The importance of confidentiality and privacy
Our complaint resolution process relies on active participation by the parties and an open exchange of information, with an opportunity to put forward relevant information and arguments.
It is not intended or permitted for disclosed information to be used for a purpose other than to resolve the complaint.
We expect complaint parties to participate in the complaint resolution process in good faith and not use the AFCA scheme for purposes other than resolving the complaint at AFCA.
If a party to the complaint provides confidential information to a lawyer, adviser or other third party for the purposes of AFCA’s complaints resolution process, we expect that the third party will also treat such information confidentially.
AFCA’s general approach to information sharing
We are committed to providing procedural fairness by sharing information provided by one party with the other party, and by providing all parties with a fair opportunity to make submissions setting out their views.
Consistent with the principles that underpin the scheme, we manage this process in an efficient way. As a result, we only share relevant documents with the parties. We also try to minimise the number of ‘back and forth’ between parties sharing information.
We will, on request by an affected individual, give them access to personal information we hold, except where:
- we reasonably believe that giving access would pose a serious threat to the life, health or safety of any individual, or to public health or public safety
- giving access would have an unreasonable impact on the privacy of other individuals
- the request for access is frivolous or vexatious
- the information relates to existing or anticipated legal proceedings between AFCA and the individual, and would not be accessible by the process of discovery in those proceedings
- giving access would reveal the intentions of AFCA in relation to negotiations with the individual in such a way as to prejudice those negotiations
- giving access would be unlawful
- denying access is required or authorised by, or under, an Australian law or a court/ tribunal order
- giving access would reveal evaluative information generated within AFCA in connection with a commercially sensitive decision-making process
- both of the following apply:
- AFCA has reason to suspect that unlawful activity, or misconduct of a serious nature, that relates to AFCA’s functions or activities has been, is being or may be engaged in; and
- giving access would be likely to prejudice the taking of appropriate action in relation to the matter; or
- giving access would be likely to prejudice one or more enforcement-related activities conducted by, or on behalf of, an enforcement body.
If we refuse to give access to personal information, we will usually give reasons why and provide the option to make a formal complaint about the refusal through our complaints and feedback procedure. There may be instances where, having regard to the grounds for the refusal, it would not be appropriate to provide reasons.
Our confidentiality and privacy obligations do not override our other responsibilities, for example, to report matters to regulators – see Rules A.17 to A.20 inclusive.
Will AFCA make available its internal documents to the parties?
Unless required by law, we do not provide parties with our internal documents, for example – legal advices or draft decisions. These are intermediate or internal and may not represent the final position that we reach. They have no formal status or bearing on the complaint.
If requested through our Privacy Manager, we can provide the parties with file notes of telephone conversations with the parties where they record relevant information.
What we will tell the financial firm about your complaint
We ‘register’ a submitted complaint and forward the details to the financial firm’s nominated contact. Usually, this will happen on the same business day or next business day after a complaint is submitted online or by phone, and within two to three business days if the complaint is submitted by email or letter.
We will usually notify the financial firm of your complaint by electronic means (normally by email), as this minimises delay. To assist the financial firm, we send the financial firm where possible:
- your name and contact details (including details of your agent where one has been authorised)
- a short summary of the issues raised in your complaint and the remedy sought
- the financial firm’s reference number (such as the account or policy number, if it has been provided).
Can I object to AFCA providing relevant information to my financial firm?
If you don’t want the information you have provided to us to be shared with your financial firm, you may raise this with us when you provide the information to us. You will need to clearly set out:
- the document or part of a document that you are concerned about
- the reasons for your concern – supporting information should also be provided where possible
- why the information should be taken into account – the significance and reliability of the information might be relevant considerations here
- how the substance of the information can be provided to the financial firm to give them the chance to respond and to address any unfairness that would otherwise arise.
- We will then assess the matter and decide the appropriate action to take. The options for us are:
- To provide the information to the financial firm, but with some information excised or blacked out (redacted).
- Not to provide the information to the other party.
If we make this decision, we will not be able to rely on the withheld information in reaching a decision about the merits of your complaint, unless special circumstances apply. We are unlikely to find special circumstances exist unless an alternative method can be used to convey the substance of the information to the other party, and thereby provide that other party with an opportunity to give their response to the information.
Statistical information we collect
We are obliged under ASIC Regulatory Guide 267 and our Rules to collect, record and report certain statistical information to regulators and other bodies.
We may also collect other relevant information to assist us to effectively resolve complaints, and to analyse and report on other relevant issues including complaint trends and systemic issues. We also collect and record information concerning complaints and feedback about our service and complaints dealt with by the Independent Assessor.
We classify complaints according to the product or service they relate to, the issues they raise, and the sales or service channel through which the consumer bought the products or services in dispute. This information assists us to select the most appropriate way to help the parties resolve complaints. It also assists us to report accurately and thoroughly about the complaints we have dealt with. We continue to update our complaint data and information as complaints progress and are resolved.
Where there is more than one product or service that has been complained about and more than one issue raised, there are different ways that we can count and report on complaints. We can count a complaint that involves multiple products and issues as a single complaint because it comes from one consumer and we hold one case file on it. Alternatively, we can count it as multiple complaints: one for each product or distinct issue in dispute. Which of these counting methods we use depends on what we are reporting.
We explain this further when we publish this information in our Annual Review.
Note: This text is reproduced, based or adapted from AFCA's Operational Guidelines.