Document ID: chunk:federal_register_of_legislation:C2012C00862:clause:2_103m
Version: federal_register_of_legislation:C2012C00862
Segment Type: clause
Provision Reference: sch 2 cl 103M
Character Range: 79414–81957

103M  Non‑compliance with a recapitalisation direction
 (1) A general insurer commits an offence if:
 (a) the insurer does, or refuses or fails to do, an act; and
 (b) doing, or refusing or failing to do, the act results in a contravention of a recapitalisation direction given to the insurer.
Penalty: 50 penalty units.
 (2) However, subsection (1) does not apply if:
 (a) the insurer made reasonable efforts to comply with the recapitalisation direction; and
 (b) the insurer's contravention is due to circumstances beyond the insurer's control.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
 (3) If a general insurer does, or refuses or fails to do, an act in circumstances that give rise to the insurer committing an offence against subsection (1), the insurer commits an offence against that subsection in respect of:
 (a) the first day on which the offence is committed; and
 (b) each subsequent day (if any) on which the circumstances that gave rise to the insurer committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.
 (4) An officer of a general insurer commits an offence if:
 (a) the officer refuses or fails to take reasonable steps to ensure that the insurer complies with a recapitalisation direction given to the insurer; and
 (b) the officer's duties include ensuring that the insurer complies with the direction, or with a class of directions that includes the direction.
Penalty: 50 penalty units.
 (5) If an officer of a general insurer refuses or fails to take reasonable steps to ensure that the insurer complies with a recapitalisation direction given to the insurer in circumstances that give rise to the officer committing an offence against subsection (4), the officer commits an offence against that subsection in respect of:
 (a) the first day on which the offence is committed; and
 (b) each subsequent day (if any) on which the circumstances that gave rise to the officer committing the offence continue (including the day of conviction for any such offence or any later day).
Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.
 (6) In this section, officer has the meaning given by section 9 of the Corporations Act 2001.