Competition and Consumer (Price Monitoring—General Insurance Policies) Direction 2022

The instrument establishes a focused price monitoring regime within the framework of the Competition and Consumer Act 2010. Core legal concepts and technical definitions are set out in Part 1 and guide the scope of the monitoring direction.

Key concepts and where they appear in the instrument:

• Commission’s duty to monitor. Section 6 directs the Commission, under subsection 95ZE(1) of the Act, to monitor prices, costs and profits in the general insurance industry and the auxiliary insurance industry. The monitoring covers supplies of goods and services in those industries, subject to exclusions in s 6(2).

• Reporting requirement. Section 6(1)(b) requires the Commission to give the Minister a report on the monitoring at least once each calendar year during the period 1 January 2022 to 30 June 2026. The cadence is annual, and the temporal window is explicitly limited.

• Special considerations. Section 7, invoking subsection 95ZH(1) of the Act, directs the Commission to give special consideration to the instrument’s object, to monitoring covered insurance policies before and after the introduction of a cyclone and related flood damage reinsurance pool, and to excluding monitoring of insurance cover unrelated to covered policies. The phrase "regardless of when the policies were entered into" is explicit in s 7(b).

• Definitions. Section 4 defines key technical terms. Covered insurance policies are defined in subparagraphs (a)-(d) of s 4, covering home building, contents of residential buildings, strata title residences, and commercial premises and their contents where sums insured do not exceed $5 million. The instrument ties industry categories to ANZSIC 2006 as revised and in force on commencement (s 4). Other defined terms include "exempt supply", "service", "price", "good", and "State or Territory authority", each to be read as in Part VIIA of the Act (s 4).

• Cross‑statutory references. The instrument incorporates external statutory sources for meanings. For example, "contents", "home building", "residential building", and "strata title residence" are defined by reference to the Insurance Contracts Regulations 2017, while "real property" is defined by reference to the GST Act (s 4). ANZSIC is incorporated by reference to fix industry classifications (s 4).

• Exclusions. Section 6(2) narrows the Commission's monitoring obligation by excluding "an exempt supply" and "the supply of a good or service by a State or Territory authority". Those exclusion terms are themselves defined by reference to Part VIIA of the Act (s 4 and s 6(2)).

• Authorising provision. The instrument is made under the Competition and Consumer Act 2010 (s 3). It therefore operates as a direction to the Commission within the statutory architecture of Part VIIA.

The instrument is procedural rather than prescriptive. It sets monitoring priorities and reporting timeframes, but it does not set prices, impose taxes, or create direct regulatory controls over premiums, claims or underwriting. It tells the Commission what to monitor and report and what to give special consideration to, and it sets boundaries on subject matter and timing.

The instrument allocates roles and excludes certain subjects. Primary actors and affected groups are identified in the text and in the definitions.

• The Commission. The instrument operates as a direction to the Australian Competition and Consumer Commission. Section 6(1) explicitly directs the Commission to perform monitoring functions under subsection 95ZE(1) of the Act, and s 7 directs the Commission to give special consideration to specified matters when exercising functions and powers under Part VIIA of the Act.

• The Minister. The Commission must give the Minister a report at least once each calendar year during the specified period (s 6(1)(b)). The Minister is therefore the direct recipient of the Commission’s monitoring output.

• Insurers and the general insurance industry. The object and the monitoring direction focus on the supply of goods and services in the general insurance industry (class 6322) and the auxiliary insurance industry (class 6420) as classified by ANZSIC, which the instrument incorporates (s 4 and s 6(1)(a)). Insurers operating within those ANZSIC classes are the principal commercial actors whose markets are the subject of monitoring.

• Policyholders and potential claimants. The defined set of covered insurance policies (s 4), which includes home building, contents of a residential building, strata title residences, and certain commercial premises with sums insured not exceeding $5 million, identifies classes of policyholders whose premiums, costs and insurer profits fall within the instrument’s focus.

• State and Territory authorities and exempt supplies. Section 6(2) excludes from monitoring "an exempt supply" and supplies by State or Territory authorities. Those entities and supplies, to the extent they fall within Part VIIA's definitions, lie outside the monitoring obligation.

Who does not have a new, explicit duty in the instrument? The text of the instrument does not themselves impose direct obligations on private-sector entities such as insurers, brokers, or intermediaries. It directs the Commission’s monitoring and reporting functions. The instrument does not, in its own text, prescribe mandatory reporting duties, data submission formats, or timelines payable by insurers; nor does it specify enforcement measures against insurers for non-cooperation. That said, the Commission will exercise its statutory powers under Part VIIA when implementing this direction (s 7), and those powers are not recreated or restated in this instrument.

Who pays. The instrument does not specify funding, cost recovery or fees. The Commission is the body charged with monitoring and reporting; the fiscal cost of that monitoring would be borne through the Commission’s appropriation or other funding mechanisms, which the instrument does not alter. Any costs to industry would arise only if the Commission chooses to use its statutory powers under Part VIIA to obtain information, and those powers are not enumerated in this instrument.

Temporal reach. The instrument sets a finite monitoring window, requiring annual reports between 1 January 2022 and 30 June 2026 (s 6(1)(b)). The directive therefore affects market monitoring and any downstream policymaking or public reporting within that period.

This instrument allocates duties to the Commission and prescribes the contours of its monitoring. Rights in the sense of enforceable entitlements to third parties are not created by the instrument itself. Relevant duties and the legal relationships they establish are as follows.

Commission’s duties:

• Duty to monitor. Section 6(1)(a) directs the Commission to monitor prices, costs and profits relating to the supply of goods and services in the general insurance industry and the auxiliary insurance industry, under subsection 95ZE(1) of the Act. That is an operational duty to gather and analyse market information.

• Duty to report. Section 6(1)(b) directs the Commission to give the Minister a report on its monitoring at least once each calendar year during the period 1 January 2022 to 30 June 2026. The reporting duty specifies the recipient and frequency, but not the content format or the public availability of the report.

• Duty to give special consideration. Section 7, operating under subsection 95ZH(1) of the Act, requires the Commission to give special consideration to (a) the object of this instrument, (b) monitoring covered insurance policies before and after the introduction of a cyclone and related flood damage reinsurance pool, and (c) not monitoring insurance cover unrelated to the supply of covered insurance policies. This shapes the Commission’s priorities and analytical lenses when it exercises its Part VIIA powers.

Limitations on duty:

• Exclusions. Section 6(2) excludes "an exempt supply" and "the supply of a good or service by a State or Territory authority" from the monitoring obligation. Those supplies are not to be included in the Commission’s monitoring under this direction.

Rights and entitlements:

• Third‑party rights. The instrument does not confer any new private rights of action or statutory entitlements to insurers, policyholders or other private parties. It does not, by its text, establish enforceable obligations against private parties, nor does it specify remedies for third parties.

• Administrative discretion and process rights. The instrument channels the Commission’s exercise of its Part VIIA powers and functions, and any rights or procedural protections for third parties will arise from the Act and Part VIIA, not from this direction itself. The instrument does not specify whether the Commission’s reports will be published, nor whether the Commission must consult industry or publish data underlying its reports.

Practical legal effects:

• Directional binding on the Commission. The instrument is an instrument under the Act and therefore binds the Commission to undertake monitoring and reporting in the terms specified. The Commission must implement the monitoring using its statutory powers under Part VIIA, and the special considerations in s 7 constrain the Commission’s approach.

• No new regulatory interventions. The instrument itself does not change legal rights over premiums, claims handling, underwriting practices or reinsurance arrangements. It may, however, create information flows and political pressure that could precipitate further regulatory or policy steps, but those follow-on effects are not mandated in the instrument.

Definitions shaping duties:

• The scope of what the Commission must monitor is materially shaped by the defined term covered insurance policies in s 4, and by ANZSIC classifications referenced in s 4. Those definitions set the boundaries of the monitoring duty.

The instrument itself does not create new civil or criminal penalties, nor does it specify enforcement mechanisms directed at private parties within its text. Its legal force is to direct the Commission to act; enforcement of that direction is a matter of public law, not the creation of private penalties.

What the instrument says about enforcement and penalties:

• No express sanctions. The text contains no provisions creating fines, penalties, or sanctions against insurers, brokers, consumers, State or Territory authorities, or other private parties. The instrument is a direction to the Commission and does not purport to amend or add to the enforcement provisions of the Act or other statutes.

• Commission’s Part VIIA powers. Section 7 directs the Commission to give special consideration to certain matters "in exercising its powers and performing its functions under Part VIIA of the Act". The instrument therefore expects the Commission to use whatever investigatory, information‑gathering and enforcement powers are available to it under Part VIIA where necessary. This instrument does not restate those Part VIIA powers, and it does not create any new or altered enforcement tools.

• Administrative enforcement of the direction. If the Commission were to fail to comply with the directive, remedies would be administrative or political, involving the supervisory relationship between the Minister and the Commission. The instrument does not describe remedies for a failure to perform the monitoring or reporting duties, nor does it create a private right of action for third parties to compel the Commission to act.

Implications and risks:

• Indirect pressure on industry. While the instrument imposes no penalties on insurers, monitoring and reporting can produce reputational or political pressures, which may lead to regulatory responses or legislative proposals. Those downstream enforcement steps would need to be made by appropriate authorities and through appropriate legal instruments.

• Use of existing statutory enforcement tools. The Commission’s existing statutory powers in Part VIIA may include information‑gathering instruments or compulsory notices with associated compliance obligations and sanctions under the Act. The instrument’s direction that the Commission exercise its Part VIIA powers means that where the Commission elects to use those powers, affected parties may be subject to associated penalties under the Act, but those penalties derive from Part VIIA rather than from this instrument.

• No procedural protections specified. The instrument does not specify procedural protections, consultation steps or confidentiality safeguards that would apply to any information obtained during monitoring. Any such protections would therefore arise from the Act, Part VIIA, or Commission practice rather than from this instrument.

For clarity, the instrument’s enforcement content is limited to binding the Commission to monitor and report within specified parameters. It does not itself establish civil or criminal liability or a new enforcement regime for market participants.

This instrument is tightly cross‑referenced to existing Commonwealth law and to recognised classifications and regulations. Its legal effect and interpretation therefore depend on other statutes and instruments.

Primary legal connections:

• Competition and Consumer Act 2010. The instrument is made under the Act (s 3) and expressly directs the Commission under subsections 95ZE(1) and 95ZH(1) of the Act (see s 6 and s 7). The Commission is to exercise its functions and powers under Part VIIA of the Act in carrying out the monitoring direction (s 7). Therefore, the instrument operates within the legal framework and powers that Part VIIA provides.

• Part VIIA terminology and scope. Several defined terms are given the same meaning as in Part VIIA, including "exempt supply", "good", "price", "service" and "State or Territory authority" (s 4). These cross‑references import Part VIIA’s statutory vocabulary and any substantive definitional contours those terms carry.

• Insurance Contracts Regulations 2017. The instrument imports definitions such as "home building", "residential building", "contents", and the definition of "strata title residence" through reference to the Insurance Contracts Regulations 2017 (s 4). That means the instrument’s subject matter must be interpreted consistent with the regulatory definitions used in insurance contract law.

• ANZSIC classification. The definitions of "general insurance industry" and "auxiliary insurance industry" are tied to the Australian and New Zealand Standard Industrial Classification 2006 as revised and in force on commencement (s 4). That fixes which ANZSIC classes are in scope. If ANZSIC is later updated, the instrument fixes the version "as revised and in force on the day this instrument commences", so the classification date is locked in by the instrument’s text.

• A New Tax System (Goods and Services Tax) Act 1999. The instrument imports the meaning of "real property" from the GST Act for purposes where that term is relevant (s 4).

Practical implications of these interactions:

• Interpretive dependency. Because the instrument imports definitions and locates authority in the Act and in Part VIIA, understanding the instrument’s reach requires reference to those other sources. The instrument does not restate the operative content of Part VIIA or the Insurance Contracts Regulations 2017; it relies on them.

• Data access and compulsion. If the Commission wishes to obtain information from market participants, whether it can compel production, the scope of compellability, and the penalties for non‑compliance will derive from Part VIIA powers and the Act, not from this instrument. This instrument instructs the Commission to monitor and to give special consideration to particular matters, and it places monitoring limits, such as excluding exempt supplies and State or Territory authority supplies (s 6(2)).

• Fixed classification and definitional anchors. The deliberate use of ANZSIC as at commencement fixes the industry boundaries and avoids interpretive drift from future ANZSIC revisions. Similarly, reliance on the Insurance Contracts Regulations 2017 means that technical insurance terms are aligned to regulatory definitions used elsewhere in Australian insurance law.

• No amendment or overriding of other laws. The instrument does not purport to amend, override or suspend any provision of the Act, the Insurance Contracts Regulations 2017, or other statutes. It is a direction to the Commission within the existing statutory architecture.

• Interaction with confidentiality and disclosure regimes. The instrument does not address confidentiality, commercial‑in‑confidence treatment, or public disclosure of monitoring results. Those matters will be governed by Part VIIA, the Act, and the Commission’s own policies.

Overall, the instrument is an interstitial direction that leverages existing statutory powers and definitions. Its practical operation depends on how the Commission uses its Part VIIA powers, and the legal effects on third parties depend on the provisions of those other instruments rather than on any new powers or definitions in this direction.

The text supplied contains the instrument as originally made. The commencement table in section 2 includes a note that the table relates only to the provisions of this instrument as originally made and will not be amended in the instrument to deal with later amendments (s 2). The instrument specifies that "the whole of this instrument" commences on the day after the instrument is registered, as recorded in the commencement table (s 2).

What the instrument records about amendments:

• No amendments recorded in the supplied text. The instrument as provided contains no subsequent amendment provisions, no schedules of amendments, and no notes of legislative history beyond the commencement mechanics in s 2.

• Fixed incorporation dates. The instrument fixes the version of ANZSIC to be used "as revised and in force on the day this instrument commences" (s 4). That demonstrates the drafters’ intention to anchor definitional materials to the version current at commencement, and to avoid automatic incorporation of future ANZSIC revisions.

• Operational window. The monitoring and reporting duties are temporally bounded to the period 1 January 2022 to 30 June 2026 (s 6(1)(b)). That explicit end date limits the instrument’s ongoing application; any extension would require a new instrument or amendment under the Act.

Practical consequences for users checking amendment history:

• To determine whether the instrument has been amended since registration one must consult the consolidated instrument as updated on the Federal Register of Legislation or other official legislative repositories. The instrument’s own text advises that the commencement table will not be amended within the instrument to deal with later amendments (s 2 note). The supplied text does not include any such updates.

• The instrument’s cross‑references to other instruments mean that relevant definitional changes can occur outside this instrument. For example, the Insurance Contracts Regulations 2017 or ANZSIC may themselves be amended; however, this instrument anchors to those instruments as they stood on commencement for certain items. Whether other cross‑referenced terms whose meaning is anchored to Part VIIA or other Acts will change depends on those other laws and their amendment histories.

In short, the supplied instrument contains no amendment history entries, and its own text instructs that the commencement record is confined to the original instrument. Any actual amendments since registration are not reflected in the supplied text and would need to be verified against the official legislative database.

The supplied instrument contains no references to litigation, judicial determination, or administrative review related to its terms. There are no cases mentioned in the instrument text, and no recorded disputes, challenges, or court decisions are included in this document.

What the instrument makes clear about litigation:

• No judicial actions in the instrument. The instrument itself is silent on litigation, and it does not establish private causes of action or statutory rights that would create an immediate litigation pathway from its wording alone.

• Enforcement is through existing statutory mechanisms. Any legal disputes touching monitoring activities or the Commission’s use of Part VIIA powers would arise under the Act and Part VIIA, and would be litigated within the legal frameworks and procedural protections those instruments provide. The instrument does not alter judicial review pathways or enforcement processes set out in the Act.

How users should treat the absence of litigation in the instrument:

• Absence of evidence, not evidence of absence. The instrument’s silence on litigation simply means no litigation history is recorded in the text provided. It does not preclude litigation occurring in the future, for example, litigation challenging the Commission’s use of its statutory powers in implementing the monitoring directive, or challenges to disclosure or confidentiality decisions arising from the monitoring reports.

• To ascertain whether any litigation has occurred since the instrument’s commencement, or whether judicial review has been sought in relation to the Commission’s implementation, one would need to consult court records or legal databases. The supplied instrument does not provide that information.

In summary, the instrument contains no litigation history in its text. Any litigation relating to the instrument’s implementation would be a matter external to the instrument and would derive from the operation of the Act, Part VIIA, or administrative law principles.

The instrument looks short, but a number of features can produce operational and interpretive traps. These are concrete points drawn from the instrument text and their practical implications.

1. Narrow, defined scope of "covered insurance policies" (s 4). The monitoring is focused on home building, contents of residential buildings, strata title residences, and commercial premises with sums insured not exceeding $5 million. Insurers and brokers that underwrite commercial property policies above $5 million, or other classes of general insurance, are not the primary subject of the "covered insurance policies" focus. If a stakeholder assumes the monitoring covers all property insurance, that is incorrect. The instrument’s object explicitly singles out the specified property types (s 5 and s 4).

2. Industry definition tied to ANZSIC at commencement (s 4). The instrument fixes industry classifications to the ANZSIC 2006 version "as revised and in force on the day this instrument commences". Subsequent ANZSIC updates will not automatically change which entities fall into the "general insurance industry" or "auxiliary insurance industry" for this instrument. Users cannot simply rely on a later ANZSIC classification when determining scope.

3. Exclusions that may be overlooked (s 6(2)). The monitoring duty excludes "an exempt supply" and supplies by State or Territory authorities. Because "exempt supply" and "State or Territory authority" are terms of art in Part VIIA (s 4), parties that think they fall within the monitoring remit may actually be excluded, depending on Part VIIA definitions. Implementers should check Part VIIA definitions before assuming inclusion or exclusion.

4. Temporal limits and retrospective reach (s 6(1)(b), s 7(b)). The reporting obligation runs annually between 1 January 2022 and 30 June 2026. Section 7(b) instructs the Commission to monitor covered insurance policies "regardless of when the policies were entered into", which means that the Commission may analyse past and current contracts for effects from a reinsurance pool. The combination of a finite monitoring window and potential retrospective analysis of policies creates questions about the Commission’s access to historical data.

5. No explicit information‑gathering mechanics in the instrument. The instrument does not set data submission obligations, formats, timeframes for industry responses, confidentiality rules, or publication commitments. If the Commission requires data from industry, the legal basis, process, and any penalties for non‑compliance will be those in Part VIIA and the Act. Stakeholders should not assume the instrument itself imposes or prescribes reporting formats or statutory disclosure protections.

6. Reporting recipient is the Minister, not necessarily the public (s 6(1)(b)). The instrument requires the Commission to give the Minister a report. It does not require public publication of reports. Stakeholders should not assume public release or immediate transparency. Whether reports are published or redacted will depend on the Commission’s practice and relevant disclosure regimes in the Act.

7. The instrument’s object references a particular policy intervention: a cyclone and related flood damage reinsurance pool (s 5 and s 7(b)). The instrument is targeted at monitoring before and after that intervention. If the policy or pool design changes, or if the pool is not implemented as envisaged, the practical utility of the monitoring parameters may change; the instrument does not itself adapt to such contingencies.

8. No new penalties or rights for stakeholders. The instrument does not create new civil remedies or penalties for insurers or consumers. Parties seeking statutory enforcement or relief must look to existing statutory regimes.

9. Potential tension between "not monitoring unrelated insurance" and broad ANZSIC classes. Section 7(c) directs the Commission to avoid monitoring insurance cover unrelated to covered insurance policies. Yet s 6(1)(a) directs monitoring of the general insurance industry as an ANZSIC class. Implementers need to reconcile the broad industry label with the narrower policy focus in practice; this reconciliation is to be carried out by the Commission under Part VIIA.

10. Reliance on external definitions for key terms. Many operative concepts are defined by reference elsewhere, such as the Insurance Contracts Regulations 2017 and the GST Act (s 4). Users must consult those instruments to determine precise meanings.

Those are concrete operational "gotchas" that follow from the instrument’s text. Addressing them requires close attention to the cross‑references the instrument imports and to how the Commission exercises its Part VIIA powers in practice.

The instrument places primary compliance obligations on the Commission. Private parties do not acquire new statutory duties from this instrument’s text; however, affected market participants should prepare for interactions with the Commission and potential information requests under Part VIIA.

Practical steps for different actors, grounded in the instrument:

For insurers and industry participants:

• Identify whether your products fall within "covered insurance policies". Review s 4 definitions. Determine if policies you write cover home buildings, contents of residential buildings, strata title residences, or commercial premises with sums insured at or below $5 million. If so, your products are within the instrument’s primary monitoring focus.

• Review classification under ANZSIC as at the instrument’s commencement. The instrument fixes the ANZSIC 2006 classification "as revised and in force on the day this instrument commences" (s 4). Ascertain whether your business is classified within ANZSIC class 6322 (general insurance industry) or class 6420 (auxiliary insurance industry) for the purposes of the Commission’s monitoring. If industry classification is uncertain, consult the ANZSIC documentation as at the commencement date specified in s 2.

• Prepare historical and current data for potential scrutiny. Section 7(b) directs the Commission to monitor covered insurance policies "regardless of when the policies were entered into". If the Commission seeks historical premium, claims, cost or profitability data, be ready to respond. The instrument does not set reporting formats or deadlines; those will depend on the Commission’s exercise of its statutory powers under Part VIIA.

• Check obligations under Part VIIA. This instrument does not itself compel data production from private parties, but the Commission may rely on Part VIIA powers to obtain information. Review your obligations, record‑keeping practices and legal obligations under the Act and Part VIIA, and be ready to engage with compulsory notices if issued.

• Assess confidentiality and legal privilege. The instrument is silent on confidentiality. If the Commission requests commercially sensitive information, consider whether statutory protections apply under the Act or Part VIIA, and prepare claims and processes for handling commercially confidential material.

For brokers and intermediaries:

• Map product mix relative to covered insurance policies and ANZSIC classifications. Brokers who distribute products in scope should be aware that data and practices could be scrutinised indirectly via insurer data or directly if the Commission uses Part VIIA powers.

• Review contractual arrangements with insurers. If your contracts require sharing data or allow insurers to produce aggregated distribution data, ensure those arrangements are consistent with any future Commission requests.

For legal, compliance and accounting advisers:

• Be ready to advise on Part VIIA powers. The instrument is a direction to the Commission; its practical force depends on how the Commission uses Part VIIA powers. Advise clients on Part VIIA obligations, compulsory notice responses, and administrative law protections.

• Prepare for potential reputational effects. Even where there are no immediate legal penalties, monitoring reports to the Minister may trigger political or public scrutiny. Advise clients on media and stakeholder strategies to manage such risks.

For the Commission and public authorities:

• Plan monitoring methodology consistent with s 7. Section 7 requires special consideration of the instrument’s object, the pre/post pool monitoring of covered insurance policies, and the exclusion of unrelated insurance cover. The Commission should document how it will reconcile the broad ANZSIC industry classes with the narrower definition of covered insurance policies, and how it will treat exempt supplies and State or Territory authority supplies excluded by s 6(2).

• Clarify reporting format and publication. The instrument requires reports to the Minister but does not require publication. If transparency is intended, the Commission should set out a publication strategy, confidentiality protections and data‑handling protocols.

• Engage with industry. Where the Commission anticipates needing industry data, early engagement can reduce compliance costs and clarify what is required. However, any use of compulsory powers must follow the Act.

Administrative and legal checklist:

• Confirm the effective commencement date per s 2; the instrument commences the day after registration, and the monitoring window runs from 1 January 2022 to 30 June 2026 for reporting purposes (s 6(1)(b)).

• Map in‑scope contractual products to the instrument’s definitions in s 4.

• Review Part VIIA in the Act to understand legal bases for information requests, compulsion and confidentiality protections, because those statutory provisions will govern practical compliance where the Commission acts.

• Consider governance and record retention for historical data to meet "regardless of when the policies were entered into" scrutiny under s 7(b).

What not to assume:

• Do not assume the instrument itself imposes direct reporting obligations on insurers. Absent the Commission exercising its statutory powers under Part VIIA, the instrument is a direction to the Commission.

• Do not assume public release of the Commission’s reports. The instrument requires reports to the Minister; publication is a separate question.

In short, compliance is primarily about preparedness: determining whether your products fall within the defined scope, organising historical and current data, understanding Part VIIA powers and procedures, and being ready to respond to Commission engagement. The instrument does not itself spell out data formats, timelines for industry responses, or confidentiality safeguards, so those practical issues will be determined by the Commission’s implementation choices within its statutory powers.