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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Financial Laws
Amendment Bill 1996
No. ,
1996
(Treasury)
A Bill
for an Act to amend certain legislation administered by the Treasurer, and for
related purposes
9617820—1055/19.11.1996—(178/96) Cat.
No. 96 5515
8 ISBN 0644
481854
Contents
A Bill for an Act to amend certain legislation
administered by the Treasurer, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Financial Laws Amendment Act
1996.
(1) Subject
to this section, this Act commences on the day on which it receives the Royal
Assent.
(2) Items 15 to 20 in Schedule 3 commence, or are taken to have commenced,
on the day, or on the respective days, fixed for the commencement of the
sections amended by those items, immediately after the commencement of the
sections concerned.
(3) Items 1, 12, 24 and 25 in Schedule 7 are taken to have commenced on 1
October 1994, immediately after the commencement of Part 3 of the Insurance
Laws Amendment Act 1994.
(4) Schedule 10 is taken to have commenced on 1 October 1994, immediately
after the commencement of section 34 of, and the Schedule to, the Insurance
Laws Amendment Act 1994.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
1 Subsection 38A(3)
Omit “his discretion, by writing signed by him and”, substitute
“his or her discretion, by signed writing”.
2 Paragraph 39(2)(q)
Omit “$100,000”, substitute “1,000 penalty
units”.
3 Paragraph 42(1)(b)
Omit “him”, substitute “that person”.
4 Paragraphs 69A(3)(a) and
(b)
Repeal the paragraphs, substitute:
(a) if the letter A is set out in column 3 of the table opposite to the
reference to the provision in column 1 or 2¾by a
fine of not more than 200 penalty units; or
(b) if the letter B is set out in column 3 of the table opposite to the
reference to the provision in column 1 or 2¾by a
fine of not more than 50 penalty units.
5 At the end of subsection
69A(3)
Add:
Note: If a body corporate is convicted of an offence,
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine
of an amount that is not greater than 5 times the maximum fine that could be
imposed by a court on an individual convicted of the same offence. Section 4J of
that Act allows certain indictable offences to be dealt with summarily with the
consent of the prosecutor and the defendant and provides for appropriate
fines.
6 Section 69B
Repeal the section.
7 Section 69D
Repeal the section, substitute:
Section 79A of the Reserve Bank Act 1959 prohibits certain
disclosures of information received under this Act.
8 Paragraph 71(1)(a)
Omit “$5,000”, substitute “50 penalty
units”.
9 Paragraph 71(1)(b)
Omit “$25,000”, substitute “250 penalty
units”.
1 Paragraph 8(3)(a)
Omit “definition of ‘prescribed interest’ in subsection
5(1) of the Companies Act 1981”, substitute “definition of
prescribed interest in section 9 of the Corporations
Law”.
2 Paragraph 8(3)(c)
Omit “section 164 of the Companies Act 1981”, substitute
“section 9 of the Corporations Law”.
3 Subparagraph 8(5)(a)(i)
Repeal the subparagraph, substitute:
(i) a body corporate that, under section 50 of the Corporations Law, is
related to that other person;
4 Paragraph 8(6)(d)
Omit “his”.
5 Subsections 10(12) and
(13)
Repeal the subsections, substitute:
(12) A person who intentionally or recklessly contravenes subsection (1),
(2D) or (3) is guilty of an offence punishable on conviction by a fine of not
more than 100 penalty units.
Note: If a body corporate is convicted of an offence,
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine
that is not greater than 5 times the maximum fine that could be imposed by the
Court on an individual convicted of the same offence.
(13) A person who contravenes subsection (9) is guilty of an offence
punishable on conviction by a fine of not more than 50 penalty units.
Note: If a body corporate is convicted of an offence,
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine
that is not greater than 5 times the maximum fine that could be imposed by the
Court on an individual convicted of the same offence.
6 Subsection 12(7)
Repeal the subsection, substitute:
(7) A person who intentionally or recklessly contravenes an order under
this section is guilty of an offence punishable on conviction by a fine of not
more than 50 penalty units.
Note: If a body corporate is convicted of an offence,
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine
that is not greater than 5 times the maximum fine that could be imposed by the
Court on an individual convicted of the same offence.
7 After section 14
Insert:
Section 79A of the Reserve Bank Act 1959 prohibits certain
disclosures of information received under this Act.
1
Subsection 4(1) (definition of
Australia)
Omit “to which this Act extends”.
2 Subsection 4(1) (definition of financial
corporation)
Repeal the definition, substitute:
financial corporation means a financial corporation to which
paragraph 51(xx) of the Constitution applies.
3 Subsection 4(1) (definition of
Territory)
Repeal the definition.
4 Subsection 4(1) (definition of trading
corporation)
Repeal the definition, substitute:
trading corporation means a trading corporation to which
paragraph 51(xx) of the Constitution applies.
5 Section 5:
Omit “except Papua New Guinea”.
6 Subsection 7(1)
Omit “corporations are related to each other is determined under the
Companies Act 1981”, substitute “bodies corporate are related
to each other is determined under the Corporations Law”.
7 Subsection 9(3)
Omit “$5,000”, substitute “50 penalty
units”.
8 Subsection 9(7) (penalty)
Omit “$1,000”, substitute “10 penalty
units”.
9 Subsection 9(11)
Omit “of the Treasury, furnish to him”, substitute “,
give the Secretary”.
10 Subsection 10(1)
After “he”, insert “or she”.
11 Paragraph 10(7)(d)
Omit “he”, substitute “the Treasurer”.
12 Subsection 11(10)
Omit “$2,000”, substitute “20 penalty
units”.
13 Subsection 11(11)
Omit “of the Treasury requests it to do so, furnish to him”,
substitute “requests it to do so, give the Secretary”.
14 Subsection 11(14)
Omit “writing signed by him”, substitute “signed
writing”.
15 Subsection 13(7)
Omit “$1,000”, substitute “10 penalty
units”.
16 Subsection 14(1)
(penalty)
Omit “$5,000”, substitute “50 penalty
units”.
17 Subsection 14(3)
(penalty)
Omit “$5,000”, substitute “50 penalty
units”.
18 Subsection 15(5)
Omit “$10,000”, substitute “100 penalty
units”.
19 Subsection 18(1)
Omit “his so doing, he may, by writing signed by him”,
substitute “so doing, the Treasurer may, by signed
writing”.
20 Section 18 (penalty)
Omit “$2,000”, substitute “20 penalty
units”.
21 Subsection 20(1)
(penalty)
Omit “$2,000”, substitute “20 penalty
units”.
22 Section 22
Repeal the section, substitute:
Section 79A of the Reserve Bank Act 1959 prohibits certain
disclosures of information received under this Act.
23 Section 26 (penalty)
Omit “$1,000”, substitute “10 penalty
units”.
24 Section 27
Repeal the section.
25 Subsection 30(2)
After “he”, insert “or she”.
1 Section 3 (paragraph (b) of the definition of
eligible foreign bank)
Omit “3”, substitute “5”.
2 Paragraph 7(6)(c)
Omit “6”, substitute “8”.
1 Subsection 3(1) (definition of
accounts)
After “and (3)”, insert “and 49J(1), (2) and
(3)”.
2 Subsection 3(1)
Insert:
building society has the same meaning as in the AFIC Code set
out in section 21 of the Australian Financial Institutions Commission Act
1992 of Queensland.
3 Subsection 3(1)
Insert:
credit union has the same meaning as in the AFIC Code set out
in section 21 of the Australian Financial Institutions Commission Act
1992 of Queensland.
4 Subsection 3(1) (definition of financial
year)
Repeal the definition, substitute:
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 Law.
5 Subsection 3(1) (paragraph (f) of the
definition of insurance business)
Omit “his employees” (first occurring), substitute “an
employer’s employees”.
6 Subsection 3(1) (paragraph (f) of the
definition of insurance business)
Omit “his employees” (last occurring), substitute “the
employer’s employees”.
7 Subsection 3(1) (paragraph (h) of the
definition of insurance business)
Omit “his liability in respect of goods belonging to another person
and in his possession or under his control”, substitute “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”.
8 Subsection 3(1) (paragraph (i) of the
definition of insurance business)
Omit “his”, substitute “the
person’s”.
9 Subsection 3(1) (definition of quarterly
statutory accounts)
Repeal the definition, substitute:
quarterly statutory accounts, in relation to a body
corporate, means the statements that the body corporate is required to lodge
with the Commissioner under subsection 44(4) or 49J(4).
10 Subsection 3(1)
Insert:
securities exchange means:
(a) Australian Stock Exchange Limited; or
(b) a body approved as a futures exchange under subsection 1126(2) of
the Corporations Law; or
(c) any other body (whether in or outside Australia) approved by the
Treasurer as a securities exchange for the purposes of this Act.
11 Subsection 3(1) (definition of statutory
accounts)
Repeal the definition, substitute:
statutory accounts, in relation to a body corporate,
means:
(a) yearly statutory accounts of the body corporate; or
(b) quarterly statutory accounts of the body corporate; or
(c) if subsection 44(6) applies to the body corporate—statements
that the body corporate is required to lodge with the Commissioner under that
subsection.
12 Subsection 3(1)
Insert:
supervised body corporate has the meaning given by
section 49A.
13 Subsection 3(1) (definition of yearly
statutory accounts)
Repeal the definition, substitute:
yearly statutory accounts, in relation to a body corporate,
means the accounts and statements that the body corporate is required to lodge
with the Commissioner under subsection 44(1) or 49J(1).
14 At the end of section 3
Add:
(2) The Treasurer may, by signed writing, give approvals for the purposes
of paragraph (c) of the definition of securities exchange in
subsection (1).
(3) An approval under subsection (2) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
15 Section 4
Repeal the section, substitute:
For the purposes of this Act, the question whether bodies corporate are
related to each other is to be determined in the same way as that question would
be determined for the purposes of the Corporations Law if, in section 46 of that
Law:
(a) the reference to a body corporate that is in a position to cast, or
control the casting of, more than one-half of the maximum number of votes that
might be cast at a general meeting of another body corporate were a reference to
a body corporate that is in a position to cast, or control the casting of, more
than one-quarter of that number of votes; and
(b) the reference to a body corporate holding more than one-half of the
issued share capital of another body corporate were a reference to a body
corporate holding more than one-quarter of the issued share capital of another
body corporate.
16 Section 19A
Repeal the section, substitute:
The Commissioner may, by signed writing, delegate to a person all or any
of the Commissioner’s powers under this Act (other than section 23 or 24)
or the regulations.
17 Saving
A delegation that was in force under section 19A of the Insurance Act
1973 immediately before the commencement of item 16 continues in force as if
it had been given under the section substituted by that item.
Omit “$2,000”, substitute “20 penalty
units”.
19 Subsection 21(2)
Omit “$20,000”, substitute “200 penalty
units”.
20 Subsection 21(3)
Omit “he”, substitute “the underwriter”.
21 Subsection 22(5)
(penalty)
Omit “$20,000”, substitute “200 penalty
units”.
22 Paragraph 30(1)(a)
Omit “a loan to a person who, when the loan was made,
was—”, substitute “an amount due from, or a loan to, a person
who, when the debt came into existence or the loan was made,
was:”.
23 Paragraph 30(1)(d)
Repeal the paragraph, substitute:
(d) an amount due from, or a loan to, another body corporate that is
related to the first-mentioned body corporate except:
(i) an amount or loan to the extent that the Commissioner has, under
subsection (2), approved the amount or loan as an asset for the purposes of this
Part; or
(ii) if the other body corporate is a bank as defined in subsection 5(1)
of the Banking Act 1959, a State bank, a building society, a credit union
or another body prescribed by the regulations for the purposes of this
subparagraph—an amount due in respect of a deposit with the other body
corporate or a loan constituted by such a deposit;
(da) a debenture of, or a share in, a body corporate that is related to
the first-mentioned body corporate except to the extent that the Commissioner
has, under subsection (2), approved the debenture or share as an asset for the
purposes of this Part;
24 Paragraph 30(1)(e)
Omit “unless it is, under subsection (3), approved as an asset for
the purposes of this Part”.
25 Subsection 30(2)
Repeal the subsection, substitute:
(2) If a body corporate (the first body corporate) and
another body corporate (the second body corporate) that is related
to the first body corporate together request the Commissioner in writing to
approve as an asset of the first body corporate for the purposes of this Part
the whole or a part of an amount due from, a loan to, a debenture of, or a share
in, the second body corporate, the Commissioner may, by written notice given to
each body corporate, approve the amount, loan, debenture or share, or any part
of the amount, loan, debenture or share referred to in the notice.
26 Saving
An approval that was in force under subsection 30(2) of the Insurance
Act 1973 immediately before the commencement of item 25 continues in force
for the purposes of this Act (other than Parts IVA, V and X) as if it had been
duly given under the subsection substituted by that item.
27 Subsection 30(2A)
Repeal the subsection, substitute:
(2A) In exercising the power of approval under subsection (2) in respect
of a relevant asset (the relevant asset concerned) of the first
body corporate in relation to the second body corporate, the Commissioner must
have regard to all matters that he or she thinks relevant and, in particular, to
the following matters:
(a) the proportion that the sum of the values of the relevant asset
concerned and of the values of all other relevant assets (whether approved under
subsection (2) or not) of the first body corporate in relation to the second
body corporate bears to the sum of the values of the assets of the first body
corporate (other than the relevant assets of the first body corporate in
relation to the second body corporate);
(b) the proportion that the value of the relevant asset concerned bears to
the sum of the values of all the assets of the second body corporate;
(c) the nature, and the degree of diversity, of the assets of the first
body corporate;
(d) the nature, and the degree of diversity, of the assets of the second
body corporate;
(e) the nature of the business carried on by the second body
corporate.
28 Before subsection 30(2B)
Insert:
(2AA) In subsection (2A):
relevant asset of the first body corporate in relation to the second
body corporate, means:
(a) an amount due to the first body corporate by the second body
corporate; or
(b) a loan made by the first body corporate to the second body corporate;
or
(c) a debenture or share in the second body corporate held by the first
body corporate.
29 Subsection 30(3)
Repeal the subsection.
30 After subsection 30(5)
Insert:
(5AA) If:
(a) a body corporate that is authorised under this Act to carry on
insurance business expects to recover an amount under a contract of reinsurance
entered into with a person who is outside Australia; and
(b) the amount relates to claims in respect of liabilities to which
subsection 31(4) applies, whether or not the claims have been paid by the body
corporate; and
(c) under the terms of the contract, payments by way of reinsurance are to
be made in Australia;
the amount is taken for the purposes of this Part to be an asset in
Australia of the body corporate.
31 Subsection 30(5A)
Omit “, (3)”.
32 Paragraph 30(6)(c)
Omit “, (3)”.
33 Subsection 31(3)
After “may,”, insert “with the Treasurer’s
agreement,”.
34 After subsection 31(3A)
Insert:
(3AA) Subsection (3A) does not apply to a decision made within 5 years
after the commencement of this subsection.
(3AB) It is not necessary to obtain the agreement of the Treasurer to the
making of a decision by the Commissioner under this section after 5 years after
the commencement of subsection (3AA).
35 Subsection 31(3B)
After “Commissioner” (first occurring), insert “, and the
Treasurer agrees,”.
36 Paragraph 31(3C)(a)
After “it appears to him”, insert “, and the Treasurer
agrees,”.
37 Subsection 31(3F)
Omit “$10,000”, substitute “100 penalty
units”.
38 Subsection 33(3)
After “may,”, insert “with the Treasurer’s
agreement,”.
39 Subsection 33(4)
Omit “Where”, substitute “Subject to subsections (3),
(6A) and (6B) of this section and subsection 39(4), if”.
40 Subsection 33(4)
Omit “stock” (wherever occurring), substitute
“securities”.
41 Subsection 33(6)
Omit “subsection (4)”, substitute “subsections (3), (4),
(6A) and (6B) of this section and subsection 39(4)”.
42 After subsection 33(6A)
Insert:
(6B) If:
(a) a body corporate (the authorised body) that is
authorised under this Act to carry on insurance business has an asset that is an
amount due from, a loan to, a debenture of, or a share in, a body corporate (the
connected body) that is connected with the authorised body for the
purposes of Part IVA; and
(b) the connected body has an asset that is an amount due from, a loan to,
a debenture of, or a share in, a body corporate that is related to it;
the Commissioner may, by written notice served on the authorised body,
direct that the value of the asset referred to in paragraph (a) is to be reduced
by an amount stated, or worked out under a formula or procedure stated, in the
notice, being an amount, formula or procedure determined by the Commissioner in
accordance with principles prescribed by the regulations for the purposes of
this subsection.
43 Subsection 33(7) (definition of
securities)
Omit “subsection 5(1) of the Companies Act 1981”,
substitute “section 9 of the Corporations Law”.
44 At the end of section 33
Add:
(9) Subsection (8) does not apply to a direction given within 5 years
after the commencement of this subsection.
(10) It is not necessary to obtain the agreement of the Treasurer to the
giving of a direction by the Commissioner under subsection (3) after 5 years
after the commencement of subsection (9).
45 Section 37 (penalty)
Omit “$20,000”, substitute “200 penalty
units”.
46 Subsection 39(4)
Omit “the Regulations in force for the time being under subsection
269(8) of the Companies Act 1981”, substitute “the
Corporations Law”.
47 Section 40 (penalty)
Omit “$20,000”, substitute “200 penalty
units”.
48 Subsection 41(2)
After “may,”, insert “with the Treasurer’s
agreement,”.
49 At the end of section 41
Add:
(4) Subsection (3) does not apply to a direction given within 5 years
after the commencement of this subsection.
(5) It is not necessary to obtain the agreement of the Treasurer to the
giving of a direction by the Commissioner under subsection (2) after 5 years
after the commencement of subsection (4).
50 At the end of paragraph
44(2)(m)
Add “or are determined by the Commissioner”.
51 At the end of subsection
44(7)
Add “or the form determined by the Commissioner”.
52 After subsection 44(7)
Insert:
(7A) The Commissioner may make written determinations for the purposes of
this section.
(7B) Such a determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
53 After subsection 44(8)
Insert:
(8A) A reference in paragraph (8)(a) or (b) to a period is, if that period
has been extended (or further extended) under subsection 49(1), taken to be a
reference to the period as so extended (or further extended).
54 Section 44 (penalty)
Omit “$20,000”, substitute “200 penalty
units”.
55 Section 48 (penalty)
Omit “$20,000”, substitute “200 penalty
units”.
56 Subsection 48A(9)
Omit “$10,000”, substitute “100 penalty
units”.
57 After Part IV
Insert:
In this Part:
authorised body corporate means a body corporate that is
authorised under this Act to carry on insurance business.
constitutional corporation means:
(a) a foreign corporation; or
(b) a trading corporation to which paragraph 51(xx) of the Constitution
applies; or
(c) a financial corporation to which paragraph 51(xx) of the Constitution
applies; or
(d) a corporation incorporated in a Territory.
supervised body corporate means a body corporate that, under
subsection 49B(1) or (2), is connected with an authorised body
corporate.
(1) If:
(a) an authorised body corporate’s assets for the purposes of
Part III include, with the approval of the Commissioner under subsection
30(2), an amount due from, a loan to, a debenture of, or a share in, another
body corporate that is related to the authorised body corporate; and
(b) the other body corporate is not:
(i) authorised under this Act to carry on insurance business; or
(ii) a company registered under the Life Insurance Act 1995;
or
(iii) a bank as defined in subsection 5(1) of the Banking Act 1959;
or
(iv) a State bank; or
(v) a building society; or
(vi) a credit union; or
(vii) a body corporate that is declared by the regulations to be a body
corporate to which this paragraph does not apply;
the authorised body corporate and the other body corporate are taken for
the purposes of this Part to be connected with each
other.
(2) If:
(a) the assets of a body corporate that is taken to be connected with an
authorised body corporate by subsection (1) or by another application of this
subsection include, with the approval of the Commissioner under subsection
49E(2), an amount due from, a loan to, a debenture of, or a share in, another
body corporate that is related to the authorised body corporate; and
(b) the other body corporate is not:
(i) authorised under this Act to carry on insurance business; or
(ii) a company registered under the Life Insurance Act 1995;
or
(iii) a bank as defined in subsection 5(1) of the Banking Act 1959;
or
(iv) a State bank; or
(v) a building society; or
(vi) a credit union; or
(vii) a body corporate that is declared by the regulations to be a body
corporate to which this paragraph does not apply;
the authorised body corporate and the other body corporate are taken for
the purposes of this Part to be connected with each
other.
(1) This Part applies to a body corporate (a supervised body
corporate) that is connected with an authorised body
corporate.
(2) If:
(a) this Part has begun to apply to a body corporate (the relevant
body corporate) because it is a supervised body corporate; and
(b) the relevant body corporate is a constitutional corporation;
this Part continues to apply to the relevant body corporate until the
Commissioner certifies in writing that he or she is satisfied that:
(c) the relevant body corporate has ceased to be a supervised body
corporate; and
(d) the authorised body corporate with which the relevant body corporate
is connected is not subject to any action under this Act.
(3) A person must not intentionally give any information, or intentionally
produce any document, to the Commissioner that is relevant to whether or not a
body corporate that is a constitutional corporation is a supervised body
corporate if the person knows that the information, or anything in the document,
is false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
The Commissioner may, by written notice given to a supervised body
corporate, exempt the body, either unconditionally or subject to conditions,
from all or any of the provisions of this Part.
(1) In this Part, a reference to assets of a body corporate (the
body or the first body) does not include a reference
to any of the following:
(a) an amount due from, or a loan to, a person who, when the debt came
into existence or the loan was made, was:
(i) a director of the body;
(ii) a director of another body corporate that is connected with the first
body;
(iii) if, because of subsection (10), this section applies in relation to
a trust—a trustee in respect of the trust, or, if the trustee is a body
corporate, a director of that body corporate; or
(b) an unsecured loan:
(i) to a person who, when the loan was made, was an employee of the body;
and
(ii) that exceeded $1,000 when it was made or that was made under an
agreement under which the body agreed to lend that person amounts the total of
which exceeds $1,000;
(c) an asset that is charged for the benefit of a person other than the
body to the extent that it is so charged;
(d) if the whole or part of the undertaking, business or property of the
body is subject to a floating charge—that undertaking, business or
property to the extent that it is so subject;
(e) an amount due from, or a loan to, another body corporate that is
related to the first body except:
(i) an amount or loan to the extent that the Commissioner has, under
subsection (2), approved the amount or loan as an asset for the purposes of this
Part; or
(ii) if the other body corporate is a bank as defined in subsection 5(1)
of the Banking Act 1959, a State bank, a building society, a credit union
or another body corporate prescribed by the regulations for the purposes of this
subparagraph—an amount in respect of a deposit with the other body
corporate or a loan constituted by such a deposit;
(f) a debenture of, or a share in, another body corporate that is related
to the first body except to the extent that the Commissioner has, under
subsection (2), approved the debenture or share as an asset for the purposes of
this Part;
(g) the estimated value of a future benefit to the body that may arise,
under a law of the Commonwealth, of a State or of a Territory, relating to
taxation because of a loss or losses incurred by the body;
(h) a guarantee given to or in relation to the body, except to the extent
that the Commissioner has, under subsection (6), approved the guarantee as an
asset for the purposes of this Part;
(i) an intangible asset, other than an intangible asset referred to in any
of the previous paragraphs, but including expenses of the body in relation to
the formation, extension or purchase of its business or the purchase of
goodwill.
(2) If a body corporate (the first body corporate) and
another body corporate (the second body corporate) that is related
to the first body corporate together request the Commissioner in writing to
approve as an asset of the first body corporate for the purposes of this Part
the whole or a part of an amount due from, a loan to, a debenture of, or a share
in, the second body corporate, the Commissioner may, by written notice given to
each body corporate, approve the amount, loan, debenture or share, or any part
of the amount, loan, debenture or share referred to in the notice.
(3) In exercising the power of approval under subsection (2) in respect of
a relevant asset (the relevant asset concerned) of the first body
corporate in relation to the second body corporate, the Commissioner must have
regard to all matters that he or she thinks relevant and, in particular, to the
following matters:
(a) the proportion that the sum of the values of the relevant asset
concerned and of the values of all other relevant assets (whether approved under
subsection (2) or not) of the first body corporate in relation to the second
body corporate bears to the sum of the values of the assets of the first body
corporate (other than the relevant assets of the first body corporate in
relation to the second body corporate);
(b) the proportion that the value of the relevant asset concerned bears to
the sum of the values of all the assets of the second body corporate;
(c) the nature, and the degree of diversity, of the assets of the first
body corporate;
(d) the nature, and the degree of diversity, of the assets of the second
body corporate;
(e) the nature of the business carried on by the second body
corporate.
(4) In subsection (3):
relevant asset of the first body corporate in relation to the second
body corporate means:
(a) an amount due to the first body corporate by the second body
corporate; or
(b) a loan made by the first body corporate to the second body corporate;
or
(c) a debenture or share in the second body corporate held by the first
body corporate.
(5) For the purposes of subsection (3), the value of an amount, loan,
debenture or share that is not an asset within the meaning of this Part is to be
determined as if it were such an asset.
(6) If a body corporate requests the Commissioner to approve, as an asset
for the purposes of this Part, the whole or part of a guarantee given to or in
relation to the body, the Commissioner may, by written notice given to the body,
approve the guarantee, or such part of the guarantee as the Commissioner
determines, accordingly.
(7) Without otherwise limiting the discretion of the Commissioner to
refuse to approve, as an asset for the purposes of this Part, the whole or part
of a guarantee given to or in relation to a body corporate, the Commissioner
must not give such an approval unless:
(a) the guarantor, or each of the guarantors, is a bank as defined by
subsection 5(1) of the Banking Act 1959 or a State bank; and
(b) the guarantee is in accordance with a prescribed form or a form
approved by the Treasurer, being a form that includes provision to the effect
that, in the event of the winding-up of the body, amounts due under the
guarantee are to be available to meet the body’s liabilities;
and
(c) the guarantee is not revocable without the approval of the
Commissioner.
(8) If an approval has been given, or a determination has been made, under
subsection (2), (6) or (7), and it appears at any time to the Commissioner that
the approval or determination is no longer necessary or should be varied, the
Commissioner must, by written notice served on the body corporate concerned,
revoke or vary the approval or determination, as the case may be.
(9) Part VI applies to:
(a) a determination made under subsection (2) or (6); and
(b) a refusal or failure to give an approval under subsection (2) or (6);
and
(c) a decision made under subsection (8).
(10) If:
(a) a body corporate holds units in a unit trust and:
(i) the number of those units, or the sum of the number of those units and
the number of units issued by the trust to a body corporate connected with the
first-mentioned body corporate, exceeds 25% of the total number of units issued
by the trust; or
(ii) the value of those units, or the sum of the value of those units and
the value of units issued by the trust to bodies corporate connected with the
first-mentioned body corporate, exceeds 25% of the total value of units issued
by the trust; or
(b) a body corporate is connected with a body corporate that is a trustee
in respect of a unit trust;
this section applies as if the trust were a body corporate connected with
the first-mentioned body corporate and as if a reference to a share in a body
corporate were a reference to a unit issued by the trust.
(1) In this Part, unless the contrary intention appears, a reference to
liabilities of a body corporate includes a reference to provision for
liabilities made in its statutory accounts, or directed in accordance with this
section to be made, but does not include a liability in respect of share
capital.
(2) For the purposes of this Act, a supervised body corporate must make in
its statutory accounts provision in respect of liabilities.
(3) For the purposes of this Act, the Commissioner may, with the
Treasurer’s agreement, at any time, if the Commissioner thinks fit, by
written notice served on a supervised body corporate, direct that the body must,
within a stated period, not being less than 21 days, after the giving of the
direction, or as at a stated date, make in its statutory accounts provision, or
further provision:
(a) of a stated amount; or
(b) of an amount determined in a stated manner;
in respect of liabilities.
(4) If a direction has been given to a body corporate under subsection (3)
and it appears at any time to the Commissioner, and the Treasurer agrees, that
the direction is no longer necessary or should be varied, the Commissioner must,
by written notice served on the body, revoke or vary the direction.
(5) Part VI applies to a decision of the Commissioner under this
section.
(6) Subsection (5) does not apply to a decision made within 5 years after
the commencement of this subsection.
(7) It is not necessary to obtain the agreement of the Treasurer to the
making of a decision by the Commissioner under this section after 5 years after
the commencement of this section.
(8) If a body corporate to which a direction has been given under
subsection (3) applies to the Commissioner, by notice in writing, for the
direction to be revoked or varied, the Commissioner must:
(a) if it appears to the Commissioner, and the Treasurer agrees, that the
direction is no longer necessary or should be varied—revoke or vary the
direction; or
(b) otherwise—refuse to revoke or vary the direction;
and must serve on the body written notice of the decision.
(9) The powers of the Commissioner under this section are in addition to,
and do not derogate from, the powers of the Commissioner or of the Treasurer
under Part V.
(10) If a body corporate in respect of which a direction has been given
under subsection (3) is begun to be wound up, the direction ceases to have
effect.
(11) A body corporate that fails to comply with a direction given to it
under subsection (3) is, in respect of each day during which it so fails to
comply with the direction (including the day of a conviction under this
subsection or any later day), guilty of an offence punishable on conviction by a
fine of not more than 100 penalty units.
(12) In this section, unless the contrary intention appears:
direction includes, if a direction is varied, the direction
as varied.
(1) This section has effect for the purposes of this Part.
(2) The Commissioner may, by written notice served on a supervised body
corporate, require it to give the Commissioner any information with respect to
the value of an asset of the body that is stated in the notice, being the value
that is, in the Commissioner’s opinion, in accordance with the following
subsections.
(3) Subject to subsections (5), (6), (7) and (8), if an asset of a
supervised body corporate consists of securities:
(a) listed for quotation on the official list of a securities exchange in
Australia; or
(b) not so listed but listed for quotation on the official list of a
securities exchange outside Australia;
the value of those securities as at a particular time is the value as
worked out by reference to that securities exchange or any one of those
securities exchanges and:
(c) by reference to:
(i) the sale of securities of the same class last recorded before that
time by the securities exchange; or
(ii) the selling offer for securities of the same class last recorded
before that time by the securities exchange;
whichever is the lesser; or
(d) by reference to the buying bid for securities of the same class last
recorded before the time by the securities exchange;
whichever is the greater.
(4) Subject to subsections (3), (5), (6), (7) and (8), the value of an
asset of a supervised body corporate as at a particular time is the market value
of the asset at that time.
(5) If the Commissioner is not satisfied that the value of an asset of a
supervised body corporate as reported in its statutory accounts is in accordance
with subsection (3), (4) or (6), whichever is applicable, the Commissioner may,
with the Treasurer’s agreement, by written notice served on the body,
direct that the value of the asset is the value stated in the notice.
(6) Despite subsections (3), (4) and (5), if an asset of a supervised body
corporate consists of shares in an authorised body corporate with which it is
connected, the value of the asset is the amount worked out using the
formula:
where:
number of SBC’s shares in ABC means the number of
shares in the authorised body corporate that are held by the supervised body
corporate.
total number of shares in ABC means the total number of
issued shares in the authorised body corporate.
reduced value of all shares in ABC means the value of all the
issued shares in the authorised body corporate, reduced by:
(a) if the authorised body corporate is incorporated in
Australia:
(i) $2,000,000; or
(ii) 20% of its premium income during its last preceding financial year;
or
(iii) 15% of its outstanding claims provision as at the end of its last
preceding financial year;
whichever is the greatest; or
(b) if the authorised body corporate is not incorporated in
Australia:
(i) $2,000,000; or
(ii) 20% of its premium income in Australia during its last preceding
financial year; or
(iii) 15% of its outstanding claims provision as at the end of its last
preceding financial year;
whichever is the greatest.
(7) If a body corporate (the connected body corporate) that
is connected with an authorised body corporate has an asset that is an amount
due from, a loan to, a debenture of, or a share in, a body corporate that is
related to it, the Commissioner may, by written notice served on the connected
body corporate, direct that the value of the asset is to be taken to be reduced
by an amount stated, or worked out under a formula or procedure stated, in the
notice, being an amount, formula or procedure determined by the Commissioner in
accordance with principles prescribed by the regulations for the purposes of
this subsection.
(8) Despite the preceding provisions of this section, a supervised body
corporate is not required to show in a balance-sheet prepared for the purposes
of this Part an asset at a value determined or worked out in accordance with
those provisions if the balance-sheet is in accordance with the requirements of
the Corporations Law or would be in accordance with those requirements if they
applied to the body.
(9) In this section:
government means government of the Commonwealth or of a State
or any other government.
securities means shares, stock, debentures, debenture stock
or bonds of a government, authority of a government, local governing authority,
body corporate or unincorporated body, and includes rights and options in
respect of any such shares, stock, debentures, debenture stock or bonds and any
prescribed interests as defined by section 9 of the Corporations Law.
(10) Part VI applies to a direction of the Commissioner under subsection
(5).
(11) Subsection (10) does not apply to a direction given within 5 years
after the commencement of this subsection.
(12) It is not necessary to obtain the agreement of the Treasurer to the
giving of a direction by the Commissioner under subsection (5) after 5 years
after the commencement of this section.
(1) A supervised body corporate must:
(a) keep such accounting records as correctly record and explain the
transactions and financial position of the body; and
(b) so keep its accounting records as to enable the yearly statutory
accounts to be prepared; and
(c) so keep its accounting records as to enable those yearly statutory
accounts to be conveniently and properly audited in accordance with this
Act.
(2) The body must retain its accounting records kept in accordance with
subsection (1) for at least 7 years after the completion of the transactions to
which they relate.
(3) The accounting records kept in accordance with subsection (1), or
copies of those records, must be kept in Australia.
(4) The accounting records referred to in subsection (3) must be kept in
writing in the English language or in a form in which they are readily
accessible and readily convertible into writing in the English
language.
(5) Unless the accounting records referred to in subsection (3) are held
at the registered office of the body in the State or Territory in which it is
incorporated, the body must, by written notice given to the Commissioner, notify
the Commissioner of the place where those accounting records are held.
(1) A supervised body corporate must, in respect of each of its financial
years, lodge with the Commissioner:
(a) the accounts and statements mentioned in subsection (2) in respect of
any business carried on by it in Australia during that year; and
(b) if the body is incorporated in Australia, the accounts and statements
so mentioned in respect of any business carried on by it outside Australia
during that year.
(2) The following are the accounts and statements to be lodged as
mentioned in subsection (1):
(a) a profit and loss account;
(b) a balance-sheet;
(c) a statement of assets and liabilities;
(d) any other accounts and statements that the Commissioner
determines.
(3) If a supervised body corporate is not incorporated in Australia, it
must, within 6 months after the end of each of its financial years, lodge with
the Commissioner:
(a) a copy of accounts and statements, other than such accounts and
statements as the Commissioner determines, prepared for the purposes of a law of
the place in which the body is incorporated in respect of any business carried
on by it during that year; and
(b) a statement signed by not fewer than 2 directors, or, if there is only
1 director, by that director, of the body stating whether, during that year, it
has contravened the law relating to the carrying on of any business in any place
outside Australia in which it has, during that year, carried on such a business
and, if it has so contravened such a law, giving particulars of the
contravention.
(4) A supervised body corporate must, within 6 weeks after each
31 March, 30 June, 30 September and 31 December, lodge with the
Commissioner a statement of assets and liabilities on that day.
(5) Statutory accounts lodged under subsection (1) or (4) must be in
accordance with a form determined by the Commissioner.
(6) The Commissioner may make written determinations for the purposes of
this section.
(7) Such a determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
(8) A supervised body corporate must lodge the yearly statutory accounts
within 4 months after the end of its financial year.
(9) A supervised body corporate must, if so required by the Commissioner
by written notice served on it, give the Commissioner, within such period after
service of the notice, not being less than 7 days, as is stated in the notice,
information with respect to such matters relating to statutory accounts or a
document referred to in subsection (3) lodged by it under this section as are
stated in the notice.
Penalty: 200 penalty units.
(1) A profit and loss account and balance-sheet lodged by a body corporate
under section 49J must be signed by 2 directors of the body or, if there is only
1 director, by that director.
(2) Yearly statutory accounts (other than a profit and loss account or
balance-sheet) lodged by a body corporate under subsection 49J(1) must be signed
by a director, secretary or manager of the body, or, if the body is not
incorporated in Australia, by the person appointed in accordance with section
118 as, or to act as, its agent.
(3) In subsection (2):
manager, in relation to a body corporate, means the principal
executive officer of the body, by whatever name the officer is called.
(1) A person must not act as an auditor for the purposes of this Part of a
supervised body corporate unless:
(a) the person is a person other than a director or employee of the body;
and
(b) the person is a registered company auditor under a law in force in a
State or Territory; and
(c) the Commissioner has, by written notice given to the body, approved
the appointment of the person as auditor of the body for the purposes of this
Part; and
(d) that approval has not been revoked.
(2) The Commissioner must not approve the appointment of the person unless
the Commissioner is satisfied that the person has had suitable experience to
enable the person to audit accounts of any business carried on by the body and
is competent to audit such accounts.
(3) If the Commissioner is satisfied that the auditor has failed to fulfil
his or her obligations under this Part, the Commissioner may, by written notice
given to the body, revoke the approval of the appointment of the auditor given
under subsection (1).
(4) If the Commissioner gives a notice under subsection (3), the
Commissioner must give a copy of the notice to the auditor.
(5) Part VI applies to:
(a) a refusal of the Commissioner to approve the appointment of a person
under subsection (1); and
(b) a revocation of an appointment of a person under that
subsection.
(1) Yearly statutory accounts of a supervised body corporate (other than
any such accounts and statements that are prescribed for the purposes of this
subsection) are to be audited by the body’s auditor.
(2) The body must make any arrangements that are necessary to enable the
audit of the yearly statutory accounts in accordance with this Act.
(3) The auditor must give the body, for the purposes of this Part, a
certificate relating to the yearly statutory accounts referred to in subsection
(1).
(4) In a certificate given under subsection (3) relating to yearly
statutory accounts in respect of a financial year of the body, the auditor
must:
(a) state whether the yearly statutory accounts to which it relates appear
to the auditor to be in accordance with this Act and give particulars of any
matters that do not appear to the auditor to be in accordance with this Act;
and
(b) state whether the body’s accounting records in respect of that
year appear to the auditor to have been properly kept and to record and explain
correctly the body’s transactions and financial position and give
particulars of accounting records that appear to the auditor not to have been so
kept and of transactions that appear to the auditor not to have been so
recorded; and
(c) state whether, in respect of that year, the auditor has obtained the
information and explanations that the auditor requested from the body and give
particulars of information and explanations that the auditor requested but did
not obtain; and
(d) state whether the auditor is satisfied that the yearly statutory
accounts referred to in paragraph (a) agree with the body’s accounting
records and appear to the auditor truly to represent the body’s
transactions and financial position in respect of the financial year to which
they relate and, if any of them appear to the auditor to fail so to represent
the transactions and financial position, give particulars of the
failure.
A supervised body corporate must, within 4 months after the end of each
of its financial years, lodge with the Commissioner a certificate referred to in
subsection 49M(3) relating to the yearly statutory accounts in respect of that
year.
Penalty: 200 penalty units.
The Commissioner may, on the application of a supervised body corporate
that is required under this Part to lodge with the Commissioner statutory
accounts, a certificate or a document referred to in subsection 49J(3), extend,
or further extend, the time for lodging the accounts, certificate or
document.
58 Subsection 50(1) (definition of prescribed
interest)
Omit “subsection 5(1) of the Companies Act 1981”,
substitute “section 9 of the Corporations Law”.
59 Subsection 50(1) (subparagraph (c)(i) of the
definition of prescribed person)
Omit “his”, substitute “the
person’s”.
60 At the end of section 50
Add:
(3) Without limiting the application of subsection (2), any bodies
corporate that are connected with each other for the purposes of Part IVA are
taken also to be associated with each other for the purposes of this
Part.
61 Paragraph 51(1)(b)
Before “by notice”, insert “with the Treasurer’s
agreement,”
62 Subsections 51(2), (3), (4) and
(5)
Repeal the subsections, substitute:
(2) If the Commissioner has served, or is proposing to serve, a notice
under paragraph (1)(a) or (b) on a body corporate, the Commissioner
may:
(a) if the notice has been served—at any time; or
(b) otherwise—at or about the time when the notice is
served;
do either or both of the following in relation to a body corporate that is
connected with the first-mentioned body corporate:
(c) by written notice served on the connected body corporate, direct it to
furnish to him or her in writing, within such period after service of the
notice, being not less than 7 days, as is stated in the notice, such information
as is stated in the notice about such matters in relation to the affairs of the
connected body corporate as are so stated;
(d) with the Treasurer’s agreement, by written notice served on the
connected body corporate, direct:
(i) that it not dispose of, otherwise deal with, or remove from Australia,
any of its assets; or
(ii) that it not dispose of, otherwise deal with, or remove from
Australia, any of its assets that is, or is of a kind that is, stated in the
notice; or
(iii) that it deal with any of its assets, or any of its assets that is,
or is of a kind that is, stated in the notice, on such terms and conditions as
are stated in the notice;
during such period after service of the notice, not exceeding 6 months,
as is stated in the notice.
(3) Part VI applies to:
(a) a direction given, after 5 years after the commencement of this
subsection, under paragraph (1)(b) or (2)(d); and
(b) if a direction given after that period under either of those
paragraphs is varied—the direction as varied.
(4) It is not necessary to obtain the agreement of the Treasurer to the
giving of a direction by the Commissioner under paragraph (1)(b) or (2)(d) after
5 years after the commencement of subsection (3).
(5) Nothing in subsection (1) or (2) affects the validity of a transaction
entered into by a body corporate in contravention of that subsection.
(6) If a body corporate in respect of which a direction has been given
under paragraph (1)(b) or (2)(d) is begun to be wound up, the direction ceases
to have effect.
(7) A body corporate must not contravene a direction given to it under
subsection (1) or (2).
Penalty: 200 penalty units.
63 After subsection 52(1)
Insert:
(1A) If the Commissioner has served, or is proposing to serve, a notice
under subsection (1) on a body corporate, the Commissioner may:
(a) if the notice has been served—at any time; or
(b) otherwise—at or about the time when the notice is
served;
cause a written notice to be served under subsection (1C) on a body
corporate that is connected with the first-mentioned body corporate.
(1B) If it appears to the Commissioner that a body corporate that is
connected with a body corporate authorised under this Act to carry on insurance
business has contravened a provision of this Act or a condition or direction
applicable to it under this Act, the Commissioner may cause a written notice to
be served under subsection (1C) on the first-mentioned body corporate.
(1C) A notice referred to in subsection (1A) or (1B) may require the body
corporate on which it is served to show cause, within such period after service
of the notice (being not less than 14 days) as is stated in the notice, why the
Commissioner should not, on stated grounds:
(a) investigate the whole or any part of the business of the body
corporate; or
(b) appoint a person to make such an investigation and report to the
Commissioner the results of the investigation.
64 Paragraphs 52(2)(a) and
(b)
Repeal the paragraphs, substitute:
(a) a body corporate on which a notice is served under subsection (1),
(1A) or (1B) fails, within the period stated in the notice, to show cause to the
Commissioner’s satisfaction why an investigation should not be made;
and
(b) the Commissioner is satisfied that:
(i) if the notice was served under subsection (1)—in relation to the
insurance business carried on by the body corporate; or
(ii) otherwise—in relation to any business carried on by the body
corporate;
it is in the public interest that an investigation should be
made;
65 Subsection 54(1)
After “occupied by the body corporate”, insert “or by
another body corporate with which the body corporate is
connected”.
66 Paragraph 54(1)(a)
After “the body corporate”, insert “or of the other body
corporate”.
67 Subsection 54(3) (including the
penalty)
Repeal the subsection and penalty.
68 Subsection 56(1)
(penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 3 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
69 Paragraph 60(2)(b)
Repeal the paragraph, substitute:
and (b) if the investigation relates to the affairs of a body corporate
that is associated with a body corporate (the authorised body
corporate) that is authorised under this Act to carry on insurance
business—a statement of the opinion of the Commissioner or inspector in
relation to the effect of the association on the ability of the authorised body
corporate to meet its liabilities and the facts on which that opinion is based;
and
70 Subparagraph 60(2)(c)(i)
Repeal the subparagraph, substitute:
(i) if the body is authorised to carry on insurance business—the
question whether it should continue to be so authorised; and
71 At the end of subparagraph
60(2)(c)(ii)
Add “and”.
72 Subparagraph
60(2)(c)(iv)
After “insurance”, insert “or other”.
73 Subsection 61(1)
(penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 3 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
74 Subsection 61(2)
Omit “he”, substitute “the person”.
75 Subsection 62(1)
After “body corporate” (first occurring), insert “that is
authorised under this Act to carry on insurance business”.
76 After subsection 62(1)
Insert:
(1A) If:
(a) an investigation is being or has been made under this Part into
affairs of a body corporate (the connected body) that is connected
with a body corporate (the authorised body) for the purposes of
Part IVA; and
(b) it appears to the Commissioner that:
(i) the authorised body is, or is about to become, unable to meet its
liabilities; or
(ii) the connected body has contravened a provision of this Act or a
condition or direction applicable to it under this Act;
the Commissioner may, by written notice served on the connected body, give
directions to it with respect to the carrying on of any business by it and,
without limiting the generality of the directions that may be given, may give
any one or more of the following directions:
(c) a direction that the body must not dispose of or otherwise deal with
an asset of the body, or an asset of the body included in a class of assets
stated in the direction;
(d) a direction that the body must dispose of an asset of the body, or
assets of the body included in a class of assets stated in the direction, in
such manner and within such period after the giving of the direction, not being
less than 21 days, as the Commissioner states in the direction;
(e) a direction that the body must increase, so far as it is able to do
so, its paid-up capital, whether by calling up any uncalled capital that is
available to be called up or otherwise;
(f) a direction that the body must not, except with the consent of the
Commissioner:
(i) enter into an arrangement or agreement for the sale or disposal of its
business by amalgamation or otherwise or for the carrying on of its business in
partnership with another body corporate; or
(ii) effect a reconstruction of the body.
(1B) The Commissioner may only give a direction under subsection (1) or
(1A) with the Treasurer’s agreement.
77 Subsection 62(2)
After “satisfied”, insert “, and the Treasurer
agrees,”.
78 After subsection 62(3)
Insert:
(3A) Subsection (3) does not apply to a decision made within 5 years after
the commencement of this subsection.
(3B) It is not necessary to obtain the agreement of the Treasurer to a
decision by the Commissioner under this section after 5 years after the
commencement of subsection (3A).
79 Subsection 62(5)
After “(1)(j)”, insert “or (1A)(f)”.
80 At the end of subsection
62(6)
Add “or (1A)”.
81 Subsection 62(7)
After “Commissioner” (first occurring), insert “, and the
Treasurer agrees,”.
82 Paragraph 62(7A)(a)
After “it appears to him”, insert “, and the Treasurer
agrees,”.
83 Subsection 62(9)
Omit “$20,000”, substitute “200 penalty
units”.
84 Subsection 62(10)
Repeal the subsection, substitute:
(10) A body corporate must not contravene:
(a) a direction given to it under subsection (1), other than a direction
of the kind referred to in paragraph (1)(a), (b), (c) or (d); or
(b) a direction given to it under subsection (1A).
Penalty: 200 penalty units.
85 Section 64
Omit “he is” (wherever occurring).
86 Section 98
Omit “he”, substitute “the underwriter”.
Note: The heading to section 98 is altered by omitting
“he” and substituting “the
underwriter”.
87 Paragraph 100(a)
Omit “his”, substitute “the
person’s”.
88 Subsection 105(15)
(penalty)
Omit “$20,000”, substitute “200 penalty
units”.
89 Subsection 106(2)
Omit “$2,000”, substitute “20 penalty
units”.
90 Section 106
Omit:
Penalty: One thousand dollars for each day during which the contravention
occurs.
91 Subsection 109(3)
Omit “$20,000”, substitute “200 penalty
units”.
92 Before section 114
Insert:
If:
(a) a code or codes of practice have been approved by the Commissioner in
relation to the carrying on of a class of insurance business prescribed for the
purposes of this section; and
(b) a person carries on that class of insurance business on a day when the
person is not a party to an agreement to comply with the code or one of the
codes;
the person is, in respect of that day, guilty of an offence punishable on
conviction by a fine of not more than:
(c) if the person is a body corporate¾200
penalty units; or
(d) if the person is a Lloyd’s underwriter and is not a body
corporate¾20 penalty units.
93 Subsection 115(1)
After “business”, insert “or a body corporate with which
the first-mentioned body corporate is connected for the purposes of
Part IVA”.
94 Subsection 115(2)
Omit “an officer of the body corporate to produce to him any books of
the body corporate”, substitute “an officer of the body corporate,
or an officer of a body corporate that is connected with the first-mentioned
body corporate for the purposes of Part IVA, to produce to the Commissioner any
books of the body corporate of which he or she is an officer”.
95 Subsection 115(5) (including the
penalty)
Repeal the subsection and penalty.
96 At the end of section
115
Add:
Penalty: Imprisonment for 3 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
97 Subsection 115A(1)
After “business”, insert “, or a body corporate with
which a body corporate so authorised is connected for the purposes of Part
IVA,”.
98 Paragraph 115A(2)(a)
After “business”, insert “, or a body corporate with
which a body corporate so authorised is connected for the purposes of Part
IVA,”.
99 Subsection 115A(5) (including the
penalty)
Repeal the subsection and penalty.
100 Subsection 116(1)
Repeal the subsection, substitute:
(1) If a body corporate that is authorised under this Act to carry on
insurance business is begun to be wound up:
(a) the body must not carry on insurance business after the date of
commencement of the winding up; and
(b) the Commissioner must cause to be published in the Gazette a
notice stating that, because of the commencement of the winding up, the body is
no longer permitted to carry on insurance business.
101 Subsection 116(3)
After “business,”, insert “or in the winding up of a
supervised body corporate,”.
102 Subsection 117(1)
Repeal the subsection, substitute:
(1) A body corporate that is not incorporated in Australia and:
(a) is authorised under this Act to carry on insurance business;
or
(b) is connected for the purposes of Part IVA with a body corporate that
is so authorised;
must, at all times while it is so authorised, or while it is connected with
a body corporate that is so authorised, have an address in Australia for the
purposes of this Act.
103 Subsections 117A(2), (3) and
(4)
Repeal the subsections, substitute:
(2) A disqualified person must not:
(a) be, or act as, a director or principal executive officer of a body
corporate (other than a foreign body corporate):
(i) that is authorised under this Act to carry on insurance business;
or
(ii) that is connected for the purposes of Part IVA with a body corporate
(other than a foreign body corporate) that is so authorised; or
(b) be, or act as, a local executive officer of a foreign body
corporate:
(i) that is authorised under this Act to carry on insurance business;
or
(ii) that is connected for the purposes of Part IVA with a foreign body
corporate that is so authorised.
Penalty: Imprisonment for 2 years.
(3) A body corporate (other than a foreign body corporate):
(a) that is authorised under this Act to carry on insurance business;
or
(b) that is connected for the purposes of Part IVA with a body corporate
(other than a foreign body corporate) that is so authorised;
must not permit a disqualified person to be, or act as, a director or
principal executive officer of the body corporate.
Penalty: 250 penalty units.
(4) A foreign body corporate:
(a) that is authorised under this Act to carry on insurance business;
or
(b) that is connected for the purposes of Part IVA with a foreign body
corporate that is so authorised;
must not permit a disqualified person to be, or act as, a local executive
officer of the body corporate.
Penalty: 250 penalty units.
104 Subsection 117A(8) (paragraph (a) of the
definition of local executive officer)
Repeal the paragraph, substitute:
(a) an individual who is a resident of Australia and:
(i) if the foreign body corporate is authorised under this Act to carry on
insurance business—is solely or principally responsible for the management
of the insurance business of the foreign body corporate in Australia;
or
(ii) if the foreign body corporate is connected for the purposes of Part
IVA with a body corporate that is authorised under this Act to carry on
insurance business in Australia—is solely or principally responsible for
the management of the business of the foreign body corporate in Australia;
or
105 Subsection 118(1)
Repeal the subsection, substitute:
(1) A body corporate that is not incorporated in Australia and:
(a) is authorised under this Act to carry on insurance business;
or
(b) is connected for the purposes of Part IVA with a body corporate that
is so authorised;
must, at all times while it is so authorised, or while it is connected with
a body corporate that is so authorised, be represented for the purposes of this
Act by an individual resident in Australia and appointed by it as its agent for
the purposes of this Act.
106 Subsection 119(1)
Repeal the subsection, substitute:
(1) A body corporate that is not incorporated in Australia and:
(a) is authorised under this Act to carry on insurance business;
or
(b) is connected for the purposes of Part IVA with a body corporate that
is so authorised;
must, at all times while it is so authorised, or while it is connected with
a body corporate that is so authorised, have as its principal banker for the
purposes of this Act a bank within the meaning of the Banking Act 1959 or
a bank constituted by a law of a State.
107 Section 120
Omit “he is carrying on business for the purpose of discharging
liabilities assumed by him”, substitute “the underwriter is carrying
on business for the purpose of discharging liabilities assumed by the
underwriter”.
108 Section 126
Repeal the section, substitute:
(1) In this section:
compliance officer means:
(a) a person who is a member of the staff referred to in subsection 13(1)
of the Insurance and Superannuation Commissioner Act 1987; or
(b) a person who is engaged under subsection 13(3) of the Insurance and
Superannuation Commissioner Act 1987; or
(c) any other person who, because of his or her employment, or in the
course of that employment:
(i) has acquired protected information; or
(ii) has had access to protected documents;
other than a member or officer of, or a person employed or engaged
by:
(iii) a financial sector supervisory agency; or
(iv) an overseas financial sector supervisory agency; or
(v) a law enforcement agency.
court includes a tribunal, authority or person having the
power to require the production of documents or the answering of
questions.
financial sector supervisory agency means a person or body
declared by the regulations to be a financial sector supervisory agency for the
purposes of this section.
law enforcement agency means a person or body declared by the
regulations to be a law enforcement agency for the purposes of this
section.
overseas financial sector supervisory agency means a person
or body declared by the regulations to be an overseas financial sector
supervisory agency for the purposes of this section.
produce includes permit access to.
protected document means a document given or produced
(whether before or after the commencement of this section) under, or for the
purposes of, this Act and containing information relating to the affairs of a
person other than information that has already been lawfully made available to
the public from other sources.
protected information means information disclosed or obtained
(whether before or after the commencement of this section) under, or for the
purposes of, this Act and relating to the affairs of a person other than
information that has already been lawfully made available to the public from
other sources.
(2) Subject to this section, a person who is or has been a compliance
officer must not, except for the purposes of this Act or any other Act of which
the Commissioner has the general administration, directly or
indirectly:
(a) disclose to any person, or to a court, any protected information
acquired by the first-mentioned person in the course of his or her duties as a
compliance officer; or
(b) produce to any person, or to a court, a protected document.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
(3) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, relating to the affairs of
another person if the other person agrees in writing to the disclosure of the
information or the production of the document, as the case may be.
(4) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, to:
(a) the Treasurer, the Secretary to the Department or an officer of the
Department authorised by the Secretary to the Department for the purposes of
this section; or
(b) a court for the purposes of this Act or any other Act of which the
Commissioner has the general administration; or
(c) a financial sector supervisory agency for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(d) an overseas financial sector supervisory agency for the purposes of
the performance of any of its functions or the exercise of any of its powers;
or
(e) if the Treasurer states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to a particular person¾that person;
or
(f) if the Treasurer states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to members of the public¾a member of
the public.
(5) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, to:
(a) a law enforcement agency; or
(b) a member of the staff referred to in subsection 13(1) of the
Insurance and Superannuation Commissioner Act 1987; or
(c) a person engaged under subsection 13(3) of that Act.
(6) A person who is or has been a compliance officer may only disclose
protected information, or produce a protected document, to a law enforcement
agency for the purposes of the performance by the agency of its functions in
relation to an offence or alleged offence against a law of the Commonwealth, of
a State or of a Territory.
(7) A person who is or has been a compliance officer may only disclose
protected information, or produce a protected document, to a person referred to
in paragraph (5)(b) or (c) for the purposes of the performance of the
Commissioner’s functions, or the exercise of the Commissioner’s
powers, under a law of the Commonwealth.
(8) Paragraphs (4)(e) and (f) do not authorise the disclosure of
information, or the production of a document, relating to the personal affairs
of an individual if the disclosure or production, as the case requires, would be
unreasonable in the circumstances.
(9) Subsection (2) does not prohibit a person from disclosing information,
or producing a document, if the information, or the information contained in the
document, as the case may be, is in the form of a summary or collection of
information that is prepared so that information relating to any particular
person cannot be found out from it.
(10) A person who is or has been a compliance officer cannot be required
to disclose to a court any protected information, or to produce in a court a
protected document, except when it is necessary to do so for the purposes of
this Act or any other Act of which the Commissioner has the general
administration.
(11) If protected information is disclosed, or a protected document is
produced, under paragraph (4)(a), to the Secretary to the Department or to an
officer of the Department, the Secretary or officer must not, except for the
purpose of advising the Treasurer in connection with the administration of this
Act, directly or indirectly make a record of, or disclose to any person, the
information, or the information contained in the document, as the case may
be.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
(12) A document that:
(a) is a protected document; or
(b) contains protected information;
is an exempt document for the purposes of section 38 of the Freedom of
Information Act 1982.
(13) At the end of 5 years after the commencement of this section, the
definitions of financial sector supervisory agency, law
enforcement agency and overseas financial sector supervisory
agency in subsection (1), and subsections (4), (5), (6), (7), (8) and
(11), are taken to be repealed.
109 At the end of section
127
Add:
(3) The Commissioner may arrange for the publication of statistical
information based on information obtained by the Commissioner under this Act if
the publication is in such a form that information relating to a particular body
corporate authorised under this Act to carry on insurance business cannot be
found out from it.
(4) The Commission may determine that fees are to be paid in respect of
the supply of publications in accordance with this section.
110 Subsection 128(1)
After “48A(9)”, insert “or 49F(8), section 49H, 49J or
49N, subsection”.
111 Paragraph 128(1)(a)
After “48A(9)”, insert “49F(8),”.
112 Paragraph 128(1)(a)
Omit “$2,000”, substitute “20 penalty
units”.
113 Paragraph 128(1)(b)
Omit “or 48”, substitute “, 48, 49H, 49J or
49N”.
114 Paragraph 128(1)(b)
Omit “$4,000”, substitute “40 penalty
units”.
115 Subsection 128(2)
(penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 3 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
116 Section 129B
Repeal the section.
117 Section 130
After “a prescribed form”, insert “or a form determined
by the Commissioner”.
118 Paragraph 132(b)
Repeal the paragraph.
119 Paragraph 132(f)
Omit “$1,000”, substitute “10 penalty
units”.
120 The whole of the Act
Amend so that every occurrence of “he” is followed once by
“or she”.
121 The whole of the Act
Amend so that every occurrence of “him” is followed once by
“or her”.
122 The whole of the Act
Amend so that every occurrence of “his” is followed once by
“or her”.
123 Application
The amendments made by items 120, 121 and 122 take effect immediately after
the commencement of the amendments made by the other items.
1 Section 24
Omit “or a fine not exceeding $50,000, or both”.
2 At the end of section 24
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
3 Section 26
Omit “or a fine not exceeding $50,000, or both”.
4 At the end of section 26
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
5 Subsection 27(3)
Omit “or a fine not exceeding $50,000, or both”.
6 At the end of subsection
27(3)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
7 Section 31
Omit “or a fine not exceeding $50,000, or both”.
8 At the end of section 31
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
9 Section 38
Omit “or a fine not exceeding $50,000, or both”.
10 At the end of section 38
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
11 Section 40
Omit “or a fine not exceeding $50,000, or both”.
12 At the end of section 40
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
13 Subsection 41(3)
Omit “or a fine not exceeding $50,000, or both”.
14 At the end of subsection
41(3)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
15 Section 45
Omit “or a fine not exceeding $50,000, or both”.
16 At the end of section 45
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
17 Section 52
Omit “or a fine not exceeding $50,000, or both”.
18 At the end of section 52
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
19 Section 54
Omit “or a fine not exceeding $50,000, or both”.
20 At the end of section 54
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
21 Subsection 55(3)
Omit “or a fine not exceeding $50,000, or both”.
22 At the end of subsection
55(3)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
23 Section 59
Omit “or a fine not exceeding $50,000, or both”.
24 At the end of section 59
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
25 At the end of subsection
73(5)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
26 At the end of subsection
73(6)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
27 At the end of subsection
73(7)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
28 At the end of subsection
74(1)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
29 Section 75
Repeal the section, substitute:
(1) In this section:
compliance officer means:
(a) a person who is a member of the staff referred to in subsection 13(1)
of the Insurance and Superannuation Commissioner Act 1987; or
(b) a person who is engaged under subsection 13(3) of the Insurance and
Superannuation Commissioner Act 1987; or
(c) any other person who, because of his or her employment, or in the
course of that employment:
(i) has acquired protected information; or
(ii) has had access to protected documents;
other than a member or officer of, or a person employed or engaged
by:
(iii) a financial sector supervisory agency; or
(iv) an overseas financial sector supervisory agency; or
(v) a law enforcement agency.
court includes a tribunal, authority or person having the
power to require the production of documents or the answering of
questions.
financial sector supervisory agency means a person or body
declared by the regulations to be a financial sector supervisory agency for the
purposes of this section.
law enforcement agency means a person or body declared by the
regulations to be a law enforcement agency for the purposes of this
section.
overseas financial sector supervisory agency means a person
or body declared by the regulations to be an overseas financial sector
supervisory agency for the purposes of this section.
produce includes permit access to.
protected document means a document given or produced
(whether before or after the commencement of this section) under, or for the
purposes of, this Act and containing information relating to the affairs of a
person other than information that has already been lawfully made available to
the public from other sources.
protected information means information disclosed or obtained
(whether before or after the commencement of this section) under, or for the
purposes of, this Act and relating to the affairs of a person other than
information that has already been lawfully made available to the public from
other sources.
(2) Subject to this section, a person who is or has been a compliance
officer must not, except for the purposes of this Act or any other Act of which
the Commissioner has the general administration, directly or
indirectly:
(a) disclose to any person, or to a court, any protected information
acquired by the first-mentioned person in the course of his or her duties as a
compliance officer; or
(b) produce to any person, or to a court, a protected document.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
(3) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, relating to the affairs of
another person if the other person agrees in writing to the disclosure of the
information or the production of the document, as the case may be.
(4) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, to:
(a) the Treasurer, the Secretary to the Department or an officer of the
Department authorised by the Secretary to the Department for the purposes of
this section; or
(b) a court for the purposes of this Act or any other Act of which the
Commissioner has the general administration; or
(c) a financial sector supervisory agency for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(d) an overseas financial sector supervisory agency for the purposes of
the performance of any of its functions or the exercise of any of its powers;
or
(e) if the Treasurer states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to a particular person—that person; or
(f) if the Treasurer states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to members of the public¾a member of
the public.
(5) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, to:
(a) a law enforcement agency; or
(b) a member of the staff referred to in subsection 13(1) of the
Insurance and Superannuation Commissioner Act 1987; or
(c) a person engaged under subsection 13(3) of that Act.
(6) A person who is or has been a compliance officer may only disclose
protected information, or produce a protected document, to a law enforcement
agency for the purposes of the performance by the agency of its functions in
relation to an offence or alleged offence against a law of the Commonwealth, of
a State or of a Territory.
(7) A person who is or has been a compliance officer may only disclose
protected information, or produce a protected document, to a person referred to
in paragraph (5)(b) or (c) for the purposes of the performance of the
Commissioner’s functions, or the exercise of the Commissioner’s
powers, under a law of the Commonwealth.
(8) Paragraphs (4)(e) and (f) do not authorise the disclosure of
information, or the production of a document, relating to the personal affairs
of an individual if the disclosure or production, as the case requires, would be
unreasonable in the circumstances.
(9) Subsection (2) does not prohibit a person from disclosing information,
or producing a document, if the information, or the information contained in the
document, as the case may be, is in the form of a summary or collection of
information that is so prepared that information relating to any particular
person cannot be found out from it.
(10) A person who is or has been a compliance officer cannot be required
to disclose to a court any protected information, or to produce in a court a
protected document, except when it is necessary to do so for the purposes of
this Act or any other Act of which the Commissioner has the general
administration.
(11) If protected information is disclosed, or a protected document is
produced, under paragraph (4)(a), to the Secretary to the Department or to an
officer of the Department, the Secretary or officer must not, except for the
purpose of advising the Treasurer in connection with the administration of this
Act, directly or indirectly make a record of, or disclose to any person, the
information, or the information contained in the document, as the case may
be.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
(12) A document that:
(a) is a protected document; or
(b) contains protected information;
is an exempt document for the purposes of section 38 of the Freedom of
Information Act 1982.
(13) At the end of 5 years after the commencement of this section, the
definitions of financial sector supervisory agency, law
enforcement agency and overseas financial sector supervisory
agency in subsection (1), and subsections (4), (5), (6), (7), (8) and
(11), are taken to be repealed.
1 Section 9 (paragraph (a) of the definition of
class of insurance business)
After “insurance”, insert “business”.
2 Section 9 (definition of insolvent under
administration)
Repeal the definition, substitute:
insolvent under administration means a person who:
(a) under the Bankruptcy Act 1966 or the law of an external
Territory, is a bankrupt in respect of a bankruptcy from which the person has
not been discharged; or
(b) under the law of an external Territory or the law of a foreign
country, has the status of an undischarged bankrupt;
and includes:
(c) a person any of whose property is subject to control under:
(i) section 50 or Division 2 of Part X of the Bankruptcy Act 1966;
or
(ii) a corresponding provision of the law of an external Territory or the
law of a foreign country; or
(d) a person who has, at any time during the preceding 3 years, executed a
deed of assignment or a deed of arrangement under:
(i) Part X of the Bankruptcy Act 1966; or
(ii) the corresponding provisions of the law of an external Territory or
the law of a foreign country; or
(e) a person whose creditors have, within the preceding 3 years, accepted
a composition under:
(i) Part X of the Bankruptcy Act 1966; or
(ii) the corresponding provisions of the law of an external Territory or
the law of a foreign country.
3 Subsection 10(1)
Omit “himself”, substitute “the
intermediary”.
4 Subsection 10(2)
Omit “himself”, substitute “the
intermediary”.
5 Subsection 10(2A)
Omit “his or her”, substitute “the
intermediary’s”.
6 Subsection 10(3)
After “his”, insert “or her”.
7 Subsection 10(4)
Omit “himself”, substitute “the
intermediary”.
8 Subsection 10(4)
After “him” (first occurring), insert “or
her”.
9 Subsection 10(4)
Omit “him” (last occurring), substitute “the
intermediary”.
10 Subsection 10(5)
After “him”, insert “or her”.
11 At the end of section 10
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
12 After subsection 11(1J)
Insert:
(1K) If:
(a) a person is the agent of more than one insurer in respect of a
particular class of insurance business; and
(b) the person engages in the conduct in relation to a matter relating to
that class; and
(c) any one or more of the insurers enters or enter into a contract of
insurance as a result of the conduct;
then, for the purposes of this section, the agent is taken, in respect of
the conduct, to have acted within the scope of the authority granted by the
insurer or each insurer who so entered into a contract of insurance.
13 At the end of section 13
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
14 Section 15
Omit “his”, substitute “the
intermediary’s”.
15 Subsection 16(1) (other than the
penalty)
Repeal the subsection (other than the penalty), substitute:
(1) An insurance intermediary who intends to act under a binder in
effecting a contract of insurance on behalf of the intermediary’s
principal must:
(a) subject to paragraph (b), give notice to the intending insured, before
the intermediary enters into the contract, that, in effecting the contract, the
intermediary will be acting under an authority given to the intermediary by the
insurer to effect the contract and that the intermediary will be effecting the
contract as agent of the insurer and not of the intending insured; or
(b) if it is not practicable for the intermediary to comply with paragraph
(a), give notice to the insured, as soon as is reasonably practicable after the
intermediary has effected the contract, that, in effecting the contract, the
intermediary acted under an authority given to the intermediary by the insurer
to effect the contract and that the intermediary effected the contract as agent
of the insurer and not of the insured.
16 Subsection 17(1) (other than the
penalty)
Repeal the subsection (other than the penalty), substitute:
(1) An insurance intermediary who intends to act under a binder in dealing
with or settling a claim under a contract of insurance must not deal with or
settle the claim on behalf of the intermediary’s principal unless the
intermediary has first told the insured that, in dealing with or settling the
claim, the intermediary will be acting under an authority given to the
intermediary by the insurer to deal with or settle the claim and that the
intermediary will be dealing with or settling the claim as agent of the insurer
and not of the insured.
17 Subsection 18(2)
Omit “him”, substitute “the broker”.
18 Subsection 18(2)
Omit “his” (wherever occurring), substitute “the
broker’s”.
19 Paragraph 19(1)(a)
Omit “he”, substitute “the person”.
20 At the end of subsection
19(1)
Add:
; and (c) if the person carries on business as an insurance broker in
relation to a class of general insurance business that, under the regulations,
is domestic or personal insurance business and there is in force an arrangement,
approved by the Commissioner, for dealing with complaints against persons
carrying on business as insurance brokers in relation to that class of general
insurance business—unless the person is a party to the
arrangement.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
21 At the end of section 20
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
22 After paragraph 21(1)(b)
Insert:
(ba) if the application is for registration in respect of a class of
general insurance business that, under the regulations, is domestic or personal
insurance business and there is in force an arrangement, approved by the
Commissioner, for dealing with complaints against persons carrying on that class
of general insurance business¾the Commissioner
is satisfied that the person is a party to the arrangement; and
23 After paragraph
21(1A)(d)
Insert:
(da) if the application is for renewal of registration in respect of a
class of general insurance business that, under the regulations, is domestic or
personal insurance business and there is in force an arrangement, approved by
the Commissioner, for dealing with complaints against persons carrying on that
class of general insurance business¾the
Commissioner is satisfied that the person is a party to the arrangement;
and
24 Subsection 21(6)
Omit “request” (last occurring), substitute
“requirement”.
25 Paragraph 23(d)
Omit “aa”, substitute “(b)”.
26 Paragraph 24(2)(a)
Omit “his”, substitute “the
broker’s”.
27 Subsection 24(4)
Omit “writing signed by him”, substitute “signed
writing”.
28 After subsection 25(1A)
Insert:
(1AA) If:
(a) a person carries on business as an insurance broker in relation to a
class of general insurance business that, under the regulations, is domestic or
personal insurance business; and
(b) there is in force an arrangement, approved by the Commissioner, for
dealing with complaints against persons carrying on that class of general
insurance business; and
(c) the person is not a party to the arrangement;
the Commissioner may:
(d) suspend the person’s registration until the person becomes a
party to the arrangement; or
(e) cancel the person’s registration.
29 Subsection 25(3)
Omit “his”, substitute “the
person’s”.
30 Subsection 25(3)
After “him” (wherever occurring), insert “or
her”.
31 Subsection 25(4)
Omit “him” (wherever occurring), substitute “the
person”.
32 At the end of subsection
25(4)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
33 Subsection 25(5)
Omit “he may, by writing signed by him”, substitute “the
Commissioner may, by signed writing”.
34 Subsection 25(6)
Omit “his”, substitute “the
person’s”.
35 Subsection 25(6)
Omit “he”, substitute “the person”.
36 Subsection 25(7)
Omit “he”, substitute “the Commissioner”.
37 Subsections 26(1) and
(3)
Omit “him” (wherever occurring), substitute “the
broker”.
38 Paragraph 26(3)(a)
Omit “himself in so far as he is entitled to receive payment for
himself”, substitute “the broker in so far as the broker is entitled
to receive payment for the broker personally”.
39 Subsections 26(4) and
(5)
Omit “him” (wherever occurring), substitute “the
broker”.
40 Subsections 26(7) and
(8)
Omit “his”, substitute “the
broker’s”.
41 At the end of section 26
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
42 Paragraph 27(2)(b)
Omit “him”, substitute “the broker”.
43 Subsection 27(3)
Omit “he” (wherever occurring), substitute “the
broker”.
44 Subsection 27(4)
Omit “him” (wherever occurring), substitute “the
broker”.
45 Subsection 27(5)
Omit “he” (wherever occurring), substitute “the
broker”.
46 At the end of subsection
27(12)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
47 Paragraph 29(5)(a)
Omit “him”, substitute “the person”.
48 At the end of section 29
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
49 Subsections 30(1) and
(2)
Omit “himself or his business in a way that would be likely to lead a
person into believing that he”, substitute “the broker or the
broker’s business in a way that would be likely to lead a person into
believing that the broker”.
50 At the end of section 30
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
51 Section 31
Omit “he” (wherever occurring), substitute “the
broker”.
52 At the end of subsection
31B(1)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
53 At the end of section
31C
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
54 At the end of subsection
31H(4)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
55 Paragraphs 32(1)(a) and
(b)
Omit “his”, substitute “the
broker’s”.
56 Subsections 32(1), (2) and
(5)
Omit “he” and “him” (wherever occurring),
substitute “the broker”.
57 Subsection 33(2)
Omit “he arranges or effects”, substitute “arranging or
effecting”.
58 Paragraph 33(3)(a)
Omit “he arranges or effects”, substitute “arranging or
effecting”.
59 Paragraph 33(3)(b)
Omit “him” and “he”, substitute “the
intermediary”.
60 At the end of section 33
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
61 At the end of subsection
34(1)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
62 At the end of subsection
34A(9)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
63 At the end of section
34P
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
64 At the end of section
34S
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
65 At the end of section
34T
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
66 Section 34U
Repeal the section, substitute:
(1) In this section:
compliance officer means:
(a) a person who is a member of the staff referred to in subsection 13(1)
of the Insurance and Superannuation Commissioner Act 1987; or
(b) a person who is engaged under subsection 13(3) of the Insurance and
Superannuation Commissioner Act 1987; or
(c) any other person who, because of his or her employment, or in the
course of that employment:
(i) has acquired protected information; or
(ii) has had access to protected documents;
other than a member or officer of, or a person employed or engaged
by:
(iii) a financial sector supervisory agency; or
(iv) an overseas financial sector supervisory agency; or
(v) a law enforcement agency.
court includes a tribunal, authority or person having the
power to require the production of documents or the answering of
questions.
financial sector supervisory agency means a person or body
declared by the regulations to be a financial sector supervisory agency for the
purposes of this section.
law enforcement agency means a person or body declared by the
regulations to be a law enforcement agency for the purposes of this
section.
overseas financial sector supervisory agency means a person
or body declared by the regulations to be an overseas financial sector
supervisory agency for the purposes of this section.
produce includes permit access to.
protected document means a document given or produced
(whether before or after the commencement of this section) under, or for the
purposes of, this Act and containing information relating to the affairs of a
person other than information that has already been lawfully made available to
the public from other sources.
protected information means information disclosed or obtained
(whether before or after the commencement of this section) under, or for the
purposes of, this Act and relating to the affairs of a person other than
information that has already been lawfully made available to the public from
other sources.
(2) Subject to this section, a person who is or has been a compliance
officer must not, except for the purposes of this Act or any other Act of which
the Commissioner has the general administration, directly or
indirectly:
(a) disclose to any person, or to a court, any protected information
acquired by the first-mentioned person in the course of his or her duties as a
compliance officer; or
(b) produce to any person, or to a court, a protected document.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
(3) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, relating to the affairs of
another person if the other person agrees in writing to the disclosure of the
information or the production of the document, as the case may be.
(4) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, to:
(a) the Treasurer, the Secretary to the Department or an officer of the
Department authorised by the Secretary to the Department for the purposes of
this section; or
(b) a court for the purposes of this Act or any other Act of which the
Commissioner has the general administration; or
(c) a financial sector supervisory agency for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(d) an overseas financial sector supervisory agency for the purposes of
the performance of any of its functions or the exercise of any of its powers;
or
(e) if the Treasurer states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to a particular person—that person; or
(f) if the Treasurer states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to members of the public¾a member of
the public.
(5) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, to:
(a) a law enforcement agency; or
(b) a member of the staff referred to in subsection 13(1) of the
Insurance and Superannuation Commissioner Act 1987; or
(c) a person engaged under subsection 13(3) of that Act.
(6) A person who is or has been a compliance officer may only disclose
protected information, or produce a protected document, to a law enforcement
agency for the purposes of the performance by the agency of its functions in
relation to an offence or alleged offence against a law of the Commonwealth, of
a State or of a Territory.
(7) A person who is or has been compliance officer may only disclose
protected information, or produce a protected document, to a person referred to
in paragraph (5)(b) or (c) for the purposes of the performance of the
Commissioner’s functions, or the exercise of the Commissioner’s
powers, under a law of the Commonwealth.
(8) Paragraphs (4)(e) and (f) do not authorise the disclosure of
information, or the production of a document, relating to the personal affairs
of an individual if the disclosure or production, as the case requires, would be
unreasonable in the circumstances.
(9) Subsection (2) does not prohibit a person from disclosing information,
or producing a document, if the information, or the information contained in the
document, as the case may be, is in the form of a summary or collection of
information that is so prepared that information relating to any particular
person cannot be found out from it.
(10) A person who is or has been a compliance officer cannot be required
to disclose to a court any protected information, or to produce in a court a
protected document, except when it is necessary to do so for the purposes of
this Act or any other Act of which the Commissioner has the general
administration.
(11) If protected information is disclosed, or a protected document is
produced, under paragraph (4)(a), to the Secretary to the Department or to an
officer of the Department, the Secretary or officer must not, except for the
purpose of advising the Treasurer in connection with the administration of this
Act, directly or indirectly make a record of, or disclose to any person, the
information, or the information contained in the document, as the case may
be.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
(12) A document that:
(a) is a protected document; or
(b) contains protected information;
is an exempt document for the purposes of section 38 of the Freedom of
Information Act 1982.
(13) At the end of 5 years after the commencement of this section, the
definitions of financial sector supervisory agency, law
enforcement agency and overseas financial sector supervisory
agency in subsection (1), and subsections (4), (5), (6), (7), (8) and
(11), are taken to be repealed.
67 At the end of section 35
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
68 At the end of section 37
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
69 Paragraph 38(1)(d)
Omit “him”, substitute “the broker”.
70 Subsections 39(1) and
(2)
Repeal the subsections, substitute:
(1) An insurance intermediary other than a registered insurance broker
must not describe the intermediary or the intermediary’s business in a way
that would be likely to lead a person into believing that the intermediary is an
insurance broker.
(2) An insurance intermediary must not describe the intermediary or the
intermediary’s business in a way that would be likely to mislead a person
into believing that the intermediary is an insurer.
71 At the end of section 39
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
72 Section 45
After “him” (wherever occurring), insert “or
her”.
73 Paragraph 45(d)
After “his”, insert “or her”.
74 Section 47
Repeal the section, substitute:
The Commissioner may, by signed writing, delegate to a person all or any
of the Commissioner’s powers under this Act or the regulations.
75 Saving
A delegation that was in force under section 47 of the Insurance (Agents
and Brokers) Act 1984 immediately before the commencement of item 74
continues in force as if it had been given under the section substituted by that
item.
1 Subsection 9(3)
Repeal the subsection, substitute:
(3) Sections 37, 41, 58, 59, 60, 63, 69 and 74 do not apply in relation to
contracts, and proposed contracts, of insurance against the risk of the loss of
an aircraft, or damage to the hull of an aircraft, as a result of war.
2 Paragraph 11(10)(a)
Omit “or 68”, substitute “, 68 or 71A”.
3 Paragraph 11(10)(c)
Omit “and 68”, substitute “, 68 and 71A”.
4 Section 11F
Repeal the section, substitute:
(1) In this section:
compliance officer means:
(a) a person who is a member of the staff referred to in subsection 13(1)
of the Insurance and Superannuation Commissioner Act 1987; or
(b) a person who is engaged under subsection 13(3) of the Insurance and
Superannuation Commissioner Act 1987; or
(c) any other person who, because of his or her employment, or in the
course of that employment:
(i) has acquired protected information; or
(ii) has had access to protected documents;
other than a member or officer of, or a person employed or engaged
by:
(iii) a financial sector supervisory agency; or
(iv) an overseas financial sector supervisory agency; or
(v) a law enforcement agency.
court includes a tribunal, authority or person having the
power to require the production of documents or the answering of
questions.
financial sector supervisory agency means a person or body
declared by the regulations to be a financial sector supervisory agency for the
purposes of this section.
law enforcement agency means a person or body declared by the
regulations to be a law enforcement agency for the purposes of this
section.
overseas financial sector supervisory agency means a person
or body declared by the regulations to be an overseas financial sector
supervisory agency for the purposes of this section.
produce includes permit access to.
protected document means a document given or produced
(whether before or after the commencement of this section) under, or for the
purposes of, this Act and containing information relating to the affairs of a
person other than information that has already been lawfully made available to
the public from other sources.
protected information means information disclosed or obtained
(whether before or after the commencement of this section) under, or for the
purposes of, this Act and relating to the affairs of a person other than
information that has already been lawfully made available to the public from
other sources.
(2) Subject to this section, a person who is or has been a compliance
officer must not, except for the purposes of this Act or any other Act of which
the Commissioner has the general administration, directly or
indirectly:
(a) disclose to any person, or to a court, any protected information
acquired by the first-mentioned person in the course of his or her duties as a
compliance officer; or
(b) produce to any person, or to a court, a protected document.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
(3) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, relating to the affairs of
another person if the other person agrees in writing to the disclosure of the
information or the production of the document, as the case may be.
(4) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, to:
(a) the Treasurer, the Secretary to the Department or an officer of the
Department authorised by the Secretary to the Department for the purposes of
this section; or
(b) a court for the purposes of this Act or any other Act of which the
Commissioner has the general administration; or
(c) a financial sector supervisory agency for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(d) an overseas financial sector supervisory agency for the purposes of
the performance of any of its functions or the exercise of any of its powers;
or
(e) if the Treasurer states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to a particular person¾that person;
or
(f) if the Treasurer states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to members of the public¾a member of
the public.
(5) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, to:
(a) a law enforcement agency; or
(b) a member of the staff referred to in subsection 13(1) of the
Insurance and Superannuation Commissioner Act 1987; or
(c) a person engaged under subsection 13(3) of that Act.
(6) A person who is or has been a compliance officer may only disclose
protected information, or produce a protected document, to a law enforcement
agency for the purposes of the performance by the agency of its functions in
relation to an offence or alleged offence against a law of the Commonwealth, of
a State or of a Territory.
(7) A person who is or has been a compliance officer may only disclose
protected information, or produce a protected document, to a person referred to
in paragraph (5)(b) or (c) for the purposes of the performance of the
Commissioner’s functions, or the exercise of the Commissioner’s
powers, under a law of the Commonwealth.
(8) Paragraphs (4)(e) and (f) does not authorise the disclosure of
information, or the production of a document, relating to the personal affairs
of an individual if the disclosure or production, as the case requires, would be
unreasonable in the circumstances.
(9) Subsection (2) does not prohibit a person from disclosing information,
or producing a document, if the information, or the information contained in the
document, as the case may be, is in the form of a summary or collection of
information that is so prepared that information relating to any particular
person cannot be found out from it.
(10) A person who is or has been a compliance officer cannot be required
to disclose to a court any protected information, or to produce in a court a
protected document, except when it is necessary to do so for the purposes of
this Act or any other Act of which the Commissioner has the general
administration.
(11) If protected information is disclosed, or a protected document is
produced, under paragraph (4)(a), to the Secretary to the Department or to an
officer of the Department, the Secretary or officer must not, except for the
purpose of advising the Treasurer in connection with the administration of this
Act, directly or indirectly make a record of, or disclose to any person, the
information, or the information contained in the document, as the case may
be.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
(12) A document that:
(a) is a protected document; or
(b) contains protected information;
is an exempt document for the purposes of section 38 of the Freedom of
Information Act 1982.
(13) At the end of 5 years after the commencement of this section, the
definitions of financial sector supervisory agency, law
enforcement agency and overseas financial sector supervisory
agency in subsection (1), and subsections (4), (5), (6), (7), (8) and
(11), are taken to be repealed.
5 Paragraph 21(2)(c)
Omit “his”, substitute “the
insurer’s”.
6 Subsection 26(1)
Omit “he”, substitute “the person”.
7 Section 27
Omit “he”, substitute “the person”.
8 Subsection 28(3)
Omit “him” and “he”, substitute “the
insurer”.
9 Subsection 29(4)
Omit “he”, substitute “the insurer”.
10 Subsection 35(2)
Omit “he”, substitute “the insurer”.
11 Paragraph 41(1)(a)
Omit “him”, substitute “the insured”.
12 Subsection 41(2)
Omit “him”, substitute “the insured”.
13 Paragraph 41(2)(b)
Omit “he”, substitute “the insurer”.
14 At the end of subsection
44(1)
Add “including whether the provision is based on indemnity or on
replacement value of the property that is the subject-matter of the
contract”.
15 Subsection 44(4)
Repeal the subsection, substitute:
(4) In this section:
value, in relation to property, means:
(a) if the relevant contract provides for indemnifying the insured in
respect of loss of or damage to the property¾the
indemnity value of the property; or
(b) if the relevant contract provides for reinstatement or replacement of
the property¾the reinstatement or replacement
value of the property;
at the time when the relevant contract was entered into.
16 Subsection 46(2)
Omit “his”, substitute “the
insurer’s”.
17 Subsection 47(2)
Omit “his”, substitute “the
insurer’s”.
18 Subsections 48(1) and
(2)
Omit “his”, substitute “the
person’s”.
19 Subsections 48(1) and
(2)
Omit “he”, substitute “the person”.
20 Subsection 48(3)
Omit “he”, substitute “the insurer”.
21 Paragraph 49(3)(a)
Omit “his”, substitute “the
insurer’s”.
22 Paragraph 49(3)(b)
Omit “his”, substitute “the
person’s”.
23 Paragraph 51(2)(b)
Omit “his”, substitute “the
insured’s”.
24 Subsection 54(1)
Omit “his”, substitute “the
insurer’s”.
25 Subsection 57(3)
Omit “rate that is the prescribed rate in respect of that day”,
substitute “rate applicable in respect of that day that is prescribed by,
or worked out in a manner prescribed by, the regulations”.
26 Subsection 58(2)
Omit “him”, substitute “the person to whom the notice is
given”.
27 Subparagraph
58(3)(d)(ii)
After “from”, insert “the original insurer
or”.
28 Paragraph 58(4)(b)
Repeal the paragraph, substitute:
(b) if a claim is made under the contract, there is payable by the insured
to the insurer, as a premium in respect of the contract, an amount worked out in
accordance with subsection (5) or (6), as the case requires.
29 At the end of section 58
Add:
(5) If the claim is for total loss of the property insured, the premium is
an amount equal to the amount (the hypothetical premium) that, if
the original contract had been renewed for the same period and on the same terms
and conditions (including the same subject-matter and risk), would have been
payable by the insured in respect of the renewal.
(6) If the claim is not for total loss of the property insured, the
premium is an amount worked out in accordance with the formula:
where:
period until claim means the number of days in the period
that began on the day on which the contract came into force and ended on the day
on which the claim was made.
hypothetical premium has the meaning given in subsection
(5).
period of original contract means the number of days in the
period of the original contract.
30 Subparagraph 59(2)(b)(i)
Repeal the subparagraph, substitute:
(i) 4 pm on the applicable business day;
31 After subsection 59(2)
Insert:
(2A) In subparagraph (2)(b)(i):
applicable business day means:
(a) in respect of a contract that is not a contract of life
insurance:
(i) if the contract is in force because of section 58¾the fourteenth business day; or
(ii) otherwise¾the third business day;
or
(b) in respect of a contract of life insurance¾the twentieth business day;
after the day on which the notice was given to the insured.
32 Subsection 64(1)
Omit “he”, substitute “the insured”.
33 Subsection 64(2)
Omit “him”, substitute “the insurer”.
34 Subsection 64(4)
Omit “of his own, he”, substitute “of the insured, the
insured”.
35 Paragraph 65(2)(a)
Omit “his”, substitute “the third
party’s”.
36 Subsection 65(3)
Omit “his”, substitute “the third
party’s”.
37 Subsection 65(4)
Omit “his”, substitute “the
insurer’s”.
38 Subsection 65(5)
Omit “him” and “he”, substitute “the
insured”.
39 Paragraph 66(a)
Omit “his”, substitute “the
insurer’s”.
40 Subsection 68(1)
Omit “he”, substitute “the insurer”.
41 Section 72
Omit “him”, substitute “the person”.
42 Subsection 74(2)
Omit “he”, substitute “the insurer”.
43 Subsection 75(1)
Omit “he” (wherever occurring), substitute “the
insurer”.
44 Subsection 75(1)
Omit “his”, substitute “the
insurer’s”.
45 Subsection 76(1)
Omit “him”, substitute “the insured”.
46 Subparagraph
77(1)(b)(ii)
Omit “his”, substitute “the
person’s”.
47 Subsection 77(2)
Omit “of his own, he”, substitute “of the insured, the
insured”.
1 The whole of the Act
Repeal the Act.
1 Schedule (item 24)
Repeal the item, substitute:
24 Subsection 34(1)
Omit all the words from and including “conviction:” to the end
of paragraph (d), substitute “conviction, by imprisonment for not more
than 2 years”.
1 After section 5
Insert:
In this Act:
(a) a reference to a body corporate that is required to lodge accounts
under subsection 44(1) of the Insurance Act 1973 includes a reference to
a body corporate which has ceased to be authorised under that Act to carry on
insurance business but which, if it had not so ceased, would be required to
lodge accounts under that subsection; and
(b) except in subsection 7(3A), a reference to a life company includes a
reference to a company that has ceased to be a life company.
2 Paragraph 7(1)(a)
Repeal the paragraph, substitute:
(a) the day by which the body corporate:
(i) is required to lodge accounts under subsection 44(1) of the
Insurance Act 1973 for that period; or
(ii) would, if it had not ceased to be authorised under that Act to carry
on insurance business, be required to lodge accounts under that subsection for
that period;
3 After subsection 7(3A)
Insert:
(3B) Life insurance levy payable by a company that has ceased to be a life
company is due and payable on the last day of the period within which the
company would, if it had not so ceased, be required by subsection 118(3) of the
Life Insurance Act 1995 to give to the Commissioner financial statements
as at the end of that period.
4 After section 8
Insert:
If:
(a) an amount of levy is payable by:
(i) a body corporate that has ceased to be authorised under the
Insurance Act 1973 to carry on insurance business; or
(ii) a company that has ceased to be a life company; and
(b) the Commissioner is satisfied that payment of the levy would prevent
payment in full of claims under contracts of insurance made with the body
corporate or company;
the Commissioner may waive the payment of the whole or a part of the
amount.
1 After section 9
Insert:
(1) Subject to this section, a continuous disability policy is a contract
of insurance:
(a) that is, by its terms, to be of more than 3 years’ duration;
and
(b) under which a benefit is payable in the event of:
(i) the death, by accident or by some other cause stated in the contract,
of the person whose life is insured (the insured); or
(ii) injury to, or disability of, the insured as a result of accident or
sickness; or
(iii) the insured being found to have a stated condition or
disease.
(2) A contract of insurance that is, by its terms, to be of a duration of
not more than 3 years is taken to comply with paragraph (1)(a) if:
(a) contracts of insurance of the same kind as the contract are usually of
more than 3 years’ duration; and
(b) the contract is of a lesser duration only because of the age of the
owner of the policy at the time when it was entered into.
(3) A contract of insurance is not a continuous disability policy if the
terms of the contract permit alteration, at the instance of the life company
concerned, of the benefits provided for by the contract or the premiums payable
under the contract.
(4) A contract of insurance the terms of which permit alteration, at the
instance of the life company concerned, of the benefits provided for by the
contract is not thereby excluded by subsection (3) from being a continuous
disability policy if, by those terms, the only alterations that are permitted to
be made are alterations that improve the benefits and are made following an
offer made by the life company and accepted by the owner of the
policy.
(5) A contract of insurance the terms of which permit alteration, at the
instance of the life company concerned, of the premiums payable under the
contract is not thereby excluded by subsection (3) from being a continuous
disability policy if the terms of all contracts of the same kind as the contract
only permit such alterations if they are made on a simultaneous and consistent
basis.
(6) A contract of consumer credit insurance within the meaning of the
Insurance Contracts Act 1984 is not a continuous disability
policy.
(7) A contract of insurance entered into in the course of carrying on
health insurance business within the meaning of section 67 of the National
Health Act 1953 is not a continuous disability policy.
2 Subsection 38(5)
Repeal the subsection, substitute:
(5) In subsection (4):
unsecured borrowing does not include:
(a) a borrowing of money by means of a bank overdraft; or
(b) a borrowing of money by means of an arrangement of a prescribed
kind.
3 Subsection 41(1)
After “transaction”, insert “(other than a transaction to
which section 41A applies)”.
Note: The heading to section 41 is altered by adding at the
end “¾general”.
4 After section 41
Insert:
(1) Subject to this section, a transaction that is included in a class of
transactions declared by the regulations to be transactions to which this
section applies is not ineffective merely because it was entered into in
contravention of section 38.
(2) The Court, on application by the Commissioner, may make an order
declaring that a particular transaction entered into in contravention of section
38 is, and is to be taken always to have been, of no effect for any
purpose.
(3) The Court must not make an order under subsection (2) if it is
satisfied that the effect of the order (if made) would be to prejudice rights of
any person in respect of, or arising out of, the transaction that have been
acquired in good faith and without knowledge of the contravention.
5 Subsection 49(1)
After “may”, insert “, with the Treasurer’s
agreement,”.
6 Subsection 49(4)
After “may”, insert “, with the Treasurer’s
agreement,”.
7 After subsection 62(4)
Insert:
(4A) The Commissioner must not refuse to give an approval under subsection
(4) unless the Treasurer agrees that the approval should not be given.
8 After subsection 63(2)
Insert:
(2A) The Commissioner must not refuse to give an approval under subsection
(2) unless the Treasurer agrees that the approval should not be given.
9 Subsection 68(1)
After “may”, insert “, with the Treasurer’s
agreement,”.
10 Subsection 68(5)
After “revoke or”, insert “, with the Treasurer’s
agreement,”.
11 Paragraph 68(6)(a)
After “thinks”, insert “, and the Treasurer
agrees,”.
12 Subsection 73(1)
After “may”, insert “, with the Treasurer’s
agreement,”.
13 Subsection 73(5)
After “thinks”, insert “, and the Treasurer
agrees,”.
14 Paragraph 73(6)(a)
After “thinks”, insert “, and the Treasurer
agrees,”.
15 At the end of section 82
Add:
(6) Rules made for the purposes of paragraph (5)(a) may require that
financial statements be prepared in accordance with accounting standards issued
by the Australian Accounting Standards Board or actuarial standards issued by
the Life Insurance Actuarial Standards Board, or both, as in force or existing
from time to time.
16 Subsection 134(1)
After “may”, insert “, with the Treasurer’s
agreement,”.
17 Subsection 147(2)
(penalty)
Repeal the penalty.
18 At the end of section
147
Add:
(3) A person who contravenes subsection (2) is guilty of an offence
punishable on conviction by imprisonment for not more than 6 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
19 Subsection 150(1)
After “may”, insert “, with the Treasurer’s
agreement,”.
20 Subsection 150(5)
After “thinks”, insert “, and the Treasurer
agrees,”.
21 Paragraph 150(6)(a)
After “thinks”, insert “, and the Treasurer
agrees,”.
22 Subsection 200(1)
After “assigned”, insert “at law”.
23 Subsection 200(2)
After “effective”, insert “at law”.
24 Subsection 200(3)
After “effects”, insert “at law”.
25 At the end of section
200
Add:
(8) This section:
(a) does not prejudice the effect in equity of an assignment of the rights
of a person as owner of a life policy that is made otherwise than under this
section; and
(b) has effect subject to section 203.
26 Paragraph 201(1)(a)
Repeal the paragraph, substitute:
(a) the mortgage or trust is not effective unless:
(i) it is created by some means other than the memorandum of transfer;
and
(ii) the memorandum of transfer does not contain any provisions about the
rights and duties of the assignor, the assignee or any other person in respect
of the mortgage or trust; and
27 Subsection 202(1)
Omit “201”, substitute “subsection
201(1)”.
28 Subsection 202(2)
Omit “201”, substitute “subsection
201(1)”.
29 After subsection 202(2)
Insert:
(2A) A life company is not taken, for the purposes of subsection (2), to
have received express notice in writing of a trust, right, equity or interest
merely because the transferee under an assignment is described in the memorandum
of transfer as the trustee or trustees of a superannuation fund.
30 Subsection 207(1)
Repeal the subsection, substitute:
(1) The owner of:
(a) a policy in respect of which there is no contractual obligation on the
owner to make any payments of premiums after the first year for which the policy
is in force; or
(b) a policy (other than a policy referred to in paragraph (a)) that has
been in force for at least 3 years;
may request the company that issued the policy to surrender the
policy.
31 Subsection 207(6)
Repeal the subsection, substitute:
(6) If, apart from this subsection, the surrender value of a policy under
this Act would at any time be less than the adjusted pre-1 July 1995 surrender
value of the policy, the adjusted pre-1 July 1995 surrender value of the policy
is the surrender value of the policy for the purposes of this Act.
(7) In subsection (6):
adjusted pre-1 July 1995 surrender value, in relation to a
policy to which that subsection applies, means the surrender value of the policy
immediately before 1 July 1995, adjusted for any transactions entered into on or
after that date in relation to the policy that affected its surrender
value.
32 Subsection 236(1) (definition of
reviewable decision)
After “means”, insert “, subject to subsection
(1A),”.
33 After subsection 236(1)
Insert:
(1A) Any of the following decisions that are made within 5 years after the
commencement of this subsection are not reviewable decisions for the purposes of
this Part:
(a) a decision under subsection 49(1);
(b) a decision under subsection 49(4);
(c) a refusal to give an approval under subsection 62(4);
(d) a refusal to give an approval under subsection 63(2);
(e) a direction under subsection 68(1);
(f) a decision to vary a direction under subsection 68(5) or
(6);
(g) a refusal to revoke or vary a direction under subsection
68(6);
(h) a direction under subsection 73(1);
(i) a decision to vary a direction under subsection 73(5) or
(6);
(j) a refusal to revoke or vary a direction under subsection
73(6);
(k) a direction under subsection 134(1);
(l) a direction under subsection 150(1);
(m) a decision to vary a direction under subsection 150(5) or
(6);
(n) a refusal to revoke or vary a direction under subsection
150(6).
(1B) After 5 years after the commencement of subsection (1A), it is not
necessary to obtain the agreement of the Treasurer to the making of a decision
referred to in that subsection.
34 At the end of section
244
Add:
(6) The Commissioner may determine that fees are to be paid in respect of
the supply of publications in accordance with this section.
35 At the end of subsection
245(3)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of an offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by a court on an individual
convicted of the same offence.
36 Section 249
After “offence”, insert “punishable on conviction by
imprisonment for not more than one year”.
37 Section 249
Repeal the penalty.
38 Subsection 251(1) (paragraph (c) of the
definition of compliance officer)
Repeal the paragraph, substitute:
(c) any other person who, because of his or her employment, or in the
course of that employment:
(i) has acquired protected information; or
(ii) has had access to protected documents;
other than a member or officer of, or a person employed or engaged
by:
(iii) a financial sector supervisory agency; or
(iv) an overseas financial sector supervisory agency; or
(v) a law enforcement agency.
39 Subsection 251(1)
Insert:
overseas financial sector supervisory agency means a person
or body declared by the regulations to be an overseas financial sector
supervisory agency for the purposes of this section.
40 Subsection 251(1) (at the end of the
definition of protected document)
Add “other than information that has already been lawfully made
available to the public from other sources”.
41 Subsection 251(1) (at the end of the
definition of protected information)
Add “other than information that has already been lawfully made
available to the public from other sources”.
42 Subsection 251(2)
After “Act”, insert “or any other Act of which the
Commissioner has the general administration”.
43 At the end of subsection
251(2)
Add:
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
44 Paragraph 251(4)(b)
After “Act”, insert “or any other Act of which the
Commissioner has the general administration”.
45 After paragraph
251(4)(c)
Insert:
(ca) an overseas financial sector supervisory agency for the purposes of
the performance of any of its functions or the exercise of any of its powers;
or
46 At the end of subsection
251(4)
Add:
; or (e) if the Treasurer states in writing that, in his or her opinion,
it is in the public interest that the information be disclosed or the document
be produced to members of the public—a member of the public.
47 Subsection 251(7)
Before “compliance”, insert “person who is or has been
a”.
48 After subsection 251(7)
Insert:
(7A) Paragraphs (4)(d) and (e) do not authorise the disclosure of
information, or the production of a document, relating to the personal affairs
of an individual if the disclosure or production, as the case requires, would be
unreasonable in the circumstances.
49 After subsection 251(8)
Insert:
(8A) Subsection (2) does not prohibit a person from disclosing
information, or producing a document, if the information, or the information
contained in the document, as the case may be, is in the form of a summary or
collection of information that is so prepared that information relating to any
particular person cannot be found out from it.
50 At the end of subsection
251(9)
Add:
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
51 At the end of section
251
Add:
(11) At the end of 5 years after the commencement of this subsection, the
definition of overseas financial sector supervisory agency in
subsection (1), and paragraphs(4)(ca) and (e), are taken to be
repealed.
52 Schedule (definition of continuous
disability policy)
Repeal the definition, substitute:
continuous disability policy has the meaning given by section
9A.
53 Schedule
Insert:
produce includes permit access to.
1 Subsection 44(1)
Omit “$1,000”, substitute “10 penalty
units”.
2 After section 79
Insert:
(1) In this section:
court includes a tribunal, authority or person having the
power to require the production of documents or the answering of
questions.
financial institution means a body (other than the Reserve
Bank) that has at any time carried on, is carrying on, or proposes to carry on,
a business that consists of, or includes, the provision of financial products or
financial services (including a body that has previously carried on such a
business but has ceased to exist).
financial sector supervisory agency means a person or body
having the function, in Australia or in a foreign country, of supervising or
regulating financial institutions.
officer means:
(a) the Governor, a Deputy Governor, the Secretary to the Department or
any other member of the Board; or
(b) an officer, or a temporary or casual employee, of the Reserve Bank;
or
(c) a person engaged by the Reserve Bank to perform services for the Bank;
or
(d) the Statistician or a member of the staff of the Australian Bureau of
Statistics; or
(e) any other person who, because of his or her employment, or in the
course of that employment:
(i) has acquired protected information; or
(ii) has had access to protected documents.
produce includes permit access to.
protected document means a document given or produced
(whether before or after the commencement of this section) under, or for the
purposes of, this Act, the Banking Act 1959, the Banks (Shareholdings)
Act 1972 or the Financial Corporations Act 1974 and containing
information relating to the affairs of:
(a) a financial institution; or
(b) a body corporate (including a body corporate that has ceased to exist)
that has at any time been, or is, related (within the meaning of the
Corporations Law) to a financial institution that is a body corporate;
or
(c) a person who has been, is, or proposes to be, a customer of a
financial institution;
other than information that has already been lawfully made available to the
public from other sources.
protected information means information disclosed or obtained
(whether before or after the commencement of this section) under, or for the
purposes of, this Act, the Banking Act 1959, the Banks (Shareholdings)
Act 1972 or the Financial Corporations Act 1974 and relating to the
affairs of:
(a) a financial institution; or
(b) a body corporate (including a body corporate that has ceased to exist)
that has at any time been, or is, related (within the meaning of the
Corporations Law) to a financial institution that is a body corporate;
or
(c) a person who has been, is, or proposes to be, a customer of a
financial institution;
other than information that has already been lawfully made available to the
public from other sources.
Statistician means the Australian Statistician referred to in
subsection 5(2) of the Australian Bureau of Statistics Act
1975.
(2) Subject to this section, a person who is or has been an officer must
not, except for the purposes of this Act, the Banking Act 1959, the
Banks (Shareholdings) Act 1972 or the Financial Corporations Act
1974, directly or indirectly:
(a) disclose to any person, or to a court, any protected information
acquired by the first-mentioned person in the course of his or her duties as an
officer; or
(b) produce to any person, or to a court, a protected document.
Penalty: Imprisonment for 2 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a form of
imprisonment.
(3) Subsection (2) does not prohibit a person from disclosing prohibited
information, or producing a protected document, if the person to whose affairs
the information or document relates:
(a) is the employer of the first-mentioned person; or
(b) agrees in writing to the disclosure of the information or the
production of the document, as the case may be.
(4) Subsection (2) does not prohibit a person from disclosing protected
information or producing a protected document:
(a) if the person is satisfied that the disclosure of the information, or
the production of the document, will assist a financial sector supervisory
agency to perform its functions or exercise its powers—to that agency;
or
(b) if the Governor approves—to another person.
(5) The Governor may, by signed writing:
(a) give approvals for the purposes of paragraph (4)(b); or
(b) delegate to a Deputy Governor or an officer of the Reserve Bank the
power to give approvals for the purposes of that paragraph.
(6) Subsection (2) does not prohibit a person from disclosing protected
information, or producing a protected document, to:
(a) the Governor, a Deputy Governor or any other member of the Board;
or
(b) an officer, or a temporary or casual employee, of the Reserve Bank;
or
(c) a person engaged by the Reserve Bank to perform services for the
Bank;
for the purposes of the performance of the functions, or the exercise of
the powers, of the Bank under a law of the Commonwealth, of a State or of a
Territory.
(7) Subsection (2) does not prohibit a person from disclosing information,
or producing a document, if the information, or the information contained in the
document, as the case may be, is in the form of a summary or collection of
information that is prepared so that information relating to any particular
person cannot be found out from it.
(8) A person who is or has been an officer cannot be required to disclose
to a court any protected information, or to produce in a court a protected
document, except when it is necessary to do so for the purposes of this Act, the
Banking Act 1959, the Banks (Shareholdings) Act 1972 or the
Financial Corporations Act 1974.
(9) A document that:
(a) is a protected document; or
(b) contains protected information;
is an exempt document for the purposes of section 38 of the Freedom of
Information Act 1982.
(10) At
the end of 5 years after the commencement of this section, the definition of
financial sector superisory agency in subsection (1), and
subsections (4) and (5), are taken to be repealed.
(1) Subject to this section, an officer, agent or other person carrying on
any business of the Reserve Bank must not:
(a) permit a person to have access to, or give to a person copies of or
extracts from, a document belonging to, or in the possession of, the Reserve
Bank; or
(b) give to a person information relating to the business of the Reserve
Bank;
except by the direction or authority of the Reserve Bank or under
compulsion or obligation of law.
Penalty: 1 penalty unit.
(2) Paragraph (1)(b) does not apply to the giving to a person of
information with respect to matters of a customer of the Reserve Bank if the
person is the customer or the information is given at the direction or request
of the customer.
(3) Subsection (1) does not apply to:
(a) a document that is a protected document for the purposes of section
79A; or
(b) information that is protected information for the purposes of that
section.
3 Subsection 81A(1)
Omit “Companies Act 1981”, substitute
“Corporations Law”.
4 Subsection 81A(3)
Repeal the subsection, substitute:
(3) In this section:
listed corporation means a body corporate that is included in
the official list of a stock exchange.
(4) Subject to subsection (3), expressions used in this section that are
also used in the Corporations Law have the same meanings as they have in that
Law.
5 After section 85
Insert:
(1) All courts, judges and persons acting judicially are to take judicial
notice of statistical information contained in a publication issued in the name
of, by, or under the authority of, the Bank.
(2) A publication purporting to be issued in the name of, by, or under the
authority of, the Bank is to be taken, in any judicial or other proceeding, to
have been so issued unless the contrary is proved.
1 Subsection 10(1) (at the end of the definition
of protected document)
Add “other than information that has already been lawfully made
available to the public from other sources”.
2 Subsection 10(1) (at the end of the definition
of protected information)
Add “other than information that has already been lawfully made
available to the public from other sources”.
3 Subsection 346(1)
Insert:
court includes a tribunal, authority or person having the
power to require the production of documents or the answering of
questions.
4 Subsection 346(1)
Insert:
financial sector supervisory agency means a person or body
declared by the regulations to be a financial sector supervisory agency for the
purposes of this section.
5 Subsection 346(1)
Insert:
law enforcement agency means a person or body declared by the
regulations to be a law enforcement agency for the purposes of this
section.
6 Subsection 346(1)
Insert:
overseas financial sector supervisory agency means a person
or body declared by the regulations to be an overseas financial sector
supervisory agency for the purposes of this section.
Note: The heading to subsection 346(1) is replaced by the
heading “Definitions”.
7 Subsection 346(2)
After “Act”, insert “or any other Act of which the
Commissioner has the general administration”.
8 At the end of subsection
346(2)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
9 At the end of subsection
346(2A)
Add:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
10 Paragraph 346(6)(c)
After “Act”, insert “or any other Act of which the
Commissioner has the general administration”.
11 After paragraph
346(6)(d)
Insert:
(daa) a financial sector supervisory agency for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(dab) an overseas financial sector supervisory agency for the purposes of
the performance of any of its functions or the exercise of any of its powers;
or
12 After subsection 346(6A)
Insert:
(6AB) Subsection (2) does not prohibit a superannuation standards officer
from disclosing protected information, or producing a protected document,
to:
(a) a law enforcement agency; or
(b) a member of the staff referred to in subsection 13(1) of the
Insurance and Superannuation Commissioner Act 1987; or
(c) a person engaged under subsection 13(3) of that Act.
(6AC) A person who is or has been a superannuation standards officer may
only disclose protected information, or produce a protected document, to a law
enforcement agency for the purposes of the performance by the agency of its
functions in relation to an offence or alleged offence against a law of the
Commonwealth, of a State or of a Territory.
(6AD) A person who is or has been a superannuation standards officer may
only disclose protected information, or produce a protected document, to a
person referred to in paragraph (6AB)(b) or (c) for the purposes of the
performance of the Commissioner’s functions, or the exercise of the
Commissioner’s powers, under a law of the Commonwealth.
13 At the end of subsection
346(7)
Add “or any other Act of which the Commissioner has the general
administration”.
14 After subsection 346(7)
Insert:
(7A) Subsection (2) does not prohibit a person from disclosing
information, or producing a document, if the information, or the information
contained in the document, as the case may be, is in the form of a summary or
collection of information that is so prepared that information relating to any
particular person cannot be found out from it.
15 Subsection 346(9)
After “Act”, insert “or any other Act of which the
Commissioner has the general administration”.
16 After subsection 346(9)
Insert:
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment.
17 Subsection 346(11)
Repeal the subsection, substitute:
(11) At the end of 5 years after the commencement of this subsection, the
definitions of financial sector supervisory agency, law
enforcement agency and overseas financial sector supervisory
agency in subsection (1), paragraphs (6)(daa) and (dab) and subsections
(6AB), (6AC) and (6AD) are taken to be repealed.