Last updated: July 2022
Fairness
"The fairness jurisdiction is what differentiates AFCA from courts and tribunals. It enables AFCA to make decisions outside of a strict legalistic approach and facilitates a more expedient decision-making process.”
- Independent review report, page 39
1. Dealing with further issues raised during the complaint process
Status: On track for completion 2024
Report recommendation
AFCA should provide clearer guidance on the circumstances under which a further issue identified during the complaint process would revert to financial firms for consideration through internal dispute resolution.
Where the issue is combined with an existing complaint, both parties should be provided with procedural fairness by having the opportunity to comment on changes to the scope of the complaint.
However, in instances where AFCA finds parties inappropriately seeking to add new issues, it should take action to dismiss or curtail such behaviour.
Scope
- Requires change to AFCA Rules or Operational Guidelines
- Requires change to systems or processes
- Requires input from stakeholders
Next steps
Develop clearer guidance to support consistent treatment of further issues and inform key stakeholders.
2. Ensuring all AFCA decisions consider what is fair in all circumstances
Status: On track for completion 2023
Report recommendation
In making its decisions, AFCA should consider what is 'fair in all the circumstances' having primary regard to the four factors identified in its Rules - legal principles, industry codes, good industry practice and previous decisions.
Scope
- Requires change to systems or processes
Completed work
The AFCA Fairness Jurisdiction Project has completed its examination of how AFCA applies its jurisdiction throughout our dispute resolution processes. The project has since delivered resources to AFCA staff, members, complainants and stakeholders to ensure our fairness jurisdiction is clearly communicated to all parties throughout our process. These include:
- New Fairness navigation tool which ensures AFCA decision makers are consistent when applying AFCA's fairness jurisdiction to complaints
- New decision templates highlighting our approach to fairness when making decisions
- Apprehended bias policy sets out how AFCA’s people remain impartial when working to resolve complaints
- AFCA Engagement Charter, which clearly sets expectations for how parties should engage with each other and AFCA to ensure a fair process, and
- AFCA Fairness Jurisdiction Project outcomes report, which provides information on how AFCA ensures these principles are applied consistently and in a way that is fair for members and complainants
- Republishing AFCA Approaches to better reflect fairness jurisdiction (completed in May 2022).
Next steps
An ongoing focus to ensure the outcomes of the Fairness Jurisdiction Project are embedded within AFCA and understood by our members, complainants and stakeholders.
Independence
“The independent expert assessed every case example for conformity to the requirements of independence and impartiality. The expert did not come across any material that would suggest that AFCA failed to demonstrate independence and impartiality in its handling of any of the complaints in the sample.”
- Independent review report, page 44
3. Not advocating or acting in a manner that compromises impartiality
Status: On track for completion 2024
Report recommendation
AFCA should not advocate for, nor act in a manner that otherwise advantages, one party such that the impartiality of the complaints resolution process is compromised.
Scope
- Requires change to AFCA Rules or Operational Guidelines
- Establish new AFCA Approach
- Requires change to systems or processes
- Requires input from stakeholders
Existing work underway
An internal working group is focused on embedding practices that promote impartiality during the complaint process.
Resources delivered by the AFCA Fairness Jurisdiction Project include the Apprehended Bias Policy, which sets out how AFCA’s people remain impartial when working to resolve complaints.
AFCA has established a training program on trauma informed and culturally appropriate dispute resolution practices for our teams.
Next steps
Update AFCA Rules and Operational Guidelines and develop a new AFCA Approach with input from key stakeholders.
Efficiency and Timeliness
“The overall average time it takes to resolve a dispute was 74 days in its first two years of operation. These statistics compare favourably to AFCA’s equivalent in the United Kingdom"- Independent review report, page 50
4. Addressing poor conduct by some paid advocates
Status: On track for completion 2023
Report recommendation
AFCA should address poor conduct by paid advocates affecting the efficiency of the scheme, such as by amending its Rules to allow it to exclude certain paid advocates from involvement in the complaints process. The Government could also consider an amendment to AFCA’s authorisation conditions to support such changes.
Scope
- Establish new AFCA Approach
- Requires change to AFCA Rules or Operational Guidelines
- Requires change to systems or processes
Completed work
- Updated process and online resources to ensure paid advocates provide the required information and understand our expectations when making complaints on behalf of consumers.
Next steps
Our internal working group is focused on updating the AFCA Rules and Operational Guidelines and developing a new AFCA Approach with input from key stakeholders.
5. Improving transparency of timeliness and better managing timeliness expectations
Status: On track for completion 2024
Report recommendation
AFCA should:
- continue to publish data on its timeliness and start publishing data on the full range of complaints it resolves, including those that extend beyond 12 months
- better manage expectations around timeframes in its communication with parties to a complaint
- focus on improving the timeliness of complaints that remain unresolved beyond 12 months.
Scope
- Requires change to systems or processes
Completed work
- New reporting in the AFCA 2021–2022 Annual Review allows for a year-on-year comparison of timeliness.
- Significant progress on closing complaints older than 12 months, reducing these cases from 4% of all complaints at AFCA to just 2.4%.
- Significant decrease on time taken to resolve a complaint, from 76 days in the previous year, to just 72 days.
Next steps
Review available timeliness information with the aim to improve transparency and set better expectations with parties to a complaint.
Update systems to improve timeliness information and establish service standards for complaint handling.
Jurisdiction
"The Review does not consider it appropriate that AFCA be required to exclude all wholesale investors. Where possible, AFCA should look to more actively exercise its existing discretion to exclude wholesale complaints in appropriate circumstances."- Independent review report, page 60
6. Complaints from sophisticated or professional investors
Status: On track for completion 2022
Report recommendation
AFCA should exclude complaints from sophisticated or professional investors, unless there is evidence that they have been incorrectly or inappropriately classified.
Scope
- Requires change to AFCA Rules or Operational Guidelines
- Requires change to systems or processes
- Requires input from stakeholders
Existing work underway
An internal working group is focused on addressing how AFCA responds to complaints from sophisticated and professional investors. This group has reviewed our approach and drafted a change to the AFCA Operational Guidelines.
Next steps
Update AFCA Operational Guidelines and supporting information for key stakeholders.
Funding
“Even for those financial firms that are subject to AFCA’s complaint fees and the user-charge, it is likely that AFCA’s dispute resolution service offers a more efficient and cost-effective outcome than the alternative if those complaints went through a court or tribunal process.”- Independent review report, page 65
7. Ensuring funding model design does not disincentivise firms from defending complaints
Status: Completed in 2022
Report recommendation
AFCA’s funding model should not disincentivise financial firms from defending complaints they consider do not have merit and should better take into account the circumstances of small financial firms.
Scope
- Requires change to systems or processes
- Requires input from stakeholders
Completed work
On 1 July 2022, AFCA implemented its new funding model. The new model addresses recommendation 7 through several features which aim to remove any inadvertent disincentives to proceed through our dispute resolution process, and to remove financial pressure from small financial firms. These features include:
- Five free complaints each financial year
- A single annual registration fee of $375.55, and
- A simplified complaint fee structure that reduces complexity and reduces complaints fees.
For more information visit the AFCA funding model page.
Members have been issued their first invoices under the new fee structure, and over the model’s first year, AFCA will monitor its performance and share any findings with members.
AFCA will continue to provide members with updates about the ongoing performance of the model over time.
8. Improving transparency of AFCA fees and the services and activities they fund
Status: Completed in 2022
Report recommendation
AFCA should improve the transparency of its fees for financial firms and how the fees are being used to support AFCA’s activities.
Completed work
- Simplified fee structure in the new AFCA funding model allows members to more easily understand the fees incurred by complaints at different stages of our process. For more information visit the AFCA funding model page.
- New financial information published in the AFCA 2021–2022 Annual Review illustrates how funds are spent to support the delivery of AFCA's service.
Transparency and Accountability
"All models considered by the Review to add further review mechanisms would necessarily add costs and adversely affect timeliness of decisions, impacting accessibility and efficiency...It would also risk AFCA's processes becoming more legalistic."
- Independent review report, page 70
9. Enhancing visibility, accessibility and independence of the forward-looking review mechanism
Status: On track for completion 2023
Report recommendation
AFCA determinations should continue to not be subject to merits review, but the substance of a determination should be reviewable with respect to its application to future cases. To this end, AFCA should enhance the visibility, accessibility and independence of its existing forward-looking review mechanism.
AFCA should amend its Operational Guidelines to remove the requirement for an applicant to demonstrate an error of law to access the formal forward-looking review mechanism. Applicants should be able to access it if they are able to demonstrate that the AFCA determination adopts an approach that could have a significant impact across a class of consumers, businesses or transactions.
Scope
- Requires change to AFCA Rules or Operational Guidelines
- Requires change to systems or processes
- Requires input from stakeholders
Next steps
Update AFCA Rules and Operational Guidelines, and enhance the forward-looking review mechanism with input from key stakeholders.
10. Improving visibility of the Independent Assessor to all parties to a complaint
Status: On track for completion 2022
Report recommendation
Complaints about AFCA’s service should remain the responsibility of the Independent Assessor. AFCA should improve the Independent Assessor’s visibility as part of its communications with parties to a complaint.
Scope
- Requires change to systems or processes
Completed work
- Updated information about the service complaints process and the Independent Assessor have been published on the AFCA website, including new videos for members, consumers and stakeholders.
- Information about AFCA’s service complaints process and the Independent Assessor is now available in 19 languages.
Next steps:
An ongoing focus on service complaint management within AFCA.
11. Consulting on AFCA Approaches prior to finalisation to identify unintended consequences
Status: On track for completion 2023
Report recommendation
AFCA should ensure consultation is undertaken on each Approach Document prior to final publication.
Scope
- Requires change to systems or processes
- Requires input from stakeholders
Next steps:
Investigate consultation process options and preferences with input from key stakeholders.
Develop formal consultation process to identify any unintended consequences of new AFCA Approaches and inform key stakeholders.
Other
“It is important that there is a clear and transparent separation between the role of AFCA and the role of regulators.”- Independent review report, page 86
12. Systemic issues that have been referred to ASIC or another regulator
Status: On track for completion 2022
Report recommendation
Where a systemic issue has been referred to ASIC or another regulator, AFCA should cease its investigation of the systemic issue. ASIC and other regulators should advise AFCA of the outcomes of the referrals they receive. However, AFCA should continue to resolve any relevant individual complaints.
Scope
- Requires change to AFCA Rules or Operational Guidelines
- Establish new AFCA Approach
- Requires change to systems or processes
- Requires input from stakeholders
Existing work underway:
AFCA had completed its own review of the systemic issues function prior to the independent review and initiated the Systemic Issues Transformation project in part to address the different roles AFCA and regulators play.
Engagement with ASIC to address this matter and inform key stakeholders.
Next steps:
Continue engagement with ASIC to clarify our role in managing systemic issues and inform key stakeholders.
Update AFCA Rules and Operational Guidelines, and guidance (if our role changes).
13. Improving transparency of systemic issues in public reporting
Status: On track for completion 2022
Report recommendation
AFCA should be more transparent in its public reporting of systemic issues, including on a de-identified basis as appropriate. This would encompass factors such as the industry to which the systemic issues relate, the nature of the complaints, the number of affected consumers, total value of remediation and reporting to the regulators.
Scope
- Requires change to AFCA Rules or Operational Guidelines
- Requires change to systems or processes
Existing work underway
AFCA had completed its own review of the systemic issues function prior to the independent review and initiated the Systemic Issues Transformation project which addresses public reporting.
Next steps
Investigate options to increase visibility of systemic issues with input from ASIC and inform key stakeholders
14. Amending legislation to no longer require authorised credit representatives to be AFCA members
Status: Legislative change required
Report recommendation
The National Consumer Credit Protection Act 2009 should be amended to no longer require authorised credit representatives to be members of AFCA.
Scope
- Requires change to AFCA Rules or Operational Guidelines
Next steps
Engage with government about legislative change to confirm timing.
Investigate membership options and impacts, and update AFCA Rules and Operational Guidelines (if required).
