Financial Sector Legislation Amendment (Enhancing Supervision and Enforcement) Act 2009 (75 of 2009)

Schedule 2   Injunctions

Part 2   Insurance Act 1973

7   Section 129D

Repeal the section, substitute:

129D Injunctions

Restraining injunctions

(1) If a person (the perpetrator ) has engaged, is engaging or is proposing to engage, in conduct that constituted, constitutes or would constitute:

(a) a contravention of:

(i) this Act, the regulations or the prudential standards; or

(ii) a condition imposed or specified under this Act; or

(iii) a direction by APRA under this Act; or

(b) attempting to contravene the Act, regulations, standards, condition or direction; or

(c) aiding, abetting, counselling or procuring a person to contravene the Act, regulations, standards, condition or direction; or

(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene the Act, regulations, standards, condition or direction; or

(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of the Act, regulations, standards, condition or direction; or

(f) conspiring with others to contravene the Act, regulations, standards, condition or direction;

the Federal Court may grant an injunction in accordance with subsection (2).

Nature of injunction

(2) If granted, the injunction:

(a) is to restrain the perpetrator from engaging in the conduct; and

(b) if in the opinion of the court it is desirable to do so, may also require the perpetrator to do any act or thing.

The court may only grant the injunction on the application of APRA, and may grant it on such terms as the court thinks appropriate.

Performance injunctions

(3) If a person (the unwilling person ) has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by:

(a) this Act, the regulations or the prudential standards; or

(b) a condition imposed or specified under this Act; or

(c) a direction by APRA under this Act;

to do, the Federal Court may, on the application of APRA, grant an injunction, on such terms as the court thinks appropriate, requiring the unwilling person to do that act or thing.

Consent injunctions

(4) If an application for an injunction under subsection (1) or (3) has been made, the Federal Court may, if the court thinks it appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the court is satisfied that that subsection applies.

Interim injunctions

(5) If in the opinion of the Federal Court it is desirable to do so, the court may grant an interim injunction pending determination of an application under subsection (1).

Variation or discharge of injunctions

(6) The Federal Court may discharge or vary an injunction granted under this section.

Restraining injunctions

(7) The power of the Federal Court to grant an injunction restraining a person from engaging in conduct may be exercised:

(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

(b) whether or not the person has previously engaged in conduct of that kind; and

(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

Performance injunctions

(8) The power of the Federal Court to grant an injunction requiring a person to do an act or thing may be exercised:

(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b) whether or not the person has previously refused or failed to do that act or thing; and

(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

Damages undertakings

(9) If APRA applies to the Federal Court for the grant of an injunction under this section, the court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.

Damages orders

(10) If the Federal Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

This section extends Federal Court's powers

(11) The powers this section gives the Federal Court are additional to (and do not limit) its other powers.