18 February 2020

Financial Services Royal Commission draft legislation – Will insurers be able to implement all changes consistently?

This article was written by Astrid Sugden, Travis ToemoeMandy Tsang, Chloe Walker and Sarah Yu.

This alert provides key takeaways and our in-depth analysis of some of the proposed amendments in the Financial Services Royal Commission draft legislation related to insurance. The deadline for making submissions is 28 February 2020.  The package of proposed legislation comes on top of wide-reaching changes which apply the unfair contract terms regime to insurance contracts and make insurance claims handling a new financial service.  In addition to meeting the tight transition periods, the raft of reforms introduces various new concepts which will make consistency in implementation difficult.

This alert considers the proposed duty to take reasonable care not to make a misrepresentation to an insurer, measures to make financial services industry codes enforceable, restrictions on the use of the terms ‘insurance’ and ‘insurer’, caps on commissions and deferred sales model for add-on insurance products.

Further information

Explore our Royal Commission hub to keep up-to-date, access related content and view additional resources.   

We are happy to assist you in considering the proposals and how it impacts your business. Please contact your usual KWM contact if you would like to discuss the report further.

Duty to take reasonable care not to make a misrepresentation to an insurer

The proposed Duty of Disclosure to Insurer Bill[1] will amend the insured’s existing duty of disclosure to create a new duty to take reasonable care not to make a misrepresentation to the insurer before entering into a “consumer insurance contract” (CIC). 

Key takeaways

  • A CIC is insurance which is obtained wholly or predominantly for the personal, domestic or household purposes of the insured and includes both general and life insurance.

  • The existing duty of disclosure will continue to apply to insurance contracts which are not CICs. The concept of “eligible contracts of insurance” will be removed.

  • There is a list of non-exhaustive matters which may be taken into account in determining whether an insured has taken reasonable care not to make a misrepresentation and the standard of care may be lowered in certain circumstances.

  • The existing remedies for non-disclosure and misrepresentation will apply to this new duty. The onus will be on insurers to prove that the insured failed to discharge its duty to take reasonable care not to make a misrepresentation.  This remains consistent with the current position.

  • Insurers will need to put in place new policies and procedures to address the new duty and the potentially higher risk imposed by the proposed changes. Demonstrating that a consumer failed to take reasonable care will arguably be more difficult. 

  • The proposed amendments to the duty of disclosure will take effect on 1 July 2020 and will apply to contracts of insurance that are entered into on or after 5 April 2021. For life insurance contracts which are entered into prior to 5 April 2021, the new duty of disclosure will apply as if the contract was entered into on or after 5 April 2021 if the contract is varied to increase a sum insured or to provide one or more additional kinds of cover, and any such variation was not automatic.  Given the fundamental change to insurers’ practices and procedures, this transition period appears to be too limited.

  • As the changes only concern CICs, there is no impact on corporate policyholders.

The proposed changes in detail

Existing duty of disclosure

Section 21 of the Insurance Contracts Act 1984 (Cth) currently provides that an insured is required to disclose to the insurer any matters which the insured knows, or could reasonably be expected to know, are relevant to the insurer’s decision of whether or not to accept the risk and if so, on what terms.  A modified duty of disclosure currently applies to ‘eligible contracts of insurance’ as prescribed in the Insurance Contracts Regulations 2017 (Cth). Under the modified duty of disclosure, the insurer must ask specific, relevant questions.  The insured’s duty of disclosure does not extend beyond its responses to the questions asked by the insurer. 

In his Final Report, Commissioner Hayne took the view that the existing duty of disclosure fails to recognise the extent of the information asymmetry between consumers and insurers.

Amended duty of disclosure

The proposed changes will impose a duty for consumers to take reasonable care not to make a misrepresentation to an insurer when entering into, varying, extending, renewing or reinstating a CIC.  The existing duty of disclosure will continue to apply to any contracts of insurance which are not CICs.

An insurance contract will be a CIC if the contract is:

  • purchased for personal, domestic or household purposes (including general and life insurance contracts); or
  • for new business in respect of which the insurer gives the insured a written notice stating that the contract is a CIC prior to the contract being entered into.

The Explanatory Memorandum states that this definition is intended to include contracts that were previously classified as ‘eligible contracts of insurance”, as well as other contracts such as pet insurance.  Under the new regime, if it is alleged that a contract of insurance is a CIC, the contract will be presumed to be a CIC unless it is proved otherwise.

Insurers will need to navigate between the different concepts of “retail client” under the Corporations Act 2001 (Cth), a “standard form contract” for a consumer or small business under the unfair contract terms regime and now a CIC.  It is disappointing that a consistent definition or approach has not been taken by government.

It is intended that this change will protect insureds against the possibility of insurers declining legitimate claims as a result of an inadvertent failure on the part of an insured to disclose past circumstances, or because insurers have failed to ask the right questions.  The new approach will require insurers to elicit the information that it needs from consumers.  

The following factors may be taken into account in determining whether an insured has fulfilled the amended duty of disclosure:

  • the type of CIC and its target market;
  • explanatory material or publicity produced or authorised by the insurer;
  • how clear and how specific any questions asked by the insurer were;
  • how clearly the insurer communicated the importance of answering their questions and the possible consequences of failing to do so;
  • whether or not an agent was acting for the insured; and
  • whether the insurer knew or ought reasonably to have known about particular characteristics or circumstances of the insured.

The Explanatory Memorandum also sets out examples of when the consumer’s standard of care may be increased or lowered.  Unlike the substantive case law which has developed around the existing duty of disclosure, insurers will initially have little guidance on the scope of this new duty.  The introduction of these new concepts, which include a subjective element as to what the insurer knew, should prompt insurers to review their proposal regime.  For example, how will insurers capture all of the details that they know about the insured through different communication channels.  These factors appear to place a significant burden on, and to introduce a higher degree of risk for, insurers.  This may well have been the intent of government in making these changes, which increase the difficulty for insurers in declining claims for non-disclosure or misrepresentations.

Group life insurance

The new duty applies to a life insured under a group life contract (as currently defined) that is a CIC.  An insurance contract held by the life insured will generally fall within the definition of a CIC.  However, the new duty does not apply to a superannuation fund trustee that enters the group contract with the insurer for the purposes of offering insurance to fund member or employees.  This relationship will continue to be subject to the exiting duty of disclosure. 

Existing remedies apply

The existing remedies available under the existing law for non-disclosure and misrepresentation by the insured will apply to this new duty.  A breach of the new duty for a CIC and a breach of the duty of disclosure by the insured for other contracts will be considered “a relevant failure” which triggers the existing remedies.


Enforcing financial services industry codes

The proposed Enforceable Code Provisions Bill[2] will amend the Corporations Act 2001 (Cth) (Corporations Act) and the National Consumer Credit Protection Act 2009 (Cth) (Credit Act) to give the Australian Securities and Investments Commission (ASIC) the power to:

  • make certain provisions of industry codes of conduct which are approved by ASIC “enforceable code provisions”, breaches of which will constitute a breach of law;

  • introduce a framework for the establishment of mandatory codes of conduct for the financial services industry.

Key takeaways

  • The maximum penalty for a breach of an enforceable code provision in an ASIC-approved industry code of conduct will be 300 penalty units. A breach of a civil penalty provision in a mandatory code of conduct will carry a much higher maximum penalty of 1,000 penalty units.  ASIC may also take other enforcement action
  • There are a number of mandatory considerations which ASIC must take into account before approving a code of conduct, including whether the code is consistent with the Corporations Act or the Credit Act.
  • The new regime will allow ASIC to impose mandatory codes of conduct in certain circumstances, such as where ASIC has been unable to develop an approved code with the industry or where the industry has been unable to provide ASIC with a proposed code in a timely manner. A person must not contravene a mandatory code of conduct.
  • The proposed changes will increase the burden placed on owners of industry codes of conduct. A code of conduct should offer greater benefits than would normally exist under law and, if it is an enforceable code or civil penalty provision, attract penalties if breached.
  • Code owners and their subscribers are responsible for monitoring and reporting on compliance with industry codes, or for setting up such arrangements (with consideration to be given to periodic public reporting of such information). In addition, AFS or credit licensees (or their representatives) will be required to report a breach of an enforceable code provision to ASIC upon becoming aware of the breach.  This will align with the requirements being introduced as a part of the breach reporting obligations.
  • Enforceable code provisions in approved industry codes or mandatory codes of conduct will form part of ‘financial services law’. Therefore, it will be particularly important for insurers to put in place mechanisms for remaining informed of any provisions which are classified by ASIC as enforceable code provisions in those industry codes to which they subscribe.
  • The amendments are proposed to take effect from 1 July 2020.

The proposed changes in detail

ASIC can specify “enforceable code provisions” for approved industry codes of conduct

The Corporations Act and the Credit Act will be amended to “strengthen the existing code of conduct framework” to allow ASIC to designate enforceable code provisions.  Examples given in the explanatory memorandum of provisions which may specified as enforceable code provisions are provisions which relate to conflicts of interest, cooling off periods, the provision of information to consumers and fees and charges.  A breach of an enforceable code provision may attract civil penalties and/or other enforcement action from ASIC.

In determining whether to specify a provision of an industry code of conduct as an enforceable code provision, ASIC must consider:

  • whether the provision represents a commitment by a subscriber to the code to act in a particular way or in a manner consistent with attaining the objectives of the code; or
  • a commitment to a person (including to the public at large, a group of people or a third party) by a subscriber to the code; and
  • whether a breach of the provision could result in significant detriment to the person (considering factors such as the nature and extent of the potential detriment, the potential financial loss to consumers and the impact of the detriment on consumers); or
  • whether a breach would significantly undermine the confidence of the Australian public, in either the provision of financial services or those who provide such services.

 Under the draft legislation, approved industry codes of conduct must be independently reviewed at least every five years.  These reviews must be subject to public consultation.  Upon completion of the review, a report must be provided to ASIC and published on the code owner’s website.

Approved industry codes of practice

Members of the financial industry are encouraged to subscribe to the same code of conduct wherever possible, in order to “create a consistent approach across the financial sector”.  Such an approach will likely take considerable time to coordinate within the industry and it is likely that negotiations of any such industry-wide codes of conduct will be protracted.  Against this background is the potential that ASIC may establish mandatory codes of conduct if too much time is taken.

ASIC can establish mandatory codes of conduct for the financial services industry

The new legislation will also introduce a framework through which ASIC may establish mandatory codes of conduct for the financial services industry.  As with existing approved industry codes of conduct, ASIC may specify specific provisions as civil penalty provisions.  The maximum pecuniary penalty which can be imposed as a result of a breach of a civil penalty provision under a mandatory code of conduct is particularly high in order to provide an effective means of deterrence, as well as to provide “an incentive to code owners to participate in the voluntary code process”, where breaches of enforceable code provisions are subject to a lesser maximum pecuniary penalty.  ASIC may also take other enforcement action for a breach of a civil penalty provision of a mandatory code of conduct.

ASIC will also have the power to provide a person or body with the functions and powers required to:

  • monitor compliance with the code, deal with disputes and complaints and attend to other administrative matters or
  • impose record keeping and reporting obligations on persons bound by the code.

Enforceable code provisions create greater obligations

It is expected that enforceable code provision would not be mere restatements of existing laws but create new or extended obligations or elaborate and provide specificity on how subscribers intend to comply with existing law or deal with matters not covered by law.  This means that subscribers could be held to a higher standard than the primary law, a breach of which could result in civil penalties or other enforcement action.  The Explanatory Memorandum states that this will allow for greater flexibility for industry codes to change with technology and industry advances, and less ambiguity in the primary law.  The Explanatory Memorandum also states that it will provide a quicker process for developing and approving codes of conduct.  The proposed changes will add another layer of regulatory burden that financial service providers will have to overcome.


Restricting the use of the term ‘insurance’ and ‘insurer’

The proposed Use of the terms “Insurance” and “Insurer” Bill[3] will amend the Insurance Act 1973 (Cth) (Insurance Act) to make it a strict liability offence:

  • for a person to use the term ‘insurance’ to describe products or services which they supply if the product or service is not insurance and it is likely that it could mistakenly be believed to be insurance;

  • for a person to describe themselves as an ‘insurer’ in connection with a product or service which the person supplies if the product or service is not insurance and it is likely that it could mistakenly be believed to be insurance, or the person is not appropriately registered or authorised.

It is intended that these restrictions will assist to avoid any confusion on the part of consumers as to the nature of the products or services which they are purchasing. 

Key takeaways

  • The changes follow the example of existing restrictions on the use of terms such as “bank” under the Banking Act 1959 (Cth) or “insurance broker” or “insurance broking” in connection with financial services under the Corporations Act 2001 (Cth).
  • Individuals who commit an offence will incur a penalty of 50 penalty units. Companies will incur a penalty of 500 penalty units.
  • Certain products or services may be exempted under the regulations and ASIC will also have the power to exempt certain persons (or classes of persons). However, the draft legislation and accompanying explanatory memorandum do not currently set out any exemptions other than to government entities and State Insurance. 
  • It will be a strict liability offence even if the prohibited description is made by implication. Providers of risk management products should consider whether they should make submissions to be exempted from this regime.
  • The explanatory memorandum provides that the term “insurance” will be given its ordinary meaning, in order to ensure that the term remains “fit for purpose” and can be “interpreted in a way that achieves the intent of these reforms”. Further guidance will likely be required as to whether the ordinary meaning for the term “insurance” is the same as the legal meaning given to that term, as well as the possible interpretations which may be given to the term.
  • The proposed amendments will take effect on the date after the legislation receives Royal Assent.

The proposed changes in detail

Restrictions on the use of the terms ‘insurance’ and ‘insurer’ in certain circumstances

It is proposed that the Insurance Act will be amended to make it a strict liability offence for a person who carries on, or proposed to carry on, a business to describe (expressly or by implication) a product or service which they supply or propose to supply as insurance if the product or service is not insurance and it is likely that the product or service could mistakenly be believed to be insurance. 

In addition, it is proposed that it will be a strict liability offence for a person who carries on, or proposes to carry on, a business to describe (expressly or by implication) itself as an insurer in connection with a product or service which the person supplies or proposes to supply if the product or service is not insurance and:

  • it is likely that it could mistakenly be believed to be insurance; or
  • the person is not appropriately registered or authorised under the Insurance Act, the Life Insurance Act 1995 (Cth) or the Private Health Insurance (Prudential Supervision) Act 2015 (Cth).

It will be an offence even if the prohibited description is made by implication.  Given it is a strict liability offence, businesses who are not insurers but provide other risk management products will need to carefully assess whether the description of their products will imply that they are an insurer or that the products are insurance.  

The explanatory memorandum provides that ASIC will be responsible for the enforcement of the offences on the basis that the offences “are intended to operate as a consumer protection measure”. 

Exemptions to the new restrictions

The new offences will not apply to:

  • government entities;
  • state insurance (within the meaning of paragraph 51(xiv) of the Constitution);
  • products or services prescribed by the regulations; or
  • persons (or classes of persons) who are exempted by ASIC.

The explanatory memorandum recognises that the terms ‘insurance’ and ‘insurer’ are used in relation to a wide variety of product in various circumstances.  Therefore, there are exemption powers by either ASIC or through regulations to ensure that the regime operates as intended and does not result in unintended consequences.  An exemption will be required for insurance only superannuation products that use the word “insurance” in the name of the product.  An exemption from ASIC in respect of any person or class of persons may be subject to conditions.  In addition, ASIC will have the power to vary or revoke any determination to exempt a person or class of persons.

Other than government entities and State insurances, no exemptions are currently contained in the draft legislation or explanatory memorandum.  Providers of risk management products should consider whether they should make submissions to be exempted from this regime. 


Insurers, time to put your commissions caps on

The Caps on commissions[4] Bill amends the ASIC Act 2001 (Cth) (ASIC Act) to:

  • enable ASIC to impose a cap on the amount of commissions payable in respect of the supply of add-on risk products, including insurance products and insurance-like products, which are sold in connection with the sale or long-term lease of a motor vehicle;

  • imposes criminal and civil penalties and make it a strict liability offence for a person to pay or receive a commission for motor vehicle add-on risk products which exceed this cap; and

  • give consumers the right to recover any commissions that exceed the cap.

Key Takeaways

  • A person commits an offence only where the add-on risk product is sold in connection with motor vehicles acquired by a "consumer” (as defined under the Australian Consumer Law).

  • Where ASIC has not made a determination covering the supply of a particular add-on product or class of products, no cap applies.

  • The caps which currently apply to consumer credit insurance (CCI) under the National Credit Code continue to apply unless and until ASIC determines otherwise.

  • To ensure compliance from the date of Royal Assent, insurers will need to put in place system controls to keep track of applicable caps as and when ASIC determinations are released.

  • Any prescribed caps will apply to commissions paid for the supply of add-on products under contracts, arrangements or understandings entered into on or after the Bill receives Royal Assent.

The proposed changes in detail

Part 7.7A currently bans the provision and acceptance of conflicted remuneration (including commissions) between product issuers and financial advisers.  However, this does not apply to commissions in connection with general insurance or CCI products. Commissions paid by insurers in connect with CCI taken out by a debtor are already capped at 20% under the National Credit Code. 

The Caps on commissions Bill provides that ASIC may set a cap on the amount of commissions paid for all motor vehicle add-on risk products (including CCI).  This follows from the Financial Services Royal Commission findings that commissions being paid to car dealers in connection with the sale of add-on insurance products were contributing to the mis-selling of these products.

This development is unsurprising.  In 2017, the Australian Competition and Consumer Commission rejected an application from 16 insurers for authorisation to agree a 20% cap on commissions paid to car dealers who sell their add-on insurance products.[5]

Under the Bill, the cap only applies if ASIC has made a determination covering the kind of add-on risk product being supplied.  “Add on risk product” is defined as a facility through which, or through the acquisition of which, a person manages financial risk within the current meaning under s 12BAA(5) of the ASIC Act.  It includes insurance and insurance-like products.

“Commission” is defined to include both monetary and non-monetary value consideration to which a monetary value can be assigned.  Whether a payment or benefit is a commission is determined by the substance of the arrangement, regardless of how it is characterised by the parties to the arrangement.  The Bill also sets out methods as to how the commission should be valued, including where there is more than one commission from multiple providers for a single add-on risk product.  The ASIC determination may also set out methods for valuing the commission.  Providers and recipients of commissions will need to be aware of commissions (monetary and non-monetary) payable by other providers.

For CCI products, the current cap will continue to apply unless and until ASIC prescribes another cap for such products.

New criminal, civil penalty and strict liability offence

The Bill makes it an offence for a person to:

  • pay or receive a commission for the supply of an add-on risk product;
  • such product is provided in connection with the sale or long-term lease of a motor vehicle (or the provision of credit for such sale or long-term lease) or the provision of a warranty by the product recipient in connection with the sale or long-term lease of a motor vehicle to another person by the product recipient; and
  • which exceeds the cap determined by ASIC for that product.

A person also commits an offence if they attempt to contravene or are involved in the contravention of the cap on commission.

A person only commits an offence where the add-on product is sold in connection with motor vehicles acquired by a "consumer” (as defined under the Australian Consumer Law), which includes products sold in connection with motor vehicles that cost $40,000 or less, or vehicles that are of the kind ordinarily acquired by a person for personal or domestic use or that are acquired for use principally in the transport of goods on public roads.[6]

These offences carry both civil and criminal penalties.  A range of penalties are specified.  Where a commission is paid in excess of the cap, the consumer will also have the right to recover the entire value of the commission from either the insurer or the car dealer.

Exceeding the cap on commission will also be a strict liability offence, meaning the subjective intention of the person who pays or receives a contravening commission is irrelevant. 


New blackout period for sale of add-on insurance products

The Deferred Sales Model for Add-on insurance Bill[7] introduces industry-wide deferred sales model (DSM) for the sale of add-on insurance products.  The model imposes a range of restrictions on the offer or sale of “add-on insurance products” (and communications in respect of such) during certain prescribed periods.

Key Takeaways

  • The reforms apply to add-on insurance products sold to consumers.

  • The model will separate the sale of add-on insurance products from a consumer’s election to purchase a principal product or service, by prohibiting the sale and offer of such add-on insurance products and restricting communications in relation to this sale, for at least four clear days after the consumer has committed to purchasing the principal product or service. For six weeks after this period, add-on insurance may be sold to the consumer.  However, communications in a form other than writing are restricted.

  • It will be an offence for a provider or their related third parties to offer or sell an add-on insurance product to a customer who has informed the provider or any related third party that they no longer wish to receive offers, requests or invitations relating to these products.

  • Providers and related third parties will still be permitted to respond directly to inquiries from customers about add-on insurance products at any time.

  • The restrictions under the model will replace the anti-hawking obligations for add-on insurance products during the prescribed periods. The anti-hawking provisions will apply only where the add-on insurance deferral period is not triggered.  This means that providers will be subject to either the deferred sales model or the anti-hawking obligations, but not both at the same time.

  • The model will not apply to products that are the subject of an ASIC product intervention order imposing a different deferral period, comprehensive car insurance, products that are exempt under the regulations or by ASIC determination, or products recommended by financial advisers.

  • The transitional provisions provide that the DSM restrictions will apply to add-on insurance associated with principal products or services that are acquired on or after 12 months after the Bill receives Royal Assent

The proposed changes in detail

Add-on insurance has been the subject of extensive scrutiny, much of which has focused on the sale of such products in conjunction with the sale of motor vehicles in car yards.[8]  Prior to the Royal Commission, both ASIC and the Productivity Commission released a number of reports identifying widespread consumer detriment in the add-on insurance market due to issues of poor value, pressure-selling, lack of competition and low levels of consumer engagement.  Similar findings were made in both the Royal Commission Final Report and in consultation conducted by Treasury.[9]

A new statutory definition for “add-on insurance”

A product will be considered add-on insurance if it is a financial product that: 

  • is offered or sold to a consumer in connection with that person acquiring (or entering into a commitment to acquire) a product or service as a consumer;
  • is offered or sold by the provider of the principal product or service or by a third party who has an arrangement with the provider;
  • manages a financial risk (within the existing definition under s 12BAA of the ASIC Act) relating to the principal product or service; and
  • is either a contract of insurance or a benefit under a contract of insurance.

The definition of consumer is based on the existing definition under the ASIC Act.

This definition captures a broader range of add-on insurance products than just those relating to motor vehicles (e.g. travel insurance, accidental damage cover for electronic devices, pet insurance and ticket event and cancellation cover). 

For certain products and services, the Regulations prescribe that a consumer is taken to have entered into a commitment to acquire a principal product or service at a particular time.

One reading of the legislation that is open upon the current wording is that insurance can be considered a principal product.  A second insurance product may manage a financial risk “related” to the principal insurance product.  This outcome will likely be problematic for insurers or brokers who engage in discussions about options for covering risk that are not covered under the primary insurance product.  In previous industry reviews, stakeholders have expressed a view that this may result in an inadvertent lack of cover, especially where an insurable risk associated with the primary product could materialise within the deferral period.[10]

The Bill expressly exempts from the DSM regime comprehensive car insurance, products recommended by financial advisers, products that are the subject of an ASIC product intervention order imposing a different deferral period and products that are exempt under the regulations or by ASIC determination[11].

Restrictions and prescribed periods

The proposed reforms impose a range of restrictions on the offer or sale of “add-on insurance products” during certain periods by either providers of the principal product or related third parties who have an arrangement with the provider.

We have set out the restrictions for each prescribed period in the diagram below.



There is no obligation for a person who provides a product or service to give the information that ASIC may determine must be given and in what manner.  However, if the information is not given, then the add-on insurance pre-deferral period does not end[12] and there will be no add-on insurance deferral period, which means that the insurance product can never be sold.[13]

The Bill additionally gives customers the right to, at any time, inform either a provider or any related third parties that they no longer wish to receive offers, requests or invitations relating to the add-on insurance products.  Once such a request has been made, both the provider and any related third parties are prohibited from offering such add-on insurance products to that customer.

The prohibitions apply to third party providers if there is an arrangement between the provider of the principal product or service and the third party provider that relates to the provision of add-on insurance products.  Broadly speaking, the same restrictions apply to the third-party provider, except that certain physical elements have the fault element of recklessness for the civil offence.

A contravention of the DSM restrictions is an offence which carries both civil and criminal penalties.  A person also commits an offence if they attempt to contravene or are involved in a contravention of the DSM restrictions. 

Interaction with anti-hawking provisions

The Explanatory Materials for the Deferred Sales Model for Add-on insurance Bill clarify that the restrictions under the DSM will replace the anti-hawking obligations during the prescribed periods.

We have set out a detailed summary of the proposed anti-hawking legislation in this article.

The Hawking of financial products Bill expressly exempts add-on insurance products from the new hawking prohibition.  However, this exclusion is only available where the DSM restrictions apply.  This means that the anti-hawking provisions will apply where the DSM restrictions do not, e.g. after the end of the 6-week period or a sale of add-on insurance by a financial adviser (which is exempt from the DSM restrictions).  Providers of add-on insurance will be subject to either the DSM or the anti-hawking obligations, but not both at the same time. 

Both the anti-hawking legislation and the DSM regime will significantly hamper insurers’ ability to cross-sell. 

Practical difficulties with DSM?

The position is unclear where the consumer initiates contact to purchase the insurance product from the provider within the add-on insurance deferral period.  Does this trigger the prohibition on sale?  Unlike the prohibition for offers made during the add-on insurance deferral period, there is no exception for circumstances where the consumer initiates contact. In such circumstances, it appears that the provider will have to decline to sell the add-on insurance.

 

 

[1] Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2020 Measures)) Bill 2020: FSRC rec 4.5 (duty of disclosure to insurer), found here: https://treasury.gov.au/consultation/c2020-48919e

[2] Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2020 Measures)) Bill 2020: FSRC rec 1.15 (enforceable code 6 provisions) which can be found here: https://treasury.gov.au/consultation/c2020-48919f

[3] Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2020 Measures)) Bill 2020: Use of terms “insurance” and “insurer” which can be found here: https://treasury.gov.au/consultation/c2020-48919j

[4] Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2020 Measures)) Bill 2020: Caps on commissions, which can be found here: https://treasury.gov.au/consultation/c2020-43645

[5] https://www.accc.gov.au/media-release/accc-denies-authorisation-for-insurance-companies-to-jointly-set-a-cap-on-sales-commissions

[6] Australian Consumer Law, s 3.

[7] Financial Sector Reform (Hayne Royal 3 Commission Response—Protecting Consumers (2020 Measures)) Bill 2020: Deferred sales model for add-on insurance, which can be found here: https://treasury.gov.au/consultation/c2020-48919d

[8] See e.g. ASIC, Consultation Paper 324 Product intervention: The sale of add-on financial products through caryard intermediaries, accessible at: https://download.asic.gov.au/media/5286418/cp324-published-1-october-2019.pdf; ASIC, Consultation Paper 294 The sale of add-on insurance and warranties through caryard intermediaries, accessible at: https://asic.gov.au/regulatory-resources/find-a-document/consultation-papers/cp-294-the-sale-of-add-on-insurance-and-warranties-through-caryard-intermediaries/

[9] Treasury, Reforms to the sale of add-on insurance products (September 2019), accessible at: https://treasury.gov.au/consultation/c2019-t408984.

[10] Financial Services Council Submission to Treasury Proposals Paper Reforms to the sale of add-on insurance products (3 October 2019), accessible at: https://treasury.gov.au/sites/default/files/2019-10/t408984_Financial_Services_Council.pdf

[11] For those intending to apply to ASIC for an exemption, the Bill amends the Corporations (Fees) Act 2001 (Cth) enabling ASIC to prescribe a fee for any such application.

[12] See proposed s 12DP(3)(c).

[13] See proposed s 12DQ.

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