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Contents (1987 - 70)
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Workers Compensation Act 1987 No 70
Current version for 25 March 2020 to date (accessed 5 April 2020 at 08:00)
Part 7 Division 3
Division 3 Licensing of insurers
176   (Repealed)
177   Applications for licences
(cf former ss 27 (1), 30C (3))
(1)  An application for a licence under this Division may be made to the Authority by—
(a)  any corporation incorporated in New South Wales, or
(b)  any body corporate (subject to the regulations) if the application is conditional on the licence being endorsed with a specialised insurer endorsement.
(2)  An application shall be in such form and accompanied by such documents—
(a)  as may be prescribed by the regulations, and
(b)  subject to any such regulations, as may be determined by the Authority.
(3)  Without affecting the generality of subsection (2), the form of application may require particulars of—
(a)  the places at which the business of the applicant is to be carried on, and
(b)  in the case of an applicant that is a company—the shareholders, directors and secretary of the company.
(4)  The Authority may, before determining an application for a licence, require the applicant to advertise or give other notice of the application.
(5)  An application is to be accompanied by such fee (if any) as is prescribed by the regulations or (subject to the regulations) as is determined by the Authority. Any such fee is to be paid into the Workers Compensation Operational Fund.
177A   Special provisions for specialised insurers
(1)  An application for a licence under this Division may be made conditional on the licence being endorsed with a specialised insurer endorsement.
(2)  The Authority may endorse the licence with a specialised insurer endorsement but only if the Authority is satisfied that the insurance business to be carried on pursuant to the licence will be limited to a particular industry or class of business or employer, and that—
(a)  the applicant is eligible for such an endorsement (as provided by this section), or
(b)  the applicant will issue policies only in respect of domestic or similar workers.
(3)  An applicant for a licence under this Division is eligible for a specialised insurer endorsement if the Authority is satisfied—
(a)  that the insurance business to be carried on pursuant to the licence will not have an adverse effect on the efficiency of the workers compensation scheme under this Act generally, and
(b)  that the application is supported by relevant professional, business and other industry bodies involved in the particular industry or class of business or employer concerned, and
(c)  that the applicant is authorised under section 12 of the Insurance Act 1973 of the Commonwealth to carry on insurance business in Australia (or does not require such an authorisation to lawfully carry on the insurance business to be carried on pursuant to the licence), and
(d)  as to such other matters as the Authority considers relevant.
(4)  The Authority may by notice in writing to a licensed insurer withdraw a specialised insurer endorsement that the licence is endorsed with if the Authority is of the opinion that the Authority would not be authorised (on an application for a licence by the insurer) to endorse the licence with a specialised insurer endorsement.
(5)  The withdrawal of a specialised insurer endorsement is grounds for the suspension or cancellation of the relevant licence under this Division.
178   Determination of application for licence
(cf former s 27 (1))
(1)  The Authority shall consider each application for a licence under this Division and may, in its discretion—
(a)  grant a licence to the applicant, or
(b)  refuse the application.
(2)  The Authority may, in determining an application for a licence, take into consideration—
(a)  the suitability of the applicant,
(b)  in the case of a corporation—
(i)  the paid up share capital of the applicant, and
(ii)  the memorandum and articles of association of the applicant,
(c)  the orderly run-off of claims for compensation under the former Act,
(d)  the efficiency of the workers compensation system generally, and
(e)  such other matters as the Authority thinks fit.
(3)  For the purposes of subsection (2) (b), the Authority may approve of a model memorandum and articles of association for corporations applying for a licence.
(4)  Without affecting the generality of subsection (1), the Authority may refuse an application for a licence from a corporation that is authorised by its memorandum and articles of association to carry on any business other than workers compensation business in New South Wales.
(5)  Without affecting the generality of subsection (1), the Authority may refuse an application for a licence from a corporation that is related to other corporations (within the meaning of the Corporations Act 2001 of the Commonwealth)—
(a)  where any of those other corporations was previously licensed under section 27 of the former Act—if the directors of the applicant corporation do not include the directors of that other corporation, or
(b)  where none of those other corporations was previously so licensed—if the directors of the applicant corporation do not include the directors of a related corporation that controls the composition of the board of directors of the applicant corporation.
179   Offence—unlicensed insurers
(cf former ss 30D, 30E)
(1)  A person (other than a licensed insurer) shall not issue or renew policies of insurance.
Maximum penalty—100 penalty units.
(2)  A contravention of subsection (1), or of a condition to which a licence is subject under this Division, does not annul a policy of insurance issued or renewed by an insurer or affect the liability of the insurer to the person insured under the policy.
180   Duration of licences
(cf former s 27 (1))
(1)  A licence granted under this Division continues in force until—
(a)  the expiration of the period (if any) specified in the licence during which it is to be in force, or
(b)  the licence is, pursuant to this Division, cancelled,
whichever first occurs.
(2)  A licence is not in force while it is suspended pursuant to this Division.
181   Conditions of licences
(cf former ss 27 (1) and 29C)
(1)  A licence granted to an insurer under this Division is subject to—
(a)  such conditions as may be prescribed by this Act or the regulations, and
(b)  such conditions (not inconsistent with this Act or the regulations) as may be imposed by the Authority—
(i)  on the granting of the licence, or
(ii)  at any time during the currency of the licence.
(2)  The Authority may, by notice served on a licensed insurer, impose conditions (or further conditions) to which the licence is to be subject or vary any conditions imposed on the licence by the Authority.
(3)  A condition to which a licence is subject has effect whether or not it is endorsed on the licence.
(4)  A licensed insurer shall comply with any condition to which the licence is subject.
Maximum penalty—100 penalty units.
(5)    (Repealed)
182   Matters that may be regulated by conditions of licences
(1)  Without limiting the generality of section 181, the conditions to which a licence granted under this Division may be subject include conditions for or with respect to—
(a)  requiring the licensed insurer to undertake a specified amount of workers compensation insurance or of workers compensation insurance of a specified kind,
(b)  preventing an insurer from undertaking more than a specified amount of workers compensation insurance or of workers compensation insurance of a specified kind, or
(c)  requiring a charge or other security to be taken by the Authority in respect of the assets of an insurer, or otherwise requiring the insurer to provide security, for the purpose of securing the payment of the insurer’s liabilities (including contingent liabilities) for the payment of compensation under this Act.
(2)  Conditions may be imposed on a licence—
(a)  for the purpose of promoting an equitable distribution of high risk insurance business among licensed insurers,
(b)  for the purpose of ensuring compliance with the obligations of the licensed insurer,
(c)  for the purpose of preserving premiums paid for policies of insurance,
(d)  for the purpose of the efficiency of the workers compensation system generally, or
(e)  for any other purpose of the same or of a different kind or nature that is not inconsistent with this Act.
(3)  An amount of workers compensation insurance may be prescribed in a condition of a licence by specifying a level of premium income or in any other manner.
183   Cancellation or suspension of licences
(cf former ss 29–29C)
(1)  The Authority may cancel or suspend a licence granted under this Division by notice served on the licensed insurer.
(2)  The Authority may cancel or suspend a licence for any reason it thinks fit and is not required to give the reasons for its decision.
(3)  Without affecting the generality of subsection (2), the Authority may cancel or suspend a licence for reasons that relate to the workers compensation system generally, whether or not the reasons relate to the efficiency and conduct of the licensed insurer.
(4)  The Authority shall, as far as practicable, give a licensed insurer whose licence it proposes to cancel or suspend an opportunity to make representations on the matter.
(5)    (Repealed)
(6)  A licence surrendered by a licensed insurer is cancelled if and when the Authority approves of the surrender.
183A   Imposition of civil penalty on or censure of licensed insurer or self-insurer
(1)  If the Authority is satisfied that a person who is or was a licensed insurer or self-insurer has contravened its licence or this Act or the regulations, the Authority may—
(a)  impose a civil penalty on the person not exceeding $50,000, or
(b)  issue a letter of censure to the person.
(2)  Before imposing a civil penalty, the Authority is required to give the person concerned an opportunity to make written submissions with respect to the alleged contravention, but is not required to conduct a hearing into the matter.
(3)  A civil penalty that has been imposed under this section may be recovered by the Authority in a court of competent jurisdiction as a debt due to the Crown.
(4)    (Repealed)
(5)  The Authority may cause a letter of censure issued by it under this section to be published.
(6)  A civil penalty that is paid or recovered is payable into the Workers Compensation Operational Fund.
(7)    (Repealed)
184   Cancellation of policies following cancellation or suspension of insurer’s licence
(cf former s 30F)
(1)  In this section—
insurer means a former licensed insurer.
period means, in relation to a policy of insurance—
(a)  the period in respect of which the insurer has by the terms of the policy, or
(b)  if the policy has been renewed, the further period in respect of which the insurer has, by the terms of the renewal,
accepted liability to indemnify, in respect of any matters, the employer who obtained the policy.
prescribed day means the day on which the licence of the insurer ceases to be in force.
(2)  This section applies where the licence of an insurer ceases to be in force.
(3)  In any case where this section applies, the employer who obtained a policy of insurance may, by notice in writing given on or after the prescribed day to the insurer from whom the employer obtained the policy, cancel the policy as from a date and time specified in the notice.
(4)  In any case where this section applies, the insurer who issued a policy of insurance shall, within 14 days after the prescribed day, post to the employer who obtained the policy, at the address of the employer last known to the insurer, a notice of cancellation of the policy.
Maximum penalty—20 penalty units.
(5)  Such a notice of cancellation by the insurer must state that the cancellation of the policy of insurance will take effect at 4 pm on a date specified in the notice (being a date that is the twenty-eighth day after the day on which the notice is posted), and the effect of the notice is to cancel the policy accordingly.
(6)  The Authority may, by notice to an insurer, or by order, and in relation to all the policies or any policies or classes of policies issued by the insurer, shorten or extend the time prescribed by subsection (4) or advance or defer the date to be stated in a notice pursuant to subsection (5), or both.
(7)  The power conferred by subsection (6) to extend a time prescribed by subsection (4) may be exercised before or after that time has expired.
(8)  In any case where this section applies, the Authority may, by notice to the insurer and employer, cancel a policy of insurance as from a date and time specified in the notice.
(9)  The premium for the issue or renewal of a policy of insurance cancelled under this section shall, notwithstanding any agreement to the contrary, be reduced in the proportion which so much of the period of the policy as is after the day on which the cancellation has effect bears to the whole period of the policy.
(10)  If an employer has paid to an insurer by way of premium for the issue or renewal of a policy of insurance a greater amount than the reduced premium referred to in subsection (9), the insurer shall forthwith repay the excess amount to the employer.
Maximum penalty—20 penalty units.
(11)  An employer may recover in a court of competent jurisdiction as a debt any amount which is required by subsection (10) to be repaid to the employer.
(12)  An insurer shall, if so required in writing by the Authority, supply to the Authority in writing and within a time specified by the Authority such particulars as the Authority may require in respect of—
(a)  policies of insurance issued by the insurer, the periods of which were current at the time that the insurer’s licence ceased to be in force, and
(b)  the employers to whom the policies were issued.
Maximum penalty—20 penalty units.
(13)  The effect of the cancellation of a policy of insurance under this section is to terminate the period of the policy but, subject to this section, without affecting any right, obligation or liability acquired, accrued or incurred under the policy in respect of that period before its termination.
(14)  This section does not apply to any policies of insurance assigned to another insurer under section 185.
185   Assignment of policies of former insurers etc
(1)  In this section—
former insurer means a former licensed insurer whose licence has ceased to be in force by cancellation, suspension or the expiry of the term of the licence.
(2)  The Authority may assign all or any class of policies of insurance of a former insurer to a licensed insurer nominated by the Authority.
(3)  Policies of insurance may be assigned under this section by notice served by the Authority on the former insurer concerned.
(4)–(6)    (Repealed)
(7)  An assignment of an insurance policy under this section—
(a)  transfers the rights, obligations and liabilities under the policy of the former insurer to the licensed insurer to which the policy is assigned, and
(b)  does not otherwise affect the rights, obligations or liabilities acquired, accrued or incurred under the policy.
(8)  For the purposes of this Act, any such assigned policy is to be taken to have been issued or renewed by the licensed insurer to which it is assigned.
(9)  If an insurance policy is assigned under this section, the former insurer concerned must, subject to any directions of the Authority, provide the licensed insurer to which the policy is assigned with—
(a)  copies of all documents relating to the policy or to claims under it, and
(b)    (Repealed)
Maximum penalty—20 penalty units.
186   Records and evidence relating to licences
(cf former s 30C (1), (2))
(1)  The Authority shall keep records in relation to all licences granted by the Authority under this Division, including particulars of—
(a)  the granting, refusal, duration, conditions, cancellation and suspension of licences, and
(b)  such other matters relating to licences as the Authority thinks fit.
(2)  A certificate executed by the Authority and certifying that on any date or during any period specified in the certificate the particulars set forth in the certificate as to any of the matters referred to in subsection (1) did or did not appear on or from the records is (without proof of its execution by the Authority and without the production of any record or document on which the certificate is founded) admissible in any proceedings and is evidence of the particulars certified in and by the certificate.
187   Liabilities on Commonwealth insurers—special condition
(1)  In this section—
Commonwealth insurer means a company authorised to carry on insurance business under the Insurance Act 1973 of the Commonwealth or a company registered under the Life Insurance Act 1945 of the Commonwealth.
licensed insurer includes an insurer formerly licensed under this Division.
(2)  It is a condition of a licence granted under this Division that the licensed insurer will not, without the approval of the Authority and the concurrence of the Treasurer of the Commonwealth, enter into a contract or arrangement whereby a Commonwealth insurer is or may become liable to pay any money to or on behalf of the licensed insurer.
(3)  A contract or an arrangement is not invalid merely because it has been entered into in contravention of subsection (2).
(4)  The Supreme Court may, on the application of the Authority or the Treasurer of the Commonwealth, declare invalid a contract or arrangement entered into in contravention of subsection (2) if satisfied that the declaration will not prejudice the rights arising out of the contract or arrangement of any person who entered into the contract or arrangement in good faith and without knowledge of the contravention.
(5)    (Repealed)
188   (Repealed)
189   Information and records as to business etc to be supplied to Authority by insurers
(cf former ss 28, 30B)
(1)  In this section—
insurer means a licensed insurer, a former licensed insurer, a self-insurer or a former self-insurer, and includes a scheme agent.
(2)  The Authority may require an insurer—
(a)  to disclose to the Authority specified information relating to the business and financial position of the insurer or of any corporation which is a related corporation, or
(b)  to forward to the Authority, or make available for inspection, specified records, or copies or extracts from specified records, kept by the insurer or by any corporation which is a related corporation.
(3)  A requirement under this section—
(a)  shall be made in writing and served on the insurer, and
(b)  shall specify the manner in which and the time within which the requirement is to be complied with.
(4)  The manner in which a requirement is to be complied with may include the supply to the Authority of a certificate by a registered tax agent, a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth) or an actuary approved by the Authority as to the correctness of any specified information or specified records (or copies of or extracts from specified records).
(5)  Unless the insurer satisfies the court that it is not within its power to comply with the requirement, an insurer who fails to comply with the requirement is guilty of an offence and liable to a penalty not exceeding 100 penalty units.
190   Notification to Authority of certain defaults in relation to insurers
(cf former s 28 (1) (b))
(1)  In this section—
insurer means a licensed insurer, a former licensed insurer, a self-insurer or a scheme agent.
(2)  An insurer (being a corporation) shall notify the Authority in writing of any of the following events or things within 21 days after the event or thing happens (whether within or outside the State)—
(a)  any default by the licensee or a related corporation in the payment of principal or interest under any debenture issued by the licensee or corporation,
(b)  the appointment of a liquidator, receiver or manager of the property of the licensee or a related corporation,
(c)  that the licensee or a related corporation has resolved by special resolution that it be wound up voluntarily or by a court,
(d)  that a person claiming to be a creditor by assignment or otherwise of the licensee or a related corporation for a sum exceeding $1,000 then due has served on the licensee or corporation by leaving at its registered office a demand requiring the licensee or corporation to pay the sum so claimed to be due, and the licensee or corporation has for 3 weeks thereafter failed to pay the sum or to secure or compound for it to the satisfaction of the person claiming to be a creditor,
(e)  the return unsatisfied in whole or part of execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the licensee or a related corporation,
(f)  the receipt by the licensee or a related corporation or the giving, or causing to be given, by the licensee or corporation, of any bidder’s statement or target’s statement within the meaning of the Corporations Act 2001 of the Commonwealth,
(g)  the making of an order by any court for the winding-up of the licensee or a related corporation,
(h)  the receipt by the licensee or a related corporation of any notice of an application for an order by any court for the winding-up of the licensee or corporation.
Maximum penalty—100 penalty units.
191   Power of Supreme Court to deal with insurers or former insurers unable to meet liabilities etc
(1)  The Supreme Court may, on the application of the Authority, make such orders as the Supreme Court considers necessary or desirable for the purpose of protecting the interests of—
(a)  the holders of policies of insurance issued or renewed by a licensed insurer or a former licensed insurer (whether before or after the commencement of this section), and
(b)  the workers to whom those policies apply.
(2)  The Supreme Court may make such an order if it is satisfied that the licensed insurer or former licensed insurer—
(a)  is not able to meet the insurer’s liabilities under the policies of insurance or may not be able to do so, or
(b)  has acted or may act in a manner that is prejudicial to the interests of the holders of the policies of insurance or the workers to whom those policies apply.
(3)  Without limiting the generality of subsection (1), the Supreme Court may make the following orders—
(a)  an order regulating the administration and payment of claims under the policies of insurance,
(b)  an order prohibiting or regulating the transfer or disposal of, or other dealing in, the assets of the licensed insurer or former licensed insurer,
(c)  if the licensed insurer or former licensed insurer is a corporation—an order requiring it to discharge its liabilities under the policies of insurance out of the assets of the corporation and the assets of any related corporation,
(d)  if the licensed insurer or former licensed insurer is a corporation—an order appointing a receiver or receiver and manager, having such powers as the Supreme Court orders, of the property or of part of the property of the corporation or of any related corporation.
(4)  If an application is made to the Supreme Court for an order under subsection (1), the Supreme Court may, if in its opinion it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.
(5)  If an application is made to the Supreme Court for an order under subsection (1), the Supreme Court shall not require the Authority or any other person, as a condition of granting an interim order, to give any undertaking as to damages.
(6)  If the Supreme Court has made an order under this section, the Supreme Court may, on application by the Authority or by any person affected by the order, make a further order rescinding or varying the firstmentioned order.
(7)  A person shall not contravene, whether by act or omission, an order made by the Supreme Court under this section that is applicable to the person.
Maximum penalty—20 penalty units or imprisonment for 6 months, or both.
(8)  The Supreme Court shall not exercise its powers under this section in respect of a corporation which is in the course of being wound up.
(9)  The powers of the Supreme Court under this section are in addition to any other powers of the Supreme Court.
(10)    (Repealed)
192   Exclusion of insurance brokers, agents or intermediaries
(cf former s 18 (9A))
(1A)  A reference—
(a)  in this section to a licensed insurer includes a reference to a scheme agent, and
(b)  in subsections (1)–(3) to an agent does not include a reference to a scheme agent.
(1)  A licensed insurer shall not pay any amount by way of commission or other remuneration to an insurance broker, agent or intermediary in relation to the issue or renewal of a policy of insurance.
(2)  A licensed insurer shall send any cover note, policy of insurance or renewal notice (or any notice under any policy of insurance) direct to the employer concerned and not to an insurance broker, agent or intermediary.
(3)  An employer shall pay any premium under a policy of insurance direct to the licensed insurer and not to an insurance broker, agent or intermediary.
(4)  This section does not apply in any case specified in the regulations or approved by the Authority.
(5)  This section does not apply to a specialised insurer.
Maximum penalty—200 penalty units.
192A   Claims administration manual
(cf former s 93B)
(1)  The Authority may prepare and publish a claims manual for use by licensed insurers under this Division.
(2)  In preparing the claims manual, the Authority is required to promote, as far as practicable—
(a)  the prompt processing of claims and payment of amounts duly claimed, and
(b)  the giving of information about workers’ entitlements and about procedures for the making of claims and the resolution of disputes, and
(c)  the minimisation of the effect of injuries to workers by the making of prompt arrangements for rehabilitation, and
(d)  the proper investigation of liability for claims, and
(e)  the recovery of proper contributions in connection with claims from other insurers or persons.
(3)  The claims manual may make provision (not inconsistent with this Act, the 1998 Act or the regulations under those Acts) in connection with all matters relating to the administration of claims, including—
(a)  liaison between insurers and employers concerning rehabilitation assessment of injured workers, and
(b)  the provision or arrangement of suitable employment or rehabilitation training for partially incapacitated workers, and
(c)  the monitoring of employment-seeking activities or rehabilitation training by partially incapacitated workers, and
(d)  arrangements for the settlement of claims for damages, and
(e)  procedures to be followed before a claim is made, such as procedures in connection with early notification of injury and provisional acceptance of liability.
(3A)  The Workers Compensation Guidelines under the 1998 Act can make provision in connection with any matter in connection with which the claims manual can make provision.
(4)  The Authority may give an insurer directions as to the procedure to be followed in the administration of any claim or class of claims in order to comply with the claims manual, the Workers Compensation Guidelines, the 1998 Act and this Act.
(4A)  An insurer who fails to comply with a direction under subsection (4) is guilty of an offence.
Maximum penalty—50 penalty units.
(5)  It is a condition of the licence of an insurer under this Division that the insurer comply with any direction given to the insurer under this section.
(6)  Any claims manual in force under section 93B, immediately before its repeal, is taken to have been prepared and published under this section.