Businesses that provide consumer credit and loans must hold an Australian credit licence under the National Consumer Credit Protection Act 2009 (Cth).
Insurance companies, insurance brokers, financial advisers and related entities providing financial services must hold a financial services licence under the Corporations Act 2001 (Cth).
Superannuation funds are subject to the licencing requirements of the Corporations Act 2001 (Cth) unless the fund is a public sector fund established under legislation, or a self-managed super fund. Public sector fund disputes are dealt with in accordance with the legislation establishing the fund with final recourse usually through an administrative tribunal or court, and self-managed super funds must manage their own complaints.
It is a requirement of the legislation that all licensees hold membership of an approved external dispute resolution scheme. More information about the Australian Financial Complaints Authority is below.
Internal Dispute Resolution
All licensees are required to have suitable arrangements to deal with disputes by consumers internally.
Australian Securities and Investments Commission (ASIC) Regulatory Guide 165 (RG165) sets out the requirements for internal dispute resolution for financial services and credit licensees. The aim of internal dispute resolution is to ensure that consumer complaints are dealt with quickly and directly, and that the licensee is alerted to potential systemic problems.
A dispute is defined as an expression of dissatisfaction related to the product or service, and where a response or resolution is expected.
RG165 sets out the timeframes in which disputes should be dealt with internally by a licensee. Generally the following timeframes apply:
Dispute with a credit licensee relating to a hardship variation, default notices or request to postpone enforcement proceedings – 21 days
Dispute with a credit licensee relating to any other matter – 45 days
Dispute with financial services licensee (excluding superannuation fund) – 45 days
Dispute with superannuation fund or traditional services provider (trustee companies) – 90 days
Australian Financial Complaints Authority
In November 2018, the Australian Financial Complaints Authority (AFCA) replaced the two previously established external dispute resolution schemes, the Financial Ombudsman Service and the Credit and Investments Ombudsman (formerly the Credit Ombudsman Service Limited), as well as the Superannuation Complaints Tribunal (SCT).
The previously established schemes (FOS, CIO and the SCT) continue to deal with disputes lodged with each scheme prior to the commencement of AFCA on 1 November 2018.
AFCA does not charge a consumer (called the complainant) for lodging a dispute. It is funded by member contributions and the conduct of disputes is governed by a set of rules. A copy of the rules may be found on the AFCA website http://www.afca.org.au/
Considering a dispute
AFCA may consider any type of dispute a complainant may have with a lender or financial services provider, including a superannuation fund. There must be an existing relationship, usually as a direct result of the provision of lending, insurance or other types of services to a complainant.
AFCA deals with disputes in the following way:
By acting as a negotiator between the parties in an effort to resolve the dispute informally;
Issuing a preliminary assessment and if necessary, a determination.
Not all disputes are able to be considered by AFCA. Disputes about interest rates, fees and charges (unless these were not disclosed to the consumer) cannot be considered by AFCA. It also does not deal with complaints about businesses who are not a member, which is likely to include businesses that provide financial services to other businesses.
AFCA may also decide not to deal with a complaint, because it is without merit, there is no loss suffered by the complainant, or that the lender or financial services provider has not made an error. It may also refuse to consider a complaint that has already been dealt with.
If AFCA declines to consider a dispute, it will provide reasons to the complainant in writing who then may be given the opportunity to ask for a review.
A dispute may be lodged by phone, in writing or through the online portal. A representative is not required, although a complainant may use a free financial counsellor or support person to assist with the preparation of their case.
When a dispute is lodged with AFCA, the lender or financial services provider will be notified, and is required to cease all enforcement steps relating to the dispute if applicable. However, with AFCA’s permission, certain steps can be taken to protect the financial services provider's interests such as issuing legal proceedings if a time limit is close.
In order to assess a complaint, AFCA may require information which may be gathered in a number of ways, usually by the provision of documents or interviewing either party. AFCA may consider refusal of the request where there are legitimate privacy concerns, prejudice to other investigations or the information no longer exists.
After gathering information, AFCA may make a preliminary assessment of the dispute which will result in a recommendation of how the dispute should be resolved. The parties can either accept it or request a determination.
A determination is made by one of the senior decision making staff at AFCA. If the complainant accepts the determination within 30 days of being issued, it becomes binding on both parties. The complainant can also reject the determination, in which case neither party are bound and the complainant is then free to take the matter to court as required. In addition, once the complainant rejects the determination, enforcement action by the lender or financial services provider is no longer restricted.
There is no appeal against a determination, unless it is a superannuation dispute and the appeal relates to a question of law.
The aim of the dispute resolution process is to provide consumers with an accessible low cost dispute resolution, that is ‘independent, impartial, fair’ and that is supported by the necessary expertise and resources. The service aims to provide parties procedural fairness, and aims to avoid formality.
AFCA is subject to independent assessment who may investigate complaints about its services.
Further information about AFCA can be found on its website http://www.afca.org.au/
AFCA has taken over considering superannuation complaints from the Superannuation Complaints Tribunal. Superannuation complaints that can be considered by AFCA are defined in section 1053 of the Corporations Act 2001 (Cth), including decisions or conduct by:
- trustees of regulated superannuation funds
- insurers in relation to benefits provided under superannuation funds
- providers of retirement savings accounts
Conduct that may be unfair or unreasonable can be delays in payments, a miscalculation of a benefit, misrepresentations about the terms and conditions of a policy, a refusal to approve a claim and the conduct of a superannuation provider in relation to superannuation splitting under the family law legislation.
The rules set out time limits for making superannuation complaints. Generally, a complainant has 2 years from the date of ceasing employment giving rise to the claim about which they are complaining. If the complainant did not permanently cease employment, there is a six year limitation period on raising a complaint.
Care needs to be taken to ensure a superannuation complaint is lodged within time because AFCA generally cannot extend the time.
AFCA also excludes complaints about the performance of a superannuation fund, unless there was non-disclosure or a misrepresentation, or a complaint about the management of the fund as a whole.
There are a range of remedies available to AFCA in dealing with superannuation complaints. There is no monetary limit on the amount that can be awarded. AFCA can affirm, vary or set aside and substitute a decision, or ask the original decision maker to reconsider a decision.
Code of Banking Practice
Banking standards are determined by the Code of Banking Practice. The Code outlines the banking industry's obligations to customers, but does not have the force of legislation. Instead, banks that adopt it are contractually bound to honour those obligations.
Bank customers also may make a complaint to the Code Compliance Monitoring Committee (CCMC) about any possible breach of the Code by a subscribing Bank, although the CCMC does not help with the resolution of the dispute. See above for further information about dispute resolution procedures.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.