Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .

PART 7.10A - EXTERNAL DISPUTE RESOLUTION  

Division 1 - Authorisation of an external dispute resolution scheme  

Subdivision A - Minister may authorise an external dispute resolution scheme  

SECTION 1050   MINISTER MAY AUTHORISE AN EXTERNAL DISPUTE RESOLUTION SCHEME  

1050(1)    
The Minister may, by notifiable instrument, authorise an external dispute resolution scheme if the Minister is satisfied that the mandatory requirements under section 1051 will be met.

1050(2)    
In considering whether to authorise an external dispute resolution scheme, the Minister:

(a) must take into account the general considerations for an external dispute resolution scheme under section 1051A ; and

(b) may take into account any other matter the Minister considers relevant (whether or not those other matters are consistent with those general considerations).

1050(3)    
An authorisation of an external dispute resolution scheme must not come into force while an authorisation of another external dispute resolution scheme is in force.

1050(4)    
The Minister may, by notifiable instrument, vary or revoke an authorisation of an external dispute resolution scheme.

1050(5)    
In an instrument under subsection (1) or (4), the Minister:

(a) must specify the day the authorisation, variation or revocation comes into force; and

(b) may specify, vary or revoke conditions relating to the authorisation.

Note: Once the authorisation of an external dispute resolution scheme comes into force, the scheme is known as the AFCA scheme and the operator is known as AFCA (AFCA is short for Australian Financial Complaints Authority): see the definitions of AFCA and AFCA scheme in section 761A .

Subdivision B - Mandatory requirements and general considerations  

SECTION 1051   MANDATORY REQUIREMENTS  

1051(1)    
The mandatory requirements for an external dispute resolution scheme are:

(a)    the organisational requirements under subsection (2) ; and

(b)    the operator requirements under subsection (3) ; and

(c)    the operational requirements under subsection (4) ; and

(d)    the compliance requirements under subsection (5) .

Organisational requirements

1051(2)    
The organisational requirements are that:

(a)    the membership of the scheme is open to every entity that is required, under:

(i) a law of the Commonwealth; or

(ii) an instrument made under such a law; or

(iii) the conditions of a licence or permission issued under such a law;

to be a member of an external dispute resolution scheme authorised under this Part; and

(b)    the operations of the scheme are financed through contributions made by members of the scheme; and

(c)    the scheme has an independent assessor; and

(d)    complainants are exempt from payment of any fee or charge, to the operator of the scheme or to any other entity, in relation to a complaint.

Operator requirements

1051(3)    
The operator requirements are that:

(a)    the operator of the scheme commissions the conducting of independent reviews of the scheme ' s operations and procedures; and

(b)    the operator of the scheme is a company limited by guarantee; and

(c)    the operator ' s constitution provides that the operator must not be operated for profit; and

(d)    the operator ' s constitution provides that the number of directors of the operator who have experience in carrying on the kinds of businesses operated by members of the scheme must equal the number of directors who have experience in representing consumers; and

(da)    the operator ' s constitution provides that the Chair of the board of the operator must be an independent person; and

(e)    the operator ' s constitution provides that, within 6 months after the scheme is authorised under section 1050 , the Minister:

(i) may appoint an independent person as the Chair of the board of the operator; and

(ii) may appoint any director, if the total number of directors (including that director) whom the Minister has appointed, as mentioned in subparagraph (i) and this subparagraph, is less than half the total number of directors.

Operational requirements

1051(4)    
The operational requirements are that:

(a)    the complaints mechanism under the scheme is appropriately accessible to persons dissatisfied with members of the scheme; and

(b)    complaints against members of the scheme are resolved (including by making determinations relating to such complaints) in a way that is fair, efficient, timely and independent; and

(c)    appropriate expertise is available to deal with complaints; and

(d)    reasonable steps are taken to ensure compliance by members of the scheme with those determinations; and

(e)    under the scheme, determinations made by the operator of the scheme are:

(i) binding on members of the scheme; but

(ii) not binding on complainants under the scheme; and

(f)    for superannuation complaints, there are no limits on:

(i) the value of claims that may be made under the scheme; or

(ii) the value of remedies that may be determined under the scheme.

Note: Division 3 includes additional provisions relating to superannuation complaints.

Compliance requirements

1051(5)    
The compliance requirements are that:

(a)    the operator of the scheme is to ensure that the following are complied with:

(i) conditions of the authorisation of the scheme specified under paragraph 1050(5)(b) ;

(ii) regulatory requirements issued under section 1052A ;

(iii) directions given under section 1052B , 1052BA or 1052C ;

(iv) the requirements of section 1052E ; and

(b)    material changes to the scheme are not to be made without the approval of ASIC under section 1052D .

SECTION 1051A  

1051A   GENERAL CONSIDERATIONS  

The general considerations for an external dispute resolution scheme are the following:

(a) the accessibility of the scheme;

(b) the independence of the scheme;

(c) the fairness of the scheme;

(d) the accountability of the scheme;

(e) the efficiency of the scheme;

(f) the effectiveness of the scheme.

Division 2 - Regulating the AFCA scheme  

SECTION 1052  

1052   OBLIGATION TO COMPLY WITH MANDATORY REQUIREMENTS  

AFCA must ensure that the mandatory requirements for the AFCA scheme under section 1051 are complied with.

SECTION 1052A  

1052A   ASIC MAY ISSUE REGULATORY REQUIREMENTS  

ASIC may, by legislative instrument, issue to AFCA regulatory requirements relating to:

(a) compliance with the mandatory requirements for the AFCA scheme under section 1051 ; or

(b) any of the general considerations forthe AFCA scheme under section 1051A .

SECTION 1052B   DIRECTIONS TO INCREASE LIMITS ON THE VALUE OF CLAIMS  

1052B(1)    
If, under the AFCA scheme, there are one or more limits on:

(a) the value of claims that may be made under the scheme; or

(b) the value of remedies that AFCA may determine under the scheme;

ASIC may give AFCA a written direction requiring the limit, or some or all of the limits, to be increased.

Note: One of the operational requirements for the scheme is that there are no such limits for superannuation complaints (see paragraph 1051(4)(f) ).

1052B(2)    
However:

(a) ASIC must not give a direction under this section unless ASIC has given AFCA written notice of at least 1 month of ASIC ' s intention to issue the direction; and

(b) a direction under this section must not apply in relation to complaints AFCA received before ASIC gives the direction.

1052B(3)    
AFCA must comply with a direction made under this section.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

1052B(4)    
If AFCA fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that AFCA comply with the direction.

1052B(5)    
A direction made under this section is not a legislative instrument.

SECTION 1052BA   DIRECTIONS TO ENSURE SUFFICIENT FINANCING  

1052BA(1)    
ASIC may give AFCA a written direction under this section if ASIC considers that AFCA has not done all things reasonably practicable to ensure that the operations of the AFCA scheme are sufficiently financed.

1052BA(2)    
The direction must set out the specific measures that AFCA must take to ensure that the operations of the AFCA scheme are sufficiently financed.

1052BA(3)    
ASIC must not give a direction under this section unless ASIC has given AFCA written notice of at least 1 month of ASIC ' s intention to issue the direction.

1052BA(4)    
AFCA must comply with a direction made under this section.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

1052BA(5)    
If AFCA fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that AFCA comply with the direction.

1052BA(6)    
A direction made under this section is not a legislative instrument.

SECTION 1052C   GENERAL DIRECTIONS TO AFCA  

Notice of intention to issue a direction

1052C(1)    
If ASIC considers that AFCA has not done all things reasonably practicable to ensure compliance with:

(a) the mandatory requirements for the AFCA scheme under section 1051 ; or

(b) a condition of the authorisation of the AFCA scheme imposed by the Minister under paragraph 1050(5)(b) ; or

(c) regulatory requirements issued under section 1052A ;

ASIC may give AFCA written notice that it intends to give AFCA a specified direction under this section.

1052C(2)    
The notice must set out:

(a) the specific measures that the direction will require AFCA to take to comply with the requirements or condition; and

(b) the reasons for ASIC ' s intention to give the direction.

Issuing a direction

1052C(3)    
If, after receiving the notice:

(a) AFCA does not take those specific measures; and

(b) ASIC still considers that it is appropriate to give the direction to AFCA;

ASIC may give AFCA the direction, in writing, with a statement setting out the reasons for giving the direction.

1052C(4)    
The direction must deal with the time by which, or the period during which, it is to be complied with. The time or period must be reasonable.

1052C(5)    
A direction made under this section is not a legislative instrument.

Compliance

1052C(6)    
AFCA must comply with a direction made under this section.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

1052C(7)    
If AFCA fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that AFCA comply with the direction.

Varying or revoking a direction

1052C(8)    
ASIC may vary a direction made under this section by giving written notice to AFCA.

1052C(9)    
The direction has effect until ASIC revokes it by giving written notice to AFCA.

1052C(10)    
ASIC may revoke the direction, by giving written notice to AFCA, if, at the time of revocation, ASIC considers that the direction is no longer necessary or appropriate.

SECTION 1052D   APPROVAL OF MATERIAL CHANGES TO THE AFCA SCHEME  

1052D(1)    
AFCA may request ASIC to approve a material change to the AFCA scheme.

Note: A material change must not be made to the scheme without ASIC ' s approval (see paragraph 1051(5)(b) ).

1052D(2)    
ASIC may, by written notice given to AFCA, approve the change.

1052D(3)    
In considering whether to approve the change, ASIC must take into account the following in relation to the scheme as it is proposed to be changed:

(a) the mandatory requirements for the scheme under section 1051 ;

(b) the general considerations for the scheme under section 1051A ;

(c) any conditions imposed by the Minister on the authorisation of the scheme under paragraph 1050(5)(b) ;

(d) any regulatory requirements issued under section 1052A .

SECTION 1052E   REFERRING MATTERS TO APPROPRIATE AUTHORITIES  

Referring contraventions and breaches etc. to appropriate authorities

1052E(1)    
If AFCA becomes aware, in connection with a complaint under the AFCA scheme, that:

(a)    a serious contravention of any law may have occurred; or

(b)    

a contravention of the governing rules of any of the following may have occurred:

(i) a regulated superannuation fund;

(ii) an AFCA regulated superannuation scheme;

(iii) an approved deposit fund; or

(c)    a breach of the terms and conditions relating to an annuity policy, a life policy or an RSA may have occurred; or

(d)    a party to the complaint may have refused or failed to give effect to a determination made by AFCA;

AFCA must give particulars of the contravention, breach, refusal or failure to one or more of APRA, ASIC or the Commissioner of Taxation.

1052E(2)    
However, if:

(a)    the complaint relates to the scheme provided for by the Australian Defence Force Cover Act 2015 ; and

(b)    subsection (1) applies because AFCA becomes aware that:

(i) a serious contravention of any law may have occurred; or

(ii) a party to the complaint may have refused or failed to give effect to a determination made by AFCA;

AFCA must instead give particulars of the contravention, refusal or failure to the Minister administering that Act and the Minister administering the Public Governance, Performance and Accountability Act 2013 .

Referring settled complaints

1052E(3)    
If:

(a)    the parties to a complaint made under the AFCA scheme agree to a settlement of the complaint; and

(b)    AFCA thinks the settlement may require investigation;

AFCA may give particulars of the settlement to one or more of APRA, ASIC or the Commissioner of Taxation.

Referring systemic issues

1052E(4)    
If AFCA considers that there is a systemic issue arising from the consideration of complaints under the AFCA scheme, AFCA must give particulars of the issue to one or more of APRA, ASIC or the Commissioner of Taxation.

Division 3 - Additional provisions relating to superannuation complaints  

Subdivision A - Preliminary  

SECTION 1053   MEANING OF SUPERANNUATION COMPLAINT  

1053(1)    

Subject to subsection (4) , a complaint made under the AFCA scheme is a superannuation complaint if the complaint is:

(a)    

that the trustee of a regulated superannuation fund, an AFCA regulated superannuation scheme or an approved deposit fund has made a decision (whether before or after the commencement of this section) relating to:

(i) a particular member, or a particular former member, of a regulated superannuation fund or an AFCA regulated superannuation scheme; or

(ii) a particular beneficiary or a particular former beneficiary of an approved deposit fund;

that is or was unfair or unreasonable; or

(b)    that a decision, by a trustee maintaining a life policy that covers a member of a life policy fund, to admit the member to the fund was unfair or unreasonable; or

(c)    that the conduct (including any act, omission or representation) of an insurer, or of a representative of an insurer, relating to the sale of an annuity policy was unfair or unreasonable; or

(d)    that a decision of an insurer under an annuity policy is or was unfair or unreasonable; or

(e)    that a decision of a superannuation provider to set out, in a statement to which subsection (2) applies, an amount or amounts in respect of a person was unfair or unreasonable; or

(f)    that the conduct (including any act, omission or representation) of an RSA provider, or of a representative of an RSA provider, relating to the opening of an RSA was unfair or unreasonable; or

(g)    that a decision of an RSA provider relating to a particular RSA holder or former RSA holder is or was unfair or unreasonable; or

(h)    that the conduct (including any act, omission or representation) of an insurer, or of a representative of an insurer, relating to the sale of insurance benefits in relation to a contract of insurance where the premiums are paid from an RSA, was unfair or unreasonable; or

(i)    that a decision of an insurer relating to a contract of insurance where the premiums are paid from an RSA is or was unfair or unreasonable; or

(j)    that a decision by a death benefit decision-maker relating to the payment of a death benefit is or was unfair or unreasonable.

Note: Certain persons are taken to be members of regulated superannuation funds, AFCA regulated superannuation schemes or approved deposit funds, or holders of RSAs (see section 1053A ).

1053(2)    
This subsection applies to a statement given to the Commissioner of Taxation under:

(a)    section 13 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 ; or

(b)    section 12 of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 ; or

(c)    subsection 133-120(2) or 133-140(1) in Schedule 1 to the Taxation Administration Act 1953 ; or

(d)    section 390-5 or 390-20 in that Schedule.

1053(3)    
(Repealed by No 52 of 2024, s 3, Sch 8[9] (effective 29 June 2024).)

1053(4)    
However, a complaint is not a superannuation complaint to the extent that it is a complaint that:

(a)    a decision made by a trustee of a self managed superannuation fund; or

(b)    conduct engaged in by an insurer, or by a representative of an insurer, relating to the sale of an annuity policy maintained, or to be maintained, by a trustee of a self managed superannuation fund on behalf of its members; or

(c)    a decision made by an insurer, or by a representative of an insurer, under an annuity policy maintained by a trustee of a self managed superannuation fund on behalf of its members;

is unfair or unreasonable.

1053(5)    
For the purposes of this section, a trustee, an insurer, an RSA provider or another decision-maker, makes a decision if:

(a)    the trustee, insurer, RSA provider or other decision-maker, or a person acting for the trustee, insurer, RSA provider or other decision-maker, makes, or fails to make, a decision; or

(b)    the trustee, insurer, RSA provider or other decision-maker, or a person acting for the trustee, insurer, RSA provider or other decision-maker, engages in any conduct, or fails to engage in any conduct, in relation to making a decision;

whether or not the decision or conduct involved the exercise of a discretion.

SECTION 1053A  

1053A   PERSONS TAKEN TO BE MEMBERS OF REGULATED SUPERANNUATION FUNDS, AFCA REGULATED SUPERANNUATION SCHEMES AND APPROVED DEPOSIT FUNDS AND HOLDERS OF RSAs  

For the purposes of this Division, each of the following persons is taken to be a member of a regulated superannuation fund, an AFCA regulated superannuation scheme or an approved deposit fund, or a holder of an RSA, (as the case requires):

(a)    a non-member spouse in relation to whom a splitting order under the Family Law Act 1975 has been made, from the day on which a copy of the order is served on the trustee of the fund;

(b)    a non-member spouse who is a party to a superannuation agreement under the Family Law Act 1975 , from the day on which a copy of the agreement is served on the trustee of the fund;

(c)    a party to a marriage in relation to which an order of a kind referred to in Part VIIIAA of the Family Law Act 1975 has been made, if the order relates to an interest in the fund;

(d)    

an eligible person, within the meaning of section 90XZB or 90YZR of the Family Law Act 1975 , in relation to an interest of the member or holder in the fund;

(e)    a covered ADF member within the meaning of the Australian Defence Force Cover Act 2015 .

SECTION 1053B  

1053B   THIS DIVISION DOES NOT RESTRICT ABILITY TO MAKE OTHER COMPLAINTS  

To avoid doubt, this Division does not limit the ability of a person to make a complaint under the AFCA scheme (including a complaint relating to superannuation) that is not a superannuation complaint.

Note: Schedule 8 to the Treasury Laws Amendment (Support for Small Business and Charities and Other Measures) Act 2024 , which added this section, was enacted as a response to the decision of the Federal Court of Australia in MetLife Insurance Limited v Australian Financial Complaints Authority Limited [2022] FCAFC 173.

Subdivision B - Powers of AFCA  

SECTION 1054   POWER TO JOIN OTHER PARTIES TO SUPERANNUATION COMPLAINT  

1054(1)    
AFCA may (subject to subsection 1056A(3) ) at any time join, as a party to a superannuation complaint made under the AFCA scheme, any of the following persons whom AFCA decides should be a party to the complaint:

(a)    a person who has applied to become a party to the complaint;

(b)    

a trustee of:

(i) a regulated superannuation fund; or

(ii) an AFCA regulated superannuation scheme; or

(iii) an approved deposit fund;

(c)    an insurer;

(d)    an RSA provider;

(e)    a superannuation provider;

(f)    a person whom AFCA decides is responsible for determining either or both of the existence and the extent of a disability (whether total and permanent or otherwise), if the subject matter of the complaint relates to a benefit in respect of the disability, whether under a contract of insurance or otherwise.

Note: Section 1056A requires certain procedures to be followed before a person can be joined as a party to a superannuation complaint about a decision relating to the payment of a death benefit.

1054(2)    
If AFCA decides under subsection (1) that a person should be a party to the complaint, AFCA must give the new party, and all of the existing parties to the complaint, written notice of the decision and of the reasons for the decision.

1054(3)    
If AFCA decides that a person who has applied to become a party to the complaint should not be a party to the complaint, AFCA must give the person written notice of the decision and of the reasons for the decision.

SECTION 1054A   POWER TO OBTAIN INFORMATION AND DOCUMENTS  

1054A(1)    
If AFCA has reason to believe that a person is capable of giving information or producing documents relevant to a superannuation complaint, AFCA may, by written notice to the person, require the person:

(a) to give to AFCA, by writing, any such information; or

(b) to produce to AFCA such documents or copies of such documents as are stated in the notice;

at such place, and within such period or on such date and at such time, as are stated in the notice.

Note: A strict liability offence may apply under section 1058 (secrecy) in relation to information acquired under this section.

1054A(2)    
If documents (whether originals or copies) are so produced, AFCA:

(a) may take possession of, and may make copies of, or take extracts from, the documents; and

(b) may keep the documents for as long as is necessary for the purpose of dealing with the complaint; and

(c) must, while keeping the documents, permit a person who would be entitled to inspect any one or more of them (if the documents were not in the possession of AFCA) to inspect at all reasonable times such of the documents as that person would be so entitled to inspect.

1054A(3)    
A person must not fail to comply with a requirement made by AFCA under subsection (1).

Penalty: 30 penalty units.

1054A(4)    
Subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code .

1054A(5)    
Subsection (3) does not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5), see subsection 13.3(3) of the Criminal Code .

SECTION 1054B   POWER TO REQUIRE ATTENDANCE AT CONCILIATION CONFERENCES  

1054B(1)    
AFCA may, if AFCA thinks it desirable to do so, by notice in writing given to:

(a) each party to a superannuation complaint; and

(b) any other person:

(i) who, in AFCA ' s opinion, is likely to be able to provide information relevant to the settlement of the complaint; or

(ii) whose presence at a conciliation conference would, in AFCA ' s opinion, be likely to be conducive to settling the complaint;

require the party or other person to attend the conference.

Note: A strict liability offence may apply under section 1058 (secrecy) in relation to information acquired during a conference held under this section.

1054B(2)    
The notice must also fix the date, time and place for the conference.

1054B(3)    
If the complainant fails to attend the conference, AFCA may deal with the complaint as if it had been withdrawn by the complainant.

1054B(4)    
A person (other than the complainant) commits an offence if he or she does not attend a conference when required to do so under this section.

Penalty: 30 penalty units.

SECTION 1054BA   POWER TO GIVE DIRECTIONS  

1054BA(1)    
AFCA may, in connection with, or as part of the process of, determining a superannuation complaint:

(a) give directions prohibiting or restricting the disclosure of documents or information relating to the complaint; and

(b) give directions as to who may be present at any meeting held by AFCA relating to the complaint.

1054BA(2)    
In giving directions, AFCA must have regard to the wishes of the parties in relation to the complaint and the need to protect their privacy.

1054BA(3)    
Directions may be made in writing or orally.

1054BA(4)    
A person must not refuse or fail to comply with a direction under this section.

Penalty: 30 penalty units.

SECTION 1054C   REFERENCE OF QUESTIONS OF LAW TO FEDERAL COURT  

1054C(1)    
AFCA may, on its own initiative or on the request of a party to a superannuation complaint, refer a question of law arising in relation to the making of a determination relating to the complaint to the Federal Court for decision.

1054C(2)    
The Federal Court has jurisdiction to hear and determine a question of law referred to it under this section.

1054C(3)    
If a question of law has been so referred to the Federal Court, AFCA must not:

(a) make the determination to which the question is relevant while the reference is pending; or

(b) do anything that is inconsistent with the opinion of the Federal Court on the question.

Subdivision C - Determinations of superannuation complaints  

SECTION 1055   MAKING A DETERMINATION  

1055(1)    
In making a determination of a superannuation complaint, AFCA has, subject to this section, all the powers, obligations and discretions that are conferred on the trustee, insurer, RSA provider or other person who:

(a)    made a decision to which the complaint relates; or

(b)    engaged in conduct (including any act, omission or representation) to which the complaint relates.

Affirming decisions or conduct

1055(2)    
AFCA must affirm a decision or conduct (except a decision relating to the payment of a death benefit) if AFCA is satisfied that:

(a)    the decision, in its operation in relation to the complainant; or

(b)    the conduct;

was fair and reasonable in all the circumstances.

1055(3)    
AFCA must affirm a decision relating to the payment of a death benefit if AFCA is satisfied that the decision, in its operation in relation to:

(a)    the complainant; and

(b)    any other person joined under subsection 1056A(3) as a party to the complaint;

was fair and reasonable in all the circumstances.

Varying etc. decisions or conduct

1055(4)    
If AFCA is satisfied that:

(a)    a decision (except a decision relating to the payment of a death benefit), in its operation in relation to the complainant; or

(b)    conduct;

is unfair or unreasonable, or both, AFCA may take any one or more of the actions mentioned in subsection (6) , but only for the purpose of placing the complainant, as nearly as practicable, in such a position that the unfairness, unreasonableness, or both, no longer exists.

1055(5)    
If AFCA is satisfied that a decision relating to the payment of a death benefit, in its operation in relation to:

(a)    the complainant; and

(b)    any other person joined under subsection 1056A(3) as a party to the complaint;

is unfair or unreasonable, or both, AFCA may take any one or more of the actions mentioned in subsection (6) , but only for the purpose of placing the complainant (and any other person so joined as a party), as nearly as practicable, in such a position that the unfairness, unreasonableness, or both, no longer exists.

1055(6)    
AFCA may, under subsection (4) or (5) , do any of the following:

(a)    vary the decision;

(b)    set aside the decision and:

(i) substitute a decision for the decision so set aside; or

(ii) remit the decision to the person who made it for reconsideration in accordance with any directions or recommendations of AFCA;

(c)    if the complainant was unfairly or unreasonably admitted into a life policy fund:

(i) require a party to the complaint to repay all money, or particular money, received under the life policy to which the complaint relates; or

(ii) set aside the whole or part of the terms or conditions of the life policy in their application to the complainant; or

(iii) vary the governing rules of the life policy fund in their application to the complainant; or

(iv) cancel the complainant ' s membership of the life policy fund or of any sub-plan of the fund;

(d)    if the complainant was unfairly or unreasonably sold an annuity policy, contract of insurance or RSA:

(i) require a party to the complaint to repay all money, or particular money, received under the annuity policy, contract or RSA; or

(ii) set aside the whole or part of the terms or conditions of the annuity policy, contract or RSA in their application to the complainant; or

(iii) vary the terms or conditions of the annuity policy, contract or RSA in their application to the complainant.

Limitations on determinations

1055(7)    
AFCA must not make a determination of a superannuation complaint that would be contrary to:

(a)    law; or

(b)    

subject to paragraph (6)(c) , the governing rules of a regulated superannuation fund, an AFCA regulated superannuation scheme or an approved deposit fund to which the complaint relates; or

(c)    subject to paragraph (6)(d) , the terms and conditions of an annuity policy, contract of insurance or RSA to which the complaint relates.

SECTION 1055A  

1055A   AFCA TO GIVE REASONS  

AFCA must give written reasons for its determination of a superannuation complaint.

SECTION 1055B   OPERATION OF DETERMINATION OF SUPERANNUATION COMPLAINT  

1055B(1)    
Subject to subsection (2), a determination of a superannuation complaint by AFCA comes into operation immediately upon the making of the determination.

1055B(2)    
AFCA may specify in the determination that the determination is not to come into operation until a later date specified in the determination and, if a later date is so specified, the determination comes into operation on that date.

1055B(3)    
If, under subsection 1055(4) or (5) , the determination varies a decision of another person, or substitutes a decision for a decision of another person, that decision as varied or substituted:

(a) is, for all purposes (other than the making of a complaint about the decision) taken to be a decision of the other person; and

(b) on the coming into operation of the determination by AFCA, unless AFCA otherwise orders, has effect, and is taken to have had effect, on and from the day on which the original decision has or had effect.

SECTION 1055C   EVIDENCE OF DETERMINATION OF SUPERANNUATION COMPLAINT  

1055C(1)    
A document purporting to be a copy of AFCA ' s determination of a superannuation complaint, and purporting to be certified, by an AFCA staff member who is authorised to do so, to be a true copy of the determination, is, in any proceeding, prima facie evidence of the determination.

1055C(2)    
This section does not affect any other method available by law for the proof of determinations of AFCA.

SECTION 1055D  

1055D   COMPLIANCE WITH DETERMINATIONS UNDER THE AFCA SCHEME  

If:

(a) a superannuation complaint has been made concerning a disability benefit (whether under a contract of insurance or otherwise); and

(b) a determination is made by AFCA that a person other than a member of the AFCA scheme is responsible for determining either or both of the existence and the extent of the disability; and

(c) AFCA joins the person under subsection 1054(1) as a party to the complaint;

the person must comply with any determination made in respect of the person by AFCA.

Subdivision D - Superannuation complaints relating to payment of death benefits  

SECTION 1056   WHEN SUPERANNUATION COMPLAINT CANNOT BE MADE IN RELATION TO DECISION ABOUT THE PAYMENT OF DEATH BENEFIT  

1056(1)    
A person cannot make a superannuation complaint under the AFCA scheme relating to a decision by a death benefit decision-maker relating to the payment of a death benefit unless the person has an interest in the death benefit.

1056(2)    
A person cannot make a superannuation complaint under the AFCA scheme relating to a decision by a death benefit decision-maker relating to the payment of a death benefit if:

(a) the decision-maker gave the person notice:

(i) that the decision-maker proposed to make the decision; and

(ii) that the person may object to the proposed decision within 28 days after being given notice;

and the person did not, by notifying the decision-maker, object to the proposed decision within 28 days after being given notice; and

(b) the decision-maker gave the person notice:

(i) that the decision-maker had made the decision; and

(ii) that the person may make a complaint under the AFCA scheme relating to the decision within 28 days after being given notice;

and the person does not make the complaint to AFCA within 28 days after being given notice.

1056(3)    
If a person has not been given either of the notices referred to in subsection (2) relating to a decision by a death benefit decision-maker relating to the payment of a death benefit, the person cannot make a superannuation complaint under the AFCA scheme relating to the decision unless AFCA is satisfied that:

(a) the person has an interest in the death benefit; and

(b) it was unreasonable for the person not to be given those notices from the decision-maker.

SECTION 1056A   JOINING PERSONS TO COMPLAINTS RELATING TO DEATH BENEFIT DECISIONS  

1056A(1)    
If a death benefit decision-maker:

(a) makes a decision relating to the payment of a death benefit; and

(b) is notified by AFCA of a superannuation complaint made in accordance with section 1056 relating to the decision;

the decision-maker must, within 28 days after being so notified, give notice to each person (other than the complainant) whom the decision-maker believes, after reasonable enquiry, may have an interest in the death benefit.

1056A(2)    
A notice given to a person under subsection (1) must:

(a) state that a complaint has been made to AFCA about the decision; and

(b) set out the details of the complaint; and

(c) state that the person may apply to be joined as a party to the complaint by giving notice to AFCA within 28 days after the person is given notice, or such longer period as AFCA allows.

1056A(3)    
A person (other than a person referred to in any of paragraphs 1054(1)(b) to (f)) may be joined as a party to the complaint under section 1054 only if:

(a) the person applies in accordance with paragraph (2)(c) of this section; or

(b) AFCA is satisfied that, in all the circumstances, the person should be joined as a party despite not so applying.

Subdivision E - Appeals to the Federal Court  

SECTION 1057   APPEALS TO THE FEDERAL COURT FROM DETERMINATION OF SUPERANNUATION COMPLAINT  

1057(1)    
A party to a superannuation complaint may appeal to the Federal Court, on a question of law, from AFCA ' s determination of the complaint.

1057(2)    
An appeal by a person under subsection (1) is to be instituted:

(a) not later than the 28th day after the day on which a copy of the determination of AFCA is given to the person, or within such further period as the Federal Court (whether before or after the end of that day) allows; and

(b) in accordance with rules of court made under the Federal Court of Australia Act 1976 .

1057(3)    
The Federal Court is to hear and determine the appeal and may make such order as it thinks appropriate.

1057(4)    
Without limiting subsection (3), the orders that may be made by the Federal Court on an appeal include:

(a) an order affirming or setting aside the determination of AFCA; and

(b) an order remitting the matter to be determined again by AFCA in accordance with the directions of the Court.

1057(5)    
The Federal Court must not make an order awarding costs against a complainant if the complainant does not defend an appeal instituted by another party to the complaint.

SECTION 1057A   OPERATION AND IMPLEMENTATION OF DETERMINATION THAT IS SUBJECT TO APPEAL  

1057A(1)    
Subject to this section, the institution of an appeal to the Federal Court from AFCA ' s determination of a superannuation complaint does not affect the operation of the determination or prevent the taking of action to implement the determination.

1057A(2)    

If an appeal is brought to the Federal Court from the determination, the Court or a judge of the Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:

(a)    the determination or a part of the determination;

(b)    if the complaint relates to a decision of another person - the whole or part of the decision that is complained of, or of a decision of an insurer or other person who is a party to the complaint;

as the Court thinks appropriate to secure the effectiveness of the hearing and determination of the appeal.

1057A(3)    

If an order is in force under subsection (2) (including an order that has previously been varied on one or more occasions under this subsection), the Court or a judge of the Court may make an order varying or revoking the first-mentioned order.

1057A(4)    
An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3) ):

(a)    is subject to such conditions as are specified in the order; and

(b)    has effect until:

(i) if a period for the operation of the order is specified in the order - the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or

(ii) if no period is so specified - the giving of a decision on the appeal.

SECTION 1057B  

1057B   SENDING OF DOCUMENTS TO, AND DISCLOSURE OF DOCUMENTS BY, THE FEDERAL COURT  

If an appeal is instituted in the Federal Court from AFCA ' s determination of a superannuation complaint:

(a) AFCA must send to the Court all documents that were before AFCA in connection with the consideration of the matter to which the appeal relates; and

(b) at the conclusion of the proceeding before the Court in relation to the appeal, the Court must return the documents to AFCA.

Subdivision F - Secrecy  

SECTION 1058   SECRECY  

1058(1)    
An AFCA staff member must not directly or indirectly:

(a)    make a record of, or disclose to any person, court or investigating authority, any information acquired by the staff member under section 1054A or during a conference held under section 1054B in connection with a superannuation complaint; or

(b)    produce to any person, court or investigating authority a document so acquired; or

(c)    permit any person, court or investigating authority to have access to a document so acquired.

Penalty: 30 penalty units.

1058(2)    
Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code .

1058(2A)    

For the purposes of subsection (1) , investigating authority means a tribunal, authority or person having power to require the production of documents or the answering of questions.

1058(3)    
Subsection (1) does not apply to the extent that the AFCA staff member makes the record of the information, discloses the information, produces the document or permits access to the document for the purposes of this Part.

Note: A defendant bears an evidential burden in relation to the matters in subsection (3) , see subsection 13.3(3) of the Criminal Code .

1058(4)    
Subsection (1) does not apply to the AFCA staff member disclosing information, producing a document or permitting access to a document:

(a)    to ASIC; or

(b)    to APRA; or

(c)    to the Information Commissioner; or

(d)    to the Commissioner of Taxation; or

(e)    to a particular party to the complaint if the person who provided the information or document to the staff member consents in writing to the disclosure, production or access.

Note: A defendant bears an evidential burden in relation to the matters in subsection (4) , see subsection 13.3(3) of the Criminal Code .

1058(5)    
Subsection (1) doesnot apply to the AFCA staff member disclosing information if:

(a)    the disclosure is made in a way that does not enable the identification of the parties to a complaint; or

(b)    the disclosure is made to a police officer (within the meaning of the Evidence Act 1995 ) because:

(i) a threat has been made against an AFCA staff member or another person; or

(ii) the AFCA staff member believes that a party to a complaint may commit an act of self-harm.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5) , see subsection 13.3(3) of the Criminal Code .

Division 4 - Information sharing and reporting  

SECTION 1058A   AUTHORISED USE OR DISCLOSURE OF INFORMATION  

1058A(1)    
An AFCA staff member may use or disclose information or documents obtained by an AFCA staff member under or for the purposes of this Part if:

(a)    the use or disclosure is for the purposes of:

(i) this Part; or

(ii) Part 7.10B ; or

(iii) the Financial Services Compensation Scheme of Last Resort Levy Act 2023 ; or

(iv) the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023 ; or

(b)    the use or disclosure is to the CSLR operator for the purposes of assisting the CSLR operator to perform its functions or exercise its powers.

1058A(2)    
In this section:

use or disclosure
, for information or documents, includes making a record of the information, disclosing the information, producing the document or permitting access to the document.

SECTION 1058B   AFCA REPORTING TO CSLR OPERATOR  

Notification of unpaid fees to CSLR operator

1058B(1)    
AFCA must notify the CSLR operator, in writing, of AFCA ' s unpaid fees, for a month ending on or after the accumulation recovery day, as soon as practicable after the end of the month.

Note: The notification could include information about AFCA ' s unpaid fees, including whether those fees relate to pre-CSLR complaints.

1058B(2)    
AFCA ' s unpaid fees , for a month, is the sum of each fee (however described) that:

(a)    relates to one or more complaints, each of which:

(i) at the time the complaint is made, is a complaint against a person (the AFCA member ) who (at that time) is a member of the AFCA scheme; and

(ii) is a complaint about a product, or service, of a kind mentioned in subsection 1065(2) ; and

(iii) is a complaint that has been finalised by AFCA (including by making a determination); and

(b)    AFCA has charged to the AFCA member (or would have so charged were the AFCA member still in existence); and

(c)    the AFCA member has not paid to AFCA; and

(d)    AFCA finished taking steps to recover on or after the accumulation recovery day and during the month, which may have included taking one or more of the following steps if AFCA considered them appropriate (or possible):

(i) seeking an explanation from the AFCA member for the AFCA member not paying the fee;

(ii) explaining to the AFCA member the consequences of not paying the fee;

(iii) discussing with the AFCA member a reasonable payment plan or other alternatives to paying the fee;

(iv) if the AFCA member is (or has become) a Chapter 5 body corporate - engaging with an officer of the Chapter 5 body corporate to assess whether the body can pay the fee to AFCA.

Note: In addition to the steps in subparagraphs (d)(i) to (iv) , AFCA may take any other steps it considers appropriate and cost effective.

AFCA ' s accumulated unpaid fees

1058B(3)    
AFCA must notify the CSLR operator, in writing, of AFCA ' s accumulated unpaid fees as soon as practicable after the accumulation recovery day.

1058B(4)    
AFCA ' s accumulated unpaid fees is the sum of each fee (however described) that:

(a)    relates to one or more complaints, each of which:

(i) at the time the complaint is made, is a complaint against a person (the AFCA member ) who (at that time) is a member of the AFCA scheme; and

(ii) is a complaint about a product, or service, of a kind mentioned in subsection 1065(2) ; and

(iii) is a complaint that has been finalised by AFCA (including by making a determination); and

(b)    AFCA has charged to the AFCA member (or would have so charged were the AFCA member still in existence); and

(c)    the AFCA member has not paid to AFCA; and

(d)    AFCA finished taking steps to recover during the period:

(i) starting on 1 November 2018; and

(ii) ending on the day before the accumulation recovery day;

which may have included taking one or more of the steps mentioned in subparagraphs (2)(d)(i) to (iv) of this section if AFCA considered them appropriate (or possible).