20 December 2017
Treasury’s recently concluded consultation paper (Paper) has now provided further insight into how the AFCA scheme may operate. The Paper confirms that much of the operational details will be set out in guidelines and other informational material to be issued and updated by AFCA itself, foregoing the need for ASIC approval unless there is a material amendment.
Here are some of the key features of AFCA:
Key stakeholder groups in the superannuation industry have argued that whilst the Bill seeks to retain much of the processes under the Superannuation (Resolution of Complaints) Act 1993 (Cth) (SRC Act), they have raised concerns such as the following:
The Government continues to look at how it can simplify the transition of matters from the SCT to the AFCA – including identifying when a claim can be characterised as having been ‘dealt with’ by the SCT and therefore excluded from being brought before the AFCA.
From the submissions received during the recent consultation process, it appears the government-appointment transition team will review and provide advice to the Minister on what the draft terms of reference, company constitution of the AFCA operator, and proposed funding model should cover. The Minister will then select a company to be the scheme operator if they demonstrate the ability to deliver ‘fast and fair resolution of financial complaints in a way that is binding on Financial Firms.'
Following this, all providers of financial and credit services will need to become members and pay the associated fees by the anticipated commencement date of 1 July 2018.
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 Treasury Laws Amendment (Putting Consumers First—Establishment of the Australian Financial Complaints Authority) Bill 2017, proposed s 1052D.
 Employers First v Tolhurst Capital Ltd (2003) 143 FCR 356 .
 Item 11 of the Treasury Laws Amendment (Putting Consumers First – Establishment of the Australian Financial Complaints Authority) Bill 2017 proposes to insert a new paragraph (hba) into Schedule 1 (‘Classes of decisions that are not decisions to which this Act applies’) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
 Under section 19 of the Superannuation (Resolution of Complaints) Act 1993 (Cth), the SCT will only deal with complaints that have been reconsidered by the trustee.
 Submission 14 from the Superannuation Complaints Tribunal, dated 29 September 2017, p. 8.
 Explanatory Memorandum, Treasury Laws Amendment (Putting Consumers First—Establishment of the Australian Financial Complaints Authority) Bill 2017 para 1.3-1.4.
 Speech by the Minister for Revenue and Financial Services, the Hon Kelly O’Dwyer, to the AFA 2017 National Adviser Conference, 13 October 2017.
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