Should AFCA determinations be open to appeal?

Decisions of the Government’s proposed Australian Financial Complaints Authority (AFCA) should be open to appeal in the courts.

That is the assessment of the Australian Collectors and Debt Buyer’s Association (ACDBA) which has told the Senate Economics References Committee that “in the interests of natural justice and as a matter of principle, the bill should support adherence to the ‘Rule of Law’”.

It said that, as currently drafted, the legislation “actively promotes inequality by allowing appeal on questions of law only for superannuation matters to the Federal Court, with all other financial service matters not being afforded the same appropriate and reasonable protection”.

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“Confidence in and the effectiveness of any EDR scheme can only occur if determinations are made in a fair and transparent manner and are consistent with the facts and the rule of law – in other words, determinations need to be fair to both parties,” the ACDBA submission said.

It said the proposed operational requirements of AFCA under the bill appeared particularly unfair and inequitable because it dictated that the determinations of AFCA were binding on members of the scheme such as financial services companies, but not binding on the complaints.

“ACDBA believes a right of appeal against a decision which is wrong in fact or law ought to be available to all members noting that such appeals would be in relation to the basis of AFCA’s decision and not against the consumer,” the submission said.

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