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Financial Sector Legislation Amendment (Discretionary Mutual Funds and Direct Offshore Foreign Insurers) Bill 2007

Schedule 2 Amendments commencing on 1 July 2008

   

Corporations Act 2001

1  At the end of Division 4 of Part 7.8

Add:

985D   Financial services licensees etc. not to deal in general insurance products from unauthorised insurers etc.

             (1)  A financial services licensee, or an authorised representative of a financial services licensee, must not deal in a general insurance product if the insurer for the product, or (if there is more than one insurer for the product) each insurer for the product, is not at least one of the following:

                     (a)  a general insurer within the meaning of the Insurance Act 1973 ;

                     (b)  a Lloyd’s underwriter within the meaning of that Act;

                     (c)  a person in respect of whom a determination is in force, under subsection 7(1) of that Act, that subsection 9(1) or 10(1) or (2) of that Act does not apply (the effect of which is the effect referred to in paragraph 9(1)(c), 10(1)(c) or 10(2)(c) of that Act (as the case requires)).

Note:          Failure to comply with this subsection is an offence (see subsection 1311(1)).

             (2)  Subsection (1) does not apply in relation to a general insurance product if, because of section 3A of the Insurance Act 1973 , undertaking liability under the contract of insurance concerned is not, or would not be, insurance business for the purposes of that Act.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

             (3)  Paragraph (1)(b) ceases to apply after section 93 of the Insurance Act 1973 has ceased to have effect.

             (4)  An offence based on subsection (1) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

2  Schedule 3 (after table item 282B)

Insert:

282BA

Subsection 985D(1)

50 penalty units.

Insurance Act 1973

3  Subsection 3(1) (definition of authorised person )

Repeal the definition, substitute:

authorised person :

                     (a)  except in Part VA, means a person authorised under subsection (1A); or

                     (b)  in Part VA, means APRA, or a person authorised by APRA, in writing, for the purposes of that Part.

4  Subsection 3(1) (at the end of paragraphs (a) to (i) of the definition of insurance business )

Add “or”.

5  Subsection 3(1) (at the end of the definition of insurance business )

Add:

                ; or (l)  reinsurance business carried on by:

                              (i)  a body corporate incorporated in a foreign country; or

                             (ii)  an unincorporated body established, under a law of a foreign country, that under that law may sue or be sued, or may hold property in the name of its secretary or of an office holder of the body duly appointed for that purpose;

                            that is not a general insurer.

Note:          Particular contracts of insurance, or kinds of contracts of insurance, may be excluded from this definition under section 3A.

6  At the end of section 3

Add:

             (5)  Without limiting the scope of what is incidental to insurance business for the purposes of the definition of insurance business in subsection (1), a business of a person is taken, for the purposes of that definition, to be a business incidental to insurance business to the extent that it involves one or more of the following kinds of acts:

                     (a)  inducing others to enter into contracts of insurance with the person as the insurer;

                     (b)  publishing or distributing a statement relating to the person’s willingness to enter into a contract of insurance as an insurer;

                     (c)  procuring the publication or distribution of such a statement.

             (6)  Without limiting the circumstances in which a person is taken, for the purposes of this Act, to carry on insurance business in Australia, a person is taken to carry on insurance business in Australia if:

                     (a)  the person carries on a business outside Australia that, under this Act, would constitute insurance business if it were carried on in Australia; and

                     (b)  another person in Australia acts:

                              (i)  directly or indirectly on behalf of the first-mentioned person; or

                             (ii)  as a broker of insurance provided by the first-mentioned person, or directly or indirectly on behalf of such a broker;

                            in relation to the business carried on outside Australia.

             (7)  In considering for the purposes of this Act whether a person carries on insurance business in Australia, an act of a kind referred to in paragraph (5)(a), (b) or (c) done outside Australia is taken to occur in Australia to the extent that it has, or is likely to have, its effect in Australia.

7  Transitional—application of item 6

(1)       The amendments made by item 6 do not apply to an entity specified in the regulations, or to an entity included in a class of entities specified in the regulations, for the period (not exceeding 2 years), specified in the regulations in relation to that entity or class of entities.

(2)       Subsection 985D(1) of the Corporations Act 2001 applies in relation to that entity during that period as if the entity were a general insurer within the meaning of the Insurance Act 1973 .

(3)       The Governor-General may make regulations for the purposes of subitem (1).

8  After section 3

Insert:

3A   Certain insurance contracts not taken to be insurance business

             (1)  For the purposes of this Act, insurance business does not include undertaking liability under a contract of insurance, or a kind of contract of insurance:

                     (a)  specified in the regulations for the purposes of this subsection; or

                     (b)  specified in a determination made under such regulations.

             (2)  Without limiting the ways in which contracts of insurance, or kinds of contracts of insurance, may be specified in regulations made for the purposes of subsection (1), or in determinations made under such regulations, those contracts or kinds of contracts may be specified:

                     (a)  as particular general insurance products (within the meaning of Chapter 7 of the Corporations Act 2001 ), or particular kinds of such products; or

                     (b)  as contracts or kinds of contracts under which particular persons, or particular kinds of persons, are insured.

             (3)  A determination of a kind referred to in paragraph (1)(b) that specifies a particular contract of insurance (whether specified in a way mentioned in subsection (2) or otherwise):

                     (a)  is not a legislative instrument; and

                     (b)  is a determination to which Part VI applies.

             (4)  In any other case, a determination of a kind referred to in paragraph (1)(b) is a legislative instrument.

9  At the end of Division 1 of Part III

Add:

11A   Injunctions

Restraining injunctions

             (1)  If a person has engaged, is engaging or is proposing to engage, in conduct that constituted, constitutes or would constitute:

                     (a)  a contravention of section 9 or 10; or

                     (b)  attempting to contravene section 9 or 10; or

                     (c)  aiding, abetting, counselling or procuring a person to contravene section 9 or 10; or

                     (d)  inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene section 9 or 10; or

                     (e)  being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of section 9 or 10; or

                      (f)  conspiring with others to contravene section 9 or 10;

the Federal Court may, on the application of APRA or a person whose interests have been, are or would be affected by the conduct, grant an injunction in accordance with subsection (2).

             (2)  The injunction:

                     (a)  may restrain the person from engaging in the conduct; and

                     (b)  may also require that person to do a particular act or thing, if the Court thinks it desirable to do so.

The Court may grant the injunction on such terms as it thinks appropriate.

             (3)  The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

                     (b)  whether or not the person has previously engaged in conduct of that kind; and

                     (c)  whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.

Interim injunctions

             (4)  The Court may grant an interim injunction pending determination of an application under subsection (1) if in the Court’s opinion it is desirable to do so.

Consent injunctions

             (5)  If an application for an injunction under subsection (1) has been made, the Court may, if the Court thinks it appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that the subsection applies.

Variation or discharge of injunctions

             (6)  The Court may discharge or vary an injunction granted under subsection (1) or (5).

Damages undertakings

             (7)  APRA cannot be required, as a condition of granting an interim injunction, to give an undertaking as to damages.

Damages orders

             (8)  If the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

Federal Court’s other powers unaffected

             (9)  The powers conferred on the Court by this section are in addition to any other of its powers, and do not derogate from its other powers.

10  Part V (heading)

Repeal the heading, substitute:

Part V Investigations of general insurers etc.

11  Paragraph 52(2)(a)

Omit “APRA”, substitute “APRA’s”.

12  After Part V

Insert:

Part VA Investigations of unauthorised insurance

   

62A   Investigations relating to contraventions of section 9 or 10 etc.

             (1)  If APRA believes on reasonable grounds that a body corporate or other person has engaged, is engaging or will engage in conduct:

                     (a)  in contravention of section 9 or 10; or

                     (b)  constituting the aiding, abetting, counselling or procuring of a contravention of section 9 or 10;

APRA may investigate the whole or part of the conduct or proposed conduct, or appoint a person (the inspector ), in writing, to investigate the whole or part of the conduct or proposed conduct.

             (2)  The inspector is to be a person resident in Australia.

62B   Access to premises

             (1)  For the purpose of an investigation under this Part:

                     (a)  if the investigation is by APRA—an authorised person; or

                     (b)  if APRA has appointed an inspector for the investigation—the inspector;

may, with the consent of the occupier of any premises, enter the premises for the purpose of searching for, inspecting, taking extracts from and making copies of any books containing information relevant to the investigation.

             (2)  If APRA believes on reasonable grounds that there are, on any premises, books containing information relevant to an investigation under this Part by APRA, an authorised person may apply to a Magistrate for a warrant under subsection (4).

             (3)  If an inspector believes on reasonable grounds that there are, on any premises, books containing information relevant to an investigation under this Part by the inspector, the inspector may apply to a Magistrate for a warrant under subsection (4).

             (4)  If, on an application under subsection (2) or (3), the Magistrate is satisfied by information on oath or affirmation:

                     (a)  that there are, on the premises, books containing information relevant to the investigation; and

                     (b)  that the issue of the warrant is reasonably required for the purposes of the investigation;

the Magistrate may grant a warrant authorising the authorised person or inspector, with such assistance as the authorised person or inspector thinks necessary, to enter the premises, during such hours of the day or night as the warrant specifies or, if the warrant so specifies, at any time, and if necessary by force, for the purpose of searching for, inspecting, taking extracts from and making copies of any such books.

             (5)  If the authorised person or inspector has entered premises in accordance with subsection (1) or a warrant under subsection (4), he or she may search for, inspect, take extracts from and make copies of any books containing information relevant to the investigation.

62C   Powers of APRA or inspector

             (1)  If APRA believes on reasonable grounds that a person has or may have custody or control of information relevant to an investigation under this Part by APRA, APRA may, by written notice given to the person, require the person:

                     (a)  to produce to APRA, within the time specified in the notice, all or any of the books containing information relevant to the investigation that are in the custody or under the control of the person; or

                     (b)  to give to APRA all reasonable assistance in connection with the investigation; or

                     (c)  to appear before a specified authorised person for examination concerning matters relevant to the investigation.

             (2)  If an inspector believes on reasonable grounds that a person has or may have custody or control of information relevant to an investigation under this Part by the inspector, the inspector may, by written notice given to the person, require the person:

                     (a)  to produce to the inspector, within the time specified in the notice, all or any of the books containing information relevant to the investigation that are in the custody or under the control of the person; or

                     (b)  to give to the inspector all reasonable assistance in connection with the investigation; or

                     (c)  to appear before the inspector for examination concerning matters relevant to the investigation.

             (3)  The time specified in a notice for the purposes of paragraph (1)(a) or (2)(a) must be a time that is reasonable in the circumstances.

             (4)  If books are produced to APRA or the inspector under this section, APRA, the inspector or an authorised person may make copies of them.

             (5)  A person who complies with a requirement of APRA or the inspector under this section does not incur any liability to any other person merely because of that compliance.

62D   Persons to comply with requirements of APRA or the inspector

             (1)  A person commits an offence if:

                     (a)  a requirement of APRA or the inspector under section 62C is applicable to the person; and

                     (b)  the person refuses or fails to comply with the requirement to the extent to which the person is able to comply with it.

Penalty:  50 penalty units or imprisonment for 3 months, or both.

             (2)  A person is not excused from complying with a requirement under section 62C on the ground that doing so might tend to incriminate the person.

             (3)  However, if the person is:

                     (a)  an individual; and

                     (b)  is required to answer questions under section 62C; and

                     (c)  before answering the questions, the person informs APRA or the inspector that doing so might tend to incriminate him or her;

the questions or answers are not admissible in evidence against him or her in criminal proceedings other than a prosecution for:

                     (d)  an offence against subsection (1); or

                     (e)  an offence against section 137.1 or 137.2 of the Criminal Code that relates to this section.

62E   Person may be represented by a legal practitioner

             (1)  A barrister or solicitor acting for a person being examined by an authorised person or the inspector:

                     (a)  may attend the examination; and

                     (b)  may, to the extent that the authorised person or the inspector allows:

                              (i)  address the authorised person or the inspector; and

                             (ii)  examine the person;

                            in relation to matters in respect of which the authorised person or the inspector has questioned the person.

             (2)  If, in the opinion of the authorised person or inspector, a person is trying to obstruct the examination by exercising rights under subsection (1), the authorised person or inspector may require the person to stop addressing the authorised person or inspector, or examining the examinee, as the case requires.

62F   Notes of examination of person

             (1)  An authorised person or the inspector may:

                     (a)  cause notes of an examination of a person under this Part to be recorded in writing and read to or by that person; and

                     (b)  require that person to sign the notes.

             (2)  Subject to subsection 62D(3), notes signed by that person may be used in evidence in proceedings under this Act against that person.

             (3)  A copy of the notes signed by a person must be given without charge to that person if he or she makes a written request to APRA or the inspector.

             (4)  If the inspector causes notes to be recorded under this section, he or she must give the notes to APRA.

62G   Delegation

             (1)  Powers under this Part may be delegated as follows:

                     (a)  APRA’s powers may be delegated under section 15 of the Australian Prudential Regulation Authority Act 1998 ;

                     (b)  an inspector may, by signed instrument, delegate his or her powers to:

                              (i)  an APRA member or an APRA staff member; or

                             (ii)  a person included in a class of persons approved under subsection (2).

             (2)  APRA may, by legislative instrument, approve a class of persons for the purposes of subparagraph (1)(b)(ii).

             (3)  A delegate must, on the request of a person in relation to whom the delegated powers are exercisable or of a person affected by the exercise of those powers, produce the instrument of delegation, or a copy of the instrument, for inspection.

62H   Investigations to be completed within a reasonable time

             (1)  An investigation under this Part must be completed within a reasonable time after the investigation commenced.

             (2)  Within a reasonable time after the investigation has been completed, APRA must give to each person whose conduct or proposed conduct was the subject of the investigation a written notice stating:

                     (a)  that the investigation has been completed; and

                     (b)  whether APRA proposes that further action be taken relating to the conduct or proposed conduct.

62J   Report of the inspector

                   An inspector must, on a completion or termination of the investigation, report in writing to APRA on the result of the investigation.

13  Subsection 63(1)

Insert:

decision maker , in relation to a reviewable decision, means the Treasurer, APRA or a person who makes a determination referred to in subsection 3A(3) (whichever is applicable).

14  Subsection 63(1)

Insert:

person affected by a reviewable decision , in relation to a reviewable decision of a decision maker, means:

                     (a)  in the case of a determination referred to in subsection 3A(3)—the person who applied for the determination; or

                     (b)  in the case of a determination under subsection 93(3)—Lloyd’s or any Lloyd’s underwriter; or

                     (c)  in any other case—the person in relation to whom the decision was made.

15  Subsection 63(1) (definition of person affected by a reviewable decision of the Treasurer or APRA )

Repeal the definition.

16  Subsection 63(1)

Insert:

reviewable decision means a decision of:

                     (a)  the Treasurer; or

                     (b)  APRA; or

                     (c)  a person who makes a determination referred to in subsection 3A(3);

that is a decision to which, under this Act, this Part applies.

17  Subsection 63(1) (definition of reviewable decision of the Treasurer or APRA )

Repeal the definition.

18  Subsection 63(2)

Omit “of the Treasurer or APRA”.

19  Subsection 63(2)

Omit “Treasurer or APRA, as the case may be,” (wherever occurring), substitute “decision maker”.

20  Subsection 63(4)

Omit “, the Treasurer or APRA, as the case may be,”, substitute “the decision maker”.

21  Subsection 63(4)

Omit “Treasurer or APRA” (last occurring), substitute “decision maker”.

22  Subsection 63(5)

Omit “Treasurer or APRA, as the case may be,”, substitute “decision maker”.

23  Subsection 63(5)

Omit “Treasurer or APRA” (second and last occurring), substitute “decision maker”.

24  Subsection 63(6)

Omit “Treasurer or APRA, as the case may be,”, substitute “decision maker”.

25  Subsection 63(6)

Omit “Treasurer or APRA” (second occurring), substitute “decision maker”.

26  Subsection 63(6)

Omit “Treasurer’s or APRA’s” (wherever occurring), substitute “decision maker’s”.

27  Subsection 63(7)

Omit “the Treasurer and decisions of APRA”, substitute “a decision maker”.

28  Subsections 63(9), (12), (13) and (14)

Omit “of the Treasurer or APRA”.

29  Subsection 64(1)

Omit “of the Treasurer or APRA”.

30  Paragraph 64(1)(a)

Omit “Treasurer or APRA, as the case may be,”, substitute “decision maker”.

31  Paragraph 64(1)(b)

Omit “Treasurer or APRA”, substitute “decision maker”.

32  Subsection 64(2)

Omit “the Treasurer or APRA”, substitute “a decision maker”.

33  At the end of section 64

Add:

             (4)  In this section:

decision maker has the meaning given by section 63.

34  Section 103

Omit “Part V”, substitute “Parts V and VA”.

Note:       The heading to section 103 is altered by omitting “ Part V ” and substituting “ Parts V and VA ”.

35  At the end of section 103

Add “or other person”.

36  After section 115

Insert:

115AA   Information relating to contraventions of section 9 or 10 etc.

                   If APRA believes on reasonable grounds that a person has, or may have, custody or control of information or documents relating to conduct of the person or another person that constitutes, or may constitute:

                     (a)  a contravention of section 9 or 10; or

                     (b)  the aiding, abetting, counselling or procuring of a contravention of section 9 or 10;

APRA or an authorised person may, by written notice given to the person, require the person to give the information in writing signed by that person, or to produce the documents, within the time and in the manner specified in the notice.

115AB   Persons to comply with requirements of APRA or authorised person

             (1)  A person commits an offence if he or she refuses or fails to comply with a notice given to the person under section 115AA, to the extent to which the person is able to comply with it.

Penalty:  50 penalty units.

             (2)  A person is not excused from complying with a notice on the ground that doing so might tend to incriminate the person.

             (3)  However, if the person is an individual and informs APRA or the authorised person, before giving information, that the information might tend to incriminate him or her, the information is not admissible in evidence against him or her in criminal proceedings other than a prosecution for:

                     (a)  an offence against subsection (1); or

                     (b)  an offence against section 137.1 or 137.2 of the Criminal Code that relates to this section.

37  Subsection 115A(2)

Omit “Justice of the Peace”, substitute “magistrate”.

38  Subsection 115A(3)

Omit “Justice of the Peace” (wherever occurring), substitute “magistrate”.

39  Subsection 118(1)

Omit “by an individual resident in Australia and appointed by it as its agent”, substitute “by an agent appointed by it”.

40  Subsection 118(2)

Omit “his or her duties as”, substitute “the duties of”.

41  Subsection 118(2)

Omit “person” (first occurring), substitute “agent”.

42  Subsection 118(2)

Omit “person (not being a body corporate) resident in Australia”, substitute “agent”.

43  Subsection 118(3)

Omit “a person”, substitute “an agent”.

44  Subsection 118(3)

Omit “person” (last occurring), substitute “agent”.

45  Subsection 118(3A)

Omit “a person (not being a body corporate)”, substitute “an agent”.

46  Subsection 118(3A)

Omit “his or her duties as”, substitute “the duties of”.

47  Subsection 118(3B)

Omit “his or her”, substitute “such an”.

48  Subsection 118(3B)

Omit “a person”, substitute “an agent”.

49  Subsection 118(4)

Repeal the subsection, substitute:

             (4)  An appointment under this section is taken not to have been duly made or revoked until the body corporate has given written notice of the appointment or revocation to APRA, specifying the agent’s name and:

                     (a)  in the case of an appointment of an individual resident in Australia—the place of residence of the individual appointed; or

                     (b)  in the case of an appointment of a body corporate incorporated in Australia—either the head office, registered office or principal office of the body corporate in Australia; or

                     (c)  in any other case—the information specified in the regulations for the purposes of this subsection.

50  Subsection 118(5)

Omit “the agent, or a person acting as the agent, of a body corporate in his or her”, substitute “an agent appointed under this section in that agent’s”.

51  Subsection 118(5)

Omit “or person”.

52  At the end of section 118

Add:

             (6)  An agent appointed under this section must be:

                     (a)  an individual resident in Australia; or

                     (b)  a body corporate incorporated in Australia; or

                     (c)  an entity (whether a person or otherwise) of a kind specified in the regulations for the purposes of this section.