New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
NSW Self Insurance Corporation
Amendment (Home Warranty
Insurance) Bill 2010
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are:
(a) to amend the NSW Self Insurance Corporation Act 2004 to enable the NSW
Self Insurance Corporation (SICORP) to be the sole provider of home
warranty insurance required for certain building work under the Home
Building Act 1989, and
(b) to make consequential amendments to the Home Building Act 1989.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.
b2010-018-94.d12
NSW Self Insurance Corporation Amendment (Home Warranty Insurance) Bill 2010
Explanatory note
Schedule 1 Amendment of NSW Self Insurance
Corporation Act 2004 No 106
Home warranty insurance functions of SICORP
Schedule 1 [4] inserts proposed sections 8A and 8B in the NSW Self Insurance
Corporation Act 2004.
Proposed section 8A provides for the functions of SICORP in connection with the
provision of home warranty insurance for the purposes of Part 6 of the Home
Building Act 1989. The proposed section also enables SICORP to engage insurance
agents to assist in providing home warranty insurance.
Proposed section 8B specifically authorises, for the purposes of Part IV of the Trade
Practices Act 1974 of the Commonwealth and the Competition Code of New South
Wales, certain matters in connection with the provision of home warranty insurance
by or on behalf of SICORP.
Schedule 1 [12] amends section 13 of the NSW Self Insurance Corporation Act 2004
to enable the Governor to make regulations for or with respect to certain matters
concerning insurance agents and brokers and other intermediaries used by such
agents and the conduct of building management service providers who provide
services to builders whose work is insured by SICORP.
Schedule 1 [1] and [3] amend section 3 of the NSW Self Insurance Corporation Act
2004 to insert definitions of certain new terms and expressions and to provide that
the new notes to be included in the Act do not form part of the Act.
Home Warranty Insurance Fund
Schedule 1 [11] inserts a proposed Division in Part 4 of the NSW Self Insurance
Corporation Act 2004 to provide for the establishment of a Home Warranty
Insurance Fund in the Special Deposits Account and the use and investment of
money deposited in the Fund.
The Fund will be managed by SICORP and all money paid to or recovered by
SICORP in connection with its home warranty insurance business will be paid into
the Fund. The Fund will be used to finance the home warranty insurance business of
SICORP.
Schedule 1 [2] and [5]-[10] make amendments to the NSW Self Insurance
Corporation Act 2004 that are consequential on the insertion of the proposed
Division and the establishment of the Fund.
Savings and transitional provisions
Schedule 1 [13] amends clause 1 of Schedule 1 to the NSW Self Insurance
Corporation Act 2004 to enable the Governor to make regulations of a savings or
transitional nature consequent on the enactment of the amendments to the Act that
are made by the proposed Act.
Explanatory note page 2
NSW Self Insurance Corporation Amendment (Home Warranty Insurance) Bill 2010
Explanatory note
Schedule 1 [14] inserts proposed Part 3 in Schedule 1 to the NSW Self Insurance
Corporation Act 2004. The proposed Part provides for certain contracts, agreements
and other arrangements entered into by the Minister in anticipation of SICORP
acquiring its home warranty insurance functions to become binding on SICORP once
it acquires those functions.
Schedule 2 Amendment of Home Building Act 1989
No 147
SICORP to be sole home warranty insurance provider
Schedule 2 [5] amends section 102 of the Home Building Act 1989 to provide for
home warranty insurance required under Part 6 of that Act to be provided by SICORP
instead of insurers approved by the Minister administering that Act (as is currently
the case). Schedule 2 [1], [3] and [6]-[10] make consequential amendments to that
Act.
Schedule 2 [4] inserts proposed section 91A in the Home Building Act 1989 to enable
the Minister to issue guidelines with respect to appropriate market practices or claims
handling procedures (or both) in connection with the provision of home warranty
insurance by or on behalf of SICORP. Schedule 2 [2] makes a consequential
amendment to section 89G of the Act.
Savings and transitional provisions
Schedule 2 [11] amends clause 2 of Schedule 4 to the Home Building Act 1989 to
enable the Governor to make regulations of a savings or transitional nature
consequent on the enactment of the amendments to the Act that are made by the
proposed Act.
Schedule 2 [12] inserts proposed Part 17 in Schedule 4 to the Home Building Act
1989. The proposed Part contains provisions of a savings or transitional nature
consequent on amendments made to the Act by the proposed Act. In particular, the
proposed Part provides for:
(a) SICORP to become the only insurer authorised to issue new home warranty
insurance in respect of residential building work or owner-builder work done
in New South Wales on and from the day on which Schedule 2 [5] to the
proposed Act commences (the new scheme day), and
(b) any existing approved insurers to cease to be authorised to issue new home
warranty insurance on and from the new scheme day, and
(c) certain obligations of existing or former approved insurers concerning the
provision of information and compliance with the insurance industry deed to
which they were a party to be continued in effect in relation to contracts of
insurance entered into before the new scheme day.
Explanatory note page 3
First print
New South Wales
NSW Self Insurance Corporation
Amendment (Home Warranty
Insurance) Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of NSW Self Insurance Corporation Act
2004 No 106 3
Schedule 2 Amendment of Home Building Act 1989 No 147 13
b2010-018-94.d12
New South Wales
NSW Self Insurance Corporation
Amendment (Home Warranty
Insurance) Bill 2010
No , 2010
A Bill for
An Act to amend the NSW Self Insurance Corporation Act 2004 to provide for the
NSW Self Insurance Corporation to be the sole home warranty insurer for the State;
and to make consequential amendments to the Home Building Act 1989.
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Clause 1 Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the NSW Self Insurance Corporation Amendment (Home 3
Warranty Insurance) Act 2010. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
Page 2
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Amendment of NSW Self Insurance Corporation Act 2004 No 106 Schedule 1
Schedule 1 Amendment of NSW Self Insurance 1
Corporation Act 2004 No 106 2
[1] Section 3 Definitions 3
Insert in alphabetical order: 4
builder means a person who carries on the business of doing 5
residential building work. 6
building management service provider means a person who 7
provides builders with advice and other services concerning the 8
management of builders' businesses (such as the management of 9
financial risks). 10
home warranty insurance means insurance under a contract of 11
insurance required to be entered into by or under Part 6 of the 12
Home Building Act 1989. 13
Home Warranty Insurance Fund means the Fund established 14
under section 12A. 15
insurance agency arrangement--see section 8A (4). 16
insurance agent--see section 8A (4). 17
insurance intermediary means an insurance broker or other 18
person who enters into a contract, agreement or other 19
arrangement with an insurance agent in connection with the 20
provision of home warranty insurance by or on behalf of the Self 21
Insurance Corporation. 22
residential building work has the same meaning as in the Home 23
Building Act 1989. 24
Self Insurance Fund means the Fund established under 25
section 11. 26
[2] Section 3, definition of "Government managed fund scheme" 27
Omit paragraph (b). Insert instead: 28
(b) are paid, or otherwise settled, by the State or by the Self 29
Insurance Corporation on behalf of the State or an 30
authority of the State, 31
but does not include any arrangement under which home 32
warranty insurance is provided (or the Home Warranty Insurance 33
Fund is managed) by or on behalf of the Self Insurance 34
Corporation. 35
[3] Section 3 (2) 36
Insert at the end of section 3: 37
(2) Notes included in this Act do not form part of this Act. 38
Page 3
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Schedule 1 Amendment of NSW Self Insurance Corporation Act 2004 No 106
[4] Sections 8A and 8B 1
Insert after section 8: 2
8A Specific functions in relation to home warranty insurance 3
(1) General functions 4
The Self Insurance Corporation has the following functions with 5
respect to home warranty insurance: 6
(a) to carry on the business of providing home warranty 7
insurance for building work done in New South Wales that 8
requires such insurance under the Home Building Act 9
1989, 10
(b) to manage the Home Warranty Insurance Fund, 11
(c) to enter into contracts, agreements or other arrangements 12
with building management service providers and other 13
persons (including re-insurers) for services relating to the 14
exercise of the Corporation's functions in connection with 15
the provision of home warranty insurance and the 16
management of the Home Warranty Insurance Fund. 17
Note. See section 50 of the Interpretation Act 1987 concerning the 18
powers of statutory corporations in exercise of their functions. These 19
powers include the power to hold and otherwise deal with property. 20
(2) Market practice and claims handling guidelines 21
In exercising its functions with respect to home warranty 22
insurance, the Self Insurance Corporation is to comply with any 23
applicable guidelines issued under section 91A of the Home 24
Building Act 1989. 25
Note. Section 91A of the Home Building Act 1989 provides that the 26
Minister administering that Act may issue guidelines with respect to 27
appropriate market practices and claims handling procedures in 28
connection with the provision of home warranty insurance by or on 29
behalf of the Self Insurance Corporation. 30
(3) A failure to comply with any such guidelines does not affect the 31
validity of any action taken (or omitted to be taken) by or on 32
behalf of the Self Insurance Corporation in connection with the 33
exercise of its functions with respect to home warranty insurance. 34
(4) Insurance agents and intermediaries 35
Without limiting subsection (1) (c), the Self Insurance 36
Corporation may enter into contracts, agreements or other 37
arrangements (insurance agency arrangements) for the 38
appointment of persons to act as agents (insurance agents) for 39
the Corporation concerning the exercise of any of the functions 40
Page 4
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Amendment of NSW Self Insurance Corporation Act 2004 No 106 Schedule 1
of the Corporation in connection with the provision of home 1
warranty insurance. 2
(5) An insurance agent is, in the exercise of functions under an 3
insurance agency arrangement, subject to the direction and 4
control of the Self Insurance Corporation as provided by the 5
terms of the insurance agency arrangement. 6
(6) A person incurs no personal liability for or in connection with a 7
liability incurred by the person as an insurance agent for the Self 8
Insurance Corporation in the exercise of functions in good faith 9
with due care and skill and within the scope of the agent's actual 10
authority to act. 11
(7) Sections 12, 13 and 18 of the Public Finance and Audit Act 1983 12
do not apply in relation to insurance agents or insurance 13
intermediaries in relation to the carrying out of functions under 14
insurance agency arrangements. 15
(8) Requirements for providing home warranty insurance 16
Without limiting subsection (1), the Self Insurance Corporation 17
may require any of the following: 18
(a) that a builder engage the services of a specified building 19
management service provider (or a building management 20
service provider belonging to a specified class of such 21
providers) as a condition of home warranty insurance 22
being provided in relation to residential building work 23
done by the builder, 24
(b) that a builder arrange for the provision of home warranty 25
insurance only through a specified insurance agent or an 26
insurance agent belonging to a specified class of insurance 27
agents. 28
8B Trade practices authorisations 29
(1) The following are specifically authorised by this Act for the 30
purposes of the Trade Practices Act 1974 of the Commonwealth 31
and the Competition Code of New South Wales: 32
(a) any insurance agency arrangement, 33
(b) the conduct of the parties to an insurance agency 34
arrangement: 35
(i) in negotiating or entering into the arrangement, or 36
(ii) in performing the terms of the arrangement 37
(including any terms that are to be included, or that 38
are taken to be included, in the arrangement under 39
the regulations), 40
Page 5
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Schedule 1 Amendment of NSW Self Insurance Corporation Act 2004 No 106
(c) any contract, agreement or other arrangement between a 1
building management service provider and the Self 2
Insurance Corporation concerning the provision of 3
services to builders that do residential building work that 4
is insured by the Corporation, 5
(d) the conduct of the parties to a contract, agreement or other 6
arrangement referred to in paragraph (c): 7
(i) in negotiating or entering into the contract, 8
agreement or other arrangement, or 9
(ii) in performing the terms of the contract, agreement 10
or other arrangement, 11
(e) any requirement of the Self Insurance Corporation of a 12
kind referred to in section 8A (8) and any conduct of a 13
person in relation to whom the requirement is imposed in 14
complying with the requirement. 15
(2) Subsection (1) extends to any contract, agreement or other 16
arrangement that, by operation of clause 4 of Schedule 1, 17
becomes: 18
(a) an insurance agency arrangement, or 19
(b) a contract, agreement or other arrangement between a 20
building management service provider and the Self 21
Insurance Corporation concerning the provision of 22
services to builders that do residential building work that 23
is insured by the Corporation. 24
Note. Clause 4 of Schedule 1 provides for certain contracts, agreements 25
or other arrangements entered into by the Minister for or on behalf of the 26
Crown before the commencement of section 8A to become contracts, 27
agreements or other arrangements to which the Self Insurance 28
Corporation is a party instead of the Crown. 29
(3) Anything authorised to be done by this section is authorised only 30
to the extent to which it would otherwise contravene Part IV of 31
the Trade Practices Act 1974 of the Commonwealth or the 32
Competition Code of New South Wales. 33
[5] Part 4, Division 1, heading 34
Insert before section 11: 35
Division 1 Self Insurance Fund 36
[6] Section 11 Self Insurance Fund 37
Omit "the Self Insurance Corporation" from section 11 (1) (c). 38
Insert instead "the Fund". 39
Page 6
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Amendment of NSW Self Insurance Corporation Act 2004 No 106 Schedule 1
[7] Section 11 (1) (f) 1
Insert "(except any money that is payable into the Home Warranty Insurance 2
Fund)" after "other source". 3
[8] Section 11 (2) 4
Insert "(except its functions in relation to the provision of home warranty 5
insurance and the management of the Home Warranty Insurance Fund)" after 6
"its functions". 7
[9] Section 11 (3) 8
Insert "(except expenditures incurred in connection with the provision of 9
home warranty insurance or the operation of the Home Warranty Insurance 10
Fund)" after "Self Insurance Corporation". 11
[10] Section 12, heading 12
Omit "Fund". Insert instead "Self Insurance Fund". 13
[11] Part 4, Division 2 14
Insert after section 12: 15
Division 2 Home Warranty Insurance Fund 16
12A Home Warranty Insurance Fund 17
(1) There is to be established in the Special Deposits Account a 18
Home Warranty Insurance Fund (the Fund). 19
(2) The following are to be paid into the Fund: 20
(a) all money received by the Self Insurance Corporation as 21
insurance premiums for home warranty insurance that it 22
provides, 23
(b) all money received by the Self Insurance Corporation from 24
re-insurers in connection with home warranty insurance 25
that it provides, 26
(c) all money recovered by the Self Insurance Corporation by 27
the exercise of any right of subrogation or other right of 28
recovery in connection with home warranty insurance that 29
it provides, 30
(d) all money received under any security, guarantee or 31
recourse held by the Self Insurance Corporation in respect 32
of any policies for home warranty insurance that it has 33
issued, 34
Page 7
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Schedule 1 Amendment of NSW Self Insurance Corporation Act 2004 No 106
(e) all money advanced to the Fund by the Minister or 1
appropriated by Parliament for the purposes of the Fund, 2
(f) the proceeds of the investment of money in the Fund, 3
(g) all money directed or authorised to be paid into the Fund 4
by or under this or any other Act. 5
(3) Money may be paid from the Fund for any of the following 6
purposes: 7
(a) the payment of claims made under any home warranty 8
insurance provided by the Self Insurance Corporation, 9
(b) the payment of the costs (including disbursements and 10
commissions) of risk management, actuarial, agency, 11
brokerage, legal and other services provided in connection 12
with the administration of the home warranty insurance 13
business of the Self Insurance Corporation, 14
(c) the payment of amounts required to meet administrative 15
expenses in relation to the Fund, 16
(d) the payment into the Consolidated Fund of any amount 17
that the Self Insurance Corporation considers (after 18
applying an appropriate prudential margin) to be surplus to 19
the requirements of the Fund from time to time to repay 20
(whether in whole or in part) any money previously 21
advanced to the Fund by the Minister or appropriated by 22
Parliament for the purposes of the Fund, 23
(e) the payment of any other amounts directed or authorised to 24
be paid from the Fund by or under this or any other Act. 25
12B Investment of money in Home Warranty Insurance Fund 26
The Self Insurance Corporation may invest money in the Home 27
Warranty Insurance Fund: 28
(a) in the manner authorised by or under the Public 29
Authorities (Financial Arrangements) Act 1987, or 30
(b) if that Act does not confer power on the Self Insurance 31
Corporation to invest the money, in any other manner 32
approved by the Minister. 33
Page 8
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Amendment of NSW Self Insurance Corporation Act 2004 No 106 Schedule 1
[12] Section 13 Regulations 1
Insert after section 13 (1): 2
(1A) Without limiting subsection (1), the regulations may make 3
provision for or with respect to the following: 4
(a) the making and keeping of records by insurance agents and 5
insurance intermediaries (or former insurance agents and 6
former insurance intermediaries) and the giving of access 7
to those records by such agents or intermediaries (or 8
former agents or former intermediaries), 9
(b) the obligations of insurance agents and insurance 10
intermediaries (or former insurance agents and former 11
insurance intermediaries) with respect to confidentiality 12
and disclosure of information (including personal 13
information), 14
(c) the ownership, custody and control of records and other 15
documents made and kept, or received and kept, by 16
insurance agents and insurance intermediaries (or former 17
insurance agents and former insurance intermediaries), 18
(d) any other conduct of insurance agents and insurance 19
intermediaries (including the monitoring of their conduct) 20
in their capacities as agents and intermediaries, 21
(e) the conduct of building management service providers 22
(including the monitoring of their conduct) in relation to 23
builders who do residential building work that is insured 24
by the Self Insurance Corporation, 25
(f) without limiting paragraphs (a)-(e)--standard terms 26
concerning the provision of home warranty insurance by or 27
on behalf of the Self Insurance Corporation that are to be 28
included, or that are taken to be included, in insurance 29
agency arrangements or in contracts, agreements or other 30
arrangements between insurance agents and insurance 31
intermediaries. 32
(1B) Regulations made for the purposes of subsection (1A) (f) may 33
extend to contracts, agreements or other arrangements entered 34
into before the regulations commence. 35
[13] Schedule 1 Savings, transitional and other provisions 36
Insert at the end of clause 1 (1): 37
NSW Self Insurance Corporation Amendment (Home Warranty 38
Insurance) Act 2010, to the extent that it amends this Act 39
Page 9
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Schedule 1 Amendment of NSW Self Insurance Corporation Act 2004 No 106
[14] Schedule 1, Part 3 1
Insert after Part 2: 2
Part 3 Provisions consequent on enactment of 3
NSW Self Insurance Corporation 4
Amendment (Home Warranty Insurance) 5
Act 2010 6
4 Certain pre-commencement arrangements to become 7
arrangements of Self Insurance Corporation 8
(1) This clause applies to any contract, agreement or other 9
arrangement (a pre-commencement arrangement) entered into 10
by the Minister, for or on behalf of the Crown, that: 11
(a) is entered into before the day on which section 8A of this 12
Act (as inserted by the NSW Self Insurance Corporation 13
Amendment (Home Warranty Insurance) Act 2010) 14
commences, and 15
(b) is in force immediately before the commencement of 16
section 8A of this Act, and 17
(c) is entered into for the purpose of enabling the Self 18
Insurance Corporation to exercise its functions in relation 19
to the provision of home warranty insurance when those 20
functions are conferred on it by amendment to this Act. 21
(2) A contract, agreement or other arrangement is entered into for the 22
purpose referred to in subclause (1) (c) if: 23
(a) it is expressed to have been entered into for that purpose, or 24
(b) the Minister, by order published in the Gazette, declares it 25
to have been entered into for that purpose. 26
(3) On and from the transfer day: 27
(a) the Self Insurance Corporation becomes, by virtue of this 28
clause and without the need for any novation, a party to 29
each pre-commencement arrangement instead of the 30
Crown, and 31
(b) any rights and liabilities of the Crown (relevant rights and 32
liabilities) arising under, or in relation to, a 33
pre-commencement arrangement become, by virtue of this 34
clause, the rights and liabilities of the Self Insurance 35
Corporation, and 36
(c) if a pre-commencement arrangement makes provision for 37
the appointment of a person as an agent of the Self 38
Page 10
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Amendment of NSW Self Insurance Corporation Act 2004 No 106 Schedule 1
Insurance Corporation in relation to the provision of home 1
warranty insurance--the person becomes an insurance 2
agent of the Self Insurance Corporation, and the 3
arrangement becomes an insurance agency arrangement, 4
for the purposes of this Act, and 5
(d) all proceedings relating to a pre-commencement 6
arrangement or any relevant rights and liabilities that are 7
pending by or against the Minister or the Crown are taken 8
to be proceedings pending by or against the Self Insurance 9
Corporation, and 10
(e) any act, matter or thing done or omitted to be done in 11
relation to a pre-commencement arrangement or any 12
relevant rights and liabilities by, to or in respect of the 13
Minister or the Crown is (to the extent that the act, matter 14
or thing has any force or effect) taken to have been done or 15
omitted by, to or in respect of the Self Insurance 16
Corporation, and 17
(f) any reference in a pre-commencement arrangement to the 18
Minister or the Crown is, subject to the regulations, to be 19
read as a reference to the Self Insurance Corporation. 20
(4) The operation of this clause is not to be regarded: 21
(a) as a breach of contract or confidence or otherwise as a civil 22
wrong, or 23
(b) as a breach of any contractual provision prohibiting, 24
restricting or regulating the assignment or transfer of 25
assets, rights or liabilities, or 26
(c) as giving rise to any remedy by a party to an instrument, or 27
as causing or permitting the termination of any instrument, 28
because of a change in the beneficial or legal ownership of 29
any asset, right or liability, or 30
(d) as an event of default under any contract or other 31
instrument. 32
(5) In this clause: 33
assets means any legal or equitable estate or interest (whether 34
present or future, whether vested or contingent and whether 35
personal or assignable) in real or personal property of any 36
description (including money), and includes securities, choses in 37
action and documents. 38
instrument means an instrument (other than this Act) that 39
creates, modifies or extinguishes rights or liabilities (or would do 40
so if lodged, filed or registered in accordance with any law), and 41
includes any judgment, order or process of a court. 42
Page 11
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Schedule 1 Amendment of NSW Self Insurance Corporation Act 2004 No 106
liabilities means any liabilities, debts or obligations (whether 1
present or future, whether vested or contingent and whether 2
personal or assignable). 3
rights means any rights, powers, privileges or immunities 4
(whether present or future, whether vested or contingent and 5
whether personal or assignable). 6
transfer day, in relation to a pre-commencement arrangement, 7
means: 8
(a) if the arrangement is expressed to have been entered into 9
for the purpose referred to in subclause (1) (c)--the day on 10
which section 8A of this Act commences, or 11
(b) if the arrangement becomes a pre-commencement 12
arrangement by virtue of a declaration made by the 13
Minister in an order published under subclause (2) (b)--on 14
the day on which the order is published in the Gazette or 15
such later day as may be specified in the order (being a day 16
that is no earlier than the day on which section 8A of this 17
Act commences). 18
Page 12
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Amendment of Home Building Act 1989 No 147 Schedule 2
Schedule 2 Amendment of Home Building Act 1989 1
No 147 2
[1] Section 3 Definitions 3
Insert in alphabetical order in section 3 (1): 4
Self Insurance Corporation means the NSW Self Insurance 5
Corporation constituted by the NSW Self Insurance Corporation 6
Act 2004. 7
[2] Section 89G Functions 8
Omit section 89G (a)-(c). Insert instead: 9
(a) to advise the Minister on guidelines for issue under 10
section 91A, 11
[3] Section 90 Definitions 12
Omit the definition of insurance industry deed from section 90 (1). 13
[4] Section 91A 14
Insert after section 91: 15
91A Market practice and claims handling guidelines 16
(1) The Minister may, after consultation with the Scheme Board and 17
with the concurrence of the Minister administering the NSW Self 18
Insurance Corporation Act 2004, issue guidelines with respect to 19
appropriate market practices or claims handling procedures (or 20
both) in connection with the provision of home warranty 21
insurance by or on behalf of the Self Insurance Corporation. 22
(2) The Minister may, from time to time, amend or revoke guidelines 23
issued under this section. 24
(3) Guidelines issued under this section, or amendments to such 25
guidelines, are to be published in the Gazette and take effect from 26
the date of publication or such later date as may be specified in 27
the guidelines or amendments. 28
[5] Section 102 General requirements for insurance 29
Omit "an insurer approved by the Minister" from section 102 (2). 30
Insert instead "the Self Insurance Corporation". 31
Page 13
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Schedule 2 Amendment of Home Building Act 1989 No 147
[6] Section 102 (2) 1
Insert at the end of the subsection: 2
Note. The Self Insurance Corporation became the only insurer for the 3
purposes of the scheme established by this Part on and from the day on 4
which this subsection was amended by the NSW Self Insurance 5
Corporation Amendment (Home Warranty Insurance) Act 2010. See 6
Part 17 of Schedule 4 for savings and transitional provisions relating to 7
the transition from the previous scheme involving home warranty 8
insurance issued by approved insurers to the new scheme under which 9
all insurance is to be issued by the Self Insurance Corporation. 10
[7] Sections 102A and 103A-103AD 11
Omit the sections. 12
[8] Section 103F Interpretation 13
Omit the definition of insurer from section 103F (1). Insert instead: 14
insurer means an insurer that was formerly approved by the 15
Minister under section 103A as in force at any time before its 16
repeal by the NSW Self Insurance Corporation Amendment 17
(Home Warranty Insurance) Act 2010, but does not include an 18
insolvent insurer. 19
[9] Section 103P Building Insurers' Guarantee Fund 20
Omit section 103P (2) (e) and (3) (e). 21
[10] Section 103P (3) (b) 22
Omit "or in connection with any scheme or arrangement approved by the 23
Minister under section 102A that is being administered by the Guarantee 24
Corporation". 25
[11] Schedule 4 Savings and transitional provisions 26
Insert at the end of clause 2 (1): 27
NSW Self Insurance Corporation Amendment (Home Warranty 28
Insurance) Act 2010, to the extent that it amends this Act 29
Page 14
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Amendment of Home Building Act 1989 No 147 Schedule 2
[12] Schedule 4, Part 17 1
Insert after Part 16: 2
Part 17 Provisions consequent on enactment of 3
NSW Self Insurance Corporation 4
Amendment (Home Warranty Insurance) 5
Act 2010 6
Division 1 Preliminary 7
88 Definitions 8
In this Part: 9
amending Act means the NSW Self Insurance Corporation 10
Amendment (Home Warranty Insurance) Act 2010. 11
existing approved insurer means an insurer approved by the 12
Minister under section 103A (as in force before the new scheme 13
day) for the purposes of Part 6 of this Act whose approval is in 14
force immediately before the new scheme day, and includes an 15
insurer whose approval has been suspended under section 103AA 16
(as in force before the new scheme day). 17
former approved insurer means an insurer (other than an existing 18
approved insurer) who was formerly an insurer approved by the 19
Minister under section 103A (as in force before the new scheme 20
day) for the purposes of Part 6 of this Act. 21
home warranty insurance has the same meaning as in Part 6 of 22
this Act. 23
insurance industry deed means the agreement referred to in 24
section 103A (5) before its repeal by the amending Act, as in 25
force immediately before the new scheme day. 26
new scheme day means the day on which Schedule 2 [5] to the 27
amending Act commences. 28
owner-builder work has the same meaning as in Part 6 of this 29
Act. 30
relevant approved insurer means an existing approved insurer or 31
former approved insurer. 32
Page 15
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Schedule 2 Amendment of Home Building Act 1989 No 147
Division 2 Authority to provide home warranty 1
insurance 2
89 Corporation to be only home warranty insurer on and from new 3
scheme day 4
On and from the new scheme day, the Self Insurance Corporation 5
is the only insurer authorised to issue new home warranty 6
insurance in respect of residential building work or 7
owner-builder work done in New South Wales. 8
90 Existing approved insurers cease to be able to provide home 9
warranty insurance on and from new scheme day 10
(1) On and from the new scheme day, any existing approved insurer 11
ceases by force of this clause to be authorised to issue new home 12
warranty insurance. 13
(2) Subclause (1) extends to the issue of home warranty insurance in 14
connection with any application for such insurance made (but for 15
which a policy of insurance has not yet been issued) before the 16
new scheme day. 17
(3) No compensation is payable by or on behalf of the Crown to any 18
existing approved insurer for any loss or damage arising directly 19
or indirectly from the operation of this clause (or amendments 20
made to this Act by the amending Act). 21
(4) Accordingly, no proceedings for damages or other relief (whether 22
grounded on the provisions of any contract or otherwise arising 23
at law or in equity) for the purpose of obtaining compensation in 24
respect of any such loss or damage may be instituted or 25
maintained. 26
(5) In this clause: 27
compensation includes damages or any other form of 28
compensation (whether or not monetary). 29
the Crown means the Crown within the meaning of the Crown 30
Proceedings Act 1988 and includes: 31
(a) the Director-General, and 32
(b) any member of staff of a government Department. 33
Page 16
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Amendment of Home Building Act 1989 No 147 Schedule 2
Division 3 Provision of information and compliance 1
with insurance industry deed 2
Note. This Division re-enacts (with necessary modifications) provisions in Part 6 of this 3
Act that were formerly applicable to relevant approved insurers under 4
sections 103AB-103AD as conditions of their approval. Sections 103AB-103AD were 5
repealed by the amending Act. See also clause 97 of this Schedule in relation to civil 6
penalties for contraventions of approval conditions that occurred before the new 7
scheme day. 8
91 Request for information by Director-General 9
(1) A relevant approved insurer must provide to the Director-General 10
any information about the insurance provided by the insurer 11
under a contract of insurance entered into before the new scheme 12
day to meet the requirements of Part 6 of this Act (as previously 13
in force) that the Director-General requests in writing, within the 14
time specified in the request. 15
(2) Without limiting subclause (1), the information required may 16
include information about: 17
(a) claims handling, or 18
(b) the settlement of claims, or 19
(c) particular claimants or insured persons, or 20
(d) persons licensed under this Act. 21
(3) The Director-General may, with the consent of the relevant 22
approved insurer who provided it, provide any information 23
obtained under this clause to any other insurer (including the Self 24
Insurance Corporation). 25
(4) The annual report prepared for the Department of Services, 26
Technology and Administration under the Annual Reports 27
(Departments) Act 1985: 28
(a) must identify all occasions on which information is 29
provided to insurers under this clause during the period to 30
which the report relates, and 31
(b) must describe the nature of the information so provided 32
(leaving out particulars that identify, or could lead to the 33
identification of, any particular claimants or insured 34
persons). 35
92 Request for information by Self Insurance Corporation 36
(1) If a person has applied for home warranty insurance or has been 37
provided home warranty insurance by the Self Insurance 38
Corporation, the Corporation may, by notice in writing, request 39
any relevant approved insurer to disclose to the Corporation any 40
Page 17
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Schedule 2 Amendment of Home Building Act 1989 No 147
relevant insurance information relating to the person if the 1
Corporation has reasonable grounds to believe that: 2
(a) the person made an application to the insurer for home 3
warranty insurance before the new scheme day, or 4
(b) the person was provided with home warranty insurance by 5
the insurer before the new scheme day. 6
(2) A relevant approved insurer must provide the Self Insurance 7
Corporation with the relevant insurance information requested 8
under subclause (1) as soon as reasonably practicable after the 9
request is made. 10
(3) In this clause: 11
relevant insurance information, in relation to a person who 12
applied to a relevant approved insurer for, or to whom a relevant 13
approved insurer provided, home warranty insurance means: 14
(a) information concerning the business, commercial, 15
professional or financial affairs of the person that is 16
relevant to the provision of home warranty insurance, or 17
(b) information obtained in the course of an investigation of an 18
application for such insurance, or 19
(c) information concerning the home warranty insurance (if 20
any) provided to the person. 21
93 Continuing insurance industry deed obligations 22
(1) A relevant approved insurer must, subject to the regulations, 23
continue to comply with the continuing insurance industry deed 24
obligations of the insurer with respect to home warranty 25
insurance offered or provided by the insurer before the new 26
scheme day. 27
(2) For the purposes of subclause (1), the continuing insurance 28
industry deed obligations of a relevant approved insurer are: 29
(a) if the insurer is a former approved insurer--such 30
obligations that, by virtue of clause 13.1 of the insurance 31
industry deed, continued to be imposed on the insurer 32
immediately before the new scheme day, or 33
(b) if the insurer is an existing approved insurer--such 34
obligations that would, by virtue of clause 13.1 of the 35
insurance industry deed, continued to have been imposed 36
on the insurer had the insurer's approval been revoked by 37
the Minister under section 103A immediately before the 38
new scheme day. 39
Page 18
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Amendment of Home Building Act 1989 No 147 Schedule 2
(3) Without limiting subclause (2), the Minister may continue to 1
issue (or amend or revoke) Industry Guidelines in the manner 2
contemplated by the insurance industry deed. 3
(4) Any Industry Guidelines issued or amended on or after the new 4
scheme day continue to have effect for the purposes of 5
determining the content of the continuing insurance industry 6
deed obligations of a relevant approved insurer. 7
(5) The regulations may make provision for or with respect to the 8
continued application of any of the continuing insurance industry 9
deed obligations of relevant approved insurers and the 10
modification of any such obligations. 11
(6) In this clause: 12
Industry Guidelines means the industry guidelines within the 13
meaning of the insurance industry deed. 14
modification includes addition, exception, omission or 15
substitution. 16
94 Request for information may extend to information obtained 17
before new scheme day 18
A request for information made under this Division may extend 19
to information that was obtained before the new scheme day as 20
well as to information obtained on or after that day. 21
95 Civil penalty for contravention of requirement to provide 22
information 23
(1) If a relevant approved insurer contravenes a requirement imposed 24
on the insurer by or under clause 91, 92 or 93, the Minister may 25
impose a civil penalty on the insurer concerned of an amount not 26
exceeding $50,000. 27
(2) A civil penalty that has been imposed under this clause may be 28
recovered by the Minister in a court of competent jurisdiction as 29
a debt due to the Director-General. 30
(3) A civil penalty that is paid or recovered is payable into the 31
Consolidated Fund. 32
96 Protection from liability 33
(1) A relevant approved insurer requested to provide information 34
under this Division is required or authorised to disclose the 35
information despite section 121 or any other law of this or any 36
other jurisdiction with respect to the privacy of such information 37
that would otherwise prohibit that disclosure. 38
Page 19
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Schedule 2 Amendment of Home Building Act 1989 No 147
(2) A relevant approved insurer is not liable for any damage caused 1
by the provision of information under this Division to the 2
Director-General or the Self Insurance Corporation or any other 3
insurer. 4
Division 4 Miscellaneous 5
97 Civil penalties for past contraventions of approval conditions 6
(1) Section 103AB (as in force immediately before the new scheme 7
day) continues to apply in relation to any contravention of a 8
condition of an approval under section 103A (as in force before 9
the new scheme day) that occurred before the new scheme day. 10
(2) Subclause (1) does not authorise the Minister to take action under 11
section 103AB (as continued in force by that subclause) in 12
relation to any contravention of a condition of an approval for 13
which the approval of an insurer has previously been suspended 14
or for which action has previously been taken under 15
section 103AB. 16
98 Effect of Part and amendments 17
(1) Nothing in this Part (or in any of the amendments made to this 18
Act by the amending Act): 19
(a) affects the validity or enforceability of any contract of 20
insurance entered into by a relevant approved insurer 21
before the new scheme day, or 22
(b) without limiting section 30 of the Interpretation Act 23
1987--affects the continued application of: 24
(i) sections 92A, 92B, 99, 101, 101A, 102, 103B and 25
103BA in relation to contracts for home warranty 26
insurance entered into before the new scheme day or 27
claims made under such contracts, or 28
(ii) section 103EA in relation to applications for home 29
warranty insurance made before the new scheme 30
day, or 31
(iii) sections 121A and 127 in relation to matters that 32
occurred or arose before the new scheme day, or 33
(iv) the provisions of Part 5 of the Home Building 34
Regulation 2004 in relation to contracts for home 35
warranty insurance entered into before the new 36
scheme day or claims made under such contracts. 37
Note. Section 30 of the Interpretation Act 1987 provides that the 38
amendment of an Act does not, among other things, affect the previous 39
operation of the Act or anything duly suffered, done or commenced 40
Page 20
NSW Self Insurance Corporation Amendment (Home Warranty Insurance)
Bill 2010
Amendment of Home Building Act 1989 No 147 Schedule 2
under the Act or affect any right, privilege, obligation or liability acquired, 1
accrued or incurred under the Act. 2
(2) Subject to the regulations, this Part has effect despite any 3
provision of this or any other Act or any other law or the 4
provisions of any contract, agreement or other arrangement. 5
Page 21
[Index] [Search] [Download] [Related Items] [Help]