It strenuously denied allegations that criminal offences had been committed in October 2017 in its preparation of a report prepared by Clayton Utz, which it maintained was “uncompromisingly direct and comprehensive” in its findings about conduct in AMP’s advice business.

The report, commissioned from Clayton Utz in June 2017, sought to investigate adverse conduct by employees in the AMP advice business, as well as the company’s systems, processes, culture and governance structures.

A “forensic and detailed” reported was produced by Clayton Utz in October 2017, making “numerous serious” findings against certain AMP employees, and was shared in its entirety with ASIC, according to the submission.

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Criticism was subsequently levelled at the company at the commission about the ways in which the report was produced.

It was castigated at the royal commission for admitting to at least 20 false and misleading statements made to ASIC over a seven-year period, which led it to appoint King & Wood Mallesons to review its governance issues.

However, company has claimed in its latest submission there can be “no fair criticism” of the AMP board’s role in relation to the Clayton Utz report.

Clayton Utz, for its part, have rejected suggestions of collusion in the production of the report.

Board v Brian

In comments that appear to further implicate its now-former general counsel Brian Salter and Clayton Utz, the AMP submission said the extent of the involvement that Mr Salter had in the preparation of the report was “surprising to the board”, as it was to Mr Regan when asked on the stand at the royal commission.

“All of the members of the board were unaware of the extent and the nature of the exchanges between Mr Salter and [Clayton Utz national practice group leader of commercial litigation Nicholas] Mavrakis,” the company wrote.

Its instructions to Clayton Utz “expressly provided” that any concerns regarding the preparation of the report were to be conveyed to then-chairman Catherine Brenner, but no such concerns were raised, giving AMP no reason to believe the report hadn’t been prepared in accordance with its instructions, it said.

The submission went on to reject that former chief executive Craig Meller and Ms Brenner had sought to improperly influence the report, as was put to Mr Regan at the hearing.

“There is no basis for such a finding. The evidence discloses no reasonable basis for a finding that either Mr Meller or Ms Brenner acted inappropriately,” it wrote.

What’s in a name?

Specifically responding to Clayton Utz’s decision to remove Mr Meller’s name from its report — where he had been listed as an interviewed person — rather than inserting a statement about his culpability, the submission stated: “There is no evidence that any member of the board knew of [the Clayton Utz rationale].

Clayton Utz explained the inclusion of Mr Meller’s name, in circumstances where they had formed the view that he was not culpable, would attract unnecessary attention from ASIC.”

Ms Brenner had acted appropriately and in a manner consistent with good governance, the submission states, noting that phone calls with Mr Mavrakis prior to the final report were to clarify “factual matters”, including “the position of Mr Meller” in the report, given that as CEO the advice business reported to him.

“Ms Brenner was no doubt aware that Mr Meller had been interviewed as part of the investigation. It would therefore have been surprising to her to find that the report contained no mention of him. That can be inferred from Ms Brenner’s request that Clayton Utz’ findings (whatever they may be) regarding Mr Meller be included,” it wrote.

Further — and despite the aforementioned surprise at the level of communication between Mr Salter and Mr Mavrakis — the submission said:

“The listing of documents produced [at the Commission] overstates the number of communications between AMP and Clayton Utz with respect to the content of the report”.

The company noted that documents tabled, such as print-outs of responses to calendar invites, didn’t amount to substantive correspondence and only served to make the volume of correspondence appear greater than it actually was.

Material mens rea

In response to one of the open findings submitted by counsel assisting to the commissioner — which questioned whether AMP’s conduct in connection to the Clayton Utz report might have amounted to criminal breaches of both the Corporations Act and ASIC Act — the submission noted that such a contravention of the legislation would require intentionally false and misleading statements of a material nature.

It said there was no evidence before the Commission that statements made to ASIC were known to be false or misleading and, regarding state of mind, said there wasn’t evidence as to the knowledge or state of mind of Mr Salter or other relevant persons.

“Mr Salter may well say he reasonably believed that his interaction with Clayton Utz had no bearing on the independence of the investigation from the business,” it wrote.

“Clayton Utz may well say similar things.”

In concluding, the document “respectfully submitted that it would be unsafe for the commissioner to make any finding in respect of AMP’s communication” with the Clayton Utz report, given it did not receive testimony from Mr Salter or any Clayton Utz partners with explicit knowledge of the matter.

Mr Salter, Mr Meller and Ms Brenner have all resigned from AMP in the wake of the royal commission.