June Smith

Speaking at the AFCA members’ forum Thursday morning,  deputy chief ombudsman June Smith explained how AFCA was reassured by recent court decisions that its fairness jurisdiction can, at times, supersede the law.

“There are now a number of court decisions involving AFCA and its predecessor schemes… where the courts have been clear that AFCA and predecessor ombudsman schemes have a fairness jurisdiction and about how it operates,” Smith said.

“These court decisions have affirmed that AFCA can apply a fairness approach to determining complaints, while having regard to relevant legal principles and law, but not be required to strictly apply legal principles/law in accordance with its rules and the contractual tripartite arrangement between AFCA, its members and complainants.”

In an effort to convey that the law and fairness are very rarely at cross purposes, Smith said AFCA is still very much guided by the law and fairness is intertwined in that.

“Fairness is found everywhere in the law, from unfair contract terms to utmost good faith, from best interest duty obligations to fiduciary duties, from misleading and deceptive and unconscionable conduct obligations to the obligation of licences to be efficient, honest and fair.”

The deputy ombudsman also made a point of speaking to the timeliness of AFCA’s complaint handling, adding that the Authority has work to do in getting speedier outcomes for members and consumers.

“We know that timeliness is a key aspect of a fair process. Delay leads to a negative experience for the parties,” she said. “We understand that parties to a complaint want the answer to their issues today, not in 12 months’ time. We know there is work to do here and we are engaging in a series of efficiency and procedural initiatives to deliver greater timeliness in our work.”

Smith did note however that of the 200,000 complaints AFCA received in its first 2.5 years of operations, it had resolved “the overwhelming majority”.

Fifty per cent were resolved within an average of 31 days, Smith revealed, and 71 per cent within 90 days.

The average time for AFCA to resolve a complaint is 72 days.

AFCA has implemented a range of initiatives to improve those results, she said, including the development of specialist teams, strengthened workflow management and triage mechanisms, enhanced exception reporting, aged file prioritisation, timeliness KPIs and enhanced communication strategies.

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