Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

PART 7.10A - EXTERNAL DISPUTE RESOLUTION  

Division 1 - Authorisation of an external dispute resolution scheme  

Subdivision B - Mandatory requirements and general considerations  

SECTION 1051   MANDATORY REQUIREMENTS  

1051(1)  
The mandatory requirements for an external dispute resolution scheme are:


(a) the organisational requirements under subsection (2); and


(b) the operator requirements under subsection (3); and


(c) the operational requirements under subsection (4); and


(d) the compliance requirements under subsection (5). Organisational requirements

1051(2)  
The organisational requirements are that:


(a) the membership of the scheme is open to every entity that is required, under:


(i) a law of the Commonwealth; or

(ii) an instrument made under such a law; or

(iii) the conditions of a licence or permission issued under such a law;

to be a member of an external dispute resolution scheme authorised under this Part; and


(b) the operations of the scheme are financed through contributions made by members of the scheme; and


(c) the scheme has an independent assessor; and


(d) complainants are exempt from payment of any fee or charge, to the operator of the scheme or to any other entity, in relation to a complaint. Operator requirements

1051(3)  
The operator requirements are that:


(a) the operator of the scheme commissions the conducting of independent reviews of the scheme ' s operations and procedures; and


(b) the operator of the scheme is a company limited by guarantee; and


(c) the operator ' s constitution provides that the operator must not be operated for profit; and


(d) the operator ' s constitution provides that the number of directors of the operator who have experience in carrying on the kinds of businesses operated by members of the scheme must equal the number of directors who have experience in representing consumers; and


(da) the operator ' s constitution provides that the Chair of the board of the operator must be an independent person; and


(e) the operator ' s constitution provides that, within 6 months after the scheme is authorised under section 1050 , the Minister:


(i) may appoint an independent person as the Chair of the board of the operator; and

(ii) may appoint any director, if the total number of directors (including that director) whom the Minister has appointed, as mentioned in subparagraph (i) and this subparagraph, is less than half the total number of directors.
Operational requirements

1051(4)  
The operational requirements are that:


(a) the complaints mechanism under the scheme is appropriately accessible to persons dissatisfied with members of the scheme; and


(b) complaints against members of the scheme are resolved (including by making determinations relating to such complaints) in a way that is fair, efficient, timely and independent; and


(c) appropriate expertise is available to deal with complaints; and


(d) reasonable steps are taken to ensure compliance by members of the scheme with those determinations; and


(e) under the scheme, determinations made by the operator of the scheme are:


(i) binding on members of the scheme; but

(ii) not binding on complainants under the scheme; and


(f) for superannuation complaints, there are no limits on:


(i) the value of claims that may be made under the scheme; or

(ii) the value of remedies that may be determined under the scheme.

Note: The complaints may be complaints relating to superannuation or complaints relating to other financial services. Division 3 includes additional provisions relating to superannuation complaints.

Compliance requirements

1051(5)  
The compliance requirements are that:


(a) the operator of the scheme is to ensure that the following are complied with:


(i) conditions of the authorisation of the scheme specified under paragraph 1050(5)(b) ;

(ii) regulatory requirements issued under section 1052A ;

(iii) directions given under section 1052B , 1052BA or 1052C ;

(iv) the requirements of section 1052E ; and


(b) material changes to the scheme are not to be made without the approval of ASIC under section 1052D .


 

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