Document ID: chunk:federal_register_of_legislation:C2010C00544:clause:1_187:p1
Version: federal_register_of_legislation:C2010C00544
Segment Type: clause
Provision Reference: sch 1 cl 187 (pt 1/2)
Character Range: 94735–97375

187  At the end of section 49A
Add:

Defence in relation to matters requiring immediate notice

 (5) Subsections (3) and (4) do not apply to a person in relation to a matter referred to in subsection (2) if:
 (a) the person becomes aware of the matter because the person is informed of it by a director or senior manager of the insurer, NOHC or subsidiary; and
 (b) the director or senior manager informs the person that the insurer, NOHC or subsidiary has notified APRA in writing of the matter; and
 (c) the person has no reason to disbelieve the director or senior manager.

Note: The defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the Criminal Code.

Matters requiring notice as soon as practicable

 (6) If the person has reasonable grounds for believing:
 (a) any of the following:
 (i) the insurer, NOHC or subsidiary has failed or will fail to comply with the prudential standards;
 (ii) in the case of an insurer—the insurer has failed or will fail to comply with a condition of its authorisation under section 12;
 (iii) in the case of an authorised NOHC—the NOHC has failed or will fail to comply with a condition of its authorisation under section 18;
 (iv) the insurer, NOHC or subsidiary has failed or will fail to comply with a requirement or direction under this Act or a requirement under the Financial Sector (Collection of Data) Act 2001; and
 (b) that the failure is or will be significant (see subsection (7));
the person must give APRA a written report about the failure as soon as practicable, and in any case no later than 10 business days.

 (7) For the purposes of paragraph (6)(b), a failure to comply is or will be significant if the failure to comply is or will be significant having regard to any one or more of the following:
 (a) the number or frequency of similar failures;
 (b) the impact the failure has or will have on the insurer's, NOHC's or subsidiary's ability to conduct its business;
 (c) the extent to which the failure indicates that the insurer's, NOHC's or subsidiary's arrangements to ensure compliance with this Act or with the prudential standards might be inadequate;
 (d) the actual or potential financial loss arising or that will arise from the failure:
 (i) in the case of an insurer—to the policy holders of the insurer; or
 (ii) to the insurer, NOHC or subsidiary;
 (e) any matters prescribed by the regulations for the purposes of this paragraph.

Offences in relation to matters requiring notice as soon as practicable

 (8) A person commits an offence if the person contravenes subsection (6).

Penalty: Imprisonment