Corporations Act 2001

CHAPTER 10 - TRANSITIONAL PROVISIONS  

PART 10.2 - TRANSITIONAL PROVISIONS RELATING TO THE FINANCIAL SERVICES REFORM ACT 2001  

Division 1 - Transitional provisions relating to the phasing-in of the new financial services regime  

Subdivision D - Treatment of people who carry on financial services businesses and their representatives  

SECTION 1436A   TREATMENT OF REPRESENTATIVES - INSURANCE AGENTS  

1436A(1)   [ Paramountcy]  

This section has effect despite anything else in this Subdivision, including sections 1436 and 1437 .

1436A(2)   [ Application]  

This section applies if, immediately before the FSR commencement, a person is an insurance intermediary (but not an insurance broker) within the meaning of the Insurance (Agents and Brokers) Act 1984 as then in force because of an agreement they have with an insurer under section 10 of that Act. For the purposes of this section:

(a) the person is the insurance agent ; and

(b) the agreement is the authorising agreement ; and

(c) the matters dealt with in the provisions included in the agreement in compliance with section 10 of that Act, and any other matters included in the agreement that are related to those matters, are the relevant matters ; and

(d) the insurer is the principal .

If, immediately before the FSR commencement, the person has more than one such agreement, this section applies separately in relation to each of those agreements.

1436A(3)   [ ``transition period'']  

For the purposes of this section, the transition period is the period starting on the FSR commencement and ending when the first of the following events occurs:

(a) the period of 2 years starting on the FSR commencement ends;

(b) the authorising agreement ceases to be in force;

(c) the insurance agent has lodged with ASIC notice in writing that the agent no longer wants to be covered by the Insurance (Agents and Brokers) Act 1984 :

(i) from a specified date, being a date that is after the notice is given to ASIC; or

(ii) from the end of a specified period, being a period that ends after the notice is given to ASIC;

and that date arrives or period ends;

(d) the insurance agent is granted a licence under section 913B (including as it has effect because of section 1434) of the amended Corporations Act that covers the insurance agent engaging in (as licensee) the range of activities that they previously engaged in as agent under the authorising agreement.

1436A(4)   [ Variation or revocation of original notice]  

A notice (the original notice ) given for the purposes of paragraph (3)(c) may before the date, or the end of the period, specified in the original notice as mentioned in that paragraph:

(a) be varied to specify another date or period, being a date or period that would satisfy the requirements of subparagraph (3)(c)(i) or (ii) if the reference in that subparagraph to when the notice (being the original notice) is given to ASIC were instead a reference to when the notice of variation is given to ASIC under this subsection; or

(b) be revoked.

The variation or revocation must be made by notice in writing lodged with ASIC.

1436A(5)   [ Continued application of old legislation]  

Subject to subsection (7), during the transition period, the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement, and any associated provisions, (the relevant old legislation ) continue to apply (despite the repeal of that Act) to, and in relation to, the insurance agent, the principal and the relevant matters.

1436A(6)   [ Relevant new legislation not applying]  

Subject to subsection (7), during the transition period, the relevant new legislation (within the meaning of section 1431) does not apply to, or in relation to, the insurance agent, the principal and the relevant matters.

1436A(7)   [ Regulations]  

Regulations made for the purposes of this subsection may do either or both of the following:

(a) provide that specified provisions of the relevant old legislation apply (with or without specified modifications), or do not apply, to the insurance agent, the principal and some or all of the relevant matters;

(b) provide that specified provisions of the relevant new legislation apply (with or without specified modifications), or do not apply, to the insurance agent, the principal and some or all of the relevant matters.

The regulations may provide as mentioned in paragraph (a) or (b) even after the end of the transition period.

1436A(8)   [ Right to remuneration continuing]  

If:

(a) before the end of the transition period, or such longer period during which regulations made for the purposes of subsection (7) provide for the application of some or all of the relevant old legislation, the insurance agent engages in conduct that, under the authorising agreement as then in force, creates a right to brokerage, commission or other remuneration (which may be a present right, or a future right that is dependent on matters specified in the authorising agreement); and

(b) that right is still in existence immediately before the end of that period;

the right is not taken to be brought to an end merely because of the repeal of the relevant old legislation or the enactment of the relevant new legislation, or because under this section the relevant old legislation ceases to apply and the relevant new legislation starts to apply.

1436A(9)   [ Limitation]  

Subsection (8) is not intended to affect, in any way, the determination of the question whether any other right (whether or not it is under an agreement under section 10 of the Insurance (Agents and Brokers) Act 1984 ) is in any way affected by the provisions of the Financial Services Reform Act 2001 or the Financial Services Reform (Consequential Provisions) Act 2001 (including the amendments made by those Acts).