114Use of words “insurance” and “insurer”

#### 114 Use of words “insurance” and “insurer” Use of the word “insurance” (1) A person commits an offence if: (a) the person carries on a business or is proposing to carry on a business; and (b) the person uses the word insurance to describe (expressly or by implication) a product or service that the person supplies, or proposes to supply, in the course of carrying on the business; and (c) the product or service is not insurance; and (d) it is likely in all the circumstances (including the use of the word insurance) that the product or service could be mistakenly believed to be insurance. Penalty: (a) in the case of an individual—50 penalty units; or (b) in the case of a body corporate—500 penalty units. Use of the word “insurer” (2) A person commits an offence if: (a) the person carries on a business or is proposing to carry on a business; and (b) the person uses the word insurer to describe (expressly or by implication) the person in connection with a product or service that the person supplies, or proposes to supply, in the course of carrying on the business; and (c) either: (i) the product or service is not insurance; or (ii) the person would breach a requirement mentioned in subsection (3) if the person supplied the product or service in the course of carrying on the business; and (d) in a case where the product or service is not insurance—it is likely in all the circumstances (including the use of the word insurer) that the product or service could be mistakenly believed to be insurance. Penalty: (a) in the case of an individual—50 penalty units; or (b) in the case of a body corporate—500 penalty units. (3) For the purposes of subparagraph (2)(c)(ii), the requirements are the requirements imposed by the following provisions: (a) section 9 or 10 of this Act (need to be authorised to carry on insurance business); (b) section 17 of the Life Insurance Act 1995 (registration of life companies); (c) section 10 of the Private Health Insurance (Prudential Supervision) Act 2015 (carrying on health insurance business without registration). Exceptions (4) Subsections (1) and (2) do not apply if: (a) the person is a government entity; or (b) the person: (i) is covered by a determination under subsection (6); and (ii) if that determination is subject to conditions—meets those conditions; or (c) the product or service is of a kind prescribed by the regulations; or (d) the product or service is State insurance (within the meaning of paragraph 51(xiv) of the Constitution) not extending beyond the limits of the State concerned. > Note: The defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3) of the Criminal Code. (5) A government entity is: (a) a Department of State of the Commonwealth; or (b) a Department of the Parliament established under the Parliamentary Service Act 1999; or (c) an Executive Agency, or Statutory Agency, within the meaning of the Public Service Act 1999; or (d) a Department of State of a State or Territory; or (e) an entity that is established for a public purpose by a law of the Commonwealth, a State or a Territory. Determinations by ASIC (6) ASIC may, by legislative instrument determine that subsections (1) and (2) do not apply to a specified person or class of persons. The determination may be subject to conditions. (7) ASIC must not: (a) revoke a determination under subsection (6) relating to a specified person; or (b) vary such a determination by varying or including conditions to which the determination is subject; unless ASIC has notified the person in writing that it is considering revoking or varying the determination. Strict liability (8) Subsections (1) and (2) are offences of strict liability.