Commonwealth Consolidated Acts

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INSURANCE ACT 1973 - SECT 114

Use of words "insurance" and "insurer"

Use of the word "insurance"

  (1)   A person commits an offence if:

  (a)   the person carries on a business or is proposing to carry on a business; and

  (b)   the person uses the word insurance to describe (expressly or by implication) a product or service that the person supplies, or proposes to supply, in the course of carrying on the business; and

  (c)   the product or service is not insurance; and

  (d)   it is likely in all the circumstances (including the use of the word insurance ) that the product or service could be mistakenly believed to be insurance.

Penalty:

  (a)   in the case of an individual--50 penalty units; or

  (b)   in the case of a body corporate--500 penalty units.

Use of the word "insurer"

  (2)   A person commits an offence if:

  (a)   the person carries on a business or is proposing to carry on a business; and

  (b)   the person uses the word insurer to describe (expressly or by implication) the person in connection with a product or service that the person supplies, or proposes to supply, in the course of carrying on the business; and

  (c)   either:

  (i)   the product or service is not insurance; or

  (ii)   the person would breach a requirement mentioned in subsection   (3) if the person supplied the product or service in the course of carrying on the business; and

  (d)   in a case where the product or service is not insurance--it is likely in all the circumstances (including the use of the word insurer ) that the product or service could be mistakenly believed to be insurance.

Penalty:

  (a)   in the case of an individual--50 penalty units; or

  (b)   in the case of a body corporate--500 penalty units.

  (3)   For the purposes of subparagraph   (2)(c)(ii), the requirements are the requirements imposed by the following provisions:

  (a)   section   9 or 10 of this Act (need to be authorised to carry on insurance business);

  (b)   section   17 of the Life Insurance Act 1995 (registration of life companies);

  (c)   section   10 of the Private Health Insurance (Prudential Supervision) Act 2015 (carrying on health insurance business without registration).

Exceptions

  (4)   Subsections   (1) and (2) do not apply if:

  (a)   the person is a government entity; or

  (b)   the person:

  (i)   is covered by a determination under subsection   (6); and

  (ii)   if that determination is subject to conditions--meets those conditions; or

  (c)   the product or service is of a kind prescribed by the regulations; or

  (d)   the product or service is State insurance (within the meaning of paragraph   51(xiv) of the Constitution) not extending beyond the limits of the State concerned.

Note:   The defendant bears an evidential burden in relation to the matters in subsection   (4). See subsection   13.3(3) of the Criminal Code .

  (5)   A government entity is:

  (a)   a Department of State of the Commonwealth; or

  (b)   a Department of the Parliament established under the Parliamentary Service Act 1999 ; or

  (c)   an Executive Agency, or Statutory Agency, within the meaning of the Public Service Act 1999 ; or

  (d)   a Department of State of a State or Territory; or

  (e)   an entity that is established for a public purpose by a law of the Commonwealth, a State or a Territory.

Determinations by ASIC

  (6)   ASIC may, by legislative instrument determine that subsections   (1) and (2) do not apply to a specified person or class of persons. The determination may be subject to conditions.

  (7)   ASIC must not:

  (a)   revoke a determination under subsection   (6) relating to a specified person; or

  (b)   vary such a determination by varying or including conditions to which the determination is subject;

unless ASIC has notified the person in writing that it is considering revoking or varying the determination.

Strict liability

  (8)   Subsections   (1) and (2) are offences of strict liability.


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