New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Emergency Services Levy Insurance Monitor
Bill 2016
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Involvement in prohibited conduct 3
Part 2 Emergency Services Levy Insurance Monitor
Division 1 Appointment of Monitor
5 Emergency Services Levy Insurance Monitor 4
6 Deputy Emergency Services Levy Insurance Monitor 4
7 Independence of Monitor 4
8 Staff of Monitor 4
Division 2 Functions of Monitor
9 General functions 4
10 Price monitoring 5
11 Reports 5
12 Delegation 6
13 Incidental powers 6
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Contents
Page
Part 3 Conduct relating to emergency services levy reform
Division 1 Prohibited conduct
14 Price exploitation 7
15 False or misleading conduct 7
16 Contravention notices--price exploitation 7
17 Prevention notices--price exploitation 8
18 Orders relating to prohibited conduct 8
19 Other orders 9
20 Nature of proceedings 10
21 Guidelines relating to prohibited conduct 10
Division 2 Substantiation notices
22 Monitor may require claims to be substantiated 10
23 Extending period for complying with substantiation notices 11
24 Compliance with substantiation notices 11
Division 3 Complaints
25 Making of complaints 11
26 Dealing with complaints 12
Division 4 Inquiries
27 Inquiries 12
28 Procedures at inquiries 12
29 Public inquiries 13
Division 5 Miscellaneous
30 Notice relating to emergency services levy reform 13
31 Public warning statements 14
Part 4 Legal proceedings
Division 1 Proceedings for offences
32 Nature of proceedings for offences 15
33 Persons who may commence proceedings 15
34 Time for commencing proceedings 15
Division 2 Enforceable undertakings
35 Undertakings 15
36 Enforcement of undertakings 15
37 Register of undertakings 16
Division 3 Injunctions
38 Injunctions 16
39 Consent injunctions 17
40 Interim injunctions 17
41 Power to rescind or vary injunctions 17
Division 4 Compensation orders
42 Compensation orders 17
Page 2
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Contents
Page
43 Compensation orders in respect of class of persons 18
44 Effect of compensation orders in respect of class of persons 18
45 Applications for orders 18
46 Kinds of orders that may be made 18
47 Power of court to make orders 18
48 Interaction with other provisions 18
Division 5 Evidentiary provisions
49 Proof of certain appointments not required 19
50 Documentary evidence generally 19
51 Certificate evidence of certain matters 19
Part 5 Investigation and enforcement powers
Division 1 Preliminary
52 Definition 20
53 Purposes for which powers under Part may be exercised 20
54 Effect on other functions 20
55 Appointment and identification of inspectors 20
Division 2 Powers to require information or records
56 Application of Division 20
57 Requirement to provide information and records 20
58 Provisions relating to records 21
Division 3 Powers of entry and search of premises
59 Power to enter premises 21
60 Entry into residential premises only with permission or warrant 21
61 Powers to inspect and seize things 21
62 Search warrants 21
63 Assistance to be given to inspectors 22
64 Dealing with seized things 22
Division 4 Power to question persons
65 Power of inspectors to require answers 23
Division 5 Miscellaneous
66 Offences under this Part 23
67 Provisions relating to requirements to furnish records, information or
answer questions 23
68 Entry to be reported to Monitor 24
69 Register of exercise of powers of entry 24
70 Complaints relating to powers of entry and search of premises 24
Part 6 Miscellaneous
71 Expenditure of Monitor 25
72 Emergency Services Levy Insurance Monitor Fund 25
73 Act to bind Crown 25
74 Protection from liability 25
75 Exchange of information 25
Page 3
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Contents
Page
76 Disclosure of information 26
77 Service of documents 26
78 Regulations 27
79 Repeal of Act 27
Schedule 1 Provisions relating to Monitor and Deputy Monitor 28
Schedule 2 Savings, transitional and other provisions 30
Schedule 3 Amendment of Acts 31
Page 4
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2016
New South Wales
Emergency Services Levy Insurance Monitor
Bill 2016
Act No , 2016
An Act to provide for the appointment and functions of an Emergency Services Levy Insurance
Monitor, and for the protection of persons from certain practices in connection with fire and
emergency services funding reform; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Emergency Services Levy Insurance Monitor Act 2016.
2 Commencement
This Act commences on the date of assent to this Act.
3 Definitions
In this Act:
ASIC means the Australian Securities and Investments Commission.
Department means the Department of Finance, Services and Innovation.
Deputy Monitor means the Deputy Emergency Services Levy Insurance Monitor
appointed under this Act.
emergency services funding scheme means the scheme for funding certain fire and
emergency services from contributions required to be paid by insurance companies
under:
(a) Part 5 of the Fire Brigades Act 1989, and
(b) Part 5 of the Rural Fires Act 1997, and
(c) Part 5A of the State Emergency Service Act 1989.
emergency services levy means the amount included in a premium payable for the
issue of a regulated contract of insurance for the purpose of recouping contributions
required to be paid by an insurance company under the emergency services funding
scheme, whether or not the amount is disclosed as a separate item.
emergency services levy reform means:
(a) the abolition, by enactment, of the emergency services funding scheme
(including the proposed abolition of the emergency services funding scheme,
announced by the Treasurer on 10 December 2015), and
(b) the establishment of an emergency services property levy (including the
proposed establishment of an emergency services property levy, announced by
the Treasurer on 10 December 2015).
false or misleading conduct in relation to the emergency services levy reform--see
section 15.
function includes a power, authority or duty, and exercise a function includes
perform a duty.
inspector means a person appointed as an inspector under Part 5.
insurance against loss of or damage to property means insurance against the risk of
loss of or damage to property, or the risk of loss of profits consequent on loss of or
damage to property, whether the insurance is associated with insurance against any
other risk or not.
insurance company means a person, partnership, association or underwriter that:
(a) issues or undertakes liability under policies of insurance against loss of or
damage to property situated in New South Wales, or
(b) receives premiums in respect of such policies of insurance on behalf of, or for
transmission to, a person, partnership, association or underwriter outside New
South Wales.
Page 2
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 1 Preliminary
Monitor means the Emergency Services Levy Insurance Monitor appointed under
this Act.
personal information has the same meaning as in the Privacy and Personal
Information Protection Act 1998.
price, in relation to the issue of a regulated contract of insurance, includes:
(a) any premium paid or payable for the issue of the regulated contract of
insurance (including any base premium, emergency services levy, GST or
duty), and
(b) any brokerage or commission paid or payable on:
(i) the premium, or
(ii) bonuses or return premiums allowed in respect of the regulated contract
of insurance, or
(iii) such part of the premium received by or payable to the insurance
company issuing the regulated contract of insurance as is paid or
payable by way of reinsurance by the insurance company to another
insurance company.
price exploitation--see section 14.
prohibited conduct means:
(a) price exploitation, or
(b) false or misleading conduct in relation to the emergency services levy reform.
regulated contract of insurance means any policy of insurance issued by an
insurance company (whether before, on or after the commencement of this Act) that:
(a) belongs to a class of policies of insurance that is, on the commencement of this
Act, subject to contribution under the emergency services funding scheme, or
(b) is a combined or comprehensive policy of insurance that includes a policy of
insurance belonging to such a class.
Secretary means:
(a) the Commissioner for Fair Trading, Department of Finance, Services and
Innovation, or
(b) if there is no person employed as Commissioner for Fair Trading--the
Secretary of the Department of Finance, Services and Innovation.
substantiation notice--see section 22 (1).
trade or commerce has the same meaning as in the Fair Trading Act 1987.
4 Involvement in prohibited conduct
In this Act, engage in prohibited conduct includes:
(a) aid, abet, counsel or procure another person to engage in prohibited conduct,
and
(b) induce, whether by threats or promises or otherwise, another person to engage
in prohibited conduct, and
(c) conspire with another person to engage in prohibited conduct.
Page 3
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 2 Emergency Services Levy Insurance Monitor
Part 2 Emergency Services Levy Insurance Monitor
Division 1 Appointment of Monitor
5 Emergency Services Levy Insurance Monitor
(1) The Governor may appoint an Emergency Services Levy Insurance Monitor.
(2) Schedule 1 contains ancillary provisions relating to the office of Monitor.
6 Deputy Emergency Services Levy Insurance Monitor
(1) The Governor may appoint a Deputy Emergency Services Levy Insurance Monitor.
(2) The Deputy Monitor has and may exercise the functions delegated to the Deputy
Monitor under section 12.
(3) Schedule 1 contains ancillary provisions relating to the office of Deputy Monitor.
7 Independence of Monitor
(1) Subject to this and any other Act, the Monitor is not subject to the control or direction
of any Minister in respect of the exercise of the Monitor's functions under this Act.
(2) In particular, the Monitor is not subject to the control or direction of any Minister in
respect of the exercise of the Monitor's functions in respect of a specific matter or
complaint.
(3) However, the Minister administering this Act may issue a general direction in writing
to the Monitor in respect of the exercise of the Monitor's functions under this Act.
(4) A general direction issued under subsection (3) must be published in the Gazette as
soon as practicable after it is issued to the Monitor.
(5) The Monitor must comply with a general direction issued under subsection (3).
8 Staff of Monitor
(1) Persons may be employed in the Public Service under the Government Sector
Employment Act 2013 to enable the Monitor to exercise the Monitor's functions.
(2) Without limiting subsection (1), the Monitor may:
(a) arrange for the use of the services of any staff or facilities of a Public Service
agency, and
(b) engage such consultants as the Monitor requires to exercise the Monitor's
functions.
Division 2 Functions of Monitor
9 General functions
(1) The Monitor has such functions as are conferred or imposed on the Monitor by or
under this or any other Act.
(2) Without limiting subsection (1), the Monitor has the following functions:
(a) to provide information, advice and guidance in relation to the emergency
services levy reform and prohibited conduct,
(b) to monitor prohibited conduct and compliance with this Act and the
regulations,
(c) to monitor prices for the issue of regulated contracts of insurance,
Page 4
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 2 Emergency Services Levy Insurance Monitor
(d) to monitor the impact of the emergency services levy reform on the insurance
industry and levels of insurance coverage,
(e) to prepare and publish guidelines relating to the operation and enforcement of
this Act and the regulations,
(f) to receive complaints about prohibited conduct and to deal with them in
accordance with this Act,
(g) to investigate and institute proceedings in respect of prohibited conduct or any
contravention of this Act or the regulations.
10 Price monitoring
(1) The Monitor may monitor prices for the issue of regulated contracts of insurance for
either or both of the following purposes:
(a) to assess the general effect of the emergency services levy reform on prices
charged by insurance companies for regulated contracts of insurance,
(b) to assist in the consideration of whether insurance companies are engaging in
prohibited conduct.
(2) Without limiting section 57, a notice given to a person under that section in
connection with the exercise of a function under subsection (1) may require the
person to furnish to the Monitor such information or records (or both) relating to
prices or the setting of prices at any time during the monitoring period as the Monitor
requires by the notice for the purposes of that subsection.
(3) For the purposes of subsection (2), the monitoring period is the period commencing
on 1 July 2014 and ending on 31 December 2018.
(4) Without limiting subsection (2), information or records that may be required by the
notice may relate to any regulated contract of insurance or class of regulated
contracts of insurance (including any regulated contract of insurance issued in
respect of property, or a class of property, specified in the notice), and may include
personal information (despite anything to the contrary in the Privacy and Personal
Information Protection Act 1998).
11 Reports
(1) The Monitor must, within 28 days after the end of each quarter, provide a written
report to the Minister, and to the Treasurer, on the performance of the functions of
the Monitor during the quarter.
(2) Without limiting subsection (1), a report must include particulars of both of the
following:
(a) any notices given under section 17,
(b) any variations or revocations of notices given under section 17.
(3) As soon as practicable after the Minister receives a report under subsection (1), the
Minister must publish the report.
(4) The Minister may, by written notice, request the Monitor to provide a report to the
Minister on:
(a) the performance of the functions of the Monitor either generally or in respect
of a specified matter, or
(b) the impact of the emergency services levy reform on levels of insurance
coverage.
Page 5
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 2 Emergency Services Levy Insurance Monitor
(5) A written notice under subsection (4) must specify:
(a) the matters to be addressed in the report, and
(b) the date by which the report must be provided to the Minister.
(6) In this section, quarter means a period of 3 months ending on 31 March, 30 June,
30 September or 31 December in each year.
12 Delegation
(1) The Monitor may delegate the exercise of any function of the Monitor under this Act
(other than this power of delegation) to:
(a) the Deputy Monitor, or
(b) any person employed in the Department, or
(c) any person, or any class of persons, authorised for the purposes of this section
by the regulations.
(2) The Monitor may delegate to the Secretary the exercise of any function of the
Monitor under this Act, including, subject to subsection (3), this power of delegation.
(3) The Secretary may, subject to and in accordance with the instrument of delegation
under subsection (2), delegate to any person employed in the Department the
exercise of any function delegated to the Secretary (other than this power of
delegation).
13 Incidental powers
The Monitor has power to do all things necessary to be done for or in connection
with, or reasonably incidental to, the exercise of the Monitor's functions. Any
specific powers conferred on the Monitor by this Act are not taken to limit by
implication the generality of this section.
Page 6
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 3 Conduct relating to emergency services levy reform
Part 3 Conduct relating to emergency services levy reform
Division 1 Prohibited conduct
14 Price exploitation
(1) For the purposes of this Act, an insurance company engages in price exploitation if:
(a) the insurance company issues (or has, at any time during the relevant period,
issued) a regulated contract of insurance, and
(b) the price for the issue of the regulated contract of insurance is unreasonably
high having regard to:
(i) the emergency services levy reform, and
(ii) the contributions required to be paid by the insurance company under
Part 5 of the Fire Brigades Act 1989, Part 5 of the Rural Fires Act 1997
and Part 5A of the State Emergency Service Act 1989, and
(iii) the historical emergency services levy rates charged by the insurance
company, and
(iv) the costs of supplying insurance against loss of or damage to property,
and
(v) any other matters prescribed by the regulations.
(2) For the purposes of this section, issue a regulated contract of insurance includes
receive a premium in respect of a regulated contract of insurance on behalf of, or for
transmission to, any body corporate, partnership, association, underwriter or person
outside New South Wales.
(3) In this section, relevant period means the period commencing on 10 December 2015
and ending on the date on which this section commences.
15 False or misleading conduct
For the purposes of this Act, a person engages in false or misleading conduct in
relation to the emergency services levy reform if the person engages in any conduct,
in trade or commerce, that:
(a) falsely represents (whether expressly or impliedly) the effect, or likely effect,
of the emergency services levy reform, or
(b) misleads or deceives, or is likely to mislead or deceive, any person about the
effect or likely effect of the emergency services levy reform.
16 Contravention notices--price exploitation
(1) The Monitor may give an insurance company a notice in writing under this section
(a contravention notice) if the Monitor considers that the insurance company has
engaged in price exploitation.
(2) A contravention notice must:
(a) state that it is given under this section, and
(b) specify the name of the insurance company that issued the regulated contract
of insurance concerned and the details of the regulated contract of insurance,
and
(c) state that in the Monitor's opinion the price for the issue of the regulated
contract of insurance was unreasonably high having regard to the matters
specified in section 14, and
(d) specify the detailed reasons for the opinion and the matters to which the
Monitor had regard in forming the opinion.
Page 7
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 3 Conduct relating to emergency services levy reform
(3) The Monitor must have regard to any guidelines issued under section 21 (in relation
to price exploitation) in deciding whether to give a contravention notice.
(4) The Monitor may vary or revoke a contravention notice on the Monitor's own
initiative or on the application of the insurance company to which it was given.
(5) The Monitor must, within 3 days after varying or revoking a contravention notice,
give notice in writing to the insurance company of the variation or revocation.
(6) A contravention notice given under this section is admissible in any proceedings for
an order under section 18 and, in the absence of evidence to the contrary, is evidence
that the price for the issue of the regulated contract of insurance was unreasonably
high having regard to the matters specified in section 14.
17 Prevention notices--price exploitation
(1) The Monitor may give an insurance company a notice in writing under this section
(a prevention notice) if the Monitor considers that doing so will aid the prevention
of price exploitation.
(2) A prevention notice must:
(a) state that it is given under this section, and
(b) specify the name of the insurance company to which it applies, and
(c) specify the regulated contract of insurance, or class of regulated contracts of
insurance, to which it applies, and
(d) specify the detailed reasons for giving the notice and the matters to which the
Monitor had regard in deciding whether to give the notice.
(3) The Monitor must have regard to any guidelines issued under section 21 (in relation
to price exploitation) in deciding whether to give a notice under this section.
(4) The Monitor may vary or revoke a prevention notice on the Monitor's own initiative
or on the application of the insurance company to which it was given.
(5) The Monitor must, within 3 days after varying or revoking a prevention notice, give
notice in writing to the insurance company of the variation or revocation.
18 Orders relating to prohibited conduct
(1) The Supreme Court may, on the application of the Monitor, make an order requiring
a person who has engaged in prohibited conduct (the respondent) to pay to the State
an amount not exceeding the maximum amount.
(2) The Court is not to make an order against a respondent under this section if satisfied
that the conduct to which the order relates is false or misleading conduct in relation
to the emergency services levy reform and:
(a) the conduct was due to a reasonable mistake, or
(b) the conduct was due to a reasonable reliance on information supplied by
another person (other than a servant or agent of the respondent or, in the case
of a respondent who is a body corporate, a director or other person concerned
in the management of the body corporate), or
(c) the conduct was due to causes over which the respondent had no control and
the respondent took reasonable precautions and exercised due diligence to
prevent the conduct.
Page 8
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 3 Conduct relating to emergency services levy reform
(3) The Court is not to make an order against a respondent under this section if satisfied
that:
(a) the conduct to which the order relates is false or misleading conduct, in
relation to the emergency services levy reform, involving the publication of an
advertisement, and
(b) the respondent is a person whose business is to publish, or arrange for the
publication of, advertisements, and
(c) the respondent engaged in the conduct on behalf of another person in the
ordinary course of that business, and
(d) the respondent does not have a commercial relationship with that other person,
other than for the purpose of:
(i) publishing, or arranging for the publication of, advertisements
promoting, or apparently intended to promote, the other person's
business or other activities, or
(ii) the other person supplying insurance to the respondent.
(4) Without limiting the matters to which the Court may have regard in determining
whether to make an order under this section, the Court may have regard to any
guidelines issued under section 21.
(5) If the conduct to which the order relates occurred before the date on which the Bill
for this Act was first introduced into Parliament, the amount payable under the order
is not to exceed the amount that the Court is satisfied represents the amount of any
monetary benefits acquired by the respondent, or accrued or accruing to the
respondent, as a result of the conduct.
(6) An application under subsection (1) may be made not later than 31 December 2018.
(7) An amount payable under an order made under this section is recoverable by the
State as a debt from the respondent.
(8) In this section, maximum amount means:
(a) in the case of an individual--$500,000, or
(b) in the case of a body corporate--$10,000,000.
19 Other orders
(1) The Supreme Court may, on the application of the Monitor, make either or both of
the following orders if satisfied that a person has engaged in prohibited conduct:
(a) an order requiring the person to take specified action to publicise the
prohibited conduct (including the circumstances in which the person engaged
in the prohibited conduct) and its consequences and any other orders made
against the person,
(b) an order requiring the person to take specified action to notify specified
persons or classes of persons of the prohibited conduct (including the
circumstances in which the person engaged in the prohibited conduct) and its
consequences and any other orders made against the person (including, for
example, the publication in an annual report or any other notice to
shareholders of a company or the notification of persons aggrieved or affected
by the prohibited conduct).
(2) The Court may, in an order under this section, fix a period for compliance and impose
any other requirements the Court considers necessary or expedient for enforcement
of the order.
(3) If the person against whom an order is made under subsection (1) (a) fails to comply
with the order, the Monitor may take action to carry out the order.
Page 9
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 3 Conduct relating to emergency services levy reform
(4) The reasonable cost of taking action referred to in subsection (3) is recoverable by
the State as a debt from the person against whom the order is made.
(5) A person must not fail to comply with an order under this section.
Maximum penalty:
(a) in the case of an individual--40 penalty units, or
(b) in the case of a body corporate--200 penalty units.
20 Nature of proceedings
For the avoidance of doubt, proceedings under this Division are civil proceedings,
and the rules of procedure apply accordingly.
21 Guidelines relating to prohibited conduct
(1) The Monitor may issue guidelines about when conduct may be regarded as
constituting prohibited conduct.
(2) The Monitor may at any time vary guidelines issued under subsection (1).
(3) Guidelines issued, and any variation of the guidelines made, under this section:
(a) must be published in the Gazette and on the Monitor's website, and
(b) must specify the date on which they take effect.
Division 2 Substantiation notices
22 Monitor may require claims to be substantiated
(1) If the Monitor is satisfied that a person has, in trade or commerce, made a claim or
representation as to the effect or the likely effect of the emergency services levy
reform, the Monitor may, by notice in writing (a substantiation notice), require the
person to substantiate the claim or representation.
(2) The substantiation notice may require the person to do either or both of the following
within 21 days after the notice is given to the person:
(a) furnish to the Monitor information or records (or both) that could be capable
of substantiating or supporting the claim or representation,
(b) furnish to the Monitor information or records (or both) of a kind specified in
the notice.
(3) Any kind of information or records specified in a substantiation notice under
subsection (2) (b) must be information or records that the Monitor is satisfied are
relevant to substantiating or supporting the claim or representation.
(4) The substantiation notice must:
(a) state the name of the person to whom it is to be given, and
(b) specify the claim or representation to which it relates, and
(c) explain the effect of sections 23 and 24.
(5) The substantiation notice may relate to more than 1 claim or representation made by
the person to whom it is to be given.
(6) The Monitor must have regard to any guidelines issued under section 21 in deciding
whether to give a substantiation notice under this section.
(7) This section does not apply to a person who makes a claim or representation if:
(a) the person is a person whose business is to publish, or arrange for the
publication of, advertisements, and
Page 10
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 3 Conduct relating to emergency services levy reform
(b) the person makes the claim or representation on behalf of another person in the
ordinary course of that business, and
(c) the person does not have a commercial relationship with that other person,
other than for the purpose of:
(i) publishing, or arranging for the publication of, advertisements
promoting, or apparently intended to promote, the other person's
business or other activities, or
(ii) the other person supplying insurance to the person who makes the claim
or representation.
23 Extending period for complying with substantiation notices
(1) A person who has been given a substantiation notice may, at any time within 21 days
after the substantiation notice is given to the person by the Monitor, apply in writing
to the Monitor for an extension of the period within which the person must comply
with the substantiation notice.
(2) The Monitor may, by written notice given to the person, extend the period within
which the person must comply with the substantiation notice.
24 Compliance with substantiation notices
(1) A person who is given a substantiation notice must comply with the substantiation
notice within the compliance period.
Maximum penalty:
(a) in the case of an individual--40 penalty units, or
(b) in the case of a body corporate--200 penalty units.
(2) For the purposes of subsection (1), compliance period means:
(a) the period of 21 days specified in the substantiation notice, or
(b) if the period for complying with the notice has been extended under
section 23, the period as so extended.
(3) If an application has been made under section 23 (1) for an extension of the period
specified in the substantiation notice, the compliance period includes the period up
until the time when the applicant is given notice of the Monitor's decision on the
application.
(4) Despite subsection (1), an individual may refuse or fail to furnish particular
information or a particular record in compliance with a substantiation notice on the
ground that the information or record might incriminate the individual or make the
individual liable to a penalty.
Division 3 Complaints
25 Making of complaints
(1) Any person may complain to the Monitor about any conduct of an insurance
company that is alleged by the person to be prohibited conduct.
(2) The Monitor may require a person who has made a complaint to give more
information about the complaint within the time fixed by the Monitor.
(3) A person who has made a complaint must give his or her name to the Monitor and
such other information relating to his or her identity as the Monitor may require.
Page 11
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 3 Conduct relating to emergency services levy reform
26 Dealing with complaints
(1) The Monitor may deal with a complaint made under section 25 in such manner as the
Monitor considers appropriate.
(2) Without limiting subsection (1), the Monitor may refer a complaint to any of the
following persons or bodies:
(a) the Secretary,
(b) ASIC,
(c) the Australian Prudential Regulation Authority,
(d) Financial Ombudsman Service Limited,
(e) any other person or body prescribed by the regulations for the purposes of this
section.
(3) If the Monitor refers a complaint to another person or body under subsection (2), the
Monitor may continue to deal with the complaint if the Monitor considers it
appropriate to do so.
Division 4 Inquiries
27 Inquiries
(1) The Monitor may conduct an inquiry into any matter relating to prohibited conduct
in the insurance industry that the Monitor considers to be of significance to the
public.
(2) An inquiry may be conducted under this Division in respect of a particular insurance
company, or insurance companies generally.
(3) An inquiry may be held in public or in private.
28 Procedures at inquiries
(1) The procedure to be followed at an inquiry under this Division is to be determined
by the Monitor, subject to this Act and the regulations.
(2) The Monitor may, by notice in writing given to any person, require the person within
such reasonable time as may be specified in the notice:
(a) to furnish to the Monitor such information, and
(b) to produce to the Monitor such documents in the person's possession or under
the person's control,
as may be required for the purposes of the inquiry and as may be specified in the
notice, whether generally or otherwise.
(3) The Monitor may, by notice in writing given to any person, require the person:
(a) to attend at a specified time and place before the Monitor and at such other
times as may be required by the Monitor, and
(b) to give evidence concerning any matter the subject of the inquiry, and
(c) to produce all such documents in the person's possession or under the person's
control as may be required for the purposes of the inquiry and as may be
specified in the notice, whether generally or otherwise.
(4) The Monitor may require any such evidence to be given in writing or orally.
(5) The Monitor may, subject to section 13 of the Oaths Act 1900, require any such
evidence to be given on oath, and for that purpose the Monitor may administer an
oath.
Page 12
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 3 Conduct relating to emergency services levy reform
(6) A person must not, without reasonable excuse, refuse or fail to comply with a
requirement made of the person under this section.
Maximum penalty: 100 penalty units.
(7) A person must not:
(a) furnish any information pursuant to subsection (2) knowing that it is false or
misleading in a material particular, or
(b) give any evidence pursuant to subsection (3) knowing that it is false or
misleading in a material particular.
Maximum penalty: 100 penalty units.
29 Public inquiries
(1) Before commencing a public inquiry under this Division, the Monitor is required to
give notice, by advertisement in the Gazette and in such other manner as the Monitor
considers appropriate, of the intention to hold the inquiry, of its subject and of the
time and place at which it is to commence.
(2) If, after commencing a public inquiry, the Monitor is satisfied that it is desirable in
the public interest to do so because of the confidential nature of any evidence or
matter or for any other reason, the Monitor may do either or both of the following:
(a) direct that the inquiry or any part of it take place in private and give directions
as to the persons who may be present,
(b) give directions prohibiting or restricting the publication of evidence given at
the inquiry or of matters contained in documents provided for the inquiry.
(3) A person must not make a publication in contravention of a direction given under this
section.
Maximum penalty: 100 penalty units.
(4) If evidence is given at a public inquiry by written statement, the Monitor is to make
available to the public in such manner as the Monitor considers appropriate the
contents of the statement. This does not apply to matter the publication of which, in
the opinion of the Monitor, would be contrary to the public interest because of its
confidential nature or for any other reason.
Division 5 Miscellaneous
30 Notice relating to emergency services levy reform
(1) The Monitor may publish a notice in the Gazette containing such information as the
Monitor considers appropriate to inform the public of the emergency services levy
reform and the functions of the Monitor under this Act.
(2) If an insurance company or person acting on behalf of an insurance company issues
to a person an invoice or other statement as to the price payable for the issue of a
regulated contract of insurance, the insurance company, or person, who issues the
statement must ensure that the statement includes the information contained in the
notice published under subsection (1).
Maximum penalty: 200 penalty units.
(3) For the purposes of subsection (2), the issue of a regulated contract of insurance
includes the renewal of an existing regulated contract of insurance, but does not
include the variation of an existing regulated contract of insurance.
Page 13
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 3 Conduct relating to emergency services levy reform
31 Public warning statements
(1) The Monitor may make or issue a public statement identifying and giving warnings
or information about prohibited conduct and insurance companies that engage in
prohibited conduct.
(2) The statement may identify particular insurance companies.
(3) The Monitor must have regard to any guidelines issued under section 21 in deciding
whether to make or issue a statement under this section.
(4) The Monitor is not to make or issue a statement under this section unless satisfied
that it is in the public interest to do so.
Page 14
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 4 Legal proceedings
Part 4 Legal proceedings
Division 1 Proceedings for offences
32 Nature of proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may be dealt with:
(a) summarily before the Local Court, or
(b) summarily before the Supreme Court in its summary jurisdiction.
(2) If proceedings are brought in the Local Court, the maximum monetary penalty that
the Local Court may impose for the offence is 100 penalty units, despite any higher
maximum monetary penalty provided in respect of the offence.
33 Persons who may commence proceedings
(1) Proceedings for an offence against this Act or the regulations may be taken and
prosecuted only by the Monitor or, in the name of the Monitor, by a person acting
with the authority of the Monitor.
(2) In proceedings for an offence against this Act or the regulations, an authority to
prosecute purporting to have been signed by the Monitor is evidence of that authority
without proof of the signature of the Monitor.
34 Time for commencing proceedings
Despite the Criminal Procedure Act 1986 or any other Act, proceedings for an
offence under this Act or the regulations may be commenced not later than
31 December 2018.
Division 2 Enforceable undertakings
35 Undertakings
(1) The Monitor may accept a written undertaking given by a person for the purposes of
this Division in connection with a matter in relation to which the Monitor has a
function under this Act.
(2) The Monitor must give a copy of the accepted undertaking to the person who has
given the undertaking.
(3) The person may withdraw or vary an undertaking at any time, but only with the
consent in writing of the Monitor. The consent of the Monitor is required even if the
undertaking purports to authorise withdrawal or variation of the undertaking without
that consent.
36 Enforcement of undertakings
(1) The Monitor may apply to the Supreme Court for an order under subsection (2) if the
Monitor considers that a person who has given an undertaking under section 35 has
breached any of its terms.
(2) The Supreme Court may make all or any of the following orders if it is satisfied that
the person has breached a term of the undertaking:
(a) an order directing the person to comply with that term of the undertaking,
(b) an order directing the person to pay to the State an amount not exceeding the
amount of any monetary benefits that the person has obtained directly or
indirectly and that is reasonably attributable to the breach,
Page 15
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 4 Legal proceedings
(c) any other order that the Court thinks appropriate, including an order directing
the person to compensate any other person who has suffered loss or damage as
a result of the breach.
37 Register of undertakings
(1) The Monitor must:
(a) maintain a register of undertakings, and
(b) register each undertaking in the register of undertakings.
(2) The register of undertakings must include each of the following:
(a) the name and address of the person who gave the undertaking,
(b) the date of the undertaking,
(c) a copy of the undertaking.
(3) The register of undertakings may be inspected by any person at any reasonable time,
without charge.
Division 3 Injunctions
38 Injunctions
(1) The Supreme Court may grant an injunction, in such terms as the Court considers
appropriate, if the Court is satisfied that a person has engaged, or is proposing to
engage, in conduct that constitutes or would constitute:
(a) prohibited conduct, or
(b) aiding, abetting, counselling or procuring another person to engage in
prohibited conduct, or
(c) inducing (by threats, promise or otherwise) another person to engage in
prohibited conduct, or
(d) being in any way, directly or indirectly, knowingly concerned in, or a party to,
prohibited conduct, or
(e) conspiring with another person to engage in prohibited conduct.
(2) The Court may grant the injunction on the application of the Monitor or any other
person.
(3) The Court may grant an injunction under subsection (1) restraining a person from
engaging in prohibited conduct:
(a) whether or not it appears to the Court that the person intends to engage again
or continue to engage in the prohibited conduct, and
(b) whether or not the person has previously engaged in prohibited conduct of that
kind, and
(c) whether or not there is imminent danger of substantial damage to any other
person if the person engages in prohibited conduct of that kind.
(4) The Court may grant an injunction under subsection (1) requiring a person to do an
act or thing:
(a) whether or not it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that act or thing, and
(b) whether or not the person has previously refused or failed to do that act or
thing, and
(c) whether or not there is imminent danger of substantial damage to any other
person if the person refuses or fails to do that act or thing.
Page 16
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 4 Legal proceedings
(5) Without limiting subsection (1), the Court may grant an injunction requiring a person
to do one or more of the following:
(a) institute a training program for the person's employees in relation to
prohibited conduct and compliance with this Act,
(b) refund money to purchasers,
(c) disclose information about the person's business activities or business
associates,
(d) honour any promise made in the course of false or misleading conduct.
(6) An application for an injunction under this section may be made ex parte or
otherwise.
39 Consent injunctions
If an application is made under section 38, the Supreme Court may, if it considers it
appropriate, grant an injunction by consent of all the parties to the proceedings,
whether or not the Court is satisfied as required by section 38 (1).
40 Interim injunctions
(1) If an application is made under section 38, the Supreme Court may, if it considers it
appropriate, grant an interim injunction pending the determination of the application.
(2) If the application under section 38 has been made by the Monitor, the Court must not
require the Monitor or any other person to give any undertakings as to costs as a
condition of granting the interim injunction.
(3) If:
(a) the application under section 38 has been made by any person other than the
Monitor and the Court would, but for this subsection, require the person to
give an undertaking as to costs, and
(b) the Monitor gives the undertaking,
the Court must accept the undertaking by the Monitor and must not require a further
undertaking from any other person.
41 Power to rescind or vary injunctions
The Supreme Court may rescind or vary an injunction that it has granted under this
Division.
Division 4 Compensation orders
42 Compensation orders
(1) This section applies where a person (the injured person) or class of injured persons
has suffered, or is likely to suffer, loss or damage as a consequence of prohibited
conduct engaged in by another person (the respondent).
(2) The Supreme Court may, on the application of an injured person or the Monitor on
behalf of 1 or more injured persons, make any order or orders that the Court considers
appropriate against the respondent.
(3) The order must be an order that the Court considers will:
(a) compensate the injured person or class of injured persons, in whole or in part,
for the loss or damage, or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the
injured person or persons.
Page 17
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 4 Legal proceedings
(4) The Monitor must not make an application under subsection (2) (other than an
application on behalf of a class of injured persons) unless the person on whose behalf
the application is to be made has consented in writing to the making of the
application.
(5) An application under subsection (2) may be made not later than 31 December 2018.
43 Compensation orders in respect of class of persons
(1) In determining whether to make an order under section 42 in respect of loss or
damage suffered by a class of injured persons, the Supreme Court may have regard
to the conduct of the respondent, and of the class of injured persons in relation to the
prohibited conduct to which the order relates, since the prohibited conduct occurred.
(2) In determining whether to make an order under section 42, the Court need not make
a finding about the nature of the loss or damage suffered, or likely to be suffered, by
the class of injured persons.
44 Effect of compensation orders in respect of class of persons
(1) An injured person who belongs to a class of injured persons in respect of whom an
order is made under section 42 is bound by the order if:
(a) the loss or damage suffered, or likely to be suffered, by the person in relation
to the prohibited conduct to which the order relates has been redressed,
prevented or reduced in accordance with the order, and
(b) the person has accepted the redress, prevention or reduction.
(2) Any other order made under section 42 that relates to that loss or damage has no
effect in relation to the injured person.
(3) Despite any other provision of any other Act or law of this or any other State or
Territory, no claim, action or demand may be made or taken against the respondent
by the injured person in relation to that loss or damage.
45 Applications for orders
An application may be made under section 42 in relation to prohibited conduct
whether or not an application under section 18 has been made in relation to the
prohibited conduct.
46 Kinds of orders that may be made
Without limiting section 42, the orders that the Supreme Court may make under that
section against a respondent include the following:
(a) an order requiring the respondent to pay the injured person or class of injured
persons the amount of the loss or damage referred to in that section,
(b) an order requiring the respondent to refund money or return property to the
injured person.
47 Power of court to make orders
The Supreme Court may make an order under this Division whether or not the Court
grants an injunction or makes an order under any other provision of this Act.
48 Interaction with other provisions
This Division does not limit any provision of Part 3 or any other provision of this
Part.
Page 18
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 4 Legal proceedings
Division 5 Evidentiary provisions
49 Proof of certain appointments not required
In any proceedings under this Act, no proof is required (until evidence is given to the
contrary) of:
(a) the appointment of the Monitor or Deputy Monitor, or
(b) the appointment of any inspector.
50 Documentary evidence generally
Any instrument (including a notice, order or direction in writing) purporting:
(a) to be an instrument issued, made or given for the purposes of this Act, and
(b) to have been signed by the person authorised to issue, make or give the
instrument, or by another person acting as delegate or on behalf of the person,
is admissible in any proceedings under this Act and, in the absence of evidence to the
contrary, is to be taken to be such an instrument and to have been so signed.
51 Certificate evidence of certain matters
(1) A document signed by the Monitor, or a person declared in writing by the Monitor
for the purposes of this section, and certifying any 1 or more of the matters specified
in subsection (2) is admissible in any proceedings under this Act and is, in the
absence of evidence to the contrary, evidence of the matters so certified.
(2) The matters referred to in subsection (1) are the following:
(a) that an instrument (including a notice, order or direction in writing), a copy of
which is set out in or annexed to the document, being an instrument
purporting:
(i) to be issued, made or given for the purposes of this Act, and
(ii) to have been signed by the person authorised to issue, make or give the
instrument, or by another person acting as delegate or on behalf of the
person,
was issued, made or given on a specified day,
(b) that a person was or was not, at a specified time or during a specified period,
an inspector.
Page 19
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 5 Investigation and enforcement powers
Part 5 Investigation and enforcement powers
Division 1 Preliminary
52 Definition
For the purposes of this Part, contravene a provision of this Act includes engage in
prohibited conduct.
53 Purposes for which powers under Part may be exercised
Powers may be exercised under this Part for the following purposes:
(a) for determining whether there has been compliance with or a contravention of
a provision of this Act or the regulations,
(b) for obtaining information or records for purposes connected with the
administration of this Act,
(c) in connection with exercising the functions of the Monitor,
(d) generally for administering this Act.
54 Effect on other functions
Nothing in this Part affects any function under any other provision of this Act or
under any other Act.
55 Appointment and identification of inspectors
(1) The Monitor may appoint as an inspector for the purposes of this Act any person
(including a class of persons) who, in the opinion of the Monitor, is suitably qualified
to exercise the functions of an inspector.
(2) The Monitor is taken to have been appointed as an inspector.
(3) The Monitor is to cause each inspector to be issued with a means of identification in
the form approved by the Monitor.
(4) Identification must contain a photograph of the inspector to whom it is issued.
(5) In the course of exercising the functions of an inspector under this Act, the inspector
must, if requested to do so by any person affected by the exercise of any such
function, produce the inspector's identification for inspection by the person.
Division 2 Powers to require information or records
56 Application of Division
This Division applies whether or not a power of entry under Division 3 is being or
has been exercised.
57 Requirement to provide information and records
(1) An inspector may, by notice in writing given to a person, require the person to furnish
to the inspector such information or records (or both) as the inspector requires by the
notice in connection with any matter arising under or in connection with the
functions of the Monitor under this Act.
(2) Any such notice must specify the manner in which information or records are
required to be furnished and a reasonable time by which the information or records
are required to be furnished.
Page 20
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 5 Investigation and enforcement powers
58 Provisions relating to records
(1) A notice under this Division may only require a person to furnish records that are in
the person's possession or that are within the person's power to obtain lawfully.
(2) The inspector to whom any record is furnished under this Division may take copies
of it.
(3) If any record required to be furnished under this Division is in electronic, mechanical
or other form, the notice requires the record to be furnished in written form, unless
the notice otherwise provides.
Division 3 Powers of entry and search of premises
59 Power to enter premises
(1) An inspector may, with the approval of the Monitor, enter any premises at any time
for the purposes referred to in section 53.
(2) Entry may be effected under this Act by an inspector with the aid of such other
inspectors as the inspector considers necessary and with the use of reasonable force.
60 Entry into residential premises only with permission or warrant
This Division does not empower an inspector to enter any part of premises used only
for residential purposes without the permission of the occupier or the authority of a
search warrant under section 62.
61 Powers to inspect and seize things
(1) An inspector may, on any premises lawfully entered, do anything that in the opinion
of the inspector is necessary to be done for the purposes of this Part, including (but
not limited to) the things specified in subsection (2).
(2) An inspector may do any or all of the following:
(a) make such examinations and inquiries as the inspector considers necessary,
(b) require records to be produced for inspection,
(c) examine and inspect any records,
(d) copy any records,
(e) seize anything that the inspector has reasonable grounds for believing is
connected with a contravention of a provision of this Act or the regulations,
(f) do any other thing the inspector is empowered to do under this Part.
(3) The power to seize anything connected with a contravention of a provision includes
a power to seize:
(a) a thing with respect to which the provision has been contravened, and
(b) a thing that will afford evidence of the contravention, and
(c) a thing that was used for the purpose of the contravention.
A reference to any such contravention includes a reference to a contravention that
there are reasonable grounds for believing has been engaged in.
62 Search warrants
(1) An inspector under this Act may, with the approval of the Monitor, apply to an
authorised officer for the issue of a search warrant if the inspector believes on
reasonable grounds that:
Page 21
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 5 Investigation and enforcement powers
(a) a provision of this Act or the regulations is being or has been contravened at
any premises, or
(b) there is in or on any premises matter or a thing that is connected with a
contravention of this Act or the regulations.
(2) An authorised officer to whom such an application is made may, if satisfied that there
are reasonable grounds for doing so, issue a search warrant authorising an inspector
named in the warrant:
(a) to enter the premises, and
(b) to exercise any function of an inspector under this Division.
(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002
applies to a search warrant issued under this section.
(4) In this section:
authorised officer has the same meaning as in the Law Enforcement (Powers and
Responsibilities) Act 2002.
contravention includes a contravention that there are reasonable grounds for
believing has been, or is to be, engaged in.
matter or a thing connected with a contravention of a provision of this Act or the
regulations means:
(a) matter or a thing with respect to which the provision has been contravened, or
(b) matter or a thing that will afford evidence of the contravention, or
(c) matter or a thing that was used, or is intended to be used, for the purpose of the
contravention.
63 Assistance to be given to inspectors
(1) This section applies for the purpose of enabling an inspector to exercise any of the
powers of an inspector under this Division in connection with any premises.
(2) The inspector may, by notice in writing given to the owner or occupier of the
premises, require the owner or occupier to provide such reasonable assistance and
facilities as are specified in the notice within a specified time and in a specified
manner.
(3) Assistance and facilities can be required under this section, whether they are of the
same kind as, or a different kind from, any prescribed by the regulations.
64 Dealing with seized things
(1) If an inspector seizes anything under section 61 on any premises, the inspector must
issue the person apparently in charge of the premises with a written receipt for the
thing seized.
(2) An inspector may retain anything seized under section 61 until the completion of any
proceedings (including proceedings on appeal) in which it may be evidence.
(3) A record may only be retained under subsection (2) if the person from whom the
record was seized is provided, within a reasonable time after the seizure, with a copy
of the record certified by the inspector as a true copy. The copy is, as evidence, of
equal validity to the document of which it is certified to be a copy.
(4) Subsection (2) ceases to have effect in relation to anything seized if, on the
application of a person aggrieved by the seizure, the court in which proceedings
referred to in that subsection are commenced so orders.
Page 22
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 5 Investigation and enforcement powers
Division 4 Power to question persons
65 Power of inspectors to require answers
(1) An inspector may require a person whom the inspector suspects on reasonable
grounds to have knowledge of matters in respect of which information is reasonably
required for the purposes of this Act to answer questions in relation to those matters.
(2) An inspector (other than the Monitor) must not make a requirement under
subsection (1) without the approval of the Monitor.
(3) An inspector may, by notice in writing, require a corporation to nominate, in writing
within the time specified in the notice, a director or officer of the corporation to be
the corporation's representative for the purpose of answering questions under this
section.
(4) Answers given by a person nominated under subsection (3) bind the corporation.
(5) An inspector may, by notice in writing, require a person to attend at a specified place
and time to answer questions under this section if attendance at that place is
reasonably required in order that the questions can be properly put and answered.
(6) The place and time at which a person may be required to so attend is to be a place
and time nominated by the inspector that is reasonable in the circumstances.
Division 5 Miscellaneous
66 Offences under this Part
(1) A person must not, without reasonable excuse, refuse or fail to comply with a
requirement made of the person under this Part.
(2) A person must not furnish any information or do any other thing in purported
compliance with a requirement made under this Part, knowing that it is false or
misleading in a material respect.
(3) A person must not intentionally delay or obstruct an inspector in the exercise of the
inspector's powers under this Part.
(4) A person must not impersonate an inspector.
Maximum penalty: 100 penalty units.
67 Provisions relating to requirements to furnish records, information or answer
questions
(1) Warning to be given on each occasion
A person is not guilty of an offence of failing to comply with a requirement under
this Part to furnish records or information or to answer a question unless the person
was warned on that occasion that a failure to comply is an offence.
(2) Self-incrimination not an excuse
A person is not excused from a requirement under this Part to furnish records or
information or to answer a question on the ground that the record, information or
answer might incriminate the person or make the person liable to a penalty.
(3) Information or answer not admissible if objection made
However, any information furnished or answer given by a natural person in
compliance with a requirement under this Part is not admissible in evidence against
the person in criminal proceedings (except proceedings for an offence under this
Part) if:
Page 23
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 5 Investigation and enforcement powers
(a) the person objected at the time to doing so on the ground that it might
incriminate the person, or
(b) the person was not warned on that occasion that the person may object to
furnishing the information or giving the answer on the ground that it might
incriminate the person.
(4) Records admissible
Any record furnished by a person in compliance with a requirement under this Part
is not inadmissible in evidence against the person in criminal proceedings on the
ground that the record might incriminate the person.
(5) Further information
Further information obtained as a result of a record or information furnished or of an
answer given in compliance with a requirement under this Part is not inadmissible on
the ground:
(a) that the record or information had to be furnished or the answer had to be
given, or
(b) that the record or information furnished or answer given might incriminate the
person.
68 Entry to be reported to Monitor
(1) If an inspector (other than the Monitor) exercises a power of entry under Division 3,
the inspector must report the exercise of the power to the Monitor within 7 days after
the entry.
(2) The report must include all relevant details of the entry, including:
(a) the time and place of the entry, and
(b) the purpose of the entry, and
(c) a description of things done while on the premises, including details of things
seized, copies made and extracts taken, and
(d) the time of departure.
69 Register of exercise of powers of entry
The Monitor must keep a register containing the particulars of:
(a) all matters reported to the Monitor under section 68, and
(b) all relevant details (including the matters referred to in section 68 (2)) relating
to any power of entry exercised by the Monitor under Division 3.
70 Complaints relating to powers of entry and search of premises
(1) Any person may complain to the Monitor about the exercise of a power by an
inspector under Division 3.
(2) The Monitor must:
(a) investigate any complaint made to the Monitor, and
(b) provide a written report to the complainant on the results of the investigation.
Page 24
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 6 Miscellaneous
Part 6 Miscellaneous
71 Expenditure of Monitor
(1) For the purposes of Part 5 of the Fire Brigades Act 1989, the estimate of fire brigades
expenditure for the financial year commencing on 1 July 2016 is to be adjusted by
increasing the estimate by the amount determined by the Treasurer as the amount of
estimated expenditure incurred in the administration or execution of this Act for the
period commencing on 1 July 2015 and ending on 30 June 2017.
(2) In this section, expenditure incurred in the administration or execution of this Act
includes any salary and allowances of the Monitor and Deputy Monitor and
expenditure incurred for staff, consultants, office accommodation or other services
or facilities.
72 Emergency Services Levy Insurance Monitor Fund
(1) There is to be established in the Special Deposits Account in the Treasury an
Emergency Services Levy Insurance Monitor Fund (the Monitor Fund) into which
is to be paid the amount determined by the Treasurer under section 71.
(2) There may be paid from the Monitor Fund all amounts required to meet the
expenditure incurred in the administration or execution of this Act (within the
meaning of section 71).
73 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative
power of the Parliament of New South Wales permits, the Crown in all its other
capacities.
74 Protection from liability
(1) A matter or thing done or omitted to be done by the Monitor, the Deputy Monitor, an
inspector or a person acting under the direction of the Monitor, Deputy Monitor or
inspector does not, if the matter or thing was done or omitted to be done in good faith
for the purpose of executing this or any other Act, subject the Monitor, Deputy
Monitor, inspector or person so acting personally to any action, liability, claim or
demand. However, any such liability attaches instead to the Crown.
(2) Civil proceedings do not lie against a person in respect of loss, damage or injury of
any kind suffered by another person by reason only of either of the following acts
done in good faith:
(a) the making of a complaint under section 25,
(b) the making of a statement, or the giving of a document or information, to the
Monitor or any other inspector in relation to a matter that constitutes or may
constitute a contravention of this Act or the regulations.
75 Exchange of information
(1) The Monitor may enter into an arrangement (an information sharing arrangement)
with a relevant agency for the purposes of sharing or exchanging information held by
the Monitor and the relevant agency.
(2) The information to which an information sharing arrangement may relate is limited
to information that is reasonably necessary to:
(a) assist in the exercise of the functions of the Monitor, or
(b) assist in the exercise of any functions of the relevant agency in connection with
the emergency services levy reform.
Page 25
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 6 Miscellaneous
(3) Under an information sharing arrangement, the Monitor and the relevant agency are,
despite any other Act or law of the State, authorised:
(a) to request and receive information held by the other party to the arrangement,
and
(b) to disclose information to the other party.
(4) However, this section does not authorise the Monitor to disclose personal
information under an information sharing arrangement except to the Treasury for the
purposes of or in connection with the emergency services levy reform.
(5) This section does not:
(a) limit the functions that may be exercised by the Monitor under section 9, or
(b) require the Monitor to provide information to a relevant agency only in
accordance with an information sharing arrangement where that information
can otherwise be lawfully provided, or
(c) limit the operation of any other Act or law under which a relevant agency is
authorised or required to disclose information to another person or body.
(6) In this section:
relevant agency means:
(a) the Treasury, or
(b) the Chief Commissioner of State Revenue, or
(c) an agency of the State, or of the Commonwealth or another State or Territory,
that exercises functions under an enactment with respect to fair trading, or
(d) any other person or body prescribed by the regulations.
76 Disclosure of information
A person must not disclose any information obtained in connection with the
administration or execution of this Act (or any other Act conferring or imposing
functions on the Monitor) unless that disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act (or any such
other Act), or
(c) for the purposes of any legal proceedings arising out of this Act (or any such
other Act) or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e) with other lawful excuse.
Maximum penalty: 50 penalty units.
77 Service of documents
(1) A document that is authorised or required by this Act or the regulations to be given
to or served on any person may be given or served by:
(a) in the case of a natural person:
(i) delivering it to the person personally, or
(ii) sending it by post to the address specified by the person for the giving
or service of documents or, if no such address is specified, the
residential or business address of the person last known to the person
giving or serving the document, or
(iii) sending it by facsimile transmission to the facsimile number of the
person, or
Page 26
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Part 6 Miscellaneous
(b) in the case of a body corporate:
(i) leaving it with a person apparently of or above the age of 16 years at, or
sending it by post to, the head office, a registered office or a principal
office of the body corporate or to an address specified by the body
corporate for the giving or service of documents, or
(ii) sending it by facsimile transmission to the facsimile number of the body
corporate.
(2) Nothing in this section affects the operation of any provision of a law or of the rules
of a court authorising a document to be given to or served on a person in any other
manner.
78 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed or that
is necessary or convenient to be prescribed for carrying out or giving effect to this
Act.
(2) A regulation may apply, adopt or incorporate (whether wholly or in part or with or
without modification) any document formulated, issued or published by a person or
body, as in force at a particular time or as in force from time to time.
(3) A regulation may create an offence punishable by a penalty not exceeding
100 penalty units.
79 Repeal of Act
This Act is repealed on 1 January 2019.
Page 27
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Schedule 1 Provisions relating to Monitor and Deputy Monitor
Schedule 1 Provisions relating to Monitor and Deputy
Monitor
(Sections 5 and 6)
1 Acting Monitor
(1) In the absence of the Monitor, the Deputy Monitor is to act as the Monitor.
(2) While so acting, the Deputy Monitor has all the functions of the Monitor and is taken
to be the Monitor.
2 Basis of offices
The Monitor and Deputy Monitor may each be appointed on a full-time or part-time
basis.
3 Terms of office
The Monitor and Deputy Monitor each hold office for a period commencing on the
date specified in the Monitor's or Deputy Monitor's instrument of appointment and
ending on 31 December 2018.
4 Remuneration
(1) The Monitor and Deputy Monitor are entitled to be paid such remuneration
(including travelling and subsistence allowances) as may be determined by the
Minister from time to time.
(2) A determination does not operate so as to reduce the rate at which remuneration is
payable during the Monitor's or Deputy Monitor's term of office.
5 Vacancy in office
(1) The office of Monitor or Deputy Monitor becomes vacant if the holder:
(a) dies, or
(b) resigns the office by instrument in writing addressed to the Governor, or
(c) is removed from office by the Governor under this clause, or
(d) becomes bankrupt, applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds with his or her creditors or makes
an assignment of his or her remuneration for their benefit, or
(e) becomes a mentally incapacitated person, or
(f) is convicted in New South Wales of an offence that is punishable by
imprisonment for 12 months or more or is convicted elsewhere than in New
South Wales of an offence that, if committed in New South Wales, would be
an offence so punishable.
(2) The Governor may remove the Monitor or Deputy Monitor from office for
incapacity, incompetence or misbehaviour.
6 Filling of vacancy
(1) If the office of Monitor becomes vacant, a person is, subject to this Act and the
regulations, to be appointed to fill the vacancy.
(2) If the office of Deputy Monitor becomes vacant, a person may, subject to this Act
and the regulations, be appointed to fill the vacancy.
Page 28
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Schedule 1 Provisions relating to Monitor and Deputy Monitor
7 Effect of certain other Acts
(1) The offices of Monitor and Deputy Monitor are statutory offices and the provisions
of the Government Sector Employment Act 2013 relating to the employment of
Public Service employees do not apply to those offices.
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to devote the whole
of his or her time to the duties of that office, or
(b) prohibiting the person from engaging in employment outside the duties of that
office,
the provision does not operate to disqualify the person from holding that office and
also the office of Monitor or Deputy Monitor or from accepting and retaining any
remuneration payable to the person under this Act as a Monitor or Deputy Monitor.
Page 29
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent
on the enactment of this Act or any Act that amends this Act.
(2) Any such provision may, if the regulations so provide, take effect from the date of
assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than
the date of its publication on the NSW legislation website, the provision does not
operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an
authority of the State), the rights of that person existing before the date of its
publication, or
(b) to impose liabilities on any person (other than the State or an authority of the
State) in respect of anything done or omitted to be done before the date of its
publication.
Page 30
Emergency Services Levy Insurance Monitor Bill 2016 [NSW]
Schedule 3 Amendment of Acts
Schedule 3 Amendment of Acts
3.1 Fair Trading Act 1987 No 68
Schedule 5 Savings and transitional provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Provision consequent on repeal of Emergency
Services Levy Insurance Monitor Act 2016
Secretary to succeed Emergency Services Levy Insurance Monitor
(1) This clause commences on the repeal date.
(2) The Secretary is substituted as a party to any proceedings pending in any court
immediately before the repeal date to which the Monitor was a party.
(3) Any act, matter or thing that was commenced by the Monitor, but not
completed, before the repeal date may be continued and completed by the
Secretary.
(4) In this clause:
Monitor means the Emergency Services Levy Insurance Monitor appointed
under the repealed Act.
repeal date means 1 January 2019.
repealed Act means the Emergency Services Levy Insurance Monitor Act
2016.
3.2 Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Schedule 2 Search warrants under other Acts
Insert in alphabetical order:
Emergency Services Levy Insurance Monitor Act 2016, section 62
Page 31
[Index] [Search] [Download] [Related Items] [Help]