In brief - General insurers should consider possible impact of committee's recommendations on claims handling processes
The Parliamentary Join Committee on Corporations and Financial Services released its report on 27 March 2018. While principally dealing with life insurance, it has made some recommendations that will, if implemented, cause significant changes in how general insurers manage claims.
Recommendations may affect section 15 of Insurance Contracts Act and Corporations Regulation 7.1.33
The Committee expressed dissatisfaction with the exemption of life insurance contracts from the general consumer protection regime for non-financial services and notes that section 15
of the Insurance Contracts Act 1984
is "no longer credible".
Section 15 provides:
(1) A contract of insurance is not capable of being made the subject of relief under:
(a) any other Act; or
(b) a State Act; or
(c) an Act or Ordinance of a Territory.
"Relief" is defined in subsection 2.
Of note is that the Committee considers that general insurance should also be brought into the general consumer protection regime in Australia.
It seems that the safe harbour for insurers created by section 15 of the Insurance Contracts Act has a limited life.
The Committee also recommended that the government review Corporations Regulation 7.1.33
to consider whether the exemption of insurance claims handling processes should continue.
Regulation 7.1.33 provides that a recommendation or statement of opinion provided in the course of, and as a necessary or incidental part of the handling or settlement of claims or potential claims in relation to an insurance product is a circumstance in which a person is taken not to provide a financial service within the meaning of section 766A(1)(a)
of the Corporations Act 2001
Significantly, the Committee noted that voluntary codes of conduct are generally ineffective in terms of consumer protection.
The effect of the recommendations (if enacted) will mean that general insurers will be met with a whole range of allegations if they decline indemnity, or only partially grant indemnity, including:
may seek to use the proposed product design and intervention powers if there are product-specific issues relating to policies, including loss ratios that are considered to be too low as to provide good value.
The removal of the exemption for claims handling would mean that general insurers would be liable to ASIC information and document gathering powers, reporting in respect of claims handling, and (importantly) sanctions below the licence conditions level.
What should general insurers do?
General insurers should monitor the response to the Committee's recommendations, even though the Committee deals primarily with life insurance. They should consider reviewing claims handling manuals and protocols now.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.