Does the Administrative Appeals Tribunal Have Jurisdiction to Review AFCA Decisions?

On 25 May 2021, the Administrative Appeals Tribunal (AAT) published its outcome regarding an application seeking the review of a decision made by the Australian Financial Complaints Authority (AFCA). Link to the outcome can be found here. In the public’s interest I have uploaded my submissions regarding the issue of jurisdiction and can be found at the end of this article.

AAT Jurisdiction

CORPORATIONS ACT 2001 - SECT 1317B

Applications for review

(1) Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Act by:

          (a) the Minister....

In this decision, the Tribunal provided that a decision by the Australian Financial Complaints Authority (AFCA) is not a decision of the Minister within the meaning of paragraph 1317B(1)(a) of the Corporations Act. To support this, the tribunal referred to section 1101J of the Corporations Act which provides that the Minister may delegate all or any of the Minister’s powers under Chapter 7 of the Corporations Act to ASIC; or a member of ASIC (within the meaning of section 9 of the Australian Securities and Investments Commission Act 2001); or; a staff member of ASIC who is a senior staff member (within the meaning given by subsection 5(1) of that Act). There is no provision for the Minister to delegate all or any of his powers under Chapter 7 to AFCA.

Decision within the meaning of Section 1317B

Section 1317B(1)(a) of the Corporations Act provides that an application may be made to the Tribunal for review of a decision made under the Act by the Minister. I contended that section 1050 of the Corporations Act is an instrument conferring power to the Minister to authorise the AFCA scheme. To clarify, the instrument I refer to is NOT the notifiable instrument described in section 1050, the instrument I refer to is the Treasury Laws Amendment (Putting Consumers First—Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth).

Subject to authorisation, the Minister must be satisfied that the AFCA scheme will meet the mandatory requirements outlined in sections 1051 and 1051A of the Corporations Act. The Minister may vary or revoke their authorisation should they be of the view that AFCA is not meeting the mandatory requirements. 

The Tribunal in its outcome provided that I supposedly used section 34AA of the Acts Interpretation Act 1901 (Cth) to support my contention that section 1050 of the Corporations Act delegates conferred decision-making powers to AFCA. This was not the case. I used section 34AA of the Acts Interpretation Act to show that a delegated power given to any person is not to be construed as limiting the nature of the delegated powers. I contended that the Minister’s authorisation of the AFCA scheme under the Corporations Act granted AFCA with the power to make determinations subject to how the authorising Minister deemed reasonably appropriate. This decision-making function includes statutory interpretation and its application to determinations which are eventually disseminated to the public. Dissemination of the outcome and its content will thereafter factor into similar disputes potentially arising in the future. AFCA’s decision-making powers can be construed as part of the executive government’s role in administering the law, synonymous with the exercising of other delegated executive powers.

Section 1041C of Corporations Act

False trading and market rigging--artificially maintaining etc. trading price

      (1) A person must not (whether in this jurisdiction or elsewhere) enter into, or engage in, a fictitious or artificial transaction or device if that transaction or device results in:

          (a) the price for trading in financial products on a financial market operated in this jurisdiction being maintained, inflated or depressed; or

          (b) fluctuations in the price for trading in financial products on a financial market operated in this jurisdiction.

Section 1041C of the Corporations Act was subject to the dispute I raised with AFCA. This provision prohibits financial services providers operating in Australia to engage in an artificial transaction or DEVICE if the artificial transaction or device results in the maintaining, inflating or depreciating of the price subject to a financial product. As shown in the attached AFCA determination, no reference is made to the device I mentioned in my submissions. Rather AFCA based its determination on the notion that my submissions revolved around the engagement of an artificial transaction. I did not make any reference to an artificial transaction. Nevertheless, the most peculiar aspect of the determination is the omitting of the word “device” when referring to section 1041C of the Corporations Act. 

Australian Financial Complaints Authority

In paragraph 8 of the outcome, the Tribunal describes AFCA as a non-government, external dispute resolution service that provides free and independent help with financial disputes. The AFCA determination I sought to be reviewed by the Tribunal included statutory interpretation and application to the facts surrounding the financial dispute. AFCA is one of only two means available to the public to dispute unlawful conduct by financial service providers, the other being the Federal Court of Australia. It would be safe to presume that the majority of the public cannot afford the latter means to dispute, rendering AFCA as the primary law adjudicator and enforcer over financial service disputes. Hence, begging the question ‘is AFCA merely just a free and independent dispute resolution process?’.

Finally, to this article I have attached a redacted document containing my submissions on the issue concerning jurisdiction and a redacted copy of the AFCA decision I sought to have reviewed by the tribunal. The purpose for publishing these documents are two-fold, first to offer transparency into how the Administrative Appeals Tribunal assesses applications regarding AFCA decisions. Second, to give the general public an insight into how AFCA assess evidence submitted by a complainant in reaching a final decision. After reading the attached files, one will easily ascertain that AFCA does not undertake its responsibilities as prescribed under Australian Law. Why the AAT purported to unjustifiably uphold the integrity of AFCA’s procedures is anyone’s guess.

I will consider sending, upon request, the submissions I forwarded to AFCA in support of my claim.

Attached Files: