Contents
- Who is the Independent Assessor?
- What does the Independent Assessor do?
- What are the Independent Assessor’s Terms of Reference?
- Who can complain to the Independent Assessor?
- When can the Independent Assessor consider a complaint?
- What might constitute exceptional circumstances?
- What complaints can the Independent Assessor assess?
- What complaints can’t the Independent Assessor assess?
- How will the Independent Assessor assess your complaint?
- What outcomes are possible?
- How much compensation can the Independent Assessor award?
- Can you appeal the Independent Assessor’s findings?
Who is the Independent Assessor?
The Independent Assessor is appointed by, and reports to, the AFCA Board and works in accordance with the Independent Assessor’s Terms of Reference. The Independent Assessor is not part of the day-to-day running of AFCA and does not answer to AFCA’s senior management or Chief Ombudsman.
The current Independent Assessor of AFCA is Melissa Dwyer. Melissa has over 20 years’ experience as a senior executive in the private, public and not-for-profit sectors, specialising in governance, internal audit and integrity reform. She was the Victorian Department of Education and Training’s Chief Audit Executive and architect of its integrity reform program following investigations by the Independent Broad-based Anti-corruption Commission (IBAC).
What does the Independent Assessor do?
The Independent Assessor reports on issues affecting AFCA’s complaint handling performance and can make recommendations to AFCA in response to issues arising from service complaints.
What are the Independent Assessor’s Terms of Reference?
The Independent Assessor Terms of Reference (ToR) are approved by the Australian Securities and Investments Commission (ASIC) and are separate from AFCA’s Rules. The ToR sets out the scope of the Independent Assessor’s role and the process for dealing with a complaint, including:
- the types of complaints the Independent Assessor can consider
- the complaints process
- the remedies the Independent Assessor can recommend
- the process to be followed when the Chief Ombudsman of AFCA disagrees with the Independent Assessor’s recommendations.
See the AFCA Independent Assessor Terms of Reference
Who can complain to the Independent Assessor?
Any person or business directly affected by how AFCA deals with a financial firm complaint can complain to the Independent Assessor, including:
- complainants
- financial firms
- representatives
- joined parties.
When can the Independent Assessor consider a complaint?
Before the Independent Assessor can consider a service complaint, the following must apply:
- Your related financial firm complaint has been closed (unless exceptional circumstances apply)
- AFCA has been provided with an opportunity to address your concerns (i.e. you must first have submitted your complaint to AFCA and received a response)
- It is fewer than three months since you received AFCA's service complaint response.
If you have not yet complained directly to AFCA, please do so here first.
What might constitute exceptional circumstances?
In most circumstances, the Independent Assessor will only consider a service complaint about AFCA after the related complaint against the financial firm has been closed. However, in exceptional circumstances, the Independent Assessor can request AFCA to put its investigation on hold, while she considers the service complaint.
The Independent Assessor will consider exceptional circumstances on a case-by-case basis. By definition, exceptional circumstances are rare and unusual.
Exceptional circumstances should relate to the service complaint itself, rather than the circumstances of the complaint against the financial firm.
Objections to a preliminary assessment, including objections about the fairness or impartiality of the decision, do not amount to exceptional circumstances. These complaints should be directed to AFCA for its consideration in determining the matter.
What complaints can the Independent Assessor assess?
The Independent Assessor can assess complaints about the standard of service provided by AFCA in handling a complaint, including, but not limited to, complaints about:
- the professionalism, competence and attitude of staff
- communication
- fairness and impartiality
- timeliness
- adherence to AFCA’s process.
What complaints can’t the Independent Assessor assess?
The Independent Assessor cannot consider complaints about:
- the actions or inactions of a financial firm or complainant
- decisions or findings by AFCA, including preliminary assessments, determinations and jurisdictional decisions
- AFCA’s handling of a systemic issue
- AFCA’s fees charged to financial firms.
The Independent Assessor cannot change or overturn an AFCA determination or jurisdictional decision on a financial firm complaint. It is not an appeal or review mechanism for a decision or judgements on the facts or merits of a financial firm complaint.
In addition, the Independent Assessor will not assess a complaint that is:
- the same as a complaint previously addressed by the Independent Assessor
- frivolous, vexatious or malicious.
How will the Independent Assessor assess your complaint?
The Independent Assessor will:
- Review your service complaint against the Independent Assessor’s Terms of Reference to ensure it falls within the Independent Assessor’s jurisdiction to assess.
- Write to you to confirm what will be assessed and ask for more information from you and/or AFCA if required.
After considering the information and submissions provided by you and AFCA about your service complaint, the Independent Assessor will provide you and AFCA with a written assessment of your complaint, setting out the reasons why it was or was not substantiated.
What outcomes are possible?
If the Independent Assessor finds that AFCA has not met its service standards in the handling of your complaint, they may make a recommendation to AFCA’s Chief Ombudsman, such as:
- that AFCA apologises for the poor service
- that AFCA pays an amount of non-financial compensation for any distress or inconvenience caused by the poor service
- that AFCA takes some other action to address the service failing.
The Independent Assessor cannot make a recommendation to the Chief Ombudsman that AFCA re-open, change or correct a determination or other finding issued by AFCA about the merits of a complaint against a financial firm or AFCA’s jurisdiction.
How much compensation can the Independent Assessor award?
If the Independent Assessor recommends that AFCA pay compensation, a conservative approach is taken.
Compensation will be equivalent to what AFCA might award a complainant for non-financial loss against a financial firm in similar circumstances, under the AFCA Rules clause D.3.3.
The Independent Assessor cannot award compensation for financial loss or punitive, exemplary or aggravated damages.
Can you appeal the Independent Assessor’s findings?
There is no further appeal against the Independent Assessor’s findings and recommendations.
