Private Health Insurance (Prudential Supervision) Act 2015 (Cth)
This is a compilation of the
The notes at the end of this compilation (the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
For more information about any editorial changes made in this compilation, see the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
This Act may be cited as the
Private Health Insurance (Prudential Supervision) Act 2015 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
As follows:
However, if this Act receives the Royal Assent on or after 1 July 2015, and the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 1 July 2015 (paragraph (a) applies) | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Only a private health insurer may carry on health insurance business. A private health insurer is a company that is registered under Division 3 of Part 2.
A private health insurer must have at least one health benefits fund. There are regimes governing:
(a) how health benefits funds are operated; and
(b) changing the health benefits fund to which a policy of insurance is referable; and
(c) terminating health benefits funds; and
(d) external management of health benefits funds.
Private health insurers must comply with prudential standards made by APRA, and with directions given by APRA.
Private health insurers and their appointed actuaries also have various other obligations.
APRA has monitoring and investigative powers in relation to private health insurers.
APRA may accept enforceable undertakings, and may seek remedies in the Federal Court in relation to contraventions of enforceable obligations.
Note: The
Private Health Insurance Act 2007 defines the key concepts of health insurance business and health benefits funds as well as other concepts that relate to health benefits funds. That Act also sets out rules governing private health insurance products and provides incentives to encourage people to have private health insurance.
(1) In this Act:
ADI means an authorised deposit‑taking institution within the meaning of theBanking Act 1959 .
application provision : see subsection 65(2).
applied Corporations Act provision : see subsection 65(3).
appointed actuary of a private health insurer means the person appointed as the actuary of the insurer in accordance with Division 2 of Part 5.
approved form : see section 172.
APRA means the Australian Prudential Regulation Authority.
APRA rules : see subsection 174(1).
APRA staff member has the same meaning as in theAustralian Prudential Regulation Authority Act 1998 .
assets of a health benefits fund: see section 26.
chief executive officer of a private health insurer means the person who is primarily and directly responsible to the directors of the insurer for the general and overall management of the insurer.
civil penalty order : see subsection 156(2).
complying health insurance policy has the same meaning as in thePrivate Health Insurance Act 2007 .
complying health insurance product has the same meaning as in thePrivate Health Insurance Act 2007 .
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
cover , in relation to an insurance policy, has the same meaning as in thePrivate Health Insurance Act 2007 .
declaration of contravention means a declaration under subsection 155(1).
dependent person has the same meaning as in thePrivate Health Insurance Act 2007 .
director has the same meaning as in theCorporations Act 2001 .
disqualified person : see sections 119 and 121.
enforceable obligation means any of the following:
(a) a provision of this Act;
(b) a direction given under this Act;
(c) a provision of the risk equalisation levy legislation;
(d) if the registration of a private health insurer is subject to terms and conditions (see subsection 15(1))—those terms and conditions;
(e) in the case of a restricted access insurer—a provision included in the insurer’s constitution or rules in order to comply with subsection 15(3).
Note: References to this Act include prudential standards and APRA rules (see the definition of
this Act in this subsection).
external administration means administration or control (however described) by an external administrator.
external administrator means:
(a) any of the following, within the meaning of the
Corporations Act 2001 :
(i) a liquidator or provisional liquidator;
(ii) a receiver, manager, managing controller, receiver and manager or other controller;
(iii) an administrator or a scheme manager; or
(b) a person who performs a similar role to a person referred to in subparagraph (a)(i), (ii) or (iii), whether under a law of the Commonwealth, or of a State or Territory, or otherwise;
but does not include an external manager or terminating manager.
external management means management, by an external manager, under Divisions 6 and 8 of Part 3.
external manager , in relation to a health benefits fund, means a person appointed under section 51 as the external manager of the fund.
Federal Court means the Federal Court of Australia.
for profit insurer means a private health insurer that is registered under Division 3 of Part 2 as a for profit insurer.
health benefits fund has the same meaning as in thePrivate Health Insurance Act 2007 .
Health Department means the Department administered by the Health Minister.
health insurance business has the same meaning as in thePrivate Health Insurance Act 2007 .
Health Minister means the Minister administering thePrivate Health Insurance Act 2007 .
health‑related business has the same meaning as in thePrivate Health Insurance Act 2007 .
Health Secretary means the Secretary of the Health Department.
improper discrimination has the same meaning as in thePrivate Health Insurance Act 2007 .
inspector means a person appointed under section 130 to be an inspector.
insurance has the same meaning as in paragraph 51(xiv) of the Constitution.
investigation warrant : see subsection 136(1).
lawyer means a duly qualified legal practitioner and, in relation to a person, means such a practitioner acting for the person.
makes a permitted capital payment : see subsection 27(3).
manager , in relation to a health benefits fund, means an external manager or terminating manager of the fund.
net asset position of a health benefits fund means the difference between:
(a) the assets of the fund; and
(b) the policy liabilities and other liabilities of the fund that the private health insurer conducting the fund has incurred for the purposes of the fund.
officer of a private health insurer means:
(a) a director of the insurer; or
(b) a chief executive officer of the insurer; or
(c) any other person who has or exercises senior management responsibilities (within the meaning of prudential standards) for the insurer.
penalty includes forfeiture or punishment.
personal information has the same meaning as in thePrivacy Act 1988.
policy group of a health benefits fund: see subsection 32(7).
policy holder of a health benefits fund has the same meaning as in thePrivate Health Insurance Act 2007 .
policy liability of a private health insurer means:
(a) a liability that has arisen under an insurance policy; or
(b) a liability that, subject to the terms and conditions of an insurance policy, will arise on the happening of an event, or at a time, specified in the policy.
premises includes the following:
(a) a structure, building, vehicle, vessel or aircraft;
(b) a place (whether or not enclosed or built on);
(c) a part of a thing referred to in paragraph (a) or (b).
Private Health Insurance Ombudsman has the same meaning as in thePrivate Health Insurance Act 2007 .
private health insurer means a body that is registered under Division 3 of Part 2.
proceeding means:
(a) a proceeding in a court; or
(b) a proceeding or hearing before, or an examination by or before, a tribunal;
whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.
prudential matters : see subsection 92(2).
prudential standards : see subsection 92(1).
referable has the same meaning as in thePrivate Health Insurance Act 2007 .
responsible insurer means:
(a) for a health benefits fund that is under external management—the private health insurer that was conducting the fund prior to the appointment of the external manager of the fund; or
(b) for a health benefits fund that is under terminating management—the private health insurer that was conducting the fund prior to the appointment of the terminating manager of the fund.
restricted access group : see subsection 15(4).
restricted access insurer means a private health insurer that is registered under Division 3 of Part 2 as a restricted access insurer.
risk equalisation jurisdiction has the same meaning as in thePrivate Health Insurance Act 2007 .
risk equalisation levy legislation means any of the following:
(a) the
Private Health Insurance (Risk Equalisation Levy) Act 2003 ;(b) the provisions of the
Private Health Insurance Act 2007 , as they apply in relation to:
(i) levy imposed under the
Private Health Insurance (Risk Equalisation Levy) Act 2003 ; or(ii) the Risk Equalisation Special Account.
Risk Equalisation Special Account has the same meaning as in thePrivate Health Insurance Act 2007 .
rules of a private health insurer has the same meaning as in thePrivate Health Insurance Act 2007 .
search powers means powers to search for, inspect, take extracts from, and make copies of, documents.
State insurance has the same meaning as in paragraph 51(xiv) of the Constitution.
statutory functions and duties of an actuary of a private health insurer: see subsection 107(2).
terminating management means management, by a terminating manager, under Divisions 5 and 8 of Part 3.
terminating manager , in relation to the health benefits funds of a private health insurer, means a person appointed under Division 5 or 7 of Part 3 as the terminating manager of the funds.
termination day , in relation to the health benefits funds of a private health insurer: see subsection 40(2).
this Act includes prudential standards and APRA rules.
voluntary deed of arrangement means:
(a) a deed of arrangement agreed on at a meeting of a kind referred to in section 58; or
(b) such a deed as varied in accordance with APRA rules made for the purpose of this paragraph.
(2) To avoid doubt, a reference in this Act to another Act includes a reference to any regulations, rules, standards or other instruments made, and to any conditions imposed, under that other Act.
Note: For example:
(a) a reference to the
Private Health Insurance Act 2007 includes a reference to rules made under that Act; and(b) a reference to the
Financial Sector (Collection of Data) Act 2001 includes a reference to reporting standards made under that Act.
APRA has the general administration of this Act.
This Act extends to Norfolk Island.
Subject to section 7, this Act binds the Crown in each of its capacities.
This Act does not apply with respect to State insurance that does not extend beyond the limits of the State concerned.
(1) If the operation of this Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.
Only a private health insurer may carry on health insurance business. A private health insurer is a company that is registered under Division 3 of this Part.
Note: Part 4‑2 of the
Private Health Insurance Act 2007 defines the concept of health insurance business.There are 2 kinds of special status that some private health insurers may have. They are:
(a) a for profit insurer; and
(b) a restricted access insurer.
(1) A person commits an offence if:
(a) the person carries on health insurance business; and
(b) the person is not a private health insurer.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the
Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including the day of conviction for any such offence or any later day) during which the contravention continues.
Note: This subsection is not intended to imply that section 4K of the
Crimes Act 1914 does not apply to offences against this Act.
(1) The Federal Court may grant an injunction in such terms as it determines to be appropriate if, on the application of APRA, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of section 10.
(2) The Federal Court may grant an interim injunction pending determination of an application under subsection (1).
(3) The Federal Court must not require an applicant for an injunction to give an undertaking as to damages as a condition of granting an interim injunction.
(4) The Federal Court may discharge or vary an injunction granted under subsection (1) or (2).
(5) 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.
(6) 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.
(1) A body that is:
(a) a company within the meaning of the
Corporations Act 2001 ; and(b) a constitutional corporation;
may apply to APRA for registration as a private health insurer.
(2) The application:
(a) must be in the approved form; and
(b) must be accompanied by a copy of the applicant’s proposed rules; and
(c) if the applicant is seeking to be registered as a for profit insurer—must state that fact; and
(d) if the applicant is seeking to be registered as a restricted access insurer—must state that fact.
Within 90 days after the application is made, APRA may, by written notice to the applicant, require the applicant to give APRA such further information relating to the application as is specified in the notice.
APRA rules may set out criteria for the registration of bodies as private health insurers.
(1) APRA may, in writing, grant the application, subject to such terms and conditions as APRA considers appropriate.
Note: Refusals of applications, and granting of applications subject to terms and conditions, are reviewable under section 168.
(2) If APRA grants the application:
(a) the applicant is taken to be, or have been, registered as a private health insurer under this Division from the date of effect specified in the instrument granting the application (which may be a date that occurred before the application was made); and
(b) if the grant is subject to terms and conditions—the registration is taken to be subject to those terms and conditions from the day on which the applicant is notified of the granting of the application; and
(c) if the applicant sought to be registered as a for profit insurer—the registration is taken to be registration of the applicant as a for profit insurer; and
(d) if the applicant sought to be registered as a restricted access insurer and the applicant’s constitution or rules satisfy subsection (3)—the registration is taken to be registration of the applicant as a restricted access insurer.
Note: An insurer’s registration status as being (or not being) a for profit insurer or a restricted access insurer may change after the insurer’s initial registration, but only as provided for in section 19.
(3) For the registration to be taken to be as a restricted access insurer, the applicant’s constitution or rules must:
(a) describe the restricted access group to whom the applicant’s complying health insurance products are, or will be, available; and
(b) prohibit the applicant from issuing a complying health insurance policy to a person who does not belong to the group; and
(c) prohibit the applicant from ceasing to insure a person for the reason that the person has ceased to belong to the group.
(4) A
restricted access group is a group of people who all belong to a particular group, based on whether they:
(a) are or were employed in a particular profession, trade, industry or calling; or
(b) are or were employed by a particular employer or by an employer who belongs to a particular class of employers; or
(c) are or were members of a particular profession, professional association or union; or
(d) are or were members of the Defence Force or part of the Defence Force; or
(e) are or were part of any group described in APRA rules made for the purpose of this paragraph.
The partners and dependent persons of people who belong to such a group are also taken to belong to that group.
(5) APRA rules made for the purpose of paragraph (4)(e) may describe a group as consisting of one or more classes of people (whether or not the class or classes are described by reference to matters of a kind referred to in paragraphs (4)(a) to (d)).
(1) If APRA grants the application, APRA must:
(a) give the applicant written notice of the grant, and of the terms and conditions (if any) to which the grant is subject; and
(b) within one month after granting the application, publish in the Gazette a notification of the grant setting out:
(i) the applicant’s name; and
(ii) the date of effect of the applicant’s registration; and
(iii) the terms and conditions (if any) to which the grant is subject.
(2) If APRA refuses the application, APRA must give the applicant written notice of the refusal.
APRA is taken, for the purposes of section 168, to have refused the application if APRA does not give the applicant written notice of its decision on the application:
(a) within 90 days after the application was made; or
(b) if APRA has given the applicant a notice under section 13 requiring the applicant to give further information relating to the application—within 90 days after the applicant gives that information to APRA;
whichever is later.
An up‑to‑date record of the following must be publicly available on APRA’s website:
(a) the names of all private health insurers;
(b) in relation to each private health insurer:
(i) its address, telephone number and website address; and
(ii) the States and Territories in which it operates; and
(iii) if the insurer is registered as a restricted access insurer—the restricted access group to whom the insurer’s complying health insurance products are, or will be, available.
For profit insurer
(1) A private health insurer that:
(a) because of subsection (2) or otherwise, is registered as a for profit insurer; and
(b) notifies APRA in the approved form, that it does not wish to be registered as a for profit insurer;
is taken, from the day after the day on which APRA receives the notice, not to be registered as a for profit insurer.
(2) If:
(a) because of subsection (1) or otherwise, a private health insurer is not registered as a for profit insurer; and
(b) APRA approves under section 20 an application by the insurer for the insurer to convert to being registered as a for profit insurer;
the insurer is taken, from the day specified in APRA’s approval, to be registered as a for profit insurer.
(3) If a private health insurer is taken under this section to be, or not to be, registered as a for profit insurer, APRA must, as soon as practicable, given written notice of that fact to:
(a) the Health Secretary; and
(b) the Private Health Insurance Ombudsman; and
(c) the Commissioner of Taxation.
Restricted access insurer
(4) A private health insurer that:
(a) because of subsection (5) or otherwise, is registered as a restricted access insurer; and
(b) notifies APRA, in the approved form, that it does not wish to be registered as a restricted access insurer;
is taken, from the day after the day on which APRA receives the notice, not to be registered as a restricted access insurer.
(5) Subject to subsection 15(3), a private health insurer that:
(a) because of subsection (4) of this section or otherwise, is not registered as a restricted access insurer; and
(b) notifies APRA, in the approved form, that it wishes to be registered as a restricted access insurer;
is taken, from the day after the day on which APRA receives the notice, to be registered as a restricted access insurer.
(6) If a private health insurer is taken under this section to be, or not to be, registered as a restricted access insurer, APRA must, as soon as practicable, give written notice of that fact to:
(a) the Health Secretary; and
(b) the Private Health Insurance Ombudsman.
Application for conversion to for profit status
(1) A private health insurer may apply to APRA for approval to convert to being registered as a for profit insurer.
(2) The application:
(a) must be in the approved form and must contain, or be accompanied by, a conversion scheme as required by the approved form; and
(b) must be given to APRA at least 90 days before the day specified in the application as the day on which the insurer proposes that it become registered as a for profit insurer.
How APRA decides an application
(3) APRA must, in writing, approve the application if APRA is satisfied, within 30 days after the application was made, that:
(a) the application complies with subsection (2); and
(b) the conversion scheme would not in substance involve the demutualisation of the insurer.
(4) If subsection (3) does not apply:
(a) APRA must, at least 45 days before the day specified in the application, cause a notice of the application to be published in a manner that results in the notice being accessible to the public and reasonably prominent; and
(b) within 90 days after the application is made, APRA may, by written notice to the insurer, require the insurer to give APRA such further information relating to the application as is specified in the notice.
(5) If subsection (3) does not apply, APRA must, in writing, approve the application if:
(a) APRA is satisfied that the application complies with subsection (2); and
(b) the insurer has given APRA such further information (if any) as APRA has required under paragraph (4)(b); and
(c) APRA is satisfied that the conversion scheme would not result in a financial benefit to any person who is not a policy holder of, or another person insured through, a health benefits fund conducted by the insurer; and
(d) APRA is satisfied that the conversion scheme would not result in financial benefits from the scheme being distributed inequitably between such policy holders and insured persons.
(6) APRA rules may set out criteria for deciding, for the purposes of subsection (3), whether a conversion scheme would not in substance involve the demutualisation of the insurer.
(7) An approval under this section is not a legislative instrument.
Notification of APRA’s decision
(8) APRA must notify the insurer in writing of APRA’s decision on the application.
Note: Refusals of applications are reviewable under section 168.
(1) APRA must, in writing, cancel the registration of a private health insurer if:
(a) the insurer has not conducted health insurance business during the preceding 12 months; or
(b) the insurer’s health benefits funds have been terminated under Division 5 of Part 3; or
(c) the insurer ceases to be a company within the meaning of the
Corporations Act 2001 .(1A) APRA may, in writing, cancel the registration of a private health insurer if APRA is satisfied that the private health insurer has failed to comply with a requirement of the
Financial Accountability Regime Act 2023 .(2) APRA must:
(a) give the insurer written notice of the cancellation; and
(b) within one month after the cancellation, publish in the Gazette a notification of the cancellation.
A private health insurer must have at least one health benefits fund.
Note: Part 4‑4 of the
Private Health Insurance Act 2007 defines the concept of a health benefits fund as well as other key concepts related to health benefits funds.There are regimes governing:
(a) how health benefits funds are operated; and
(b) changing the health benefits fund to which a policy of insurance is referable; and
(c) terminating health benefits funds; and
(d) external management of health benefits funds.
APRA may require private health insurers to remedy contraventions of this Part.
(1) A private health insurer must at all times have at least one health benefits fund in respect of:
(a) its health insurance business; or
(b) its health insurance business and some or all of its health‑related businesses.
(2) A private health insurer may have more than one health benefits fund, but must not have more than one in respect of a particular risk equalisation jurisdiction.
(3) Despite subsection (2), a private health insurer may have more than one health benefits fund in respect of a particular risk equalisation jurisdiction if:
(a) each of those funds is a fund (a
pre‑1 April 2007 fund ):
(i) that existed on 1 April 2007; and
(ii) that, immediately before that day, was conducted by a registered organization (within the meaning of the
National Health Act 1953 as in force before that day); or(b) each of those funds, other than one of them, is a pre‑1 April 2007 fund and that one other fund was established in connection with a restructure of funds approved under:
(i) Division 4 of this Part; or
(ii) Division 146 of the
Private Health Insurance Act 2007 as in force before the commencement of this section.(4) Despite subsection (2), a private health insurer may have more than one health benefits fund in respect of a particular risk equalisation jurisdiction in circumstances specified in Private Health Insurance (Health Benefits Fund Policy) Rules made for the purpose of subsection 131‑20(2) of the
Private Health Insurance Act 2007 .
(1) If a private health insurer establishes a health benefits fund, the insurer must give APRA written notice of:
(a) the establishment of the fund; and
(b) the day on which the fund was established; and
(c) such other matters as are specified in APRA rules made for the purpose of this paragraph.
(2) The notice must be in the approved form.
(3) This section does not apply if the fund is established in accordance with a restructure or arrangement approved under Division 4.
(1) If a private health insurer has a health benefits fund in respect of its health insurance business and some or all of its health‑related businesses, the dominant purpose of the fund must relate to its health insurance business.
(2) If APRA is satisfied that a private health insurer is contravening subsection (1):
(a) APRA may, by written notice to the insurer, give the insurer such directions relating to divesting the fund of health‑related businesses as APRA considers necessary to ensure the insurer’s compliance with subsection (1); and
(b) the insurer must comply with those directions.
(3) APRA may, by written notice to a private health insurer, vary or revoke a direction given to the insurer under subsection (2).
(4) A direction under subsection (2) ceases to have effect if APRA revokes the direction.
(5) Sections 98, 101, 102 and 103 apply in relation to a direction under subsection (2) as if:
(a) a reference in those sections to a direction under section 96 were a reference to a direction under subsection (2) of this section; and
(b) the reference in subsection 101(3) to a direction of a kind referred to in paragraph 97(1)(l) were omitted.
Note: The matters dealt with in the sections applied by this subsection are as follows:
(a) section 98—power to comply with a direction;
(b) section 101—a direction is not grounds for denial of obligations;
(c) section 102—supply of information about directions;
(d) section 103—secrecy requirements.
Assets of a health benefits fund to be kept separate from other assets
(1) A private health insurer must keep assets of a health benefits fund distinct and separate from assets of other health benefits funds and from all other money, assets or investments of the insurer.
(2) A private health insurer must maintain a separate account with an ADI for each health benefits fund that it conducts.
What are the assets of a health benefits fund?
(3) The
assets of a health benefits fund at a particular time are the following:
(a) the balance of money represented by amounts credited to the fund in accordance with section 27;
(b) assets of the insurer obtained as a result of the expenditure or application of money credited to the fund;
(c) investments held by the insurer as a result of the expenditure or application of money credited to the fund;
(d) other money, assets or investments of the insurer transferred to the fund, whether under this Act or otherwise.
(4) Assets or investments obtained by the application of assets of a health benefits fund are themselves
assets of the fund.(5) The
assets of a health benefits fund:
(a) include assets that, in accordance with a restructure or arrangement approved under Division 4, are to be assets of the fund; but
(b) do not include assets that, in accordance with such a restructure or arrangement, are no longer to be assets of the fund.
(6) Despite paragraphs (3)(b) and (c) and subsection (4), assets or investments obtained by the expenditure of money of, or the application of other assets of, a health benefits fund are not
assets of the fund if:
(a) the private health insurer conducting the fund is a for profit insurer; and
(b) the expenditure or application was not done for the purposes of the fund.
Act does not have effect of making insurer etc. a trustee of assets of a health benefits fund
(7) To avoid doubt, nothing in this Act is intended to have the effect of making a private health insurer or its directors a trustee or trustees of the assets of the health benefits funds of the insurer.
(1) A private health insurer must credit the following amounts to a health benefits fund:
(a) premiums payable under policies of insurance that are referable to the fund;
(b) amounts paid to the insurer in relation to a liability under Division 9 in relation to the fund;
(c) income from the investment of assets of the fund;
(d) money paid to or by the insurer under a judgment of a court relating to any matter concerning the business of the fund or any failure to comply with this Part in relation to the fund;
(e) any other money received by the insurer in connection with its conduct of the business of the fund;
(f) any other amounts specified in APRA rules made for the purpose of this paragraph.
(2) This Act does not prevent a private health insurer from making a permitted capital payment to a health benefits fund.
(3) A private health insurer
makes a permitted capital payment to a health benefits fund if it credits to the fund an amount that:
(a) is not required to be credited to the fund under subsection (1); and
(b) either:
(i) does not represent any part of the assets of another health benefits fund; or
(ii) is credited to the fund with APRA’s written approval.
Note: Refusals to approve the crediting of an amount to a fund are reviewable under section 168.
(4) An approval under subparagraph (3)(b)(ii) is not a legislative instrument.
Assets of health benefits funds not to be applied or dealt with except in accordance with this Division
(1) A private health insurer must not apply, or deal with, assets of a health benefits fund, whether directly or indirectly, except in accordance with this Division.
Application of assets: general rules
(2) The assets of a health benefits fund must not be applied:
(a) for any purpose other than:
(i) meeting policy liabilities and other liabilities, or expenses, incurred for the purposes of the business of the fund including policy liabilities and other liabilities that are treated, in accordance with a restructure or arrangement approved under Division 4, as policy liabilities and other liabilities incurred for the purposes of the fund; or
(ii) making investments in accordance with section 30; or
(iii) making a distribution under Division 5; or
(iv) a purpose specified in APRA rules made for the purpose of this subparagraph; or
(b) for a purpose specified in APRA rules made for the purpose of this paragraph.
Mortgaging or charging assets
(3) A private health insurer must not mortgage or charge any of the assets of a health benefits fund except:
(a) to secure an overdraft from an ADI; or
(b) for such other purposes, and subject to such conditions, as are specified in APRA rules made for the purpose of this paragraph.
Borrowing money
(4) A private health insurer must not borrow money for the purposes of the business of a health benefits fund except in accordance with APRA rules made for the purpose of this subsection.
Application of assets: for profit insurers
(5) Despite subsection (2), if a private health insurer is a for profit insurer, the assets of a health benefits fund conducted by the insurer may be applied for any purpose, except an application of the assets that is inconsistent with:
(a) prudential standards relating to capital adequacy or solvency that apply in relation to the fund; or
(b) a direction given to the insurer under section 96 that relates to the fund.
Section does not apply to certain transfers of assets
(6) This section does not apply to the transfer of assets:
(a) from one health benefits fund to another in accordance with a restructure or arrangement approved under Division 4; or
(b) in accordance with a direction under subsection 25(2).
General principle
(1) A transaction entered into in contravention of section 28 is of no effect unless:
(a) the Federal Court makes an order under subsection (2); or
(b) it is included in a class of transactions specified in APRA rules, made for the purpose of this paragraph, to be transactions to which this section applies, and the Court has not made an order under subsection (6).
Order declaring the transaction to be effective
(2) The Federal Court, on application by a party to the transaction, may make an order declaring that the transaction is effective, and is to be taken always to have been effective, for all purposes.
(3) The Federal Court must not make an order under subsection (2) unless it is satisfied that the applicant entered into the transaction in good faith and without knowledge of the contravention.
(4) In deciding whether to make an order under subsection (2), the Federal Court may have regard to any hardship that would be caused to the applicant if the order were not made.
(5) Subsection (4) is not intended to limit the matters to which the Federal Court may have regard on an application under subsection (2).
Order declaring the transaction to be of no effect
(6) The Federal Court, on application by APRA, may make an order declaring that a particular transaction that:
(a) was entered into in contravention of section 28; and
(b) is included in a class of transactions of a kind referred to in paragraph (1)(b) of this section;
is, and is to be taken always to have been, of no effect for any purpose.
(7) The Federal Court must not make an order under subsection (6) if it is satisfied that the effect of the order (if made) would be to cause hardship to a person who entered into the transaction in good faith and without knowledge of the contravention.
(1) A private health insurer may invest assets of a health benefits fund in any way that is likely to further the business of the fund.
(2) However:
(a) nothing in this Act authorises a private health insurer to make an investment the insurer would otherwise be prohibited from making; and
(b) nothing in this Act authorises a private health insurer to make an investment the insurer would not otherwise have power to make; and
(c) a private health insurer must not invest assets of a health benefits fund, or keep such assets invested, if the investment, or the retention of the investment, as the case requires, is prohibited by APRA rules made for the purpose of this paragraph, or by prudential standards.
(3) A transaction is not ineffective merely because it involves a contravention of paragraph (2)(c).
A private health insurer must not change the health benefits fund to which a policy of insurance is referable unless the change is made in accordance with this Division.
When an insurer may restructure its health benefits funds
(1) A private health insurer may restructure its health benefits funds so that insurance policies that are referable to a health benefits fund (a
transferring fund ) of the insurer become referable to one or more other health benefits funds (receiving funds ) of the insurer (whether existing or proposed) if:
(a) the insurance policies concerned are all of the policies that, immediately before the restructure, were referable to the transferring fund and belonged to one or more policy groups of that fund; and
(b) the insurer applies to APRA, in the approved form, for approval of the restructure; and
(c) APRA approves the restructure in writing; and
(d) the insurer complies with any requirements imposed on the insurer in relation to the restructure by APRA rules made for the purpose of this paragraph.
How APRA decides whether to approve the restructure
(2) Subject to subsection (4), APRA must approve the restructure if it is satisfied that:
(a) the assets and liabilities that would be transferred to the receiving fund or funds represent a reasonable estimate of what would, immediately before the restructure, be the net asset position of the transferring fund; and
(b) if there is more than one receiving fund—those assets and liabilities would be fairly distributed between the receiving funds; and
(c) the restructure will not result in any contravention of prudential standards
. (3) For the purposes of paragraph (2)(a), in working out the net asset position of the transferring fund, disregard the net asset position of the fund to the extent that it relates to insurance policies that do not belong to a policy group referred to in paragraph (1)(a).
(4) APRA must not approve the restructure if:
(a) it considers that the restructure will result in unfairness to the policy holders of a health benefits fund of the insurer as that fund exists immediately before the restructure, when those policy holders are viewed as a group; or
(b) it considers that the restructure will result in unfairness to the persons who would be policy holders of a health benefits fund of the insurer as that fund would exist immediately after the restructure, when those persons are viewed as a group; or
(c) the insurer is being wound up when the application is made.
Note: Refusals to approve restructures are reviewable under section 168.
APRA rules may provide for various matters
(5) APRA rules may provide for the following:
(a) criteria for the approval of applications under subsection (1);
(b) how to work out reasonable estimates of the kind referred to in paragraph (2)(a);
(c) criteria for deciding under paragraph (2)(b) whether assets and liabilities would be fairly distributed;
(d) requirements to notify interested persons of the outcomes of such applications;
(e) matters connected with how restructures take place, including the following:
(i) insurance policies becoming referable to a receiving fund or funds;
(ii) policy liabilities and other liabilities incurred for the purposes of a transferring fund becoming treated as policy liabilities and other liabilities incurred for the purposes of a receiving fund or funds;
(iii) assets of a transferring fund becoming assets of a receiving fund or funds;
(iv) the timing of restructures;
(v) if a receiving fund is a proposed new health benefits fund—the establishment of that fund;
(f) requirements for private health insurers to give APRA information following restructures.
Approval is not a legislative instrument
(6) An approval under this section is not a legislative instrument.
Definition
(7) A
policy group of a health benefits fund, is all of the insurance policies:
(a) that are referable to the fund; and
(b) the addresses of the policy holders of which, as known to the private health insurer conducting the fund, are located in the same risk equalisation jurisdiction.
APRA rules may provide for how to work out the policy group for a policy that has 2 or more holders whose addresses are not all located in the same risk equalisation jurisdiction.
When an arrangement may be entered into
(1) A private health insurer (the
transferee insurer ) may enter into an arrangement with one or more other private health insurers (transferor insurers ) under which:
(a) insurance policies that are referable to a health benefits fund or funds (
transferring funds ) of the transferor insurer or transferor insurers become referable to a health benefits fund or funds (receiving funds ) of the transferee insurer; and(b) in relation to each of the transferring funds, the insurance policies concerned are:
(i) all of the insurance policies that are referable to the transferring fund; or
(ii) all of the insurance policies that are referable to the transferring fund and that belong to one or more policy groups of the fund.
(2) However, the arrangement must not take effect unless:
(a) the insurers referred to in subsection (1) apply jointly to APRA, in the approved form, for approval of the arrangement; and
(b) APRA approves the arrangement in writing; and
(c) the insurers comply with any requirements imposed on the insurers in relation to the arrangement by APRA rules made for the purpose of this paragraph.
How APRA decides whether to approve the arrangement
(3) APRA must approve the arrangement if it is satisfied that:
(a) the assets and liabilities that would be transferred, under the arrangement, to the receiving fund or funds represent a reasonable estimate of what would, immediately before the restructure, be:
(i) if there is only one transferring fund—the net asset position of the fund; or
(ii) if there is more than one transferring fund—the sum of the net asset positions of each of the funds; and
(b) if, under the arrangement, there would be more than one receiving fund—those assets and liabilities would be fairly distributed between the receiving funds; and
(c) if subparagraph (1)(b)(i) applies to any transferring fund—the net asset position of the fund immediately after the arrangement takes effect will not be greater than zero; and
(d) the arrangement will not result in any contravention of prudential standards if it takes effect.
Note: Refusals to approve transfers are reviewable under section 168.
(4) For the purposes of paragraph (3)(a), in working out the net asset position of a transferring fund to which subparagraph (1)(b)(ii) applies, disregard the net asset position of the fund to the extent that it relates to insurance policies that do not belong to a policy group referred to in that subparagraph.
APRA rules may provide for various matters
(5) APRA rules may provide for the following:
(a) criteria for the approval of applications under subsection (2);
(b) how to work out reasonable estimates of the kind referred to in paragraph (3)(a);
(c) criteria for deciding under paragraph (3)(b) whether assets and liabilities would be fairly distributed;
(d) requirements to notify interested persons of the outcomes of such applications;
(e) matters connected with how arrangements take effect, including the following:
(i) insurance policies becoming referable to a health benefits fund or funds of the transferee insurer;
(ii) policy liabilities and other liabilities incurred for the purposes of a health benefits fund or funds of a transferor insurer becoming treated as policy liabilities and other liabilities incurred for the purposes of a health benefits fund or funds of the transferee insurer;
(iii) assets of a health benefits fund or funds of a transferor insurer becoming assets of a health benefits fund or funds of the transferee insurer;
(iv) the timing of arrangements;
(f) requirements for private health insurers to give APRA information following arrangements taking effect.
Notice to be given if arrangement takes effect
(6) The transferee insurer must, within 28 days after the arrangement takes effect, notify APRA of the arrangement. The notice must comply with any requirements specified in APRA rules made for the purpose of this subsection.
Effect of arrangement
(7) For the purposes of this Act and the
Private Health Insurance Act 2007 , an insurance policy that becomes referable to a health benefits fund of the transferee insurer as a result of the arrangement is treated, after the arrangement takes effect, as if it were an insurance policy issued by the transferee insurer.
Approval is not a legislative instrument
(8) An approval under this section is not a legislative instrument.
The consent of the policy holders of a health benefits fund is not required for any:
(a) restructuring health benefits funds as provided for in section 32; or
(b) entering into arrangements of a kind referred to in section 33, or implementing such arrangements;
unless the constitution of the private health insurer conducting the fund provides otherwise.
A private health insurer may apply to APRA, in the approved form, for approval of the termination of each of its health benefits funds.
Note: Termination of health benefits funds may also occur if the Federal Court orders the appointment of a terminating manager under Division 7.
Within 28 days after the application is made, APRA may, by written notice to the applicant, require the applicant to give APRA such further information relating to the application as is specified in the notice.
(1) APRA must, in writing, approve the termination if it is satisfied that:
(a) the insurer is not in the process of being wound up; and
(b) each of its health benefits funds complies with prudential standards relating to capital adequacy or solvency that apply in relation to the funds; and
(c) in relation to each of the funds, termination of the fund will not result in unfairness to the policy holders of the fund, when those policy holders are viewed as a group;
and is satisfied as to such other matters as are specified in APRA rules made for the purpose of this subsection.
(2) If APRA approves the termination, APRA:
(a) may, in writing, appoint a person other than the applicant as the terminating manager of the funds; and
(b) must give the insurer written notice:
(i) of the approval of the termination; and
(ii) if paragraph (a) applies—of the appointment of the terminating manager.
(3) If APRA refuses to approve the termination, APRA must give the insurer written notice of the refusal.
Note: Refusals to approve terminations are reviewable under section 168.
(4) An approval under this section is not a legislative instrument.
APRA is taken, for the purposes of section 168, to have refused to approve the termination if APRA does not notify the applicant of its decision on the application:
(a) within 90 days after the application was made; or
(b) if APRA has given the applicant a notice under section 36 requiring the applicant to give further information relating to the application—within 90 days after the applicant gives that information to APRA;
whichever is later.
(1) A health benefits fund cannot be wound up or otherwise terminated except in accordance with this Part.
(2) Subject to this Part, any provisions of a law of the Commonwealth, or of a State or Territory, that, but for this section, would relate to the winding up or termination of such a fund cease, by force of this section, to apply in relation to the fund.
(1) A private health insurer must not, after being notified under subsection 37(2) that termination of its health benefits funds has been approved:
(a) enter into an insurance policy that is referable to any of its funds with a person who is not already a holder of such a policy; or
(b) if the insurer is a for profit insurer—apply the assets of any of the funds except in accordance with subsection 28(2) (unless this paragraph has ceased to apply to the insurer because of section 45); or
(c) if the insurer is not a for profit insurer—become a for profit insurer.
(2) The insurer must, within 60 days after being notified under subsection 37(2) that termination of its health benefits funds has been approved:
(a) give a written notice, stating the day (the
termination day ) from which it will not renew insurance policies that are referable to any of its funds, to:
(i) each policy holder of any of its funds; and
(ii) APRA; and
(b) notify the termination day by publishing a notice:
(i) unless subparagraph (ii) applies—in a manner that results in the notice being accessible to the public and reasonably prominent; or
(ii) if a determination under subsection (2A) is in force—in a manner specified in the determination.
The termination day must not be earlier than 90 days after the insurer finishes giving notices under this subsection.
(2A) For the purposes of subparagraph (2)(b)(ii), APRA may, by legislative instrument, make a determination specifying one or more manners in which a notice mentioned in paragraph (2)(b) may be published.
(2B) A manner of publication may be specified in the determination only if APRA considers that the manner of publication would result in such a notice being accessible to the public and reasonably prominent.
(3) The insurer must not, on or after the termination day, renew any insurance policies that are referable to any of those funds.
(4) The insurer must accept any valid claim for benefits under an insurance policy that is or was referable to any of those funds if the claim is made before the end of the period of 12 months following the expiry of the last policy that was referable to any of those funds.
If APRA has approved the termination of the health benefits funds of a private health insurer:
(a) the terminating manager; or
(b) the insurer (if there is no terminating manager);
must, within 28 days after the end of the termination day, make a written report to APRA setting out details of the assets and liabilities of each of the funds as at that day.
If a terminating manager of the health benefits funds of a private health insurer has been appointed, then, for so long as the appointment is in force and until the termination is completed:
(a) the management of the fund vests in the terminating manager; and
(b) any officer of the responsible insurer for the fund who was vested with the management of the fund immediately before the appointment is, by force of this section, divested of that management.
(1) At any time during the termination of the health benefits funds of a private health insurer, the Federal Court may, on application, make an order ending the termination on a day specified in the order.
(2) An application may be made by:
(a) APRA; or
(b) a terminating manager of the funds.
(3) On such an application, the Federal Court may, before making an order, direct the terminating manager, or the private health insurer (if there is no terminating manager), to give a report with respect to a relevant fact or matter.
(4) If the Federal Court has made an order ending the termination, the Court may give such directions as it considers appropriate for the resumption of the management and control of the health benefits funds of the private health insurer by its officers.
The termination of the health benefits funds of a private health insurer is completed if:
(a) the period of 12 months referred to in subsection 40(4) has come to an end; and
(b) so far as possible having regard to the extent of the assets of the funds:
(i) the liabilities of the funds to the policy holders of the funds have been discharged; and
(ii) any collapsed insurer assistance payments (within the meaning of section 54H of the
Australian Prudential Regulation Authority Act 1998 ) made by APRA, for the purposes of any of the funds, have been repaid to APRA; and(iii) any other liabilities of the funds have been discharged.
If the termination of the funds is completed and, on the completion, there are assets of those funds, then:
(a) if the insurer is a for profit insurer—paragraph 40(1)(b) ceases to apply to the insurer; or
(b) if the insurer is not a for profit insurer—the insurer is liable to pay to APRA an amount equal to the value of those assets.
Note: Amounts received by APRA under paragraph (b) are required to be credited to the Risk Equalisation Special Account (see section 318‑5 of the
Private Health Insurance Act 2007 ).
(1) If:
(a) a private health insurer contravenes this Act in relation to a health benefits fund that it conducts; and
(b) the contravention results in a loss to the fund; and
(c) the termination of the fund is completed;
the persons who were officers of the insurer when the contravention occurred are jointly and severally liable to pay to APRA an amount equal to the amount of the loss.
Note: For relief from liability, see section 166.
(2) A person is not liable under subsection (1) if the person proves that he or she used due diligence to prevent the occurrence of such a contravention.
(3) On application by APRA, the Federal Court may order any person liable under subsection (1) to pay to APRA the whole or any part of the loss.
Note: Amounts received by APRA under this section are required to be credited to the Risk Equalisation Special Account (see section 318‑5 of the
Private Health Insurance Act 2007 ).
(1) A terminating manager:
(a) must make a written report to APRA relating to the termination of the health benefits funds of a private health insurer as soon as practicable after the completion of the termination of the funds; and
(b) may, at any earlier time, make a written report to APRA relating to the termination of the funds.
(2) A report under paragraph (1)(a) may include a recommendation that an application be made under section 48 for the winding up of the insurer.
(1) If a report by a terminating manager under section 47 includes a recommendation that an application be made under this section for the winding up of a private health insurer, APRA, or the terminating manager, may apply to the Federal Court for an order that the insurer be wound up.
(2) However, the terminating manager must not apply unless directed by APRA to apply.
(3) On an application under subsection (1), the Federal Court may make an order that the insurer be wound up if the Court is satisfied that it is in the financial interests of the policy holders of the health benefits funds conducted by the insurer that such an order be made.
(4) The winding up of the insurer is to be conducted in accordance with the
Corporations Act 2001 .
The purpose of this Division is to permit the business, affairs and property of a health benefits fund under external management to be managed in a way:
(a) that maximises the chance that the policy holders of the fund continue to be covered for health insurance either by that fund or by another fund to which the business of that fund is transferred; or
(b) if it is not possible for that coverage to be maintained—that, to the extent possible, safeguards the financial interests of those policy holders if the fund is terminated.
(1) The external management of a health benefits fund is regulated:
(a) by the provisions of this Division; and
(b) by the provisions of Divisions 6, 7, 8, 10, 11, 11AA, 13 and 16 of Part 5.3A of Chapter 5 of the
Corporations Act 2001 Division 7A of Part 5.6 of Chapter 5 of that Act and Divisions 75 and 90 of Schedule 2 to that Act, all applying, so far as they are capable of so doing, subject to such modifications as are set out in:
(i) this Act; or
(ii) APRA rules made for the purpose of this subparagraph.
(2) A health benefits fund cannot be placed under external administration, or dealt with as a fund under external administration, except in accordance with this Part.
(3) Subject to this Part, any provisions of a law of the Commonwealth, or of a State or Territory, that, but for this section, would relate to the external administration of such a fund cease, by force of this section, to apply in relation to the fund.
(4) In the application of the provisions of the
Corporations Act 2001 referred to in subsection (1) in relation to the external management of a health benefits fund, those provisions apply as if:
(a) a reference to the company were a reference to the fund; and
(b) a reference to the administrator or external administrator were a reference to the external manager of the fund appointed under this Act; and
(c) a reference to the Court were a reference to the Federal Court.
(5) APRA rules referred to in subparagraph (1)(b)(ii) may provide for different modifications according to the nature of the health benefits fund that is to be, or that is being, administered.
(1) APRA may, in writing, appoint a person as the external manager of a health benefits fund if the requirements of subsections 52(1) and (2) are satisfied.
(2) However, the person:
(a) must be a registered liquidator who is entitled to act as the external manager of a health benefits fund under the current conditions (if any) imposed on the person; and
(b) must not be a person who is:
(i) a policy holder of the fund; or
(ii) an appointed actuary of the fund; or
(iii) an auditor of the fund; or
(iv) a chargee of property of the fund; or
(v) an officer of a body corporate that is a chargee of property of the fund; or
(vi) a person who is otherwise related to the fund.
(3) The appointment takes effect from the day specified in the instrument of appointment.
(4) In this section:
current conditions has the same meaning as in Schedule 2 to theCorporations Act 2001 (the Insolvency Practice Schedule).
registered liquidator has the same meaning as in theCorporations Act 2001 .
(1) APRA must not appoint an external manager to a health benefits fund unless APRA considers that the appointment of an external manager to the fund is, in the circumstances, in the interests of the policy holders of the fund.
(2) In addition to subsection (1) being satisfied, APRA must not appoint an external manager to a health benefits fund unless:
(a) APRA is satisfied that the private health insurer conducting the fund has contravened:
(i) a prudential standard relating to capital adequacy or solvency that applies in relation to the fund; or
(ii) a direction given to the insurer under section 96 that relates to the fund; or
(b) a request for external management of the fund is made to APRA by a resolution of the directors of the insurer; or
(c) a ground specified in APRA rules, made for the purpose of this paragraph, applies in respect of the fund.
If a person is appointed as external manager of a health benefits fund, then, for so long as the fund is under external management:
(a) the management of the fund vests in the external manager; and
(b) any officer of the responsible insurer for the fund who was vested with the management of the fund immediately before the appointment of the external manager is, by force of this section, divested of that management.
(1) The main duties of the external manager of a health benefits fund are:
(a) to examine the business, affairs and property of the fund; and
(b) to ascertain the assets and liabilities of the fund; and
(c) if the business of the fund has been mixed with other business of the private health insurer concerned—to apportion the assets and liabilities as between the fund and that other business; and
(d) to form an opinion as to which course of action maximises the chance that the policy holders of the fund continue to be covered for health insurance either by that fund or by another fund to which the business of that fund is transferred; and
(e) to make a final written report to APRA, in accordance with Subdivision E, recommending that course of action.
(2) In the day‑to‑day administration of a health benefits fund, it is the duty of the external manager to administer the fund as efficiently and economically as possible.
(1) In the application of the provisions of Division 8 of Part 5.3A of Chapter 5 of the
Corporations Act 2001 , for the purpose of:
(a) conferring further powers on the external manager of a health benefits fund; and
(b) where appropriate, qualifying the exercise of those powers;
the provisions of that Division are taken not to include section 442A or subsection 442D(1).
(2) For the purposes of section 442F of the
Corporations Act 2001 as so applying, sections 128 and 129 of that Act are also taken to apply, subject to such modifications as are specified in APRA rules made for the purpose of this subsection.
(1) In the application of the provisions of Division 6 of Part 5.3A of Chapter 5 of the
Corporations Act 2001 in relation to the protection, during the external management of a health benefits fund, of the property of the fund, the provisions of that Division are taken not to include section 440A.(2) In determining, for the purposes of section 440D of the
Corporations Act 2001 as so applying, whether the external manager should consent to, or the court should give leave for, a person’s beginning or continuing legal proceedings, the external manager or the court must have regard to whether:
(a) the proceedings do, or do not, relate to any property of the fund under external management; and
(b) the proceedings would, or would not, be materially detrimental to the interests of the policy holders of the fund.
(1) In the application of the provisions of Division 7 of Part 5.3A of Chapter 5 of the
Corporations Act 2001 in relation to the property of a health benefits fund under external management:
(a) the provisions of that Division are taken not to include section 441A; and
(b) subsection 441D(1) is taken not to include the words following paragraph 441D(1)(b).
(2) Nothing in that Division as so applying prevents:
(a) the external manager of a health benefits fund giving written consent; or
(b) the court giving leave;
for the enforcement of a charge, subject to any condition specified by the external manager or by the court, as the case requires, if the external manager or the court is satisfied:
(c) that the charge does not relate to the property of the fund under external management; and
(d) that the enforcement of the charge will not be materially detrimental to the interests of the policy holders of the fund.
(1) APRA rules may provide for all or any of the following:
(a) the convening by external managers of health benefits funds of meetings of creditors of those funds, and the policy holders of the funds, to consider the possibility of the responsible insurers for those funds executing voluntary deeds of arrangement;
(b) the procedure for convening such meetings (including the giving of notices);
(c) the conduct of such meetings;
(d) the matters that may be decided at such meetings;
(e) the circumstances in which the external managers must include in their reports to APRA under section 59, recommendations arising out of decisions taken at such meetings;
(f) the kinds of such recommendations that may be included in those reports;
(g) the actions that APRA may take if such recommendations are included in those reports.
(2) This section does not limit the matters that may be included in APRA rules for the purposes of any other provision of this Part.
(1) As soon as practicable after being appointed as external manager of a health benefits fund, and in any case within the period under subsection (2), the external manager must:
(a) conclude the examination of the business, affairs and property of the fund; and
(b) make a final written report to APRA.
(2) The period is:
(a) the 3 months after being appointed as external manager; or
(b) such longer period as APRA determines in writing.
(3) The external manager must, in the report to APRA:
(a) recommend a course of action that, in the external manager’s opinion, maximises, in the circumstances, the chance that the policy holders of the fund continue to be covered for health insurance either by that fund or by another fund to which the business of that fund is transferred; and
(b) set out the reasons for that recommendation.
(4) Without limiting subsection (3), the external manager may recommend:
(a) subject to the Federal Court’s making an order or orders in relation to the matter, that the responsible insurer for the fund implement a scheme of arrangement concerning the business of the fund; or
(b) subject to the Court’s making an order or orders in relation to the matter, that a terminating manager of the health benefits funds of the responsible insurer be appointed; or
(c) that the external management cease and that the business of the fund be resumed by the responsible insurer for the fund.
(5) However, if APRA rules made for the purpose of this subsection so provide, the external manager must recommend that APRA approve the execution of a voluntary deed of arrangement.
(6) Without limiting the matters that may be dealt with in a scheme of arrangement referred to in paragraph (4)(a), such a scheme may provide for:
(a) the continuance, on terms or conditions set out in the scheme, of the business of the fund; or
(b) the transfer of the fund, on terms set out in the scheme, to a private health insurer other than the responsible insurer for the fund; or
(c) the execution of a deed in the same terms as a proposed voluntary deed of arrangement rejected at a meeting of a kind referred to in section 58.
Deciding what to do in relation to a recommendation
(1) For the purpose of deciding what to do in relation to a recommendation under subsection 59(3), APRA may:
(a) request the external manager to provide further information on any matter; and
(b) engage any person to assist it in evaluating assessments made, or projections relied on, by the external manager in relation to matters dealt with in the report.
APRA must have regard to the external manager’s report, and to any additional information provided by the external manager or by any person engaged to assist APRA, in reaching its decision.
APRA to inform external manager if satisfied with a recommended course of action
(2) If APRA is satisfied that a course of action recommended by the external manager under subsection 59(3) will, in the circumstances, be in the interests of the policy holders of the fund, APRA must, by written notice, inform the external manager to that effect.
Note: If APRA is satisfied with a recommendation that the external management cease, then the external management ends when notice is given under this subsection (see paragraph 62(2)(c)).
Additional steps to be taken by APRA if satisfied with certain kinds of recommended course of action
(3) If the course of action in relation to which APRA is satisfied as mentioned in subsection (2) is a course of action specified in paragraph 59(4)(a), APRA must, in writing, direct the external manager to apply under subsection 61(1) to give effect to the course of action.
(4) If the course of action in relation to which APRA is satisfied as mentioned in subsection (2) is termination of the funds of the private health insurer in question, APRA must, in writing, direct the external manager to apply under subsection 66(1) for the appointment of a terminating manager of the funds.
(5) APRA rules may provide for what is to be done if the course of action in relation to which APRA is satisfied as mentioned in subsection (2) is a course of action that is not of a kind specified in subsection 59(4) or (5).
If APRA is not satisfied with a recommended course of action
(6) If APRA is not satisfied as mentioned in subsection (2), APRA may take a different course of action that APRA is satisfied will, in the circumstances, be in the interests of policy holders of the fund.
(7) The courses of action that APRA may take under subsection (6) include:
(a) APRA applying to the Federal Court for an order or orders in relation to the responsible insurer for the fund implementing a scheme of arrangement concerning the business of the fund; and
(b) APRA applying to the Court for an order or orders for the appointment of a terminating manager of the health benefits funds of the responsible insurer.
(1) If, under subsection 60(3), APRA directs the external manager to apply under this subsection to give effect to a course of action specified in paragraph 59(4)(a), the external manager must apply to the Federal Court for an order or orders to give effect to the course of action.
Note: For what is to happen if the course of action is to be termination of a fund, see subsection 66(1).
(2) On an application to the Federal Court under subsection (1) of this section, or under paragraph 60(7)(a):
(a) APRA and any other person interested are entitled to be heard; and
(b) the Federal Court may make such order or orders in respect of the course of action the subject of the application as it considers to be, in all the circumstances, in the interests of the policy holders of the health benefits fund concerned.
(1) The external management of a health benefits fund begins when an external manager is appointed under section 51 to administer the fund.
(2) The external management of a health benefits fund ends when:
(a) APRA terminates the appointment of the external manager and does not appoint a replacement external manager; or
(b) a voluntary deed of arrangement relating to the fund is executed; or
(c) APRA notifies the external manager, under subsection 60(2), that it has accepted the external manager’s recommendation, made under subsection 59(3), that the external management cease; or
(d) the Federal Court makes an order or orders under section 61 for a course of action approved by APRA and incorporated in a scheme of arrangement; or
(e) a terminating manager of the fund is appointed.
A payment made, transaction entered into, or other act or thing done, in good faith, by, or with the consent of, the external manager of a health benefits fund:
(a) is valid and effectual for the purposes of this Act and the
Private Health Insurance Act 2007 , and for the purposes of theCorporations Act 2001 as it applies in relation to the fund; and(b) is not liable to be set aside in a termination of the fund.
(1) In the application of the provisions of Division 7A of Part 5.6 of Chapter 5 of the
Corporations Act 2001 for the purpose of determining the power of an external manager of a health benefits fund to disclaim property of the fund, those provisions have effect as if:
(a) the external manager were the liquidator of the company that the fund is taken to constitute; and
(b) the references in subsections 568B(3) and 568E(5) of that Act to the company’s creditors were references to the policy holders of the fund.
(2) A disclaimer by an external manager of a health benefits fund has the same effect, and the external manager is under the same obligations, for the purposes of this Act, as if the disclaimer had been made under Division 7A of Part 5.6 of Chapter 5 of the
Corporations Act 2001 .
Regulations etc. under the Corporations Act
(1) A reference in an application provision to an applied Corporations Act provision includes (unless the contrary intention appears) a reference to any regulations or other instruments in force for the purposes of that provision, or any of those provisions, of the
Corporations Act 2001 .Note: So, for example, a provision of this Act that applies a particular provision of the
Corporations Act 2001 also applies any regulations that have effect for the purposes of that provision (unless a contrary intention appears).(2) An
application provision is a provision of this Division that:
(a) provides for the application of a provision, or a group of provisions (including a Chapter, Part, Division or Subdivision), of the
Corporations Act 2001 ; or(b) refers to a provision, or group of provisions, of the
Corporations Act 2001 as so applied.(3) An
applied Corporations Act provision is a provision, or a provision in a group of provisions, of theCorporations Act 2001 that is applied as mentioned in paragraph (2)(a).
Modifications under APRA rules
(4) If an application provision contains a power for APRA rules to modify an applied Corporations Act provision the power extends to modifying any regulations or other instruments, in force for the purposes of that provision of the
Corporations Act 2001 , that are applied as a result of subsection (1).(5) The fact that provision is made in this Act for a specific modification of one or more applied Corporations Act provisions does not imply that further modifications of that provision, or any of those provisions, consistent with that specific modification, should not be made by APRA rules.
Corporations Act definitions and interpretation principles
(6) The definitions and interpretation principles that have effect in or under the
Corporations Act 2001 have the same effect in relation to:
(a) an applied Corporations Act provision; or
(b) a provision of regulations or another instrument that is applied as a result of subsection (1);
as that provision applies for the purposes of a provision of this Division, unless a contrary intention appears in an application provision or in a modification made by APRA rules.
Things that may be done under regulations under the Corporations Act
(7) If an applied Corporations Act provision allows something to be done in or by regulations or instruments, then:
(a) APRA rules may do that thing for the purposes of the applied Corporations Act provision; and
(b) if they do, any regulations or instruments that are applied as a result of subsection (1) are ineffective, for the purposes of this Division, to the extent that they are inconsistent with the provisions of APRA rules that do that thing.
(1) If, under subsection 60(4), APRA directs the external manager to apply under this subsection for the appointment of a terminating manager of the health benefits funds of a private health insurer, the external manager must apply to the Federal Court for an order or orders to give effect to such an appointment.
(2) APRA and any other person likely to be affected by the termination of the funds are entitled to be heard on the application.
(1) On an application under subsection 66(1), or under paragraph 60(7)(b), the Federal Court may make an order for the appointment of a terminating manager of the health benefits funds of a private health insurer, and any related orders.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the
Criminal Code ).
(1) An inspector:
(a) must, on the completion of an investigation of the whole or a part of the affairs of a private health insurer, report in writing to APRA on the result of the investigation; and
(b) if so directed in writing by APRA, must make such written reports during the investigation as are specified in the direction; and
(c) may make one or more other written reports to APRA during the investigation.
(2) Subject to subsection (3), an inspector may include in a report under this section any recommendations that the inspector considers appropriate.
(3) An inspector must not include in a report under this section:
(a) a recommendation relating to the institution of criminal proceedings; or
(b) a statement to the effect that the inspector considers that a specified person has committed a criminal offence.
(4) However, if an inspector considers that criminal proceedings ought to be instituted or that a person has committed a criminal offence, the inspector must state that opinion in writing given to APRA.
(1) APRA must give a copy of a report made to APRA under paragraph 143(1)(a) to the private health insurer to which the report relates.
(2) However, subsection (1) does not apply if APRA considers that, having regard to proceedings that have been or might be instituted, a copy of the report should not be given to the insurer.
(3) If APRA has given a copy of the report to the insurer under subsection (1), APRA may, if it considers it is in the public interest to do so, cause the whole or a part of the report to be published.
(4) A court before which proceedings under this Act, or the risk equalisation levy legislation, are brought against a private health insurer or other person in respect of matters dealt with in a report under section 143 may order that a copy of the report be given to that insurer or other person.
An action or proceeding, civil or criminal, does not lie against a person (not being a person referred to in section 58 of the
Australian Prudential Regulation Authority Act 1998 ) for publishing in good faith a copy of, or a fair extract from or of, a publication made under subsection 144(3).Note: Section 58 of the
Australian Prudential Regulation Authority Act 1998 protects APRA and persons connected with APRA (including, APRA members and APRA staff members) from liability.
(1) A power conferred on a magistrate by this Division is conferred on the magistrate:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
(2) The magistrate need not accept the power conferred.
(3) A magistrate exercising a power conferred by this Division has the same protection and immunity as if the magistrate were exercising the power:
(a) as the court of which the magistrate is a member; or
(b) as a member of the court of which the magistrate is a member.
(1) An inspector may, by writing signed by the inspector, delegate any of the inspector’s powers under this Division to an APRA staff member.
(2) An inspector must not delegate powers to an APRA staff member unless the inspector is satisfied that the staff member has suitable qualifications and experience to exercise those powers properly.
(3) A delegate who proposes to exercise his or her delegated powers must, at the request of any person who may be affected by the proposed exercise, produce for the inspection of that person the instrument of delegation or a copy of that instrument.
(1) A person commits an offence if:
(a) a requirement is made of the person under section 128, 129 or 132; and
(b) the person fails to comply with the requirement.
Penalty: 30 penalty units.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the
Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.(2) However, a person is only required to comply with a requirement referred to in paragraph (1)(a) to the extent that the person is capable of doing so.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the
Criminal Code ).
(1) A person is not excused from answering a question, providing information or a report, or producing a document, under this Part on the ground that the answer, the information or report, or the production of the document, might tend to incriminate the person or make the person liable to a penalty.
(2) However, in the case of an individual:
(a) the answer given, the information or report provided or the document produced; and
(b) answering the question, providing the information or report, or producing the document;
are not admissible in evidence against the individual in any criminal or civil proceedings, except proceedings under, or arising out of, section 137.1 or 137.2 of the
Criminal Code in relation to answering the question, providing the information or report, or producing the document.Note 1: This subsection does not apply in relation to proceedings for a penalty by way of a disqualification under section 120 (see subsection 122(4)).
Note 2: Sections 137.1 and 137.2 of the
Criminal Code create offences for providing false or misleading information or documents.
A person who complies with a requirement made of the person under this Part by APRA or an inspector does not incur any liability to any other person merely because of that compliance.
APRA may accept an undertaking given by a person in connection with matters relating to this Act or the risk equalisation levy legislation.
APRA may apply to the Federal Court for an order (for example, an order directing compliance) if APRA considers that an undertaking has been contravened.
(1) APRA may accept a written undertaking given by a person in connection with a matter in relation to which APRA has a power or function under:
(a) this Act; or
(b) the risk equalisation levy legislation.
(2) The person may withdraw or vary the undertaking at any time, but only with APRA’s written consent.
(3) A consent under subsection (2) is not a legislative instrument.
(4) If APRA considers that the person who gave the undertaking has contravened any of its terms, APRA may apply to the Federal Court for an order under subsection (5).
(5) If the Federal Court is satisfied that the person has contravened a term of the undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the contravention;
(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the contravention;
(d) any other order that the Court considers appropriate.
If APRA is satisfied that a private health insurer has contravened an enforceable obligation, APRA may apply to the Federal Court for a range of remedies. These may include a civil penalty order against an officer of the insurer who failed to take reasonable steps to prevent the contravention.
(1) If APRA is satisfied that a private health insurer has contravened an enforceable obligation, APRA may apply to the Federal Court for:
(a) a declaration of contravention (see section 155); and
(b) any one or more of the following orders:
(i) a civil penalty order (see section 156);
(ii) a compensation order (see section 157);
(iii) any other order that APRA considers to be appropriate to redress the contravention.
(2) The application must be made within 4 years of the alleged contravention.
(1) If, on application under section 154, the Federal Court is satisfied that a private health insurer has contravened an enforceable obligation, it must make a declaration of contravention.
Note: For relief from liability, see section 166.
(2) The declaration must specify:
(a) the enforceable obligation that was contravened; and
(b) the private health insurer that contravened the obligation; and
(c) the conduct that constituted the contravention; and
(d) if the Federal Court is satisfied that an officer of the private health insurer failed to take reasonable steps to prevent the insurer contravening the obligation—the officer.
(3) The declaration is conclusive evidence of the matters mentioned in subsection (2).
(1) If the Federal Court has made a declaration of contravention that specifies an officer of a private health insurer (see paragraph 155(2)(d)), the Court may order the officer to pay the Commonwealth a pecuniary penalty of up to 1,000 penalty units.
(2) An order under subsection (1) is a
civil penalty order .(3) The Federal Court must not make a civil penalty order if it is satisfied that a court has ordered the officer to pay damages in the nature of punitive damages in respect of:
(a) the contravention of the enforceable obligation; or
(b) the officer’s failure to take reasonable steps to prevent the insurer contravening the enforceable obligation.
(4) The pecuniary penalty is a civil debt payable to the Commonwealth.
(5) The Commonwealth may enforce the order as if it were an order made in civil proceedings against the officer to recover a debt due by the officer. The debt arising from the order is taken to be a judgment debt.
(1) If the Federal Court has made a declaration of contravention, the Court may order the private health insurer specified in the declaration to compensate an individual for any injury or loss suffered by the individual as a result of the contravention.
(2) The order must specify the amount of compensation.
(3) The order may be enforced as if it were a judgment of the Court.
(1) If the Federal Court has made a declaration of contravention, the Court may make any other order that APRA applies for.
(2) The order may be enforced as if it were a judgment of the Court.
The Federal Court must apply the rules of evidence and procedure for civil matters in proceedings under this Part.
Note: The standard of proof in civil proceedings is the balance of probabilities (see section 140 of the
Evidence Act 1995 ).
The Federal Court must not make a civil penalty order against an officer of a private health insurer if the officer has been convicted of an offence constituted by conduct that is substantially the same as the conduct to which the Court had regard in satisfying itself that the officer failed to take reasonable steps to prevent the insurer contravening the enforceable obligation.
(1) Proceedings for a civil penalty order against an officer of a private health insurer are stayed if:
(a) criminal proceedings are started or have already been started against the officer for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct to which the Federal Court had regard in satisfying itself that the officer failed to take reasonable steps to prevent the insurer contravening the enforceable obligation.
(2) The proceedings for the order may be resumed if the officer is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.
Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of an enforceable obligation regardless of whether:
(a) a declaration of contravention has been made that specifies the person; or
(b) an order has been made against the person under this Part.
Evidence of information given or evidence of production of documents by an officer of a private health insurer is not admissible in criminal proceedings against the officer if:
(a) the officer previously gave the evidence or produced the documents in proceedings for a civil penalty order against the officer (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct to which the Federal Court had regard in satisfying itself that the officer failed to take reasonable steps to prevent the insurer contravening the enforceable obligation.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the officer in the proceedings for the civil penalty order.
(1) A person commits an offence if:
(a) APRA requires, in writing, the person to give all reasonable assistance in connection with an application for:
(i) a declaration of contravention in relation to a private health insurer; or
(ii) a declaration of contravention that specifies an officer of a private health insurer; or
(iii) a civil penalty order in relation to an officer of a private health insurer; and
(b) the person fails to comply with the requirement.
Penalty: 5 penalty units.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the
Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.(2) A requirement under subsection (1) is not a legislative instrument.
(3) APRA may require a person to assist under subsection (1) only if:
(a) it appears to APRA that the person is unlikely to have:
(i) contravened the enforceable obligation to which the application relates; or
(ii) committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and
(b) APRA reasonably suspects or believes that the person can give information relevant to the application.
(4) APRA cannot require a person to assist under subsection (1) if the person is or has been a lawyer for the person suspected of contravening the enforceable obligation to which the application relates.
(5) The Federal Court may order a person to comply with a requirement under subsection (1) in a specified way. Only APRA may apply to the Court for an order under this subsection
. (6) For the purposes of this section, it does not matter whether the application mentioned in subsection (1) has actually been made.
Note: Subsection (1) does not abrogate or affect the law relating to legal professional privilege, or any other immunity, privilege or restriction that applies to the disclosure of information, documents or other things.
This Part deals with miscellaneous matters such as relief from liability in certain proceedings under this Act, annual publication of information relating to health benefits funds, review of decisions, approved forms and APRA rules.
(1) If:
(a) any of the following proceedings are before a court:
(i) proceedings seeking an order against a person under subsection 46(3) in respect of a loss;
(ii) proceedings seeking an order against a person under subsection 76(1) in respect of compensation;
(iii) proceedings seeking an order against a person for recovery of a loss under section 89;
(iv) proceedings seeking an order under Part 8 imposing a liability on a person in respect of a contravention of an enforceable obligation; and
(b) it appears to the court that the person has acted honestly, and having regard to all the circumstances of the case, ought fairly to be excused from liability for the loss or compensation, or from being liable under Part 8 in respect of the contravention;
the court may relieve the person, either wholly or partly, from liability for the loss or compensation, or from being liable under Part 8.
(2) A person who thinks that proceedings of a kind referred to in paragraph (1)(a) will or may be begun against the person may apply to the Federal Court for relief.
(3) On an application under subsection (2), the Federal Court may grant relief under subsection (1) as if the proceedings had been begun in the Court.
(4) For the purposes of subsection (1) as applying for the purposes of a case tried by a judge with a jury:
(a) a reference in that subsection to the court is a reference to the judge; and
(b) the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate.
(1) As soon as practicable after 30 September in each year, APRA must publish on its website the following information in respect of the operations, during the financial year ending on 30 June in that year, of each health benefits fund conducted by each private health insurer:
(a) premiums payable to the fund;
(b) other amounts payable to the fund;
(c) fund benefits payable out of the fund;
(d) management expenses;
(e) other amounts payable out of the fund;
(f) the balance of the fund at the end of that financial year;
(g) details of how the reserves of the fund have been invested;
(h) any other information required by APRA rules made for the purpose of this paragraph.
(2) APRA must not, under subsection (1), publish personal information relating to a person insured under a policy.
What decisions are reviewable?
(1) Each of the following decisions is a
reviewable decision .
1 | to refuse an application for registration as a private health insurer | section 15 |
2 | to grant an application, subject to terms and conditions, for registration as a private health insurer | section 15 |
3 | to refuse an application for approval for a private health insurer to convert to being registered as a for profit insurer | section 20 |
3A | to cancel the registration of a private health insurer | subsection 21(1A) |
4 | to refuse to approve the crediting of an amount to a health benefits fund of a private health insurer | subparagraph 27(3)(b)(ii) |
5 | to refuse to approve a restructure of the health benefits funds of a private health insurer | section 32 |
6 | to refuse to approve a transfer of the health benefits funds of one or more private health insurers | section 33 |
7 | to refuse to approve a termination of the health benefits funds of a private health insurer | section 37 |
8 | to make, vary or revoke a prudential standard referred to in paragraph 92(3)(c) | section 92 |
9 | to give a direction under section 96 on a ground specified in paragraph 96(1)(a), (b) or (c) | section 96 |
10 | to vary, or to refuse to vary or revoke, a direction that was given under section 96 on a ground specified in paragraph 96(1)(a), (b) or (c) | section 99 |
11 | to give a direction to terminate the appointment of a person as appointed actuary | section 115 |
Reconsideration of decision by APRA
(2) A person affected by a reviewable decision who is dissatisfied with the decision may request APRA to reconsider the decision.
(3) The request must:
(a) be made by written notice given to APRA within 21 days after the day on which the decision first comes to the notice of the person, or within such longer period as APRA determines in writing; and
(a) set out the reasons for making the request.
(4) Upon receiving the request, APRA must reconsider the decision and may confirm or revoke the decision, or vary the decision in a way that APRA considers appropriate.
(5) If APRA does not confirm, revoke or vary a decision within 21 days after the day on which APRA received the request, APRA is taken, at the end of that period, to have confirmed the decision under subsection (4).
(6) If APRA confirms, revokes or varies a decision before the end of the period referred to in subsection (5), APRA must, by notice served on the person who made the request:
(a) tell the person of the result of APRA’s reconsideration of the decision; and
(b) set out the findings on material questions of fact; and
(c) refer to the evidence or other material on which those findings were based; and
(d) give APRA’s reasons for confirming, revoking or varying the decision, as the case may be.
ART review of decision
(7) Applications may be made to the Administrative Review Tribunal for the review of decisions of APRA that have been confirmed or varied under subsection (4).
Operation and implementation of a decision that is subject to a request for reconsideration
(9) If a person makes a request under subsection (2) in respect of a reviewable decision, section 32 of the
Administrative Review Tribunal Act 2024 applies as if the making of the request were the making of an application to the Administrative Review Tribunal for review of that decision.(10) An order must not be made under subsection 32(2) of the
Administrative Review Tribunal Act 2024 in respect of a reviewable decision except by the Administrative Review Tribunal.
(1) If a reviewable decision is made and written notice of the decision is given to a person affected by the decision, the notice is to include a statement to the effect that:
(a) the person may, if dissatisfied with the decision, seek a reconsideration of the decision by APRA in accordance with subsection 168(2); and
(b) a person whose interests are affected by the decision may, subject to the
Administrative Review Tribunal Act 2024 , if dissatisfied with a decision made by APRA upon that reconsideration confirming or varying the first‑mentioned decision, apply to the Administrative Review Tribunal for a review of the decision so confirmed or varied.(2) If APRA confirms or varies a decision under subsection 168(4) and gives to a person written notice of the confirmation or variation of the decision, the notice is to include a statement to the effect that a person whose interests are affected by the decision may, subject to the
Administrative Review Tribunal Act 2024 , if dissatisfied with the decision so confirmed or varied, apply to the Administrative Review Tribunal for review of the decision.(3) A failure to comply with subsection (1) or (2) of this section in relation to a decision does not affect the validity of the decision.
If:
(a) a provision of this Act refers to an approval given, determination made or other act or thing done by APRA; and
(b) there is no other provision of this Act expressly authorising APRA to give the approval, make the determination or do the act or thing;
APRA is authorised to give the approval, make the determination or do the act or thing.
A provision of this Act conferring a power on the Federal Court does not affect any other power of the Court conferred by another provision of this Act or otherwise.
Approved forms
(1) A notice, statement, application or other document under this Act is in the
approved form if:
(a) it is in the form approved in writing by APRA for that kind of notice, statement, application or other document; and
(b) it contains the information that the form requires, and is accompanied by any other documentation that the form requires; and
(c) if the form requires the form to be signed by a person or persons—it is signed by the person or persons in accordance with any applicable requirements specified in the form; and
(d) the form is given in a manner that complies with any applicable requirements specified in the form.
(2) Requirements specified in a form referred to in paragraph (1)(c) or (d) may include requirements relating to the giving of forms by electronic means.
Note: For example, a form may include requirements relating to electronic signatures, or for the use of specified software.
(3) The approved forms must be publicly available on APRA’s website.
Other documents
(4) APRA rules may impose requirements relating to the manner in which other documents (being documents that are not required to be in an approved form) are to be given under this Act.
(5) Requirements specified in APRA rules referred to in subsection (4) may include requirements relating to the giving of documents by electronic means.
Note: For example, APRA rules may include requirements relating to the use of specified software.
The Minister may, in writing, delegate all or any of his or her functions or powers under this Act to an SES employee, or an acting SES employee, in the Department.
(1) APRA may, by legislative instrument (and subject to subsection (3)), make rules (
APRA rules ) prescribing matters:
(a) required or permitted by this Act to be prescribed by APRA rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) APRA rules may provide for APRA to exercise powers and discretions under the rules.
(3) To avoid doubt, APRA rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
(4) APRA may, under section 15 of the
Australian Prudential Regulation Authority Act 1998 , delegate the power to make, vary or revoke APRA rules, but only if the delegation is to:
(a) an APRA member (within the meaning of that Act); or
(b) an APRA staff member who is an executive general manager or equivalent.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
The
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the
If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
ad = added or inserted | o = order(s) |
am = amended | Ord = Ordinance |
amdt = amendment | orig = original |
c = clause(s) | par = paragraph(s)/subparagraph(s) |
C[x] = Compilation No. x | /sub‑subparagraph(s) |
Ch = Chapter(s) | pres = present |
def = definition(s) | prev = previous |
Dict = Dictionary | (prev…) = previously |
disallowed = disallowed by Parliament | Pt = Part(s) |
Div = Division(s) | r = regulation(s)/rule(s) |
ed = editorial change | reloc = relocated |
exp = expires/expired or ceases/ceased to have | renum = renumbered |
effect | rep = repealed |
F = Federal Register of Legislation | rs = repealed and substituted |
gaz = gazette | s = section(s)/subsection(s) |
LA = | Sch = Schedule(s) |
LIA = | Sdiv = Subdivision(s) |
(md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
effect | SR = Statutory Rules |
(md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
cannot be given effect | SubPt = Subpart(s) |
mod = modified/modification | |
No. = Number(s) | commenced or to be commenced |
Private Health Insurance (Prudential Supervision) Act 2015 | 85, 2015 | 26 June 2015 | 1 July 2015 (s 2(1) item 1) | |
Private Health Insurance (Prudential Supervision) (Consequential Amendments and Transitional Provisions) Act 2015 | 87, 2015 | 26 June 2015 | Sch 1 (item 181): 1 July 2016 (s 2(1) item 6) Sch 1 (item 182): 5 Mar 2016 (s 2(1) item 7) Sch 2: 27 June 2015 (s 2(1) item 9) | Sch 2 |
Insolvency Law Reform Act 2016 | 11, 2016 | 29 Feb 2016 | Sch 2 (items 308–312) and Sch 3 (item 4): 1 Mar 2017 (s 2(1) items 7, 8) | — |
Financial System Legislation Amendment (Resilience and Collateral Protection) Act 2016 | 43, 2016 | 4 May 2016 | Sch 1 (items 47, 48): 1 June 2016 (s 2(1) item 2) | Sch 1 (item 48) |
Private Health Insurance Legislation Amendment (Age of Dependants) Act 2021 | 60, 2021 | 29 June 2021 | Sch 1 (items 23–25): 1 Apr 2021 (s 2(1) item 1) | — |
Financial Accountability Regime (Consequential Amendments) Act 2023 | 68, 2023 | 14 Sept 2023 | Sch 1 (items 74–84) and Sch 2 (items 1, 27): 15 Sept 2023 (s 2(1) items 2, 4) | Sch 2 (items 1, 27) |
Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 | 69, 2023 | 14 Sept 2023 | Sch 1 (items 131–134): 1 Jan 2024 (s 2(1) item 3) | — |
Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 | 39, 2024 | 31 May 2024 | Sch 14 (items 54–61): 14 Oct 2024 (s 2(1) item 2) | — |
Administrative Review Tribunal (Miscellaneous Measures) Act 2025 | 14, 2025 | 20 Feb 2025 | Sch 2 (item 32): 21 Feb 2025 (s 2(1) item 2) | — |
s 4............................................. | am No 60, 2021 |
s 5A........................................... | ad No 87, 2015 |
s 15............................................ | am No 60, 2021 |
s 20............................................ | am No 69, 2023 |
s 21............................................ | am No 68, 2023 |
s 40............................................ | am No 69, 2023 |
s 50............................................ | am No 11, 2016 |
s 51............................................ | am No 11, 2016 |
s 65............................................ | am No 11, 2016 |
s 75............................................ | am No 69, 2023 |
s 84............................................ | am No 68, 2023 |
s 92............................................ | am No 87, 2015 |
s 101.......................................... | am No 43, 2016 |
s 107.......................................... | am No 68, 2023 |
s 110.......................................... | am No 68, 2023 |
s 111.......................................... | am No 68, 2023 |
s 112.......................................... | am No 68, 2023 |
s 113.......................................... | am No 68, 2023 |
s 122.......................................... | am No 39, 2024 |
s 119.......................................... | am No 68, 2023 |
s 120.......................................... | am No 68, 2023 |
s 168.......................................... | am No 68, 2023; No 39, 2024; No 14, 2025 |
s 169.......................................... | am No 39, 2024 |
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