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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97-98
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Life Insurance (Conduct
and Disclosure) Bill 1998
No. ,
1998
(Treasury)
A Bill for
an Act relating to the conduct of, and the disclosure of information by, life
companies, life brokers and life insurance advisers, and for related
purposes
Contents
A Bill for an Act relating to the conduct of, and the
disclosure of information by, life companies, life brokers and life insurance
advisers, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Life Insurance (Conduct and Disclosure)
Act 1998.
(1) Sections 1, 2 and 15 of this Act commence on the day on which this Act
receives the Royal Assent.
(2) Schedule 1 commences:
(a) at the same time as section 3 of this Act, if Schedule 1 to the
Financial Sector Reform (Amendments and Transitional Provisions) Act 1998
commences on or before that section; or
(b) immediately after Schedule 1 to the Financial Sector Reform
(Amendments and Transitional Provisions) Act 1998, if that Schedule
commences after section 3 of this Act.
(3) Subject to this section, Schedule 2 and the remaining provisions of
this Act commence on a day to be fixed by Proclamation.
(4) Subject to subsection (5), if Schedule 2 and the remaining provisions
of this Act do not commence under subsection (3) within the period of 6 months
beginning on the day on which this Act receives the Royal Assent, they commence
on the first day after the end of that period.
(5) Schedule 2 does not commence unless it does so before Schedule 1 to
the Financial Sector Reform (Amendments and Transitional Provisions) Act
1998.
(1) The main object of this Act is to ensure that, as far as possible,
owners, and prospective owners, of life insurance policies, and beneficiaries
and prospective beneficiaries of certain group policies, receive sufficient
relevant and accurate information to enable them to make informed choices
relating to life insurance.
(2) The means adopted to achieve this object include the
following:
(a) imposing on life companies and life brokers obligations relating to
their conduct, and the conduct of their respective life insurance advisers, in
relation to the giving of life insurance advice;
(b) imposing on life companies obligations relating to the production and
provision of information about their life policies;
(c) imposing on life insurance advisers obligations relating to the
provision of information, and the form in which life insurance advice must be
given.
(1) In this Act, unless the contrary intention appears:
agent has the meaning given in section 5.
ASIC means the Australian Securities and Investments
Commission.
associate, in relation to a life insurance adviser,
means:
(a) a person who is in partnership with the adviser in the conduct of life
insurance business; or
(b) an agent of a life company, or of a life broker, being an agent who
employs the adviser; or
(c) an agent of a life company, or of a life broker, being an agent of
whom the adviser is an agent; or
(d) a person with whom the adviser is acting, or proposes to act, in
concert in relation to the giving of life insurance advice in the conduct of
life insurance business; or
(e) a trustee of a trust in relation to which the adviser benefits, or is
capable of benefiting; or
(f) a director of a life company, or of a life broker, of which the
adviser is also a director.
Code means the Code of Practice for the Life Insurance
Industry.
disclosure rules means regulations containing provisions of
the kind mentioned in section 18.
disclosure statement means a statement that is in accordance
with section 27 or 37, as the case requires.
group member means a member of a group scheme.
group policy means a life policy under a group
scheme.
group scheme means:
(a) a group superannuation scheme whose members are beneficiaries of a
group policy under the scheme; or
(b) a group insurance scheme whose members are beneficiaries of a group
policy under the scheme.
life broker means a person registered under Part III of the
Insurance (Agents and Brokers) Act 1984 in respect of life insurance
business.
life insurance advice means a recommendation, whether
expressed or implied:
(a) that a person should enter into, vary, continue or discontinue, a life
policy; or
(b) that a person become, remain or stop being, a group member;
or
(c) that a person vary the benefits to which that person is entitled as a
beneficiary under a group policy.
Note: See section 8 in relation to implied
recommendations.
life insurance adviser means:
(a) a life insurance adviser of a life company within the meaning of Part
3; or
(b) a life insurance adviser of a life broker within the meaning of Part
4.
life policy includes a sinking fund policy, but otherwise has
the same meaning as it has in the Life Insurance Act 1995: it does not,
however, include a life policy or a sinking fund policy of a prescribed
kind.
promotional material means any document or advertisement
(whether or not produced or provided in accordance with the disclosure rules)
that contains statements that might affect a person’s decision to engage
in a life insurance activity.
staff member has the same meaning as in the Australian
Securities and Investments Commission Act 1989.
sub-agent, in relation to a life company or a life broker,
means an agent of a person (whether a natural person or a body corporate) who is
an agent of the company or broker.
this Act includes the regulations.
(2) Unless the contrary intention appears, a word or expression used in
this Act has the same meaning as it has in the Life Insurance Act
1995.
For the purposes of this Act, a person is taken to be an agent of another
person if a written or oral agency agreement is in force between the person and
the other person.
For the purposes of this Act, a life company issues promotional material
if the company, or a person acting for it or on its behalf:
(a) publishes the material by any means (including by the use of the
internet, or by radio or television, or by the use of other electronic
equipment), or causes it to be so published; or
(b) gives or transmits the material to another person by any means
(including by the use of the internet or of facsimile or other electronic
equipment), or causes it to be so given or transmitted, for the purpose of
inviting or encouraging the person to make a decision to engage in a life
insurance activity.
(1) For the purposes of this Act, a person is taken to engage in a life
insurance activity if the person:
(a) enters into, varies, continues or discontinues, a life policy;
or
(b) becomes, remains or stops being, a group member; or
(c) varies the benefits to which the person is entitled as a beneficiary
under a group policy.
(2) For the purposes of this Act, a person who becomes, remains or stops
being, a group member is taken to engage in a life insurance activity relating
to the group policy under the scheme.
For the purposes of this Act, a person is not taken to make an implied
recommendation that another person engage in a life insurance activity merely
because the person gives the other person an analysis of, or a report on, a life
policy or life policies in general, without an analysis of the other
person’s particular needs and financial situation.
Without prejudicing its effect apart from this section, this Act also has
the effect it would have if each reference to a company were, by express
provision, confined to a company that is a corporation to which paragraph 51(xx)
of the Constitution applies.
This Act does not apply with respect to State insurance that does not
extend beyond the limits of the State concerned.
This Act extends to Norfolk Island.
ASIC has the general administration of this Act.
Chapter 2 of the Criminal Code applies to all offences against
this Act.
This Act does not affect the operation of the Life Insurance Act
1995, the Insurance (Agents and Brokers) Act 1984 or the Trade
Practices Act 1974.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
This Part contains provisions:
(a) requiring life companies to provide owners and prospective owners of
life policies, and group members and prospective group members of certain group
schemes, with the information they reasonably require to enable them to make
properly informed decisions whether to engage in certain life insurance
activities; and
(b) providing appropriate redress for people who suffer loss or damage as
a result of relying on information that is false or misleading, or from which
there are material omissions.
(1) Subject to subsection (2), a life company must ensure that, as far as
reasonably practicable:
(a) owners and prospective owners of life policies issued by the company
receive the information they reasonably require to enable them to make informed
decisions whether to engage in a life insurance activity relating to any of
those life policies; and
(b) group members and prospective group members receive the information
they reasonably require to enable them to make informed decisions whether to
engage in a life insurance activity relating to a group policy issued by the
company; and
(c) there are no material omissions from the information, and it is not
false or misleading in a material particular.
(2) Paragraph (1)(b) does not apply in relation to a group scheme included
in a prescribed class of group schemes.
(1) The regulations may make provision relating to the production and
provision of information by life companies about life policies issued by
them.
Note: Regulations of the kind mentioned in subsection (1)
are called disclosure rules (see subsection
4(1)).
(2) Without limiting subsection (1), disclosure rules may include
provisions:
(a) requiring a life company to produce specified kinds of information
about some or all of the life policies issued by it; and
(b) specifying the form in which, and the times or stages at which, a life
company must provide the information to the owners or prospective owners of
those life policies; and
(c) requiring a life company to keep such records relating to the
production or provision of the information, or both, as are prescribed by the
rules; and
(d) requiring a life company to lodge with ASIC documents used in
particular cases for the purposes of the rules.
(3) The requirements of the disclosure rules are in addition to, and do
not limit, section 17.
(1) If it appears to ASIC that a life company has, by an act or omission,
contravened section 17, or a provision of the disclosure rules, ASIC may give
the company a written notice:
(a) informing the company that ASIC is considering giving the company a
direction under this section; and
(b) setting out particulars of the act or omission, and the provision
alleged to have been contravened; and
(c) inviting the company to make submissions to ASIC on the question
whether a direction under this section should be given; and
(d) specifying the period within which the submissions must be given to
ASIC.
(2) The specified period must be a period of at least 14 days, starting
on the day when the notice is given.
(3) ASIC may give a written direction to the life company if:
(a) the period specified in the notice has expired; and
(b) after considering the submissions (if any) made by the company, ASIC
is satisfied that the company has contravened section 17, or the provision of
the disclosure rules, as the case may be, by the act or omission specified in
the notice.
(4) The direction may:
(a) require the company not to do a specified act; or
(b) require the company to do a specified act.
(5) The direction takes effect:
(a) on the day specified in the direction; or
(b) if no day is so specified—on the day on which the direction is
given to the company.
(6) A life company is guilty of an offence if:
(a) it does, or fails to do, an act; and
(b) doing, or failing to do, the act results in a contravention of a
direction (including a direction as varied) given to it under this
section.
Penalty: 300 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) If ASIC thinks that a direction given to a life company under section
19 is no longer required or should be varied, ASIC must, by written notice given
to the life company, revoke or vary the direction.
(2) If a life company to which a direction has been given asks ASIC, in
writing, to revoke or vary the direction, ASIC must:
(a) if ASIC thinks that the direction is no longer necessary or should be
varied—revoke or vary the direction; or
(b) in any other case—refuse to revoke or vary the
direction.
(3) ASIC must give to the life company written notice of a decision made
under subsection (2).
(1) If it appears to ASIC that:
(a) promotional material issued by a life company contains information
that is false or misleading in a material particular; or
(b) there is a material omission from any such promotional
material;
ASIC may, by written order (a stop order) given to the
company, direct the company not to issue the promotional material while the stop
order is in force.
(2) A stop order:
(a) comes into force when it is made, or, if a later time is specified in
the order as the time when the order comes into force, at that later time;
and
(b) remains in force until it is revoked.
(3) A life company is guilty of an offence if:
(a) it issues promotional material; and
(b) the issuing of the material results in a contravention of a stop order
that is in force.
Penalty: 300 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) If:
(a) a person engages in a life insurance activity relating to a life
policy issued by a life company; and
(b) the person engages in that activity in reliance on
information:
(i) provided to the person by the company; or
(ii) contained in promotional material issued by the company;
and
(c) the information is false or misleading in a material particular, or
there is a material omission from the information; and
(d) the person suffers loss or damage as a result of engaging in that
activity in reliance on the information;
the person may recover the amount of the loss or damage by action in a
court of competent jurisdiction against a person or persons liable in respect of
the loss or damage.
(2) The following persons are jointly and severally liable in respect of
the loss or damage referred to in subsection (1):
(a) the life company;
(b) the persons who were directors of the life company when the
information was provided to the person, or the promotional material was issued,
as the case may be.
(3) In addition to other relief granted in an action under subsection (1),
the court, if it thinks it necessary in order to do justice between the parties,
may:
(a) make an order declaring a life policy (other than a group policy) to
be void; and
(b) if it makes an order under paragraph (a), make a further order
directing the defendant or defendants to pay to the plaintiff an amount equal to
the amount paid by the plaintiff to the company in connection with the policy,
including interest on that money.
(4) A person other than a life company is not liable in an action referred
to in subsection (1) if the person proves that:
(a) the false or misleading statement or the omission was due to
reasonable reliance on information or advice given by another person;
or
(b) the omission was due to a mistake; or
(c) the information was provided, or the promotional material was issued,
without the person’s knowledge;
and the person took reasonable steps and exercised due diligence to ensure
that all information provided by the company, or contained in promotional
material issued by it, was true and not misleading and that there were no
material omissions from the information.
(5) In paragraph (4)(a):
another person does not include a person who was a director,
employee or agent of the defendant when the information was provided.
(6) A person is not liable in an action referred to in subsection (1) to a
person who suffered loss or damage as a result of engaging in a life insurance
activity in reliance on information that was false or misleading, or from which
there was an omission, if it is proved that, when the last-mentioned person
engaged in the activity, that person knew that the information was false or
misleading, or was aware of the omitted matter.
(1) If the Court is satisfied that a life company has issued promotional
material in or in connection with any of the company’s life policies, and
that:
(a) the material contains information that is false or misleading in a
material particular; or
(b) there is a material omission from the material;
the Court may make an order or orders under this section.
(2) The Court may only make an order under subsection (1) on the
application of ASIC.
(3) The Court may make either or both of the following orders:
(a) an order requiring the life company to disclose, at the
company’s expense and in the manner specified in the order, specified
information to the public, or to a specified person or persons;
(b) an order requiring the company to issue, at the company’s
expense and in the manner specified in the order, promotional material whose
terms are specified in, or are to be determined in accordance with, the
order.
(4) An order referred to in paragraph (3)(a) must specify:
(a) the information or kind of information required to be disclosed by the
order, being information that is:
(i) in the possession of the company; or
(ii) to which the company has access; and
(b) in the case of information required to be disclosed to specified
persons—the persons or the particular class of persons to whom the
information must be disclosed.
(5) This section does not limit section 63.
(1) If:
(a) a life company provides a person with prescribed information;
and
(b) the life company does so knowing that the information is false or
misleading in a material particular, or there is a material omission from the
information;
the life company is guilty of an offence.
Penalty: 300 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) If:
(a) a life company provides a person with prescribed information;
and
(b) the life company does so reckless as to whether the information is
false or misleading in a material particular, or there is a material omission
from the information;
the life company is guilty of an offence.
Penalty: 150 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) In this section:
prescribed information means information provided to a person
by a life company about all or any of the following:
(a) the benefits that would or may be available to the person or to anyone
else if a life policy were issued to the person by the company, or if the person
became a beneficiary under a group policy issued by the company;
(b) the circumstances under which those benefits would or may be so
available;
(c) the premium or premiums that would be payable in respect of such a
life policy;
(d) the obligations to which the person would or may be subject if a life
policy were issued to the person by the company, or if the person became a
beneficiary under a group policy issued by the company.
This Part contains provisions governing the conduct of life companies and
their life insurance advisers in relation to the giving of certain insurance
services, including in particular the giving of life insurance advice.
In this Part:
exempt person means a person included in a class of persons
declared by the regulations to be exempt from this Part.
life insurance adviser, in relation to a life company,
means:
(a) a natural person (other than an exempt person or a life broker
referred to in paragraph (b)) who is an agent or a sub-agent of the life
company, whether or not the person is authorised to give life insurance advice
by or under the terms of his or her agency agreement; or
(b) a natural person (other than an exempt person) who is a life broker,
but who does anything to which this Part applies in the course of acting as an
agent or a sub-agent of the life company, whether or not the person is
authorised to give life insurance advice by or under the terms of his or her
agency agreement; or
(c) a natural person (other than an exempt person) who is an employee of
the life company, whether or not the person is authorised to give life insurance
advice by or under the terms of his or her employment; or
(d) any other natural person (other than an exempt person) who is
authorised to give life insurance advice by the life company, or by or under the
terms of his or her employment by an agent or sub-agent of the life company, or
who gives such advice while ostensibly acting within the scope of such an
authorisation.
(1) A life insurance adviser of a life company who offers, or is asked to
give, a person (the client) an insurance service in relation to a
life policy or life policies issued by the life company must, as soon as
practicable after the adviser’s first contact with the client, give or
send to the client a written disclosure statement containing the prescribed
particulars.
(2) Subsection (1) does not apply in relation to a client who has
previously received a disclosure statement from the adviser, unless the
particulars set out in that disclosure statement are no longer accurate or
complete.
(3) A person is guilty of an offence if:
(a) the person fails to do an act; and
(b) failing to do the act results in a contravention of subsection
(1).
Penalty: 200 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(4) In this section:
insurance service, in relation to a life policy or life
policies, means any service or advice about, or connected with, the policy or
policies (including life insurance advice within the meaning of this Act), but
does not include any service or advice of a kind declared by the regulations to
be a service or advice to which this section does not apply.
(1) A life insurance adviser of a life company who gives life insurance
advice to a person who may reasonably be expected to rely on it must ensure that
the advice meets the requirements of this section.
(2) An advice must be in writing.
(3) The document containing the advice must also set out:
(a) the name and business address of the life insurance adviser;
and
(b) such other particulars as are prescribed; and
(c) the basis on which the advice is given.
(4) The document containing the advice must also set out details
of:
(a) any benefit or advantage, whether pecuniary or not and whether direct
or indirect, that the adviser or an associate of the adviser has received, or
will or may receive, in connection with the giving of the advice or the issue of
a life policy to the person to whom the advice is given; and
(b) any other pecuniary or other interests, whether direct or indirect, of
the adviser or an associate of the adviser that may reasonably be expected to be
capable of influencing the adviser in giving the advice.
(5) Subsection (3) does not apply to life insurance advice in respect of a
life policy, or a kind of life policy, prescribed for the purposes of this
subsection.
(6) Subsection (4) does not apply:
(a) in relation to any fees or commissions that the life insurance adviser
has received directly, or will or may receive directly, from the person to whom
the advice is given; or
(b) to life insurance advice in respect of a life policy, or a kind of
life policy, prescribed for the purposes of this paragraph.
(7) The material that must be included in a document under subsection (3)
or (4) must be in writing that is not less legible than the other material in
the document.
(1) A life insurance adviser of a life company who gives life insurance
advice to a person who may reasonably be expected to rely on it must have a
reasonable basis for giving the advice to the person.
(2) For the purposes of subsection (1), a life insurance adviser does not
have a reasonable basis for giving life insurance advice to a person
unless:
(a) having regard to the person’s objectives, financial situation
and particular needs, the adviser has given such consideration to, and conducted
such investigation of, the subject matter of the advice as is reasonable in all
the circumstances; and
(b) the advice is based on that consideration and investigation.
(3) Subsection (1) does not apply to life insurance advice in respect of a
prescribed life policy, or kind of life policy.
(1) A life company is guilty of an offence if:
(a) the life company issues a life policy to, or varies a life policy at
the request of, a person (the client); and
(b) the client has received life insurance advice in respect of the life
policy from a life insurance adviser of the company; and
(c) the advice does not meet the requirements of section 28, or the person
who gave the advice contravened section 29 in giving the advice; and
(d) the client has not indicated in writing to the company that he or she
does not rely on the advice in entering into, or varying, the policy, as the
case may be.
Penalty: 200 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) In this section, a reference to life insurance advice in respect of a
life policy includes life insurance advice in respect of a class of life
policies that includes that policy.
(1) Subject to this section, if:
(a) a life insurance adviser of a life company contravenes section 28 or
29 in relation to life insurance advice given to a person by the adviser;
and
(b) the person engages in a life insurance activity relating to a life
policy issued by the company in reliance on the advice; and
(c) it is reasonable, having regard to the advice and all other relevant
circumstances, for the person to have relied on the advice; and
(d) the person suffers loss or damage as a result of so acting in reliance
on the advice;
the person may recover the amount of the loss or damage by action against
the company in a court of competent jurisdiction.
(2) It is a defence to an action based on an alleged failure to comply
with subsection 28(4) if the life company proves that the life insurance adviser
who made the relevant recommendation was not, and cannot reasonably be expected
to have been, aware of the benefit, advantage or interest not disclosed in the
advice.
(3) It is a defence to an action based on an alleged failure to comply
with section 28 if the life company proves that a reasonable person in the same
circumstances as the person to whom the advice was given could be expected to
have acted in reliance on the advice even if the adviser had complied with that
section in relation to the advice.
(4) In addition to other relief granted in an action under subsection (1),
the court, if it thinks it necessary in order to do justice between the
parties:
(a) may make an order declaring a life policy (other than a group policy)
to be void; and
(b) if it makes an order under paragraph (a), may make a further order
directing the life company to repay to the plaintiff money paid to the company
in connection with the policy, including an amount of interest on that money
specified in, or calculated in accordance with, the order.
(1) If:
(a) a person engages in a life insurance activity relating to a life
policy issued by a life company; and
(b) the person does so in reliance on a statement made by, or information
provided by, a life insurance adviser of the company in or in connection with
giving the person life insurance advice; and
(c) the statement or information is false or misleading in a material
particular, or there is a material omission from the statement or information;
and
(d) the person suffers loss or damage as a result of so acting in reliance
on the statement or information;
the person may recover the amount of the loss or damage by action against
the life company in a court of competent jurisdiction.
(2) In addition to other relief granted in an action under subsection (1),
the court, if it thinks necessary in order to do justice between the
parties:
(a) may make an order declaring a life policy (other than a group policy)
to be void; and
(b) if it makes an order under paragraph (a), may make a further order
directing the life company to repay to the plaintiff money paid to the company
in connection with the policy, including an amount of interest on that money
specified in, or calculated in accordance with, the order.
(1) If:
(a) a life insurance adviser of a life company makes a statement, or
provides a person with information, in or in connection with giving the person
life insurance advice; and
(b) the statement or information is likely to induce the person to engage
in a life insurance activity; and
(c) the adviser does so knowing that the statement or information is false
or misleading in a material particular, or there is a material omission from the
statement or information;
the adviser is guilty of an offence punishable on conviction by
imprisonment for not more than 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
allows a court that convicts an individual of an offence to impose a fine
instead of, or in addition to, a term of imprisonment. The maximum fine that a
court can impose on the individual is worked out by multiplying the maximum term
of imprisonment (in months) by 5, and then multiplying the resulting number by
the amount of a penalty unit. The amount of a penalty unit is stated in section
4AA of that Act.
(2) If:
(a) a life insurance adviser of a life company makes a statement, or
provides a person with information, in or in connection with giving the person
life insurance advice; and
(b) the statement or information is likely to induce the person to engage
in a life insurance activity; and
(c) the adviser does so reckless as to whether the statement is false or
misleading in a material particular, or there is a material omission from the
statement or information
the adviser is guilty of an offence punishable on conviction by
imprisonment for not more than 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
allows a court that convicts an individual of an offence to impose a fine
instead of, or in addition to, a term of imprisonment. The maximum fine that a
court can impose on the individual is worked out by multiplying the maximum term
of imprisonment (in months) by 5, and then multiplying the resulting number by
the amount of a penalty unit. The amount of a penalty unit is stated in section
4AA of that Act.
This Part contains provisions governing the conduct of life brokers and
their life insurance advisers in relation to the giving of certain insurance
services, including in particular the giving of life insurance advice.
This Part does not apply in relation to anything done by a life broker if
it is done in the course of acting as an agent or sub-agent of a life
company.
In this Part:
exempt person means a person included in a class of persons
declared by the regulations to be exempt from this Part.
life insurance adviser, in relation to a life broker,
means:
(a) a natural person (other than an exempt person) who is an agent or
sub-agent of the life broker, whether or not the person is authorised to give
life insurance advice by or under the terms of his or her agency agreement;
or
(b) a natural person (other than an exempt person) who is an employee of
the life broker, whether or not the person is authorised to give life insurance
advice by or under the terms of his or her employment; or
(c) any other natural person (other than an exempt person) who is
authorised to give life insurance advice by the life broker, or by or under the
terms of his or her employment by an agent or sub-agent of the life broker, or
who gives such advice while ostensibly acting within the scope of such an
authorisation.
(1) A life broker, or a life insurance adviser of a life broker, who
offers, or is asked to give, a person (the client) an insurance
service in relation to a life policy or life policies must, as soon as
practicable after the broker’s or adviser’s first contact with the
client, give or send to the client a written disclosure statement containing the
prescribed particulars.
(2) Subsection (1) does not apply in relation to a client who has
previously received a disclosure statement from the broker or the adviser, as
the case may be, unless the particulars set out in that disclosure statement are
no longer accurate or complete.
(3) A person is guilty of an offence if:
(a) the person fails to do an act; and
(b) failing to do the act results in a contravention of subsection
(1).
Penalty: 200 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(4) In this section:
insurance service, in relation to a life policy or life
policies, means any service or advice about, or connected with, the policy or
policies (including life insurance advice within the meaning of this Act), but
does not include any service or advice of a kind declared by the regulations to
be a service or advice to which this section does not apply.
(1) A life broker, or a life insurance adviser of a life broker, who gives
life insurance advice to a person who may reasonably be expected to rely on it
must ensure that the advice meets the requirements of this section.
(2) An advice must be in writing.
(3) The document containing the advice must also set out:
(a) the name and business address of the life broker or life insurance
adviser; and
(b) if the advice is given by a life insurance adviser of a life
broker—such other particulars as are prescribed; and
(c) the basis on which the advice is given.
(4) The document containing the advice must also set out details
of:
(a) any benefit or advantage, whether pecuniary or not and whether direct
or indirect, that the person giving the advice, or an associate of the person,
has received, or will or may receive, in connection with the giving of the
advice or the issue of a life policy to the person to whom the advice is given;
and
(b) any other pecuniary or other interests, whether direct or indirect, of
the person giving the advice, or an associate of the person, that may reasonably
be expected to be capable of influencing the person in giving the
advice.
(5) Subsection (3) does not apply to a life insurance advice in respect of
a life policy, or a kind of life policy, prescribed for the purposes of this
subsection.
(6) Subsection (4) does not apply:
(a) in relation to any fees or commission that the person giving the
advice has received directly, or will or may receive directly, from the person
to whom the advice is given; or
(b) to life insurance advice in respect of a life policy, or a kind of
life policy, prescribed for the purposes of this paragraph.
(7) The material that must be included in a document under subsection (3)
or (4) must be in writing that is not less legible than the other material in
the document.
(1) A life broker, or a life insurance adviser of a life broker, who gives
life insurance advice to a person who may reasonably be expected to rely on it
must have a reasonable basis for giving the advice to the person.
(2) For the purposes of subsection (1), a life broker, or a life insurance
adviser of a life broker, does not have a reasonable basis for giving life
insurance advice to a person unless:
(a) having regard to the person’s objectives, financial situation
and particular needs, the broker or adviser has given such consideration to, and
conducted such investigation of, the subject matter of the advice as is
reasonable in all the circumstances; and
(b) the advice is based on that consideration and investigation.
(3) Subsection (1) does not apply to life insurance advice in respect of a
prescribed life policy, or kind of life policy.
(1) A life broker is guilty of an offence if:
(a) the life broker arranges for the issue of a life policy to, or the
variation of a life policy at the request of, a person (the
client); and
(b) the client has received life insurance advice in respect of the life
policy from the life broker or a life insurance adviser of the life broker;
and
(c) the advice does not meet the requirements of section 38, or the person
who gave the advice contravened section 39 in giving the advice; and
(d) the client has not indicated in writing to the broker that the person
does not rely on the advice in entering into, or varying, the policy, as the
case may be.
Penalty: 200 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) In this section, a reference to life insurance advice in respect of a
life policy includes life insurance advice in respect of a class of life
policies that includes that policy.
(1) Subject to this section, if:
(a) a life broker, or a life insurance adviser of a life broker,
contravenes section 38 or 39 in relation to life insurance advice given to a
person by the broker or adviser; and
(b) the person engages in a life insurance activity in reliance on the
advice; and
(c) it is reasonable, having regard to the advice and all other relevant
circumstances, for the person to have relied on the advice; and
(d) the person suffers loss or damage as a result of so acting in reliance
on the advice;
the person may recover the amount of the loss or damage by action against
the life broker in a court of competent jurisdiction.
(2) It is a defence to an action based on an alleged failure to comply
with subsection 38(4) if the life broker proves that the person who gave the
relevant advice was not, and cannot reasonably be expected to have been, aware
of the benefit, advantage or interest not disclosed in the advice.
(3) It is a defence to an action based on an alleged failure to comply
with section 38 if the life broker proves that a reasonable person in the same
circumstances as the person to whom the advice was given could be expected to
have acted in reliance on the advice even if the person who gave the advice had
complied with that section in relation to the advice.
(4) In addition to other relief granted in an action under subsection (1),
the court, if it thinks it necessary in order to do justice between the
parties:
(a) may make an order declaring a life policy (other than a group policy)
to be void; and
(b) if it makes an order under paragraph (a), may make all or any of the
following further orders:
(i) an order directing the broker to repay to the plaintiff an amount
equal to the total amount paid by the plaintiff to the broker in connection with
the policy less an amount equal to the total amount paid by the broker to the
relevant life company in connection with the life policy under section 27 of the
Insurance (Agents and Brokers) Act 1984;
(ii) an order directing the broker to repay to the relevant life company
an amount equal to the total of the amounts paid by the company to the broker,
or retained by the broker, in connection with the life policy under an agreement
between the broker and the company;
(iii) an order directing the relevant life company to pay to the plaintiff
an amount equal to the total amount paid to the company in connection with the
policy by the plaintiff, or by the broker under section 27 of the Insurance
(Agents and Brokers) Act 1984.
(5) An order under paragraph (4)(b) may include a direction for the
payment of an amount of interest specified in, or calculated in accordance with,
the order.
(1) If:
(a) a person engages in a life insurance activity in reliance on a
statement made by, or information provided by, a life broker or a life insurance
adviser of a life broker in or in connection with giving the person life
insurance advice; and
(b) the statement or information is false or misleading in a material
particular, or there is a material omission from the statement or information;
and
(c) the person suffers loss or damage as a result of so acting in reliance
on the statement or information;
the person may recover the amount of the loss or damage by action against
the life broker in a court of competent jurisdiction.
(2) In addition to other relief granted in an action under subsection (1),
the court, if it thinks necessary in order to do justice between the
parties:
(a) may make an order declaring a policy (other than a group policy) to be
void; and
(b) if it makes an order under paragraph (a), may make all or any of the
following further orders:
(i) an order directing the broker to repay to the plaintiff an amount
equal to the total amount paid by the plaintiff to the broker in connection with
the policy less an amount equal to the total amount paid by the broker to the
relevant life company in connection with the life policy under section 27 of the
Insurance (Agents and Brokers) Act 1984;
(ii) an order directing the broker to repay to the relevant life company
an amount equal to the total of the amounts paid by the company to the broker,
or retained by the broker, in connection with the life policy under an agreement
between the broker and the company;
(iii) an order directing the relevant life company to pay to the plaintiff
an amount equal to the total amount paid to the company in connection with the
policy by the plaintiff, or by the broker under section 27 of the Insurance
(Agents and Brokers) Act 1984.
(3) An order under paragraph (2)(b) may include a direction for the
payment of an amount of interest specified in, or calculated in accordance with,
the order.
(1) If:
(a) a life broker or a life insurance adviser of a life broker makes a
statement, or provides a person with information, in or in connection with
giving the person life insurance advice; and
(b) the statement or information is likely to induce the person to engage
in a life insurance activity; and
(c) the life broker or adviser, as the case may be, does so knowing that
the statement or information is false or misleading in a material particular, or
there is a material omission from the statement or information;
the life broker or adviser, as the case may be, is guilty of an offence
punishable on conviction by imprisonment for not more than 12 months.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
allows a court that convicts an individual of an offence to impose a fine
instead of, or in addition to, a term of imprisonment. The maximum fine that a
court can impose on the individual is worked out by multiplying the maximum term
of imprisonment (in months) by 5, and then multiplying the resulting number by
the amount of a penalty unit. The amount of a penalty unit is stated in section
4AA of that Act.
(2) If:
(a) a life broker or a life insurance adviser of a life broker makes a
statement, or provides a person with information, in or in connection with
giving the person life insurance advice; and
(b) the statement or information is likely to induce the person to engage
in a life insurance activity; and
(c) the life broker or adviser, as the case may be, does so reckless as to
whether the statement is false or misleading in a material particular, or there
is a material omission from the statement or information;
the life broker or adviser, as the case may be, is guilty of an offence
punishable on conviction by imprisonment for not more than 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
allows a court that convicts an individual of an offence to impose a fine
instead of, or in addition to, a term of imprisonment. The maximum fine that a
court can impose on the individual is worked out by multiplying the maximum term
of imprisonment (in months) by 5, and then multiplying the resulting number by
the amount of a penalty unit. The amount of a penalty unit is stated in section
4AA of that Act.
This Part provides for the establishment of a Code of Practice for the
Life Insurance Industry applying to life companies, life brokers and life
insurance advisers.
(1) The regulations may make provision for a Code of Practice for the Life
Insurance Industry.
(2) The regulations comprising the Code may include provisions for and in
relation to the following:
(a) preventing, as far as possible, the issue of life policies that are
not appropriate to the needs of the persons to whom they are issued;
(b) ensuring that life companies, life brokers and life insurance advisers
maintain at least the standard of service specified or described in the Code
when dealing with owners and prospective owners of life policies, and with group
members and prospective group members;
(c) ensuring that life insurance advisers are competent in providing life
insurance advice;
(d) ensuring that life companies and life brokers have adequate procedures
for supervising the competence and conduct of their life insurance
advisers;
(e) ensuring that life companies and life brokers have adequate procedures
for dealing with inquiries and complaints by owners and prospective owners of
life policies, and by group members and prospective group members;
(f) ensuring that, in the case of disputes that are not able to be
resolved under procedures referred to in paragraph (e), owners and prospective
owners of life policies, and group members and prospective group members, have
access to a dispute-handling mechanism approved by ASIC.
(3) Without limiting subsection (2), the regulations comprising the Code
may include provisions in relation to the following:
(a) the establishment of standards of practice that must be complied with
by life companies, life brokers and life insurance advisers when dealing with
owners and prospective owners of life policies, and with group members and
prospective group members;
(b) the selection and training of life insurance advisers;
(c) the establishment by life companies and life brokers of procedures and
mechanisms to handle inquiries and complaints by owners and prospective owners
of life policies, and by group members and prospective group members;
(d) the establishment by life companies and life brokers of procedures and
mechanisms for the appropriate provision of information by their life insurance
advisers in giving life insurance advice to owners and prospective owners of
life policies, and to group members and prospective group members.
(1) If it appears to ASIC that a life company or a life broker has
contravened a provision of the Code by an act or omission, ASIC may give the
company or broker written notice:
(a) informing the company or broker that ASIC is considering giving the
company or broker a direction under this section; and
(b) setting out particulars of the act or omission and the provision of
the Code alleged to have been contravened; and
(c) inviting the company or broker to make submissions to ASIC on the
question whether a direction under this section should be given; and
(d) specifying the period within which the submissions must be given to
ASIC.
(2) The period must be a period of at least 14 days beginning on the day
on which the notice is given.
(3) ASIC may give a written direction to the life company or broker
if:
(a) the period specified in the notice has expired; and
(b) after considering the submissions (if any) made by the company or
broker, ASIC is satisfied that the company or broker has contravened the
provision of the Code by the act or omission specified in the notice.
(4) The direction may:
(a) require the company or broker not to do a specified act; or
(b) require the company or broker to do a specified act.
(5) The direction takes effect:
(a) on the day specified in the direction; or
(b) if no day is so specified—on the day on which the direction is
given to the company or broker.
(6) A life company or life broker is guilty of an offence if:
(a) the company or broker does, or fails to do, an act; and
(b) doing, or failing to do, the act results in a contravention of a
direction (including a direction as varied) given to the company or broker under
this section.
Penalty: 300 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) If ASIC thinks that a direction given under section 46 is no longer
required or should be varied, ASIC must, by written notice given to the relevant
life company or life broker, revoke the direction.
(2) If a life company or life broker to which a direction has been given
asks ASIC, in writing, to revoke or vary the direction, ASIC must:
(a) if ASIC thinks that the direction is no longer necessary or should be
varied—revoke or vary the direction; or
(b) in any other case—refuse to revoke or vary the
direction.
(3) ASIC must give to the life company or life broker written notice of a
decision made under subsection (2).
(1) A life company must at all times have a compliance
committee.
(2) The committee may have whatever name the life company
chooses.
(1) A member of a compliance committee must either be:
(a) a director of the life company concerned; or
(b) a person whose appointment is approved by ASIC.
(2) ASIC may approve of a person who is not a director of a life company
being appointed a member of the company’s compliance committee if ASIC
thinks that the person’s appointment is likely to promote the efficiency
or effectiveness of the compliance committee’s operations.
(1) A compliance committee must be given the following
functions:
(a) to assist the directors of the company to deal with consumer-related
issues that arise in the course of the company’s operations;
(b) to assist the directors of the company to ensure that the company at
all times has a proper system of management controls that will enable the
company to comply with this Act.
(2) A compliance committee may be given functions additional to, but not
inconsistent with, those described in subsection (1).
(3) A life company must make such arrangements, and give its compliance
committee such powers, as will enable the committee to obtain all information in
the possession, or under the control, of the company that the committee needs
for the performance of the functions described in paragraphs (1)(a) and
(b).
(4) A member of a life company’s compliance committee has qualified
privilege in respect of any report or statement about the company’s
operations made for, by or on behalf of the committee, or a member of the
committee, to the directors or the company.
(5) The privilege conferred by subsection (4) is in addition to any
privilege conferred on a person by any other law.
The purpose of this Division is to provide the means by which ASIC is
able to monitor the extent of compliance by a life company or a life broker with
this Act and directions given under this Act.
In this Division:
authorised person means a person appointed under section
53.
(1) ASIC may appoint in writing:
(a) a staff member of ASIC; or
(b) an APRA staff member (within the meaning of the Australian
Prudential Regulation Authority Act 1998);
as an authorised person for the purposes of this Division.
(2) ASIC must issue to an authorised person an identity card, containing a
photograph of the person.
(3) If a person stops being an authorised person, he or she must return
his or her identity card to ASIC as soon as possible.
(4) A person who contravenes subsection (3) is guilty of an offence
punishable on conviction of a fine not exceeding one penalty unit.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) For the purposes of this Act, ASIC may give a person a written notice
requiring the person to give ASIC, at a reasonable time and place specified in
the notice:
(a) information in writing about any matter relating to the business of a
specified life company or life broker, being information in the person’s
possession or known to the person; or
(b) a copy of any document relating to such a matter that is in the
person’s possession or control.
(2) A person to whom a notice is given must not fail to comply with the
notice.
Penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) A person is entitled to be paid reasonable compensation for making
copies for the purpose of complying with a notice requiring that a copy of a
document be given to ASIC.
(1) For the purposes of this Act, ASIC may give a person a written notice
requiring the person to produce to ASIC or a specified authorised person, at a
reasonable time and place specified in the notice, any records in the
person’s possession or control relating to the affairs of a specified life
company or life broker.
(2) ASIC or the authorised person may inspect, take extracts from and make
copies of any record produced under this section.
(3) A person to whom a notice is given must not fail to comply with the
notice.
Penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(4) If:
(a) a requirement is made under subsection (1); and
(b) the information that constitutes the records to which the requirement
relates is stored, in whole or in part, by electronic means;
the person to whom the requirement is directed is taken not to comply with
the requirement unless the person produces all of the records in documentary
form.
A person is not excused from giving information or producing records or a
copy of a document under section 54 or 55 on the ground that the information or
the production of the records or copy, as the case may be, might tend to
incriminate the person or make the person liable to a penalty. However, if the
information is given or the records or copy are produced by the person, the
information or the records or copy, and any information or thing (including any
document) obtained as a direct or indirect result of the giving of the
information or the production of the records or copy, as the case may be, is not
admissible in evidence against the person in any proceedings.
(1) For the purposes of this Act, an authorised person may enter, at any
reasonable time, any premises at which the authorised person has reasonable
cause to believe records relating to the affairs of a life company or life
broker are kept.
(2) The authorised person may:
(a) inspect any records found on the premises that the authorised person
believes on reasonable grounds to relate to the affairs of the life company or
life broker; and
(b) take extracts from, or make copies of, such records.
(3) An authorised person may not enter premises under subsection (1)
except with the consent of the occupier of the premises.
(4) An authorised person is not entitled to:
(a) enter or remain on premises under this section; or
(b) exercise any powers under subsection (2);
if the authorised person fails to produce his or her identity card for
inspection when asked to do so by the occupier of the premises.
(1) ASIC must collect such statistics as are prescribed relating to
matters prescribed by, or arising out of the operation of, this Act.
(2) The statistics must be collected as at the prescribed time and in the
prescribed manner.
(3) Life companies and life brokers must give ASIC the information ASIC
reasonably requires to enable the statistics to be collected.
(4) ASIC may publish, in such form as ASIC thinks appropriate, any
statistics collected under this section.
(5) ASIC may determine that fees are to be paid in respect of the supply
of publications under this section.
(6) Fees determined under this section must be reasonably related to the
expenses incurred, or to be incurred, by ASIC in relation to the supply of
publications under this section and must not be such as to amount to
taxation.
(1) In this section:
prescribed provision means a provision of this Act that
confers a right to bring an action in a court of competent
jurisdiction.
(2) Jurisdiction is conferred on the Federal Court to hear and determine
actions brought under a prescribed provision.
(3) The several courts of the States are invested with federal
jurisdiction, within the limits of their several jurisdictions (whether those
limits are as to locality, subject-matter or otherwise), to hear and determine
actions brought under a prescribed provision.
(4) Subject to the Constitution, jurisdiction is conferred on the several
courts of the Territories to hear and determine actions brought under a
prescribed provision.
(5) Nothing in subsection (3) or (4) is taken to enable an inferior court
of a State or Territory to grant a remedy other than a remedy of a kind that the
court is able to grant under the law of that State or Territory.
If, in an action against a life company or a life broker under section 31
or 41:
(a) the defendant does not dispute, or the plaintiff proves, that the
advice to which the action relates is life insurance advice within the meaning
of this Act and was given to the plaintiff; and
(b) the plaintiff adduces evidence that the advice did not meet the
requirements of this Act, or that the person who gave the advice did not have a
reasonable basis for giving it; and
(c) the defendant does not tender in evidence a true copy of the
advice;
the court is to presume, unless the defendant proves otherwise, that the
advice did not meet the requirements of this Act, or that the person who gave
the advice did not have a reasonable basis for giving it, as alleged by the
plaintiff.
A person’s failure to comply with this Act does not invalidate any
life policy, or any transaction entered into by the person.
(1) Subject to this section, it is the intention of the Parliament that
this Act is not to apply to the exclusion of a law of a State or Territory to
the extent that the law is capable of operating concurrently with this
Act.
(2) Subject to subsection (3), the Parliament intends that this Act is to
apply to the exclusion of:
(a) a superseded State Act; and
(b) any State Act amending a superseded State Act; and
(c) any State Act enacted in substitution for a superseded State
Act.
(3) This section is not intended to prejudice the rights, powers or
privileges of the owner, or a person entitled to the benefit, of a life policy
issued before 20 June 1946 (the date of commencement of the Life Insurance
Act 1945).
(4) In this section:
superseded State Act means a State Act:
(a) that is referred to in subsection 8(1) of the Life Insurance Act
1945, as in force immediately before 1 July 1995 (the date of commencement
of the Life Insurance Act 1995); and
(b) that is still in operation at the commencement of this Act.
(1) If a life company or life broker has engaged, is engaging, or proposes
to engage, in any conduct in contravention of this Act, or of a direction given
under this Act, the Court may grant an injunction:
(a) restraining the company or broker from engaging in the conduct;
or
(b) requiring the company or broker to do a particular act.
(2) If a life company or life broker has not done, or is proposing not to
do, an act that the company or broker is required by this Act to do, the Court
may grant an injunction requiring the company or broker to do the act.
(3) An injunction under this section may only be granted on application by
ASIC or an interested person.
(4) The Court may grant an interim injunction pending the determination of
an application.
(5) The Court may discharge or vary an injunction granted under this
section.
(6) ASIC cannot be required, as a condition of the grant of an interim
injunction, to give an undertaking as to damages.
(7) The Court’s power to grant an injunction restraining a person
from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that
kind.
(8) The Court’s power to grant an injunction requiring a person to
do an act may be exercised whether or not it appears to the Court that the
person intends not to do the act again, or intends to continue not to do the
act.
(9) The Court’s powers under this section are in addition to, and
not in derogation of, any other powers of the Court.
(1) In this section:
person affected by a reviewable decision means the life
company or life broker in relation to whom the decision was made.
reviewable decision means any of the following decisions of
ASIC:
(a) giving a direction under section 19;
(b) varying a direction under subsection 20(1);
(c) refusing to revoke or vary a direction under subsection
20(2);
(d) issuing a stop order under section 21;
(e) giving a direction under section 46;
(f) refusing to revoke or vary a direction under subsection
47(2);
(g) giving a notice under section 54;
(h) giving a notice under section 55.
(2) A person affected by a reviewable decision may request ASIC to
reconsider the decision.
(3) The request must be made by written notice given to ASIC within 21
days after the person first receives notice of the decision, or within such
further period as ASIC allows.
(4) The request must set out the reasons for making the request.
(5) On receipt of the request, ASIC must reconsider the decision and may,
subject to subsection (6), confirm or revoke the decision or vary the decision
in such manner as ASIC thinks fit.
(6) If ASIC does not confirm, revoke or vary a decision within 60 days
after ASIC received the request to reconsider the decision, ASIC is taken to
have confirmed the decision on the last day of that period.
(7) If ASIC confirms, revokes or varies a decision before the end of the
period referred to in subsection (6), ASIC must give written notice to the
person telling the person:
(a) the result of the reconsideration of the decision; and
(b) the reasons for confirming, revoking or varying the decision, as the
case may be.
(8) Application may be made to the Administrative Appeals Tribunal for
review of a decision of ASIC that has been confirmed or varied.
(9) If a decision is taken to be confirmed because of subsection (6),
section 29 of the Administrative Appeals Tribunal Act 1975 applies as if
the making of the request were the making of an application to the
Administrative Appeals Tribunal for a review of that decision.
(1) Subject to subsections 21(1A) and 23(1) of the Administrative
Appeals Tribunal Act 1975, the Administrative Appeals Tribunal is to be
constituted by a presidential member and 2 non-presidential members for the
purposes of a review of a reviewable decision.
(2) In giving a direction as to the persons who are to constitute the
Tribunal for the purposes of a review of a reviewable decision, or for the
purposes of a request under subsection 41(2) of the Administrative Appeals
Tribunal Act 1975 in respect of such a decision, the President is to ensure
that each non-presidential member of the Tribunal as so constituted is a person
who, in the President’s opinion, has special knowledge or skill in
relation to life insurance business.
(3) A non-presidential member of the Tribunal must not sit as a member of
the Tribunal for the purposes of a review of a reviewable decision, or for the
purposes of a request under subsection 41(2) of the Administrative Appeals
Tribunal Act 1975 in respect of such decision, if he or she is a director or
employee of a company or body carrying on life insurance business or insurance
business (whether in Australia or elsewhere).
(4) An order must not be made under subsection 41(2) of the
Administrative Appeals Tribunal Act 1975 in respect of a reviewable
decision except by the Tribunal.
(5) The hearing of a proceeding relating to a reviewable decision is to
take place in private and the Tribunal may, by order:
(a) give directions as to the persons who may be present; and
(b) give directions of a kind referred to in paragraph 35(2)(b) or (c) of
the Administrative Appeals Tribunal Act 1975.
(6) In this section:
reviewable decision has the same meaning as in section
64.
(1) Despite anything in any other law, proceedings for an offence against
this Act may be instituted within 5 years after the commission of the offence
or, with the Treasurer’s consent, at any later time.
(2) The institution of proceedings against a company for an offence
against this Act does not prevent the institution of proceedings for:
(a) the judicial management; or
(b) the winding-up;
of the company, or of part of the business of the company, on a ground that
relates to the matter that constitutes the offence.
A person who, in a document required by or under this Act to be signed by
the person:
(a) makes any statement that to the person’s knowledge is false or
misleading in a material particular; or
(b) omits a material particular without which the document is, to the
person’s knowledge, false or misleading in a material respect;
is guilty of an offence.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) Subject to subsection (2), if ASIC thinks that it would be in the
public interest for a person to begin an action under section 22, 31, 32, 41 or
42 for the recovery of an amount of loss or damage, ASIC may begin and carry on
the action in the person’s name.
(2) ASIC must not begin or carry on an action in the name of a natural
person without the person’s written consent.
(3) If ASIC begins or carries on an action in the name of a person under
this section, the person is not liable to pay any costs in relation to, or
arising out of, the action.
The Governor-General may make regulations:
(a) prescribing matters required or permitted by this Act to be
prescribed; or
(b) prescribing matters necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
1 After paragraph 12A(1)(e)
Insert:
(ea) the Life Insurance (Conduct and Disclosure) Act
1998;
1 Schedule to stop having
effect
This Schedule stops having effect when Schedule 1 to the Financial
Sector Reform (Amendments and Transitional Provisions) Act 1998
commences.
2 References to ASIC
References in this Act (other than this Schedule) to ASIC are to be read as
references to the Commissioner.
3 Definition of staff
member
Subsection 4(1) of this Act is to be read as if the definition of
staff member were omitted.
4 Appointment of authorised
person
Section 53 of this Act is to be read as if subsection 53(1) had been
replaced by the following subsection:
(1) The Commissioner may appoint in writing:
(a) a member of the staff referred to in subsection 13(1) of the
Insurance and Superannuation Commissioner Act 1987; or
(b) a person engaged as a consultant under subsection 13(3) of that
Act;
as an authorised person for the purposes of this Division.
5 Annual report
(1) The Commissioner must, as soon as practicable after the end of each
financial year, give the Treasurer a written report on the operation of this Act
during that financial year.
(2) The Treasurer must cause a copy of each report to be laid before each
House of the Parliament within 15 sitting days of that House after the day on
which the Minister received the report.
6 Delegation
(1) The Commissioner may, in writing, delegate all or any of the
Commissioner’s powers or functions under this Act to a member of the staff
referred to in subsection 13(1) of the Insurance and Superannuation
Commissioner Act 1987.
(2) A delegation is subject to the directions of the Commissioner in the
exercise or performance of a delegated power or function.
7 Secrecy
(1) In this item:
compliance officer means:
(a) a member of the staff referred to in subsection 13(1) of the
Insurance and Superannuation Commissioner Act 1987; or
(b) a person who is engaged under subsection 13(3) of the Insurance and
Superannuation Commissioner Act 1987; or
(c) any other person who, because of his or her employment, or in the
course of that employment:
(i) has acquired protected information; or
(ii) has had access to protected documents;
other than a member or officer of, or a person employed or engaged
by:
(iii) a financial sector supervisory agency; or
(iv) a law enforcement agency.
court includes a tribunal, authority or person having the
power to require the production of documents or the answering of
questions.
financial sector supervisory agency means a person or body
declared by the regulations to be a financial sector supervisory agency for the
purposes of this item.
law enforcement agency means a person or body declared by the
regulations to be a law enforcement agency for the purposes of this
item.
protected document means a document given or produced under,
or for the purposes of, this Act and containing information relating to the
affairs of a life company or life broker.
protected information means information disclosed or obtained
under, or for the purposes of this Act and relating to the affairs of a life
company or a life broker.
(2) Subject to this item, a person who is or has been a compliance officer
must not, except for the purposes of this Act, directly or indirectly:
(a) disclose to any person, or to a court, any protected information
acquired by the first-mentioned person in the course of his or her duties as a
compliance officer;
(b) produce to any person, or to a court, a protected document.
(3) Subitem (2) does not prohibit a compliance officer from disclosing
protected information, or producing a protected document, relating to the
affairs of a life company or life broker if the company or broker agrees in
writing to the disclosure of the information or the production of the document,
as the case may be.
(4) Subitem (2) does not prohibit a compliance officer from disclosing
protected information, or producing a protected document, to:
(a) the Treasurer, the Secretary of the Department or an officer of the
Department authorised by the Secretary of the Department for the purposes of
this item; or
(b) a court for the purposes of this Act; or
(c) a financial sector supervisory agency for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(d) if the Treasurer states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to a particular person—that person.
(5) Subitem (2) does not prohibit a compliance officer from disclosing
protected information, or producing a protected document, to:
(a) a law enforcement agency; or
(b) a member of the staff referred to in subsection 13(1) of the
Insurance and Superannuation Commissioner Act 1987; or
(c) a person engaged under subsection 13(3) of that Act.
(6) A person who is or has been a compliance officer may only disclose
protected information, or produce a protected document, to a law enforcement
agency for the purposes of the performance by the agency of its functions in
relation to an offence or alleged offence against a law of the Commonwealth, of
a State or of a Territory.
(7) A compliance officer may only disclose protected information, or
produce a protected document, to a person referred to in paragraph (5)(b) or (c)
for the purposes of the performance of the Commissioner’s functions, or
the exercise of the Commissioner’s powers, under a law of the
Commonwealth.
(8) A person who is or has been a compliance officer cannot be required to
disclose to a court any protected information, or to produce in a court any
protected document, except when it is necessary to do so for the purposes of
this Act.
(9) If protected information is disclosed, or a protected document is
produced, under paragraph (4)(a), to the Secretary of the Department or to an
officer of the Department, the Secretary or officer must not, except for the
purpose of advising the Treasurer in connection with the administration of this
Act, directly or indirectly make a record of, or disclose to any person, the
information, or the information contained in the document, as the case may
be.