ABA, major banks call for AFCA powers to be clipped
Banks and other financial services providers are lobbying for changes to the proposed rules that set the jurisdictional parameters of the soon-to-be-launched Australian Financial Complaints Authority.There is disquiet among banks, superannuation providers, stockbrokers and securities dealers about the draft framework, with most industry peak bodies arguing it includes several material departures from the jurisdictions of the three external dispute resolution schemes set to wound up.In a diplomatic submission to AFCA's consultation on the draft rules, the Australian Banking Association raises concerns about the status of decisions made by the new authority.Under the Financial Ombudsman Scheme, complainants are required to give a binding written commitment to accept the scheme's decisions. The AFCA rules do not impose such a requirement, leaving open the possibility that complainants may pursue further action in the courts."This is a significant change that has the potential to impact on a firm's ability to prevent further legal action in relation to a matter previously dealt with by AFCA," the ABA states in its submission."We are particularly concerned about this because AFCA will be dealing with higher value and more complex disputes than FOS."We are not aware of the policy basis to support this shift in approach."The ABA is also agitated about other rule shifts that are likely to give AFCA more powers than the antecedent schemes.Under the proposed rules, AFCA will be able to direct a bank to cease a business activity that it considers necessary to investigate or is suspected of being a "systemic issue".The ABA believes that the new power is "inappropriate" because AFCA's judgments as to what issues are classified as systemic will not be subject to judicial review."The ABA notes that this represents a significant new development as there is no equivalent provision in the FOS terms of reference," the association said."Such broad powers go beyond AFCA's primary purpose, to resolve individual disputes, and are more appropriately the domain of regulators such as ASIC."ANZ and Westpac each highlighted their concerns over AFCA's systemic issues powers in separate submissions, claiming they should be exercised by a financial regulator."Unlike AFCA, a regulator is in a position to ensure other regulatory objectives are considered when a direction is made and is subject to public scrutiny and avenues of review," ANZ said.ANZ is also worried that the proposed AFCA rules could result in bank documents considered "commercially sensitive" being shared with complainants.Part 10 of the AFCA rules framework states that the authority will "generally share information" by a party to a complaint with other parties to the dispute."We are concerned that firms will no longer have the right to request that commercially sensitive information not be shared with a complainant," ANZ argues in its submission."This is an important right which we believe ought to be preserved to ensure firms can openly share information with AFCA without risking the disclosure of confidential internal material such as credit risk policies."Consumer advocates such as the Consumer Action Law Centre are seeking some amendments to the draft rules, but generally appear more