These Regulations are the Insurance Regulations 2002.
4 Definitions
In these Regulations:
Act means the Insurance Act 1973.
unauthorised foreign insurer means an insurer:
(a) that is either:
(i) a body corporate incorporated in a foreign country; or
(ii) an unincorporated body established under a law of a foreign country that:
(A) 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; and
(B) does not have its head office or principal place of business in Australia; and
(b) that immediately before 1 July 2008:
(i) was not, and was not required to be, authorised under the Act to carry on insurance business in Australia; and
(ii) was not exempt from subsection 9(1), 10(1) or 10(2) of the Act by a determination made under subsection 7(1) of the Act; and
(c) to which subsection 9(1), 10(1) or 10(2) of the Act would apply if Part 2 did not apply to the insurer; and
(d) that is not an entity specified in regulation 12.
Part 2—Insurance contracts that are not insurance business
4A Application of Part 2
This Part applies to a contract of insurance for which the insurer is, or is proposed to be, an unauthorised foreign insurer.
4B Insurance contracts for high‑value insured
(1) For subsection 3A(1) of the Act, a contract of insurance under which at least 1 of the policyholders is a high‑value insured is specified.
(2) For subregulation (1) a policyholder is a high‑value insured if the policyholder, alone or as part of a related group, meets the requirements of subregulation (3), (4) or (5).
(3) A policyholder meets the requirements of this subregulation if the operating revenue of the policyholder derived in Australia for a financial year is at least $200 million, worked out by averaging the amount of its operating revenue derived in Australia for each of the previous 3 financial years.
(4) A policyholder meets the requirements of this subregulation if the value of its gross assets in Australia at the end of a financial year is at least $200 million, worked out by averaging the value of those assets at the end of each of the previous 3 financial years.
(5) A policyholder meets the requirements of this subregulation if the number of the employees of the policyholder in Australia at the end of a financial year is at least 500, worked out by averaging the number of its employees in Australia at the end of each of the previous 3 financial years.
(6) If the policyholder was not in existence at the end of each of the previous 3 financial years, its revenue, assets and employees are worked out for the purposes of subregulations (3), (4) and (5) by reference to the most recent completed financial years in which it was in existence.
(7) For this regulation:
policyholder means a person that has or proposes to have a contract of insurance with an unauthorised foreign insurer.
related group means:
(a) 2 or more associated entities (within the meaning given by section 50AAA of the Corporations Act 2001); or
(b) a partnership.
4C Insurance contracts for atypical risks
(1) For subsection 3A(1) of the Act, a contract of insurance for an atypical risk is specified.
(2) For subregulation (1), a contract of insurance for an atypical risk is a contract of insurance under which any of the following is insured against:
(a) loss or liability arising from the hazardous properties (including radioactive, toxic or explosive properties) of nuclear fuel, nuclear material or nuclear waste;
(b) loss or liability arising from the hazardous properties of biological material or biological waste;
(c) loss or liability arising from war or warlike activities (within the meaning given by subsection 4(1) of the Insurance Contracts Regulations 2017);
(d) loss or liability arising from a terrorist act (within the meaning given by section 5 of the Terrorism and Cyclone Insurance Act 2003);
(e) liability arising from health‑care related research;
(f) loss of, or liability arising from the operation of, a space object (within the meaning given by section 8 of the Space Activities Act 1998);
(g) liability arising from the ownership or operation of an aircraft (but not loss of the aircraft or its cargo);
(h) liability and expenses arising from a person owning, chartering, managing, operating or being in possession of a vessel other than a pleasure craft (within the meaning given by subsection 9A(2) of the Insurance Contracts Act 1984);
(i) loss or liability arising from equine mortality or fertility and related risks;
(j) loss or liability incidental to a loss or liability mentioned in paragraphs (a) to (i).
(3) However, a contract of insurance under which:
(a) a loss or liability mentioned in subregulation (2); and
(b) a loss or liability of 1 or more other kinds;
are insured against is only a contract of insurance for an atypical risk to the extent that it insures against the loss or liability mentioned in subregulation (2).
(4) Also, an equestrian package is not a contract of insurance for an atypical risk.
Note: An equestrian package is an insurance policy that covers risks such as personal injuries and veterinary fees associated with the ownership or use of a horse and loss of or damage to saddlery, tack and horse floats.
4D Insurance contracts for other risks that cannot reasonably be placed in Australia
(1) For subsection 3A(1) of the Act, a contract of insurance is specified if an Australian insurance broker certifies in writing that the risk insured under that contract cannot reasonably be placed with an Australian insurer.
(2) In deciding whether the risk insured under that contract cannot reasonably be placed with an Australian insurer, the Australian insurance broker must be satisfied, on reasonable grounds, that:
(a) there is no Australian insurer that will insure against the risk; or
(b) the terms (including price) on which any Australian insurer will insure against the risk are substantially less favourable to the insured than the terms on which the unauthorised foreign insurer will insure against the risk; or
(c) insurance with an Australian insurer would be substantially less favourable to the insured than with
an unauthorised foreign insurer because of other circumstances.
Note: Example for paragraph (c)
Note: The insured and the unauthorised foreign insurer have a pre‑existing relationship, and the maintenance of that relationship will have significant benefits for the insured.
(3) The Australian insurance broker must make reasonable inquiries about the matters mentioned in subregulation (2).
(4) The Australian insurance broker must keep written records of:
(a) its inquiries into the matters mentioned in subregulation (2); and
(b) its reasons for being satisfied of those matters.
(5) If requested by the insured, the Australian insurance broker must give a copy of the certificate under subregulation (1) to the insured.
Note: Failure by an Australian insurance broker to properly discharge the obligations in this regulation may be a matter affecting the financial services licence of that broker. See generally Part 7.6 of the Corporations Act 2001.
(6) In this regulation:
Australian insurance broker means a person that holds an Australian financial services licence (within the meaning given by the Corporations Act 2001), and who is permitted under section 923B of that Act to assume or use the expression insurance broker or general insurance broker in relation to the person’s business or services.
Australian insurer means a person authorised or permitted under the Act (including by way of a determination under subsection 7(1) of the Act) to carry on insurance business in Australia.
4E Insurance contracts required by foreign laws
For subsection 3A(1) of the Act, a contract of insurance is specified if a law of a foreign country requires that the contract be issued by an insurer, or a kind of insurer, authorised or permitted under the laws of that country to issue that kind of contract.
Part 3—Insurance business to which the Act does not apply
5 Prescribed bodies corporate
For paragraph 5(2)(b) of the Act, the bodies corporate mentioned in Schedule 1 are prescribed.
6 Prescribed insurance business
For paragraph 5(2)(c) of the Act, the insurance business mentioned in Schedule 2 is prescribed.
Part 4—Notice of commencement and cessation of insurance business
7 Notice of commencement and cessation of insurance business
(1) A body corporate authorised under the Act to carry on insurance business in Australia must tell APRA, in writing, of the date on which it started to carry on the business within 7 days after that date.
Penalty: 5 penalty units.
(2) A body corporate authorised under the Act to carry on insurance business in Australia must tell APRA, in writing, of the date on which it ceases to carry on the business within 7 days after that date.
Penalty: 5 penalty units.
Part 4A—Financial claims scheme
7A Definitions
In this Part:
family trust has the meaning given by section 272‑75 of Schedule 2 to the Income Tax Assessment Act 1936.
non‑profit body means a body that:
(a) is not carried on for the purposes of profit or gain to its individual members; and
(b) by its constitution, is prohibited from making any distributions in money, property or otherwise, to its members.
small business entity has the meaning given by section 328‑110 of the Income Tax Assessment Act 1997.
7B Policies that are not protected policies
For the purposes of paragraph (a) of the definition of protected policy in subsection 3(1) of the Act, the following policies are not protected policies:
(a) a policy:
(i) that is required to be held under a law of a State or Territory; and
(ii) that is protected through arrangements administered by the State or Territory;
(b) a policy that is a pre‑authorisation liability of a foreign general insurer;
(c) a policy that is a reinsurance or a retrocession of another policy;
(d) a policy that is an indemnification of another policy.
7C Entitlement to payment of claimant under protected policy—period for making claim
Start day
(1) For subparagraph 62ZZF(1)(b)(i) of the Act, the day on which the period mentioned in paragraph 62ZZF(1)(b) of the Act starts in relation to:
(a) a person who is entitled to claim under insurance cover provided under a protected policy issued by a general insurer, as described in paragraph 62ZZF(1)(a) of the Act; and
(b) the general insurer;
is specified in the following table.
Item
If ...
the day on which the period starts is ...
1
the person did not make a claim under the insurance cover before the Minister made the declaration, under subsection 62ZZC(1) of the Act, that Division 3 of Part VC of the Act applies in relation to the general insurer
the day on which the Minister made the declaration
2
the person made a claim under the insurance cover before the Minister made the declaration, under subsection 62ZZC(1) of the Act, that Division 3 of Part VC of the Act applies in relation to the general insurer
the day on which the person made the claim
End day
(2) For subparagraph 62ZZF(1)(b)(ii) of the Act, the day on which the period mentioned in paragraph 62ZZF(1)(b) of the Act ends is the day that occurs 12 months after the day on which the Minister made the declaration, under subsection 62ZZC(1) of the Act, that Division 3 of Part VC of the Act applies in relation to the general insurer.
Note: APRA may extend the period within which a claim may be made—see subsection 62ZZA(1) of the Act.
7CA Entitlement to payment of third party—period for making claim
Start day
(1) For subparagraph 62ZZG(1)(aa)(i) of the Act, the day on which the period mentioned in paragraph 62ZZG(1)(aa) of the Act starts in relation to:
(a) a person who is entitled to make a claim in relation to a recoverable amount, as described in paragraph 62ZZG(1)(a) of the Act; and
(b) the general insurer;
is specified in the following table.
Item
If ...
the day on which the period starts is ...
1
the person did not make a claim in relation to the recoverable amount before the Minister made the declaration, under subsection 62ZZC(1) of the Act, that Division 3 of Part VC of the Act applies in relation to the general insurer
the day on which the Minister made the declaration
2
the person made a claim in relation to the recoverable amount before the Minister made the declaration, under subsection 62ZZC(1) of the Act, that Division 3 of Part VC of the Act applies in relation to the general insurer
the day on which the person made the claim
End day
(2) For subparagraph 62ZZG(1)(aa)(ii) of the Act, the day on which the period mentioned in paragraph 62ZZG(1)(aa) of the Act ends is the day that occurs 12 months after the day on which the Minister made the declaration, under subsection 62ZZC(1) of the Act, that Division 3 of Part VC of the Act applies in relation to the general insurer.
Note: APRA may extend the period within which a claim may be made—see subsection 62ZZA(1) of the Act.
7D Conditions of eligibility
For the purposes of paragraph 62ZZF(3)(b) of the Act, the prescribed conditions are that the person is:
(a) an Australian citizen within the meaning of section 4 of the Australian Citizenship Act 2007; or
(b) a permanent resident within the meaning of section 5 of the Australian Citizenship Act 2007; or
(c) an individual not mentioned in paragraph (a) or (b) who has insured against a risk that is located in Australia; or
(d) a small business entity that has its central management and control located in Australia; or
(e) a person that is entitled to claim under insurance cover provided in relation to a small business entity, being an entity that:
(i) has its central management and control located in Australia; and
(ii) is not a corporation or an individual; or
(f) a trustee of a family trust that has its central management and control located in Australia; or
(g) a non‑profit body that has its central management and control located in Australia; or
(h) a person that is entitled to claim under insurance cover provided in relation to a non‑profit body, being a body that:
(i) has its central management and control located in Australia; and
(ii) is not a corporation or an individual.
7E Conditions of eligibility – third parties
For the purposes of paragraph 62ZZG(3)(b) of the Act, the prescribed conditions are that the person is:
(a) an Australian citizen within the meaning of section 4 of the Australian Citizenship Act 2007; or
(b) a permanent resident within the meaning of section 5 of the Australian Citizenship Act 2007; or
(c) an individual not mentioned in paragraph (a) or (b) who is entitled to claim under insurance cover in relation to a risk that is located in Australia; or
(d) a small business entity that has its central management and control located in Australia; or
(e) a person that is entitled to claim under insurance cover provided in relation to a small business entity, being an entity that:
(i) has its central management and control located in Australia; and
(ii) is not a corporation or an individual; or
(f) a trustee of a family trust that has its central management and control located in Australia; or
(g) a non‑profit body that has its central management and control located in Australia; or
(h) a person that is entitled to claim under insurance cover provided in relation to a non‑profit body, being a body that:
(i) has its central management and control located in Australia; and
(ii) is not a corporation or an individual.
7F Recovery of overpayments
(1) This regulation is made for section 62ZZS of the Act.
(2) If an amount is paid to, or applied for the benefit of, a person purportedly to meet a claim of the person under Division 3 of Part VC of the Act and the amount is in excess of the person’s entitlement (if any) under that Division, the excess amount is a debt due to APRA.
(3) APRA may recover the amount of the debt:
(a) by bringing proceedings for recovery of the debt in a court of competent jurisdiction; or
(b) by withholding the amount of the debt from another payment that would otherwise be paid to the person under Division 3 of Part VC of the Act; or
(c) from any amount payable to the person upon the winding up of a declared general insurer that provided insurance cover to the person under a protected policy.
(4) Nothing in this regulation is intended to limit the way in which APRA may recover the debt.
(5) APRA may, if it considers it appropriate to do so in the particular circumstances of the case, waive the whole or a part of the debt.
Part 5—Inspection of Register and auditors’ certificate
8 Applications under section 123 of the Act
An application under section 123 of the Act must be made in writing.
9 Prescribed fee (Act s 123)
For subsection 123(1) of the Act, the prescribed fee is $10.
10 Copies of documents to be provided by APRA
(1) If a person:
(a) asks APRA to give the person a copy of the whole or part of a document mentioned in section 123 of the Act; and
(b) pays the fee worked out in accordance with subregulation (2);
APRA must give the person the copy.
(2) The fee payable under subregulation (1) is:
(a) $1 for each page of the copy; and
(b) if, at the request of the person, the copy is made available in electronic form and the fee is payable for a document, or documents, for a single financial year in relation to a body corporate authorised under the Act to carry on insurance business—not more than $60.
Part 6—Transitional
11 Application of prudential standards during transition period
(1) For item 11 of Schedule 2 to the Reform Act, this regulation applies to a body corporate that, within 14 days before commencement:
(a) was authorised under the old Act to carry on insurance business; or
(b) had been granted an exemption under section 37 of the old Act.
(2) APRA may, on application by the body corporate, make a declaration in accordance with this regulation that applies to the body corporate for a specified period (the exemption period) in the transition period.
(3) APRA may make a declaration only if APRA is satisfied that the consequences of the body corporate being required to comply with the standard or provision in the exemption period would be unreasonable.
(4) A prudential standard or a provision of a prudential standard specified by a declaration does not apply to the body corporate during the exemption period.
(5) For subregulation (2), an application must:
(a) be in writing; and
(b) state:
(i) that it is made for this regulation; and
(ii) the standard or provision for which the application is made; and
(iii) the reasons for the application.
(6) APRA may withdraw a declaration if it ceases to be satisfied about the matter mentioned in subregulation (3).
(7) A declaration or a withdrawal of a declaration must:
(a) be in writing; and
(b) be given to the body corporate.
(8) In this regulation:
commencement has the same meaning as in item 1 of Schedule 2 to the Reform Act.
old Act has the same meaning as in item 1 of Schedule 2 to the Reform Act.
Reform Act means the General Insurance Reform Act 2001.
transition period has the same meaning as in item 1 of Schedule 2 to the Reform Act.
12 Transitional arrangements for entities seeking authorisation
(1) For subitem 7(1) of Schedule 2 to the Financial Sector Legislation Amendment (Discretionary Mutual Funds and Direct Offshore Foreign Insurers) Act 2007, the following entities are specified for the period specified in subregulation (2):
(a) an entity that:
(i) is a body corporate; and
(ii) was carrying on insurance business before 1 July 2008; and
(iii) applied for an authorisation under subsection 12(1) of the Act, and paid any fees associated with the application, before 1 July 2008;
(b) a body corporate that is an associated entity (within the meaning given by section 50AAA of the Corporations Act 2001) of an entity described in paragraph (a).
(2) For subregulation (1), the period starts on 1 July 2008 and ends on the earliest of:
(a) if APRA authorises the entity mentioned in paragraph (1)(a)—the start of the day on which authorisation takes effect; and
(b) if APRA decides not to authorise the entity mentioned in paragraph (1)(a)—the start of the day on which APRA’s decision takes effect; and
(c) the end of 31 December 2008.
(3) For subparagraph (1)(a)(ii), insurance business has the meaning given in subsection 3(1) of the Act as in force on and after 1 July 2008.