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Schedule 1—Unfair contract terms in insurance contracts

Schedule 1 Unfair contract terms in insurance contracts

   

Australian Securities and Investments Commission Act 2001

1  Subsection 12BA(1)

Insert:

Insurance Contracts Act insurance contract means a contract of insurance to which the Insurance Contracts Act 1984 applies.

2  At the end of section 12BF

Add:

Note:          This section applies to Insurance Contracts Act insurance contracts in addition to the Insurance Contracts Act 1984 (see paragraph 15(2)(d) of that Act).

3  At the end of subsection 12BI(1)

Add:

               ; or (d)  if the contract is an Insurance Contracts Act insurance contract—is a transparent term that:

                              (i)  is disclosed at or before the time the contract is entered into; and

                             (ii)  sets an amount of excess or deductible under the contract.

4  At the end of section 12BI

Add:

             (4)  For the purposes of applying paragraph (1)(a) to an Insurance Contracts Act insurance contract, have regard to the main subject matter of the contract only to the extent that it describes what is being insured.

5  After subsection 12BL(1)

Insert:

          (1A)  This Subdivision does not apply to a contract of insurance:

                     (a)  under which a person provides medical indemnity cover (within the meaning of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 ) for:

                              (i)  a medical practitioner (within the meaning of that Act); or

                             (ii)  a registered health professional (within the meaning of that Act) prescribed by regulation s made under that Act for the purposes of a provision of Part 3 of that Act; and

                     (b)  to which that Act applies.

6  At the end of subsections 12GND(1) and (2)

Add:

               ; or (c)  if the contract is an Insurance Contracts Act insurance contract—a person who is a third party beneficiary (within the meaning of the Insurance Contracts Act 1984 ) under the contract.

7  In the appropriate position

Insert:

Part 29 Application provisions relating to the Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2019 Measures)) Act 2020

   

325   Application—unfair contract terms

             (1)  The amendments of this Act made by Schedule 1 to the Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2019 Measures)) Act 2020 apply in relation to a contract entered into on or after the commencement of that Schedule.

             (2)  The amendments do not apply to a contract entered into before the commencement of that Schedule. However:

                     (a)  if the contract is renewed on or after that commencement—the amendments apply to the contract as renewed, on and from the day (the renewal day ) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day; or

                     (b)  if a term of the contract is varied on or after that commencement and paragraph (a) has not already applied in relation to the contract—the amendments apply to the term as varied, on and from the day (the variation day ) on which the variation takes effect, in relation to conduct that occurs on and after the variation day.

             (3)  If paragraph (2)(b) of this section applies to a term of a contract, subsection 12BF(2) and section 12BK of this Act apply to the contract.

             (4)  Despite paragraphs (2)(a) and (b) and subsection (3) of this section, the amendments do not apply to a contract, or a term of a contract, to the extent that the operation of the amendments would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).

Insurance Contracts Act 1984

8  At the end of section 12

Add:

Note:          This Part operates in addition to the unfair contract terms provisions of the Australian Securities and Investments Commission Act 2001 (see paragraph 15(2)(d) of this Act).

9  Subsection 15(2)

Omit all the words after “but does not”, substitute:

include:

                     (c)  relief in the form of compensatory damages; or

                     (d)  relief relating to the effect of section 12BF (unfair contract terms) of the Australian Securities and Investments Commission Act 2001 .

Note:          See Subdivision G (enforcement and remedies) of Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001 for certain remedies relating to the effect of section 12BF of that Act.

10  Application of amendments of the Insurance Contracts Act 1984

The amendments of the Insurance Contracts Act 1984 made by this Schedule apply in the same way as the amendments of the Australian Securities and Investments Commission Act 2001 made by this Schedule.

Note:       See Part 29 of the Australian Securities and Investments Commission Act 2001 .