General decisions
When determining complaints other than superannuation complaints, the AFCA decision maker must do what is fair in all the circumstances, and have regard to:
- legal principles
- applicable industry codes or guidance
- good industry practice
- previous relevant determinations of AFCA or predecessor schemes.
When determining any other (non-superannuation) complaints, we decide what is fair in all the circumstances. This is not limited to considering what is legally permissible, although we do take legal principles into account.
Legal principles
When considering a complaint, we identify the relevant legal principles and take these into account.
Legal principles are drawn from relevant legislation (e.g. the Corporations Act 2001 (Cth) or the Insurance Contracts Act 1984 (Cth)) and case law. If there is a contract between a financial firm and the complainant, we will take these terms into account. We are not, however, required to strictly apply legal principles.
Where we consider that it is fair in all the circumstances to depart from legal principles, we will explain in the written determination our reasons for doing so.
Industry codes, guidance and good practices
We consider industry codes, practice guides and good industry practice. Guidance may be developed by industry bodies or by regulators, such as the ASX listing or operating rules, ASIC and ACCC debt collection guidelines.
When considering good industry practice, we may draw on the expertise of AFCA’s staff, ombudsmen, adjudicators or panel members.
On occasions, we may obtain expert advice as to what is good industry practice.
We will not, however, necessarily be bound by the minimum standard that may be set in a particular industry code. We may consider that it is fair in all the circumstances for the financial firm to meet a higher standard than this.
Previous decisions
We do not treat previous decisions as precedents.
There may be circumstances when a previous decision is not applicable because the facts are somewhat different, or we have changed our approach to a particular class of complaint.
However, generally we do try to be consistent in our decision-making. To promote consistency, we are committed to providing information about our decision-making approach.
This includes publishing case studies and anonymised determinations.
Superannuation decisions
When determining a superannuation complaint, the AFCA decision maker:
- may refer a question of law to the Federal Court in accordance with section 1054C of the Corporations Act
- must apply the approach specified in section 1055 of the Corporations Act.
When an AFCA decision maker determines a superannuation complaint, it has all the same powers, obligations and discretions of the trustee, insurer, retirement savings accounts (RSA) provider or other decision maker whose decision or conduct is being reviewed.
On reviewing a decision of a trustee, insurer, RSA provider or life company (or other decision maker joined to the complaint), the AFCA decision maker must do one of the following:
- Affirm the decision if they are satisfied that the operated fairly and reasonably in relation to the complainant (and, in the case of a decision about payment of a death benefit, all joined parties).
- Vary the decision.
- Set aside the decision and send it back to the decision maker to reconsider, in accordance with the AFCA decision maker’s directions or recommendations.
- Set aside the decision and substitute their own decision.
An AFCA decision maker can only make a determination for the purpose of placing the complainant (and, in the case of a decision about payment of a death benefit, all joined parties) as nearly as practicable in a position where the unfairness and/or unreasonableness no longer exists.
In addition, an AFCA decision maker must not do anything that would be contrary to law, the governing rules of the fund or, if a contract of insurance between the trustee and an insurer is involved, the terms of the insurance contract.
For example, in superannuation determinations, an AFCA decision maker cannot:
- change the definition of disablement in an insurance policy.
- change the eligibility conditions in an insurance policy.
- pay a death benefit to someone who is not a dependant under the governing rules of the fund.
- increase the amount of a member’s benefit beyond the member’s entitlement under the governing rules of the fund.
- ignore a valid binding death benefit nomination.
In determining superannuation complaints, an AFCA decision maker will have regard to relevant decisions of the Federal Court about the nature and jurisdiction of the determination-making powers of the Superannuation Complaints Tribunal (because our powers are based on the Tribunal’s powers).
An AFCA decision maker will also have regard to relevant Tribunal and AFCA determinations, but will not be bound by those determinations because each complaint must be considered on its merits. We will, however, try to achieve consistency where similar circumstances arise. In determining whether a decision (or related conduct) is fair and reasonable, we may also consider whether the superannuation provider has acted consistently with any relevant industry code or best practice guidelines.
The AFCA decision maker must give written reasons for their determination of a superannuation complaint to each party.
