Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Life Insurance (Conduct and Disclosure) Bill 1998

Part 7 Miscellaneous

   

58   Statistics

             (1)  ASIC must collect such statistics as are prescribed relating to matters prescribed by, or arising out of the operation of, this Act.

             (2)  The statistics must be collected as at the prescribed time and in the prescribed manner.

             (3)  Life companies and life brokers must give ASIC the information ASIC reasonably requires to enable the statistics to be collected.

             (4)  ASIC may publish, in such form as ASIC thinks appropriate, any statistics collected under this section.

             (5)  ASIC may determine that fees are to be paid in respect of the supply of publications under this section.

             (6)  Fees determined under this section must be reasonably related to the expenses incurred, or to be incurred, by ASIC in relation to the supply of publications under this section and must not be such as to amount to taxation.

59   Jurisdiction of courts under this Act

             (1)  In this section:

prescribed provision means a provision of this Act that confers a right to bring an action in a court of competent jurisdiction.

             (2)  Jurisdiction is conferred on the Federal Court to hear and determine actions brought under a prescribed provision.

             (3)  The several courts of the States are invested with federal jurisdiction, within the limits of their several jurisdictions (whether those limits are as to locality, subject-matter or otherwise), to hear and determine actions brought under a prescribed provision.

             (4)  Subject to the Constitution, jurisdiction is conferred on the several courts of the Territories to hear and determine actions brought under a prescribed provision.

             (5)  Nothing in subsection (3) or (4) is taken to enable an inferior court of a State or Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory.

60   Rebuttable presumption

                   If, in an action against a life company or a life broker under section 31 or 41:

                     (a)  the defendant does not dispute, or the plaintiff proves, that the advice to which the action relates is life insurance advice within the meaning of this Act and was given to the plaintiff; and

                     (b)  the plaintiff adduces evidence that the advice did not meet the requirements of this Act, or that the person who gave the advice did not have a reasonable basis for giving it; and

                     (c)  the defendant does not tender in evidence a true copy of the advice;

the court is to presume, unless the defendant proves otherwise, that the advice did not meet the requirements of this Act, or that the person who gave the advice did not have a reasonable basis for giving it, as alleged by the plaintiff.

61   Transactions not invalidated

                   A person’s failure to comply with this Act does not invalidate any life policy, or any transaction entered into by the person.

62   Operation of State and Territory laws

             (1)  Subject to this section, it is the intention of the Parliament that this Act is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.

             (2)  Subject to subsection (3), the Parliament intends that this Act is to apply to the exclusion of:

                     (a)  a superseded State Act; and

                     (b)  any State Act amending a superseded State Act; and

                     (c)  any State Act enacted in substitution for a superseded State Act.

             (3)  This section is not intended to prejudice the rights, powers or privileges of the owner, or a person entitled to the benefit, of a life policy issued before 20 June 1946 (the date of commencement of the Life Insurance Act 1945 ).

             (4)  In this section:

superseded State Act means a State Act:

                     (a)  that is referred to in subsection 8(1) of the Life Insurance Act 1945 , as in force immediately before 1 July 1995 (the date of commencement of the Life Insurance Act 1995 ); and

                     (b)  that is still in operation at the commencement of this Act.

63   Injunctions

             (1)  If a life company or life broker has engaged, is engaging, or proposes to engage, in any conduct in contravention of this Act, or of a direction given under this Act, the Court may grant an injunction:

                     (a)  restraining the company or broker from engaging in the conduct; or

                     (b)  requiring the company or broker to do a particular act.

             (2)  If a life company or life broker has not done, or is proposing not to do, an act that the company or broker is required by this Act to do, the Court may grant an injunction requiring the company or broker to do the act.

             (3)  An injunction under this section may only be granted on application by ASIC or an interested person.

             (4)  The Court may grant an interim injunction pending the determination of an application.

             (5)  The Court may discharge or vary an injunction granted under this section.

             (6)  ASIC cannot be required, as a condition of the grant of an interim injunction, to give an undertaking as to damages.

             (7)  The Court’s power 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.

             (8)  The Court’s power to grant an injunction requiring a person to do an act may be exercised whether or not it appears to the Court that the person intends not to do the act again, or intends to continue not to do the act.

             (9)  The Court’s powers under this section are in addition to, and not in derogation of, any other powers of the Court.

64   Review of certain decisions

             (1)  In this section:

person affected by a reviewable decision means the life company or life broker in relation to whom the decision was made.

reviewable decision means any of the following decisions of ASIC:

                     (a)  giving a direction under section 19;

                     (b)  varying a direction under subsection 20(1);

                     (c)  refusing to revoke or vary a direction under subsection 20(2);

                     (d)  issuing a stop order under section 21;

                     (e)  giving a direction under section 46;

                      (f)  refusing to revoke or vary a direction under subsection 47(2);

                     (g)  giving a notice under section 54;

                     (h)  giving a notice under section 55.

             (2)  A person affected by a reviewable decision may request ASIC to reconsider the decision.

             (3)  The request must be made by written notice given to ASIC within 21 days after the person first receives notice of the decision, or within such further period as ASIC allows.

             (4)  The request must set out the reasons for making the request.

             (5)  On receipt of the request, ASIC must reconsider the decision and may, subject to subsection (6), confirm or revoke the decision or vary the decision in such manner as ASIC thinks fit.

             (6)  If ASIC does not confirm, revoke or vary a decision within 60 days after ASIC received the request to reconsider the decision, ASIC is taken to have confirmed the decision on the last day of that period.

             (7)  If ASIC confirms, revokes or varies a decision before the end of the period referred to in subsection (6), ASIC must give written notice to the person telling the person:

                     (a)  the result of the reconsideration of the decision; and

                     (b)  the reasons for confirming, revoking or varying the decision, as the case may be.

             (8)  Application may be made to the Administrative Appeals Tribunal for review of a decision of ASIC that has been confirmed or varied.

             (9)  If a decision is taken to be confirmed because of subsection (6), section 29 of the Administrative Appeals Tribunal Act 1975 applies as if the making of the request were the making of an application to the Administrative Appeals Tribunal for a review of that decision.

65   Constitution and procedure of Tribunal

             (1)  Subject to subsections 21(1A) and 23(1) of the Administrative Appeals Tribunal Act 1975 , the Administrative Appeals Tribunal is to be constituted by a presidential member and 2 non-presidential members for the purposes of a review of a reviewable decision.

             (2)  In giving a direction as to the persons who are to constitute the Tribunal for the purposes of a review of a reviewable decision, or for the purposes of a request under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 in respect of such a decision, the President is to ensure that each non-presidential member of the Tribunal as so constituted is a person who, in the President’s opinion, has special knowledge or skill in relation to life insurance business.

             (3)  A non-presidential member of the Tribunal must not sit as a member of the Tribunal for the purposes of a review of a reviewable decision, or for the purposes of a request under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 in respect of such decision, if he or she is a director or employee of a company or body carrying on life insurance business or insurance business (whether in Australia or elsewhere).

             (4)  An order must not be made under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 in respect of a reviewable decision except by the Tribunal.

             (5)  The hearing of a proceeding relating to a reviewable decision is to take place in private and the Tribunal may, by order:

                     (a)  give directions as to the persons who may be present; and

                     (b)  give directions of a kind referred to in paragraph 35(2)(b) or (c) of the Administrative Appeals Tribunal Act 1975 .

             (6)  In this section:

reviewable decision has the same meaning as in section 64.

66   Institution of proceedings for offences

             (1)  Despite anything in any other law, proceedings for an offence against this Act may be instituted within 5 years after the commission of the offence or, with the Treasurer’s consent, at any later time.

             (2)  The institution of proceedings against a company for an offence against this Act does not prevent the institution of proceedings for:

                     (a)  the judicial management; or

                     (b)  the winding-up;

of the company, or of part of the business of the company, on a ground that relates to the matter that constitutes the offence.

67   False or misleading documents

                   A person who, in a document required by or under this Act to be signed by the person:

                     (a)  makes any statement that to the person’s knowledge is false or misleading in a material particular; or

                     (b)  omits a material particular without which the document is, to the person’s knowledge, false or misleading in a material respect;

is guilty of an offence.

Penalty:  Imprisonment for 12 months.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

68   ASIC may begin and carry on certain civil actions

             (1)  Subject to subsection (2), if ASIC thinks that it would be in the public interest for a person to begin an action under section 22, 31, 32, 41 or 42 for the recovery of an amount of loss or damage, ASIC may begin and carry on the action in the person’s name.

             (2)  ASIC must not begin or carry on an action in the name of a natural person without the person’s written consent.

             (3)  If ASIC begins or carries on an action in the name of a person under this section, the person is not liable to pay any costs in relation to, or arising out of, the action.

69   Regulations

                   The Governor-General may make regulations:

                     (a)  prescribing matters required or permitted by this Act to be prescribed; or

                     (b)  prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to this Act.