the fundamental legal principle that everyone should be treated equally under the law.”

It sounds a compelling line. It’s also backwards.

If ANZ had succeeded in convincing Parliament to change the law retroactively, four years into active litigation, tens of thousands of ordinary customers (‘Kiwi battlers’ as some might say) would have watched their firm legal rights vanish mid-stream. Not because the law changed based on new policy insights, but because a powerful bank lobbied for a rewrite when the existing rules proved inconvenient.

That’s not equality. That’s privilege dressed up in the language of fairness.

What the Law Actually Exists to Do

The CCCFA isn’t legislative decoration. It’s bedrock consumer protection law, crafted to address a fundamental power imbalance between financial institutions and individual borrowers. In the lopsided world of banking, where institutions hold overwhelming advantages in resources, expertise, and information, the Act demands clarity and equity in lending.

At the heart of this dispute sits Section 99(1A), which strips lenders of interest and fees during any period they breach disclosure obligations. The penalty isn’t capricious but is a deliberate deterrent designed to drive compliance.

And it works. When the provision took effect in 2015, the Commerce Commission noted a marked improvement in lender diligence. Apparently, nothing focuses corporate attention quite like the prospect of forfeiting revenue for failures.

Retrospective Lawmaking Should Be Extraordinary

One legal commentator may be backing ANZ’s position, but the New Zealand Law Society’s submission to the Select Committee made the orthodox position clear: retrospective legislation is “highly unusual and inconsistent with the rule of law,” reserved for rare and exceptional circumstances.

Nothing about this case fits that description.

ANZ and the New Zealand Banking Association have failed to produce credible evidence that enforcing the law as written poses systemic risk to financial stability. What’s conspicuously absent from their arguments is any meaningful engagement with the statute’s core purpose, ensuring borrowers receive accurate information to make informed financial decisions.

The Real Concern About Corporate Responsibility

The Committee’s recommendation, at least for now, bolsters confidence that Parliament won’t casually rewrite rules to suit the well-connected. But ANZ’s pushback reignites deeper concerns about how some major corporations view their relationship with the law.

Equality before the law means uniform application to everyone, no exceptions, no retrofitted escape clauses when litigation turns unfavorable. It certainly doesn’t entitle powerful players to petition for rule changes when they’re caught on the wrong side of compliance.

The Bottom Line

If ANZ genuinely champions fairness and equal treatment, the path forward is straightforward: respect the statute governing its conduct, honour the customers who relied on that legal framework, and engage with the court process already underway.

The bank doesn’t need Parliament to rewrite history. It needs to demonstrate the compliance it should have maintained in the first place.

True respect for the rule of law means accepting it applies with equal force to everyone even, and perhaps especially, when that application proves costly.

The bank doesn’t need a time machine; it needs compliance.