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 3 - Additional provisions relating to superannuation complaints  

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.