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22-260MR ASIC publishes updated and expanded remediation guidance
Over the past six years ASIC has overseen at least $5.6 billion in remediation for an estimated seven million Australian consumers for failures identified across the financial system. Around a further $1.6 billion is yet to be paid to an estimated 2.7 million consumers in remediations ASIC is currently monitoring.
To help financial firms remediate their customers quickly and effectively, ASIC has today published updated and expanded regulatory guidance.
ASIC Deputy Chair Karen Chester said, ‘Our guidance puts the onus on industry to get on with fair and timely remediations – returning the money they owe to wronged consumers.’
Regulatory Guide 277 Consumer remediation (RG 277) applies to both Australian Financial Services (AFS) licensees (including superannuation trustees) and Australian credit licensees (licensees). It is underpinned by licensees’ legal obligation to operate efficiently, honestly and fairly and it embodies ASIC’s practical experience from monitoring remediations. ASIC has responded to industry requests for advice and clear guidance on remediations drawing on six years of oversight experience. The guide has been subject to an extensive two-year public consultation process with consumer and industry stakeholders.
‘To date ASIC has needed to oversee large scale remediations to ensure affected consumers were treated fairly and received the compensation they were entitled to,’ said Ms Chester.
Two large scale remediation programmes ASIC has provided oversight to over the past six years are:
- remediation for fees for no service misconduct or non-compliant advice, which has seen payments or offers of $3.6 billion in compensation to over 1.4 million consumers; and
- remediations in the insurance industry totalling more than $1.3 billion for mis-selling junk insurance, failing to deliver on price discount promises and poor sales practices.
As at June 2022, ASIC was monitoring 36 remediation activities across superannuation, advice, credit and banking and insurance whereby $3.25 billion has been paid or offered to over 3.4 million consumers, and a further estimated $1.6 billion is yet to be returned to around 2.7 million consumers.
‘The release of our expanded guidance, along with the updated Making it right field guide, delivers licensees all they need to achieve the right remediation outcomes on their own. It explicitly allows the use of assumptions, to help firms address knowledge gaps and accelerate remediation programs in a way that does not disadvantage consumers,’ said Ms Chester.
‘Licensees must also do better at identifying and remediating problems earlier to avoid the costly lag and drag of remediation. The common stumbling block we have seen across remediations is underinvestment in systems. This underinvestment has led to a trifecta of failures. First and foremost, in delivering on promises to consumers, second in identifying the failures and third in being able to remediate consumer loss in a timely way,’ added Ms Chester.
‘Going forward, while ASIC may need to intervene in some isolated cases, we cannot and should not oversee remediations in order for consumers to receive fair and timely outcomes,’ concluded Ms Chester.
ASIC expects to see industry applying the updated guidance to all new remediations going forward.
In addition to RG 277, ASIC has released an updated version of Making it right: How to run a consumer centred remediation, a best practice field guide that helps licensees with the day-to-day design and execution of consumer-centred remediations. The updates focus on encouraging licensees to be more transparent about their remediations.
ASIC has also published Report 737 Response to submissions on CP 350 Consumer remediation: Further consultation (REP 737).
RG 277 Consumer remediation
RG 277 is comprehensive and allows licensees to scale and tailor their remediations to fit the circumstances. RG 277 (among other things):
- clarifies the nine principles for conducting a remediation, which will help licensees comply with their obligations and conduct remediations efficiently, honestly and fairly;
- provides 28 examples to assist in the practical application of the guide;
- introduces guidance on the use of assumptions;
- introduces updated product specific guidance on possible monetary and non-monetary remedies;
- updates guidance on the use of a low value compensation threshold and payment channels; and
- introduces guidance on what to do if a consumer cannot be contacted or paid.
RG 277 also helps licensees understand how remediation interacts with other obligations (for example, internal dispute resolution and other general licensing obligations).
- Regulatory Guide 277 Consumer remediation (RG 277)
- Report 737 Response to submissions on CP 350 Consumer remediation: Further consultation (REP 737)
- Making it right: How to run a consumer centred remediation
In 2016 ASIC published RG 256, designed primarily to address poor quality advice and fees for no service misconduct. RG 256 will continue to apply to these existing remediation programs.
The first consultation on updates to RG 256 was published in December 2020 through Consultation Paper 335 Consumer remediation: Update to RG 256 (CP 335). Consultation paper 350 Consumer remediation: Further consultation (CP 350) followed in November 2021, which released the draft updated regulatory guide for further consultation.
The development of RG 277 was informed by extensive consultation with industry representatives, licensees, consumer groups, consultants and other regulators. ASIC received 64 submissions over two stages of public consultation and conducted deep dive one-on-one workshops with over 20 external stakeholders.
The guidance is underpinned by the general obligations on AFS licensees and credit licensees to do all things necessary to ensure the financial services or credit activities covered by the licence are provided efficiently, honestly and fairly (civil penalty provision), and the requirements to have compensation arrangements in place.