Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act, unless the contrary intention appears:
"accident insurance business" means the business of undertaking liability under policies of insurance in respect of the happening of personal accidents (whether fatal or not), disease or sickness or of any class of personal accidents, disease or sickness.
"accounting records" , in relation to a body corporate, includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts of the body corporate are made up, and such other documents (if any) as are prescribed.
"accounts" , except in Part VII, means ordinary accounts and statutory accounts.
"ADI" (authorised deposit - taking institution) means a body corporate that is an ADI for the purposes of the Banking Act 1959 .
"administrator" , of a body corporate's business, means an administrator appointed under subsection 62ZOA(1) to take control of the body corporate's business.
"approved form" means (except in section 62ZZKA) a form approved, in writing, by APRA.
"APRA" means the Australian Prudential Regulation Authority.
"APRA member" has the same meaning as in the Australian Prudential Regulation Authority Act 1998 .
"APRA Special Account" has the same meaning as in the Australian Prudential Regulation Authority Act 1998 .
"APRA staff member" has the same meaning as in the Australian Prudential Regulation Authority Act 1998 .
"ASIC" means the Australian Securities and Investments Commission.
"Australia" includes a Territory to which this Act extends.
"Australian business assets and liabilities" , of a foreign general insurer, has the meaning given by subsection 62ZVA(3).
"Australian financial sector statutory manager" (or AFS statutory manager ) means:
(a) a Banking Act statutory manager (within the meaning of the Banking Act 1959 ); or
(b) an Insurance Act statutory manager; or
(c) a Life Insurance Act statutory manager (within the meaning of the Life Insurance Act 1995 ).
"authorised NOHC" means a body corporate:
(a) authorised under section 18; and
(b) that is a NOHC of a general insurer or general insurers.
"authorised person" :
(a) except in Part VA, means a person authorised under subsection (1A); or
(b) in Part VA, means APRA, or a person authorised by APRA, in writing, for the purposes of that Part.
"barrister or solicitor" means a barrister or solicitor of the High Court or of the Supreme Court of a State, or of the Australian Capital Territory or the Northern Territory.
"books" includes any register or other record of information or any accounts or accounting records, however compiled, recorded or stored, and also includes any document.
"business day" means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned.
"charge" means a charge created in any way and includes a mortgage or an agreement to give or execute a charge or mortgage, whether upon demand or otherwise.
"civil penalty provision" : a subsection of this Act (or a section of this Act that is not divided into subsections) is a civil penalty provision if:
(a) the words "civil penalty" and one or more amounts in penalty units are set out at the foot of the subsection (or section); or
(b) another provision of this Act specifies that the subsection (or section) is a civil penalty provision.
"corporate agent" means a body corporate that is appointed under section 118 as an agent in Australia for the purpose of that section.
"data processing device" means any article or material (for example, a disk) from which information is capable of being reproduced with or without the aid of any other article or device.
"debenture" includes debenture stock, bonds, notes and any other document evidencing or acknowledging indebtedness of a body corporate in respect of money that is or may be deposited with or lent to the body corporate, whether constituting a charge on property of the body corporate or not, but does not include:
(a) for the purposes of a particular provision of this Act--a document prescribed for the purposes of that provision; or
(b) for the purposes of this Act generally--a prescribed document.
"declared general insurer" means a general insurer specified in a declaration under section 62ZZC as a general insurer in relation to which Division 3 of Part VC applies.
"direction under this Act" means a direction under any of the following provisions:
(a) section 17;
(b) section 27;
(c) section 49R;
(d) section 74;
(e) section 76;
(f) section 78;
(g) section 103B;
(h) section 104.
"director" , in relation to a body corporate, includes a member of the governing body of the body corporate.
"external administrator" means any of the following:
(a) a liquidator;
(b) a receiver, manager, managing controller, receiver and manager or other controller (other than a judicial manager or an Insurance Act statutory manager);
(c) a voluntary administrator or administrator of a deed of a company arrangement or a scheme manager.
Expressions used in this definition have the same meanings as they have in the Corporations Act 2001 .
"Federal Court" means the Federal Court of Australia.
"Finance Minister" means the Minister who administers the Public Governance, Performance and Accountability Act 2013 .
"Financial Claims Scheme Special Account" has the same meaning as in the Australian Prudential Regulation Authority Act 1998 .
"financial market" has the same meaning as in Chapter 7 of the Corporations Act 2001 .
"Financial System Stability Special Account" means the Financial System Stability Special Account established by section 70E of the Banking Act 1959 .
"financial year" , in relation to a body corporate, has the same meaning as that expression has in relation to a body for the purposes of the Corporations Act 2001 (disregarding Schedule 2 of that Act).
"foreign general insurer" means a body corporate that:
(a) is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution; and
(b) is authorised to carry on insurance business in a foreign country; and
(c) is authorised under section 12 to carry on insurance business in Australia.
"friendly society" means:
(a) a body that is a friendly society for the purposes of the Life Insurance Act 1995 ; or
(b) a body that is registered or incorporated as a friendly society under a law of a State or Territory; or
(c) a body that is permitted, by a law of a State or Territory, to assume or use the expression friendly society ; or
(d) a body that, immediately before the date that is the transfer date for the purposes of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 , was registered or incorporated as a friendly society under a law of a State or Territory.
"general insurer" has the meaning given by section 11.
"government entity" has the meaning given by subsection 114(5).
"holding company" , of a body corporate, means another body corporate of which the first body corporate is a subsidiary.
" Insurance Act statutory manager" has the meaning given by subsection 62ZOA(8).
"insurance business" means the business of undertaking liability, by way of insurance (including reinsurance), in respect of any loss or damage, including liability to pay damages or compensation, contingent upon the happening of a specified event, and includes any business incidental to insurance business as so defined, but does not include:
(a) life insurance business; or
(b) accident insurance business undertaken solely in connexion with life insurance business; or
(c) pecuniary loss insurance business carried on solely in the course of carrying on banking business and for the purposes of that business by an ADI; or
(d) business in relation to the benefits provided by a friendly society or trade union for its members or their dependants; or
(e) business in relation to the benefits provided for its members or their dependants by an association of employees or of employees and other persons that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009 ; or
(f) business in relation to a scheme or arrangement under which superannuation benefits, pensions or payments to employees or their dependants (and not to any other persons) on retirement, disability or death are provided by an employer or an employer's employees or by both, wholly through an organization established solely for that purpose by the employer or the employer's employees or by both; or
(g) business in relation to a scheme or arrangement for the provision of benefits consisting of:
(i) the supply of funeral, burial or cremation services, with or without the supply of goods connected with any such service; or
(ii) the payment of money, upon the death of a person, for the purpose of meeting the whole or a part of the expenses of and incidental to the funeral, burial or cremation of that person;
and no other benefits, except benefits incidental to the scheme or arrangement; or
(h) business undertaken by a person, being a carrier, carrier's agent, forwarding agent, wharfinger, warehouseman or shipping agent, relating only to the person's liability in respect of goods belonging to another person and in the possession, or under the control, of the first - mentioned person for the purpose of the carriage, storage or sale of those goods; or
(i) business undertaken by a person, being an innkeeper or lodging - house keeper, relating only to the person's liability in respect of goods belonging to another person and in the possession or under the control of a guest at the inn or lodging - house of which the first - mentioned person is the innkeeper or lodging - house keeper or deposited with the innkeeper or lodging - house keeper for safe custody; or
(j) the business of insuring the property of a registered religious institution (within the meaning of the Fringe Benefits Tax Assessment Act 1986 ) where the person carrying on the business does not carry on any other insurance business; or
(ja) health - related business within the meaning of section 131 - 15 of the Private Health Insurance Act 2007 carried on by a private health insurer within the meaning of that Act through a health benefits fund within the meaning of section 131 - 10 of that Act; or
(k) health insurance business within the meaning of Division 121 of the Private Health Insurance Act 2007 carried on by a private health insurer within the meaning of that Act.
Note: Some contracts of insurance may be excluded from this definition under section 3A.
"judicial manager" means a judicial manager appointed by the Federal Court under section 62R.
"life insurance business" has the same meaning as in the Life Insurance Act 1995 .
"liquidator" includes a provisional liquidator.
"listing rules" has the same meaning as in the Corporations Act 2001 .
"Lloyd's" means the society of that name incorporated by the Act of the United Kingdom known as Lloyd's Act 1871.
"Lloyd's underwriter" means an underwriting member of Lloyd's.
"NOHC" or non-operating holding company , in relation to a body corporate, means a body corporate:
(a) of which the first body corporate is a subsidiary; and
(b) that does not carry on a business (other than a business consisting of the ownership or control of other bodies corporate); and
(c) that is incorporated in Australia.
"NOHC authorisation" has the meaning given by section 18.
"NOHC/NOHC subsidiary" has the meaning given by subsection 103A(5).
"ordinary accounts" means ledgers, journals, profit and loss accounts and balance - sheets, whether or not prepared for the purposes of any law (including this Act), and includes statements, reports and notes (other than auditors' reports or directors' reports) attached to, or intended to be read with, any of the foregoing, but does not include statutory accounts.
"pecuniary loss insurance business" means the business of undertaking liability by way of insurance against any one or more of the following risks:
(a) risks of loss to the persons insured arising from the insolvency of their debtors or from the failure (otherwise than through insolvency) of their debtors to pay their debts when due;
(b) risks of loss to the persons insured arising from their having to perform contracts of guarantee;
(c) risks of loss to the persons insured attributable to interruptions of the carrying on of business carried on by them;
(d) risks of loss to the persons insured attributable to their incurring unforeseen expense.
"personal information" has the same meaning as in the Privacy Act 1988 .
"pre-authorisation liability" means a liability, contingent or otherwise, that is assumed (whether in Australia or elsewhere) by a body corporate that, after assuming the liability, becomes authorised under section 12 to carry on insurance business in Australia.
"principal auditor" , of a general insurer, means an auditor appointed by the insurer under paragraph 39(1)(a).
"profit and loss account" includes income and expenditure account, revenue account and any other account showing the results of the business of a body corporate for a period.
"protected policy" means a policy other than:
(a) a policy prescribed by the regulations as not being a protected policy; and
(b) a policy determined under section 62ZY not to be a protected policy.
"prudential matters" means matters relating to:
(a) the conduct of any part of the affairs of, or the structuring or organising of, a general insurer, an authorised NOHC, a relevant group of bodies corporate, or a particular member or members of such a group, in such a way as:
(i) to keep the general insurer, NOHC, group or member or members of the group in a sound financial position; or
(ii) to facilitate resolution of the general insurer, NOHC, group or member or members of the group; or
(iii) to protect the interests of policyholders of any general insurer; or
(iv) not to cause or promote instability in the Australian financial system; or
(b) the conduct of any part of the affairs of a general insurer, an authorised NOHC, a relevant group of bodies corporate, or a particular member or members of such a group, with integrity, prudence and professional skill.
"prudential standard" means a standard determined by APRA under section 32.
"recapitalisation direction" means a direction given by APRA under subsection 103B(1) or (1B).
"related body corporate" , in relation to a body corporate, means:
(a) in Part V--a body corporate that is related to the first - mentioned body, as determined in accordance with section 50; and
(b) otherwise--a body corporate that is related to the first - mentioned body, as determined in accordance with section 4B.
"relevant group of bodies corporate" has the meaning given by section 4A.
"resolution" means the process by which APRA or other relevant persons manage or respond to an entity:
(a) being unable to meet its obligations; or
(b) being considered likely to be unable, or being considered likely to become unable, to meet its obligations; or
(c) suspending payment, or being considered likely to suspend payment;
including through the exercise of powers and functions under this Act or another law.
"RSA" has the same meaning as in the Retirement Savings Accounts Act 1997 .
"securities exchange" means:
(a) ASX Limited; or
(b) a licensed market (within the meaning of the Corporations Act 2001 ) whose licence covers dealing in derivatives; or
(c) any other body (whether in or outside Australia) approved by the Minister as a securities exchange for the purposes of this Act.
"senior manager" of a general insurer or a corporate agent means a person who has or exercises any of the senior management responsibilities (within the meaning of the prudential standards) for the insurer or agent.
"share" means a share in the capital of a body corporate, and includes stock.
"statutory accounts" , in relation to a body corporate, means the reporting documents that the body corporate is required under section 13 of the Financial Sector (Collection of Data) Act 2001 to lodge with APRA.
"subsidiary" has the meaning given by section 4.
"transferred liabilities determination" means a determination under subsection 62ZZMA(1).
"wind up" , in relation to a company, means wind up the company in accordance with the Corporations Act 2001 .
"yearly statutory accounts" , in relation to a body corporate, means the reporting documents that the body corporate is required under section 13 of the Financial Sector (Collection of Data) Act 2001 to lodge with APRA in respect of a financial year.
(1A) APRA may, in writing, authorise an APRA member or an APRA staff member to perform the functions of an authorised person under this Act.
(2) The Minister may, by legislative instrument, give approvals for the purposes of paragraph (c) of the definition of securities exchange in subsection (1).
(4) A reference in this Act to a general insurer having no liabilities in respect of insurance business carried on by it in Australia includes a reference to a general insurer who has assigned, other than by an equitable assignment, all of its interests (including rights and benefits) under all contracts of insurance in respect of insurance business carried on by it in Australia to another general insurer.
(5) Without limiting the scope of what is incidental to insurance business for the purposes of the definition of insurance business in subsection (1), a business of a person is taken, for the purposes of that definition, to be a business incidental to insurance business to the extent that it involves one or more of the following kinds of acts:
(a) inducing others to enter into contracts of insurance with the person as the insurer;
(b) publishing or distributing a statement relating to the person's willingness to enter into a contract of insurance as an insurer;
(c) procuring the publication or distribution of such a statement.
(5A) Subsection (5) does not apply if the contracts of insurance referred to in that subsection are contracts of reinsurance.
(6) Without limiting the circumstances in which a person is taken, for the purposes of this Act, to carry on insurance business in Australia, a person is taken to carry on insurance business in Australia if:
(a) the person carries on a business outside Australia that, under this Act, would constitute insurance business if it were carried on in Australia; and
(b) another person in Australia acts:
(i) directly or indirectly on behalf of the first - mentioned person; or
(ii) as a broker of insurance provided by the first - mentioned person, or directly or indirectly on behalf of such a broker;
in relation to the business carried on outside Australia.
(6A) Subsection (6) does not apply if the business referred to in paragraph (a) of that subsection is solely a business of reinsurance.
(7) In considering for the purposes of this Act whether a person carries on insurance business in Australia, an act of a kind referred to in paragraph (5)(a), (b) or (c) done outside Australia is taken to occur in Australia to the extent that it has, or is likely to have, its effect in Australia.