The Legal Aid Commission of NSW appreciates the opportunity to make submissions to the Task Force on Industry Self- Regulation.

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1 16 December 1999 Mr D Richardson Taskforce on Industry Self-Regulation Consumer Affairs Division The Treasury Parkes Place PARKES ACT 2600 Dear Sir RE: SUBMISSION BY THE NSW LEGAL AID COMMISSION The Legal Aid Commission of NSW appreciates the opportunity to make submissions to the Task Force on Industry Self- Regulation. The NSW Legal Aid Commission is a statutory body established under the Legal Aid Commission Act 1979 to provide legal aid and other legal services to disadvantaged people in New South Wales. It is the largest legal aid agency in Australia. The Commission's role is to assist socially and economically disadvantaged people to understand and protect their rights. The Commission provides free legal advice and minor assistance at its head office in Sydney city, as well as at 18 regional offices and numerous advice clinics located in various metropolitan and country centres. In the Commission provided over 20,000 advice and minor assistance interviews in civil matters, as well as acting for a large number of individual clients. The Commission's submission is based on the experience of the consumers who have approached it for advice, its representation of consumers to ADR schemes in the financial services area, and the participation of staff members in various capacities within the ADR schemes and in consultations with industry bodies and members. Any further inquiries with respect to this Submission can be addressed to Christian Mikula, Solicitor - General Law Branch, Legal Aid Commission (NSW). His contact details are: PO Box K847 HAYMARKET NSW 1238 Phone: (02) Fax: (02) Christian.Mikula@legalaid.nsw.gov.au Yours sincerely MANAGING DIRECTOR CENTRAL SQUARE 323 CASTLEREAGH ST SYDNEY 2000 PO BOX K847 HAYMARKET 1238 DX 5 SYDNEY...."I (02) FAX: (02) TTY: (02) LEGALHELPLINE o? -. WE HAVE ACCREDITED SPECIALISTS IN THE AREAS OF FAMILY LAW, CRIMINAL LAW, MEDIATION, ADVOCACY AND PERSONAL INJURY LAW

2 ON by the Legal Aid Commission of NSW December 1999

3 1 This submission does not address all the matters raised by the Task Force in its Issues Papers. Rather it will focus on a number of key areas which the Commission considers need to be addressed if self-regulation is to work effectively for consumers. 1. Enforcement of Codes The Commission regards it as essential that any self-regulatory or co- regulatory scheme must deliver enforceable rights to consumers. This tenet is central to the ultimate effectiveness of any such schemes, as otherwise they will: fail to empower consumers. not encourage industry members to improve their performance or conduct, as a result of the identification of organisational weaknesses. be a financial burden to industry without providing savings through identification of problem areas or resolution of complaints outside the court process. There are two different issues concerning the enforceability of codes: 1.1 Mat is the Legal Status of Codes? Codes of Practice are generally not regarded as providing enforceable rights to consumers'. There are two main reasons for this. First, typically, the consumer has entered into a detailed contract with the industry member in respect of the provision of goods or services. Unless this contract specifically refers to and incorporates any Code of Practice, the Courts will be reluctant to interpret the Code as conferring additional rights to those under the contract Secondly, the language of Codes tends to be in broad terms, and this militates against a finding that they are enforceable by consumers. For example, the NSW Court of Appeal, in its decision in John Murphy and Others v Overton Investments and Anor 2, had to determine whether or not the 1989 and the 1995 Retirement Villages Industry Codes of Practice gave personal rights to the residents of retirement villages, enforceable ultimately in court At page 18 Fitzgerald AJA held: 'When attention is directed to the "'rights and obligations" for which the 1995 Code provides, they are generally expressed in the broad language of policy objectives rather than the more precise terminology suited to a contractual relationship. Thus, for example, there are references to ""good practice for fair dealing". "inherent flexibility A distinction is made between Codes of Practice and dispute resolution schemes set up by industries, as generally a decision by the scheme is binding on the industry member. 2 Unreported decision of 3 September 1998 (File CA 40045/98;EQD).

4 2 For this and other reasons, the NSW Court of Appeal found that the 1989 and 1995 Codes did not give residents additional rights to those in their lease. The Commission considers there is little benefit for industry and consumers in investing substantial time and resources establishing Codes of Practice that are not enforceable. It should not be assumed that all industry members will embrace the Code willingly. Indeed, experience shows that Codes will be ignored by recalcitrant industry members. Any Code which is not binding will ultimately lose credibility with consumers, industry and government Case Study 1: Rural & General and Insurance Enquiries and Complaints When the IEC was established, there was no mechanism to enforce decisions of the Claims Review Panel. In 1996 Rural & General refused to comply with Determinations of the Panel in favour of the consumer. It was necessary for the Federal Government to amend the Insurance Act 1973, to make it a penalty for a general insurance company not to be a member of the IEC. This case study shows that generally industry associations (or the bodies they establish to run Codes of Practice) cannot be expected to take action against industry members, except by way of peer suasion. A self-regulatory scheme, without some government backing or capacity for consumers to enforce, therefore runs the risk of being counter-productive, and leading to a need for a greater degree of regulation in the future. Case Study 2: Aboriginal Community Benefit Fund Pty Ltd and the Code of Practice for Advising, Selling and Complaints Handling in the Life Insurance Industry The Code of Practice for Advising, Selling and Complaints Handling in the Life Insurance Industry places obligations on life insurance companies to, inter alia, ensure that life insurance products are suitable for the needs of the policyholders. The Code does not have any statutory basis yet, pending the passage of the Choice of Superannuation Funds (Consumer Protection ) Bill 1999, and therefore currently operates on, in substance, a voluntary basis. However, despite the introduction of the Code in 1995, there has been a recent instance of systemic misselling practices to aboriginal communities in the Northern Territory. A mainstream life insurer packaged products which were sold by two companies, Aboriginal Community Benefit Fund Pty Ltd and Aboriginal Community Benefit Fund No. 2 Pty Ltd. These corporations used the Aboriginal logo without official authorisation to promote the sale of these products. Investigation by the Australian Securities and Investments Commission also found that many consumers did not understand the nature of the transaction (for example, they assumed they were making deposits into a bank for future use, or that they were signing documents enabling their children to receive benefits when in fact they were taking out insurance

5 3 policies for their children)3. ASIC obtained consent Orders against the corporations in the Federal Court on 24 September 1999, which led to refunds being offered to many aboriginals. This case study shows that there is still a need for greater protection of consumers, by having in place effective sanctions to act as a continuing deterrent. Standards of conduct that do not have the force of law can be more readily flouted by fringe industry members. It is important that any self- regulatory or co-regulatory scheme does not assume adherence to a Code win occur through a level of goodwill or co-operation by all industry members, as this will not always be the case. 1.2 Lack of Specific Rights As noted above, industry Codes are often expressed in broad language. This can be the result of the way in which they are drafted; industry bodies are required to placate a membership with differing degrees of commitment to the new level of regulation created by a Code. Assuming that a Code is otherwise legally enforceable, its content may be such that it does not give consumers any effective rights or establish detailed or specific standards of conduct for the industry member Case Study: The General Insurance Code of Practice When the General Insurance Code of Practice was first circulated for comment by the then Insurance and Superannuation Commission, it was criticised by a number of bodies, including the Law Society of NSW, for being a "non-code" because it failed to offer a detailed best practice code that was precise and specific, or provided objective standards against which to measure the performance of the members. The only sanction provided by the Code was for an industry member to be named for noncompliance in the Code Compliance Commmittee's Annual Report'. As an example of the limitations of the Code, recently, in the course of advising a number of consumers, the Commission has had great difficulty obtaining information from one particular insurer. In one case, the Commission has written requesting information since July 1999, and in the other since August As at early December 1999, no reply has been received. The matter has been raised with the Code Compliance Committee, which has advised that there is no provision of the Code - either general or specific - that requires insurance companies to reply to correspondence. These limitations have been recognised. in the 1998 review of the Code, which resulted in a number of recommendations that were more precise in their 3 ASIC Press Release 99/341. 4This sanction was no disincentive to Rural & General which was named twice in successive Annual Reports of the Committee.

6 4 language. For example, Recommendation 14 of the 'Formal Review of the General Insurance Code of Practice' is: "'That ICA and IEC Ltd in consultation with the Australian Insurance Institute etc give consideration to developing a benchmark standard to improve training programs where appropriate. Such a standard may consist of a mixture of good insurance practice, various laws, policy content and general skills such as those contained in competencies."5 2. Effective Internal Dispute Resolution Procedures The establishment of effective Internal Dispute Resolution (IDR) procedures by industry members, within a self-regulatory or co-regulatory structure, is a litmus test of the commitment of the member to high standards of quality control and customer service. Any self-regulatory or co-regulatory scheme must allow for the establishment of IDR procedures and for the monitoring and improvement of such processes. Some publicly acknowledged aspects of effective IDR processes are: information and publicity to consumers about the existence and operation of the IDR scheme. clear entry points for complaints. complaints are used to identify areas where the member is failing and those errors are remedies. the industry member advises the consumer of the existence, procedures and scope of the external Alternative Dispute Resolution scheme, if the consumer is not satisfied in whole or in part with the outcome of the internal complaints mechanism6. Case Study: Ineffective IDR Procedures - the Telecommunications Industry One of the indicators of an effective IDR scheme is that where there is referral of complaints to an external body, a majority of those complaints should be resolved in favour of the industry member. This is because the member should gain experience in identifying complaints where it has done the wrong thing, and so be able to resolve these as early as possible to reduce costs (both from the continued handling of the file and the imposition of fees levied by the ADR scheme on the member). A comparison of the decisions of the Telecommunications Industry Ombudsman (TIO) with those of the life insurance scheme (the FICS) and the 5 This is to be contrasted with the current wording of the Code. For example, Clause 3.5 (b) provides that "Insurers shall provide adequate training to employees having regard to the employee's role and responsibility. " 6 Benchmarks for Industry-Based Customer Dispute Resolution Schemes, Benchmark 1 - Accessibility, paragraph 1.5.

7 5 general insurance scheme (the IEC) over the last three years shows that the level of decisions in favour of industry members is vastly lower. Decisions of IDR Schemes in Favour of Industry Member TIO FICS IEC Figures are taken from the Annual Reports of the schemes. The figures for the FICS are for the calendar years Decisions in favour of the TIO member are less than 20%. These figures reflect an industry where IDR procedures are not working properly, in that the members are not being responsive to criticism of their conduct. This is consistent with the experience of Commission staff in acting for individuals who have disputes with telecommunications companies. The number and range of complaints from consumers, financial counsellors and community legal centres has increased significantly in the last twelve months, There are a number of problems with the way in which companies handle complaints, including: no entry point for complaints. multiple handling (the Commission has one client whose matter is being handled by the service provider in Sydney, a debt collection agency in Western Australia, and a solicitor for the service provider in Victoria). a failure to understand legal arguments (for example, as to the effect of breaches of the door-to-door legislation). failure by staff members to give names or to give full names. failure to reply to correspondence or to address issues raised in correspondence. a failure to refer people to the TIO if their complaint is not upheld by the IDR scheme. In relation to the last point, the Commission considers it is of the utmost importance that industry members be obliged to advise consumers of the existence of ADR schemes. IDR staff are inevitably under institutional and

8 6 economic pressures to reject complaints. The intervention and scrutiny of an outside party acts as a balance to those pressures. The Commission, despite having handled numerous matters with a number of different telecommunications service providers, has never had a client advised of the right to seek review by the TIO. Attached to this submission are a number of letters from different service providers, as examples of the practice within the industry of not advising the consumer of the possibility of the TIO reviewing the company's decision. It is also noted that the recent report by the Communications Law Centre, Mobil- Matters, found an under-recognition by young people aged 16 to 21 of avenues of complaint in the telecommunications industry7. The Commission considers that if consumers were properly advised of the existence and function of the TIO the level of decisions in favour of industry members would be even less than the very low level it already is. Any Code of Conduct needs to have in place some mechanism that. allows for the effectiveness of IDR schemes to be effectively monitored. 3. Resourcing of Consumers As noted in Grey-Letter Lazv: Report of the Commonwealth Interdepartmental Committee on Quasi-Regulation, there needs to be effective resources provided to consumer groups to participate: * in the drafting of Codes of Practice (and subsequent reviews of the Codes) * in the bodies responsible for overseeing the Code. These activities are labour intensive. It also takes considerable time for individuals to become conversant with the history, structure and politics of particular industries. If self-regulatory or co-regulatory schemes are to work properly and deliver the benefits envisaged, there needs to be effective participation of consumer representatives and, therefore, a commitment by government to properly resourcing those representatives. 4. Current Gaps in Self-Regulation 4.1 Unfair Sales of Consumer Credit Insurance Policies Since 1987, with the release of the report, "31 Cents in the Dollar", by the Australian Financial Counselling and Credit Reform Association, the market for the sale of consumer credit insurance policies financed on credit contracts has been recognised as one where consumers are routinely subject to misleading and deceptive sales tactics At present, consumers can complain 7 44 % of respondents were aware of the Office of Fair Trading in their state, only 23 % were aware of the TIO, and 18 % knew about consumer counselling services or legal services which might help them.

9 7 with respect to the forced sale of consumer credit life insurance policies to the FICS. However, the EEC does not have jurisdiction to hear complaints about the unfair or forced sale of consumer credit insurance policies by general insurers. This covers sickness and disability and unemployment insurance policies. This situation is anomalous8. This was recognised in the ACCC's 1998 report 'Consumer Credit Insurance Review'. Recommendation of the ACCC's report was that the IEC should: "extend the jurisdiction of the General Insurance Claims Review Panel to include disputes about an insurer's agent's sales or marketing practices with regard to CCI products." Given the long history of complaints in this area, and the fact that the FICS can hear complaints in this area, the Commission considers that the EEC's jurisdiction should be expanded to deal with these types of complaints. 4.2 Insurance Companies That Are Not Members of the IEC Pursuant to Section 113 of the Insurance Act 1973 insurance companies are only required to be members of the IEC if they offer for sale certain types of insurance polices. Mobile phone insurance is not included among the prescribed types of insurance. Accordingly, those insurance companies that only provide mobile phone insurance are not required to be members of the IEC. An example of such a company is Optus Insurance Pty Ltd, which is not a member of the IEC. For the reasons covered previously in this submission, with respect to the need for consumers to have enforceable rights, membership of the IEC should be mandatory for all general insurers. 4.3 Proliferation of Schemes Within the Credit Union Sector The credit unions have three ADR schemes. The proliferation of schemes is undesirable. It leads to a duplication of costs, and confusion for consumers. It also has the potential for members to seek out the scheme which they perceive will be most sympathetic to them. The ADR schemes also have a restricted ability to address failings both by the industry and by individual members. For example, the Annual Report of the Credit Union Dispute Reference Centre does not have any comments on issues identified through the complaints process, unlike the Annual Reports of other schemes. 8 The anomaly is greater when it is recognised that the same transaction can involve the forced sale of credit life and unemployment and sickness and disability insurance. The consumer can only seek relief through an ADR scheme in respect of the credit life aspect of the transaction.

10 8 Any further inquiries with respect to this Submission can be addressed to Christian Mikula, Solicitor - General Law Branch, Legal Aid Commission (NSW). His contact details are: PO Box K847 HAYMARKET NSW 1238 Phone: Fax: (02) (02) Christian.Mikula@legalaid.nsw.gov.au