Central to AFCA’s key purpose and values is to provide fair, balanced and independent decision making in disputes between financial firms and consumers.

AFCA’s jurisdiction, as set out in the AFCA Complaint Resolution Scheme Rules (2018), requires that:

  • in determining a general dispute, an AFCA Decision Maker must do what is fair in all the circumstances having regard to:
    • legal principles
    • applicable industry codes or guidance
    • good industry practice; and
    • previous relevant Determinations of AFCA or Predecessor Schemes
  • in superannuation disputes, AFCA Decision Makers must make decisions having regard to the conduct of a fair and reasonable trustee.

This fairness jurisdiction is not new and echoes the jurisdiction of AFCA’s predecessor schemes. It is a jurisdiction that has existed in external dispute resolution for more than twenty years and reflects how AFCA is making decisions now.

The purpose of the Fairness Project is to provide a certainty about how AFCA assesses what is fair in a way that is clearly understood by all stakeholders.     

We are working in partnership with the University of Melbourne on an environmental scan and literature review that clearly establishes the extent of the fairness jurisdiction held by both AFCA and Ombudsman schemes internationally. We used this work to develop a fairness standard focused on fair treatment, fair dealing, fair service and fair remediation across the lifecycle of the relationship between financial firms and their customers.  

Founded in existing legal and ethical obligations we are developing a framework and fairness tool to clearly articulate our decision making jurisdiction and ensure our decision making process is clear and robustly supports the exercise of our jurisdiction by ensuring procedural fairness, consistency, transparency and fair engagement by the parties in the resolution of disputes. 

Up to this point we have been engaging widely with a broad range of stakeholders to share and road test our proposed framework and fairness tool.

Release of our external consultation paper 

Due to the challenges of Covid-19, AFCA has paused the release of its consultation paper on the Fairness jurisdiction to focus on supporting its stakeholders in resolving complaints. During these unprecedented times, the exercise of our jurisdiction to ensure procedurally and substantively fair decisions remains of critical importance. 

Interim Stakeholder feedback

AFCA is grateful for the broad participation and feedback we received at our recent stakeholder roundtable sessions.  

Several key themes came out of those sessions, which will be considered as our internal work on the project continues. These includes:   

Engagement charter

There is strong stakeholder support for the continued development of an engagement charter. Although concerns were raised during the roundtable sessions regarding paid representation, we intent to capture the conduct of those parties in the proposed charter.

Settlement deeds 

Stakeholders indicated that the use of template settlement deeds would assist both complainants and smaller financial firms. We are continuing to work on developing and piloting settlement deeds across the business. 

Procedural fairness

AFCA stakeholders support the review of our procedural approach to fairness. The Fairness Tool is considered useful by our stakeholders and once understood it is underpinned by the approach documents and our decision-making criteria, stakeholders were comfortable using the tool.

Development of our roadmap – Approach documents

Stakeholders identified a few areas where they believed further approach documents were required to assist parties with different dispute types. We are currently updating approach documents and fact sheets; as well as reviewing our approach to determine what information will add clarity and robustness to the framework.

Consistency 

To further promote procedural fairness via consistency in decision making we are working on the development of a fairness library and broader case handling library to assist decision makers.

Further updates 

For any further information about the Fairness Project, please contact Shannyn Carty 
8623 2078 or email: scarty@afca.org.au