ASIC oversight of the Australian Financial Complaints Authority (AFCA): Consultation Open – On March 5 the Australian Securities & Investments Commission (ASIC) released a draft updated Regulatory Guide 139, Oversight of AFCA (updated RG139) for public consultation (see http://download.asic.gov.au/regulatory-resources/find-a-document/consultation-papers/cp-298-oversight-of-the-australian-financial-complaints-authority-update-to-rg-139/).
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By Dr Drew Donnelly, Compliance Quarter.
In this update, we set out the key elements proposed to be included in the Regulatory Guide (the Guide) in connection with the establishment of the Australian Financial Complaints Authority (AFCA).
ASIC invites submissions on the draft Guide by 6 April 2018.
Background
We last discussed the establishment of AFCA last year (https://www.compliancequarter.com.au/changes-australian-financial-complaints-authority/). Since then the legislation establishing AFCA has passed through the Commonwealth Parliament, becoming law on 14 February 2018. AFCA will be the new dispute resolution body for the financial sector.
It has been announced that AFCA will commence operations no later than 1 November 2018. ASIC has developed and is consulting on the draft Guide to further operationalise and aid compliance with the new law, with the finalised guide to be released no later than AFCA commencement,
Proposals for consultation
The following matters are being consulted on:
- The threshold for AFCA mandatory AFCA reporting to ASIC, the Australian Prudential Regulation Authority (APRA) and the Australian Taxation Office. It is proposed that a serious contravention must be reported to these bodies within a reasonable time but no later than 30 days of becoming aware of an issue and that the test for seriousness be based on that of the ‘reasonable person’.
- The role of the ‘independent assessor’. ASIC proposes in the draft Guide that the independent assessor, who must be appointed under the new law, will have the following tasks:
- respond to complaints about how AFCA dealt with an individual complaint or series of complaints;
- identify, address and report on issues affecting AFCA’s complaints handling operations and performance;
- as appropriate, make recommendations about or provide remedies for identified issues in complaints handling operations and performance.
It is proposed that it will not be the role of the independent assessor to re-consider the original complaint again on the merits.
- Financial firms are legally obligated to include relevant External Dispute Resolution (EDI) information in a range of communications to consumers, including Financial Services Guides and Product Disclosure Statements. These statements will need to be updated to refer to AFCA by the time AFCA commences in November. ASIC asks, is this enough time?
Read the draft Guide and accompanying consultation paper at http://download.asic.gov.au/regulatory-resources/find-a-document/consultation-papers/cp-298-oversight-of-the-australian-financial-complaints-authority-update-to-rg-139/.
If you wish to comment on any matters contained in the draft Guide submissions should be sent by 6 April 2018 to policy.submissions@asic.gov.au.
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