Superannuation determination

The determination is binding and comes into effect immediately (unless the determination defines a different effective date). The financial firm is required to take all the necessary steps outlined in the determination by the nominated due date.

Non-Superannuation determination

A determination made by AFCA is final and binding upon the parties if accepted by the complainant within 30 days of AFCA issuing the determination.

If the determination is accepted, the financial firm is required to take all the necessary steps outlined in the determination by the nominated due date.

For all determinations

AFCA determinations normally provide a clear due date or time-period for parties to comply with the requirements of the determination. If a determination does not specify a due date, we consider that it is reasonable to expect a financial firm take the actions or requirements of the determination within 30 days of the complainant’s acceptance.

We expect a financial firm to seek guidance or clarification from AFCA if it does not understand what action is required within what timeframe.

A refusal or failure in this circumstance can arise where:

• the complainant has informed AFCA it has not received compensation (if applicable) or the determination has not otherwise been implemented by the financial firm (failure);
• the financial firm has told us, either explicity or implicity, that it does not intend to give effect to the determination for whatever reason (refusal);
• the financial firm failed to take the necessary steps required by the determination by the due date (failure).

Yes. AFCA is required to report all refusals or failures to give effect to a determination.

In some instances, AFCA may not need to notify a financial firm of this report, however we generally will attempt to contact the financial firm before making a report.

What if the failure to give effect is due to something outside of a financial firm’s control?

It is important that a financial firm contacts AFCA as soon as possible if it becomes aware that its ability to give effect to a determination is impacted by something outside its control.

AFCA is still required to report failures to give effect to a determination even where there may be circumstances that prevent a financial firm from meeting their requirements under the determination.

AFCA will include all relevant information it is aware of in its report. AFCA will also update the regulator if it receives information from the financial firm that demonstrates it has later complied with the determination.

Superannuation complaints

For superannuation complaints, an appeal can be made within 28 days to the Federal Court if the determination involves an error of law, but not to revisit the merits of the determination. AFCA will not report a Superannuation Trustee for a failure to give effect to an AFCA determination until the time for appeal has lapsed or where an appeal has been lodged.

AFCA is still required to report failures to give effect to a determination even where there may be circumstances that prevent a financial firm from meeting their requirements under the determination.

Non-Superannuation complaints

An AFCA determination is binding upon a financial firm once accepted by the complainant. If a firm disagrees with a determination, the only avenue of appeal is through the courts. There are limited grounds a financial firm can challenge an AFCA determination and parties should seek their own advice.

See AFCA Rule A.15.2 for complaints about Traditional Trustee Company Services that involve other affected parties.

Refusing or failing to give effect to an AFCA determination can impact a financial firm’s Australian financial services license and AFCA membership. This is because licensing obligations and AFCA membership require a financial firm to comply with the terms outlined in a determination.

If you require more information about the obligations you hold under your AFCA membership, please contact membership@afca.org.au.

AFCA is required to report all refusals or failures to give effect to an AFCA determination, including determinations issued on complaints that may be eligible for the CSLR.

The scope of the CSLR is a matter of government policy. The CSLR is a separate and independent company that manages the compensation scheme. Further information about the CSLR can be found here: https://www.cslr.org.au/.