Australian insurance law is based on commercial contract law, but is subject to regulations that affect the insurance industry and insurance contracts within Australia. Commonwealth Parliament has power to make laws with respect to insurance and insurance companies under section 51(xiv) (insurance other than state insurance) and (xx) (the corporations power) of the Australian Constitution. Generally, the Insurance Act 1973 and Insurance Contracts Act 1984 are the main acts that apply, however there are a number of other pieces of legislation enacted by the states, private codes and voluminous case law all of which forms the body of insurance law.
The Insurance Act 1973 (Cth) sets minimum capital and solvency requirements for companies wanting to enter or operate in the insurance market. [1]
Chapter 7 of the Corporations Act 2001 (Cth) regulates the way in which insurers and insurance agents and brokers carry on business and how they deal with the people they do business with and intend to do business with.
The Insurance Contracts Act 1984 (ICA) applies to most insurance contracts with an Australian connection and is intended to ensure that a fair balance is struck between the interests of the insurer and the insured.
The primary federal laws affecting the industry include:
Other legislation which affects the industry includes:
Further regulations include:
The prudential aspects of general, life and health insurance (solvency etc.) are regulated by the Australian Prudential Regulation Authority (APRA), which has the power under the Insurance Act 1973 to investigate a general insurer, freeze its assets or direct it to take specific action (for example, stop writing new business).
The Australian Securities & Investments Commission (ASIC) is responsible for the general administration of the Insurance Contracts Act 1984. [2] Matters relating to advice or disclosure of insurance products sold are regulated by ASIC. The Australian Competition & Consumer Commission (ACCC) also has a regulatory role with respect to competition law.
In certain states, various bodies also have powers in regulating certain types of statutory insurance. For example, in New South Wales the Motor Accidents Authority regulates Compulsory Third Party motor liability insurance. In many cases these bodies have powers regarding premium rating and reinsurance rules.
The formation of an insurance contract is governed by ordinary contractual principles [3] however, as a commercial contract, a policy of insurance should be given a businesslike interpretation "having regard to the language used by the parties, the commercial circumstances the document addresses, and the objects which it is intended to secure." [4]
The General Insurance Code of Practice is a self-regulatory code that binds all general insurers who are signatories to it. It has been approved by ASIC pursuant to s 1101A of the Corporations Act 2001 (Cth). [5]
If a person doesn't agree with the outcome of the insurer's Internal Dispute Resolution (IDR) process, they can contact the Australian Financial Complaints Authority (AFCA) with a request that the Service resolve the dispute.
Financial regulation is a form of regulation or supervision, which subjects financial institutions to certain requirements, restrictions and guidelines, aiming to maintain the stability and integrity of the financial system. This may be handled by either a government or non-government organization. Financial regulation has also influenced the structure of banking sectors by increasing the variety of financial products available. Financial regulation forms one of three legal categories which constitutes the content of financial law, the other two being market practices and case law.
The Australian Prudential Regulation Authority (APRA) is a statutory authority of the Australian Government and the prudential regulator of the Australian financial services industry. APRA was established on 1 July 1998 in response to the recommendations of the Wallis Inquiry. APRA's authority and scope is determined pursuant to the Australian Prudential Regulation Authority Act, 1998 (Cth).
The Australian Securities and Investments Commission (ASIC) is an independent commission of the Australian Government tasked as the national corporate regulator. ASIC's role is to regulate company and financial services and enforce laws to protect Australian consumers, investors and creditors. ASIC was established on 1 July 1998 following recommendations from the Wallis Inquiry. ASIC's authority and scope are determined by the Australian Securities and Investments Commission Act 2001.
The Australian financial system consists of the arrangements covering the borrowing and lending of funds and the transfer of ownership of financial claims in Australia, comprising:
In general, compliance means conforming to a rule, such as a specification, policy, standard or law. Compliance has traditionally been explained by reference to the deterrence theory, according to which punishing a behavior will decrease the violations both by the wrongdoer and by others. This view has been supported by economic theory, which has framed punishment in terms of costs and has explained compliance in terms of a cost-benefit equilibrium. However, psychological research on motivation provides an alternative view: granting rewards or imposing fines for a certain behavior is a form of extrinsic motivation that weakens intrinsic motivation and ultimately undermines compliance.
An insurance broker is an intermediary who sells, solicits, or negotiates insurance on behalf of a client for compensation. An insurance broker is distinct from an insurance agent in that a broker typically acts on behalf of a client by negotiating with multiple insurers, while an agent represents one or more specific insurers under a contract.
Australia's insurance market can be divided into roughly three components: life insurance, general insurance and health insurance. These markets are fairly distinct, with most larger insurers focusing on only one type, although in recent times several of these companies have broadened their scope into more general financial services, and have faced competition from banks and subsidiaries of foreign financial conglomerates. With services such as disability insurance, income protection and even funeral insurance, these insurance giants are stepping in to fill the gap where people may have otherwise been in need of a personal or signature loan from their financial institution.
Insurance law is the practice of law surrounding insurance, including insurance policies and claims. It can be broadly broken into three categories - regulation of the business of insurance; regulation of the content of insurance policies, especially with regard to consumer policies; and regulation of claim handling wise.
Solvency II Directive 2009 is a Directive in European Union law that codifies and harmonises the EU insurance regulation. Primarily this concerns the amount of capital that EU insurance companies must hold to reduce the risk of insolvency.
Insurance in the United States refers to the market for risk in the United States, the world's largest insurance market by premium volume. According to Swiss Re, of the $6.861 trillion of global direct premiums written worldwide in 2021, $2.719 trillion (39.6%) were written in the United States.
Australian corporations law has historically borrowed heavily from UK company law. Its legal structure now consists of a single, national statute, the Corporations Act 2001. The statute is administered by a single national regulatory authority, the Australian Securities & Investments Commission (ASIC).
The Financial Services Board (FSB) was the government of South Africa's financial regulatory agency responsible for the non-banking financial services industry in South Africa from 1990 to 2018. On the 1 April 2018 its responsibilities were split into two new agencies the Financial Sector Conduct Authority (FSCA) for conduct regulation and the Prudential Authority (PA) for prudential regulation.
Insurance regulatory law is the body of statutory law, administrative regulations and jurisprudence that governs and regulates the insurance industry and those engaged in the business of insurance. Insurance regulatory law is primarily enforced through regulations, rules and directives by state insurance departments as authorized and directed by statutory law enacted by the state legislatures. However, federal law, court decisions and administrative adjudications also play an important role.
Financial regulation in Australia is extensive and detailed.
The Financial Ombudsman Service (FOS) was a member-funded Australian ombudsman service that provided external dispute resolution for consumers who were unable to resolve complaints with member financial services organisations.
The Nonadmitted and Reinsurance Reform Act of 2010 is a United States law regulating the sale of insurance in states where the insurer is usually not authorized to sell insurance. It prevents states other than the home state of a U.S. insurance company from imposing regulations or taxes on the sale of nonadmitted insurance.
The Insurance Regulatory and Development Authority of India (IRDAI) is a statutory body under the jurisdiction of Ministry of Finance, Government of India and is tasked with regulating and licensing the insurance and re-insurance industries in India. It was constituted by the Insurance Regulatory and Development Authority Act, 1999, an Act of Parliament passed by the Government of India. The agency's headquarters are in Hyderabad, Telangana, where it moved from Delhi in 2001.
Health Insurance Fund (HIF) is an Australian, not-for-profit insurer. In 1954 it was brought into existence as the WA Government Employee's Hospital and Medical Benefits Fund Incorporated. But has since undergone a series of name changes to better reflect the scope and services it provides.
In Australia, it is a mandatory requirement for registered healthcare practitioners to hold appropriate medical indemnity insurance coverage for healthcare practices in Australia. Medical indemnity is a form of professional indemnity coverage defined by Australian legislation – the Medical Indemnity Act 2003 and is a type of general insurance. In the United Kingdom, this type of professional indemnity for healthcare practitioners is generally referred to as ‘professional indemnity’ and in the United States, medical negligence insurance. In Australia, the term medical indemnity can be used to refer to all healthcare indemnity, not just that provided for medical doctors. However, there are only six Australian Health Practitioner Regulation Authority (AHPRA) listed insurers that provide medical indemnity insurance cover to medical practitioners. Australian medical practitioner medical indemnity providers include:
Australian insolvency law regulates the position of companies which are in financial distress and are unable to pay or provide for all of their debts or other obligations, and matters ancillary to and arising from financial distress. The law in this area is principally governed by the Corporations Act 2001. Under Australian law, the term insolvency is usually used with reference to companies, and bankruptcy is used in relation to individuals. Insolvency law in Australia tries to seek an equitable balance between the competing interests of debtors, creditors and the wider community when debtors are unable to meet their financial obligations. The aim of the legislative provisions is to provide: