Insurance

Brokers
Introduction – Billy Bennett

4.1 Key developments

4
166

168

4.2 Regulation and supervision 169

4.3 Solvency and capital adequacy 173

4.4 Financial reporting 175

4.5 Taxation 177

 Insurance brokers play a vital role for both the policyholder and the insurer in
the purchase of insurance and risk products. In Australia, insurance brokers
are responsible for placing around half of the total insurance business every
year. However, in recent years, due to various technological and competitive
pressures, the offerings of the broker have expanded into various other services
such as risk management, claims management, loss control, and due diligence
audits. Arguably to maintain their competitive edge, the role of the broker has
moved from a mere proponent of insurance to that of a value-added business

Insurance
brokers
partner for insurers and the insured.

The insurance broking industry has continued its trend of consolidation,

this being an inherent part of the competitive environment in the broking
Introduction industry due to demanding and often costly market conditions. This has
made it difficult for the smaller broking firms to maintain infrastructure such

Billy Bennett
as technology, systems and talented human resources that are essential
to maintain competitive advantage and meet regulatory and operational
commitments.

In the wake of the global financial crisis, albeit less severe in Australia than
the rest of the world, insurance brokers are dealing with pressure on fees and
commissions due to cost pressure of the clients they serve.

Further, the industry is also challenged with socio-economic factors – the

shift in consumer behaviour being a key dynamic. The trend towards
consumers increasingly using the internet for research and the purchase of
insurance; and the impact of telemarketing and contact centres set up directly
by insurers have taken its toll on the insurance broker. The brokers who
recognise the opportunities to leverage from changing customer needs will be
the winners as we head into the second decade of the 21st century.

166 | Insurance facts and figures 2010 PricewaterhouseCoopers | 167

 4.1 4.2
Key developments Regulation and
supervision
Market trends
The weak economic environment has led to some hardening of general insurance
prices for personal lines. Increasing claims costs are eroding insurer’s reserves and
have resulted in increased prices to maintain capital positions. However, commercial
Australian Securities and
lines have not seen the same level of increase in rates and as a result insurance Investment Commission
brokers have not seen any significant change in revenues.
ASIC is the single Commonwealth regulator responsible for market integrity and
Business volumes remain depressed as the contraction in business activity reduced consumer protection functions across the financial system. Its responsibilities include:
demand for commercial insurance lines and weak consumer confidence has led to
slightly reduced demand for personal insurance lines. • Enforcement and effective administration of the Corporations Act;
• Ensuring market integrity and consumer protection in connection with life and

Insurance
brokers
general insurance and superannuation products, including the licensing of
APRA data collection requirements financial service providers; and
On 14 December 2009, Corporations Amendment Regulations 2009 (No. 11) was • Protection of retail investors and consumers in the financial services sector.
passed requiring intermediaries who are AFS licensees and who deal with an APRA The Corporations Act requires brokers to either hold an Australian Financial Services
licensed general insurer, Lloyd’s underwriter, or an unauthorised foreign insurer, to Licence (AFSL) or become an authorised representative of a separate licensee. Except
submit certain data to APRA. The data is in a prescribed form, Form 701, and is to under limited circumstances, no person or company may carry on an insurance
be submitted in respect of premiums invoiced for from 1 May 2010. broking business or act as an agent of a foreign insurer unless they hold an AFSL
under the Corporations Act or become a representative of a separate licensee.

Australian Financial Services Licence

The Corporations Act requires all sellers of insurance products to retail clients,
including registered insurers and brokers, to obtain an AFSL.

To obtain a licence, the applicant must meet the obligations under Section 912A and
demonstrate that they will provide financial services efficiently, honestly and fairly.
The general obligations relate to the insurance brokers’ responsibilities in the areas
of compliance, internal systems, people and resources. Specific provisions under the
Corporations Act require that financial services licensees have in place the following:

• Arrangements for managing conflicts of interest;

• Compliance with conditions on the licence and with financial services laws;
• Adequate resources (financial, technological and human) to provide services covered
by the licence. These requirements do not apply to APRA-regulated entities (such as
registered insurers), but do apply to any non-APRA-regulated subsidiaries;

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 • Adequate risk management systems. These requirements do not apply to APRA- All AFSL holders must have systems to manage risk which includes risk to financial
regulated entities, but do apply to any non-APRA-regulated subsidiaries; resources. The risk management framework required will depend on the nature, scale
and complexity of the business.
• Adequate compliance framework (AS3806, the Australian Standard on
Compliance Programs, acts as a guide to minimum requirements); Licence holders are required to meet ongoing notification obligations, which include
• Internal and external dispute resolution procedures (where dealing with retail requirements to notify ASIC about:
clients); and
• Breaches and events;
• To ensure that the competencies of representatives to provide the financial • Changes in particulars (form F205 for change of name of corporate entities, form
services (as specified on the licence) are maintained and that the representatives FS20 for all others);
are adequately trained to provide those financial services.
• Authorised representatives (forms FS30, FS31, FS32);
Once ASIC has granted an AFSL pursuant to Section 913B of the Corporations
• Financial statements and audit (forms FS70 and FS71); and
Act, any variations to authorisations and conditions of the licence can be made
electronically via the ASIC website. Financial and reporting obligations under the • Appointment/removal of auditor (forms FS06, FS07, FS08 and FS09).
AFSL may vary depending on the licensee’s circumstances and whether additional Section 989B of the Corporations Act also outlines ongoing financial reporting and
requirements are imposed by ASIC. audit obligations. A licensee is required to prepare and lodge an audited profit and
loss statement and a balance sheet within four months of the end of its financial year

Renewal of registration for non-disclosing entities and within three months of the end of its financial year for
disclosing entities.

Insurance
brokers
Holders of an AFSL are subject to ongoing financial requirements which are
ASIC has released Class Order 06/68 which grants relief to local branches of foreign
described in ASIC RG 166.
licensees from preparing and lodging accounts in accordance with Section 989B of
These requirements include: the Corporations Act. This relief is only available where the foreign licensee lodges
accounts, prepared and audited in accordance with the requirements of its local
• Positive net assets and solvency – All AFSL holders must be solvent at all times financial reporting jurisdiction with ASIC once every calendar year.
and have a continuous obligation to monitor their solvency.
• Rolling three-month cash projections – There are a number of methods
available for performing the projections, the most common are:
Other regulations and related matters
–– Option 1 – Reasonable estimate projection plus cash contingency requires Since 2008, under the Corporations Act, insurance brokers and authorised
licensees to have access to cash to meet any shortfalls in the projected representatives are prohibited from dealing in general insurance products unless
period; or they are from an authorised insurer, a Lloyd’s underwriter or if an exemption applied.
This is applicable for all insurance brokers holding an AFSL – requirements for which
–– Option 2 – Contingency-based projection requires licensees to demonstrate are monitored by ASIC. Under the new regulation, insurance brokers are required to
that sufficient cash is available to meet commercial contingencies that could maintain records of business placed with direct offshore foreign insurers (DOFIs) and
impact cash flow. report their dealings on a regular basis to ASIC.
ASIC has provided additional options for subsidiary entities in consolidated groups
Insurance brokers are subject to the Anti-Money Laundering and Counter-Terrorism
to meet their cash needs projections by using the cash flows of their parent entity.
Financing Act (AML/CTF Act). Under the AML/CTF Act, the impact on insurance
This alternative can only be adopted where the subsidiary is able to demonstrate
brokers (if providing a ‘designated service’), is meeting their statutory obligations in
that it has an enforceable commitment from its parent entity to meet its liabilities
relation to customer verification, customer due diligence and compliance reporting
or reasonably expects that it can draw upon the cash resources of other members
requirements. For insurance brokers the Act does not consider the advising and
of the consolidated group to meet its obligations. Licensees should refer to ASIC
placement of general and life insurance as a designated service. Brokers that provide
Information Release IR 03-44 for further information on this option.
premium funding services and brokers that hold an AFSL and are involved in a client
receiving a ‘designated service’ may be affected.

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 The Life Insurance Code of Practice governs relationships between life insurance
companies, intermediaries and consumers. The Code sets minimum standards for 4.3
sales practices and the employment of life insurance intermediaries, oversight by life
insurance companies and life brokers of the conduct of their staff and agents, and
dispute resolution arrangements. Solvency and
The General Insurance Brokers’ Code of Practice which is part of a national self-
regulatory scheme, and sets out the responsibilities of participating insurance
brokers also requires brokers to establish an internal process for resolving disputes
capital adequacy
with the insured. Any breach of the Code may give rise to binding orders or sanctions
being imposed on the insurance broker. The Insurance Brokers’ Compliance Council
monitors the Code. The minimum solvency requirements under the AFSL regime are:

The Insurance Brokers Dispute Facility is a national scheme designed to quickly • Positive net assets;
resolve disputes between insurance brokers and their clients. The facility handles • Sufficient cash resources to cover the next three months’ expenses with
general insurance matters up to $10,000 and life insurance matters up to $50,000. adequate cover for contingencies; and
The Insurance Brokers Compliance Council oversees the facility and consists of
• Surplus liquid funds of greater than $50,000 where the licensee holds client
government, broking and consumer bodies.
assets of more than $100,000.
In addition to annual financial reporting requirements, under Section 912E of the Further conditions may be set out under the AFSL itself. Compliance with these

Insurance
Corporations Act, ASIC can undertake surveillance checks of AFS licence holders.

brokers
requirements is tested through audits undertaken by the licensee’s auditor both
ASIC has the power to vary licence conditions, as well as issue banning orders that annually and at the request of ASIC.
prohibit a person from providing financial services.

Investment Policy
Authorised representatives and insurance brokers are required to hold monies in
a trust account with an ADI, cash management trust or an ASIC-approved foreign
deposit-taking institution. The authorised representative or insurance broker is
required to disclose to the insured that they intend to keep any interest earned and
must deposit the monies into such an account on the day it is received or on the
next business day.

Funds held in a trust account can be invested in a broad range of investments (such
as government bonds), but the rules relating to this are complex and should be
considered in detail. Typically, any investment requires a written agreement as to
the arrangements, which will address issues such as how investment earnings and
losses are shared.

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 Lodgement requirements 4.4
As AFSL holders, authorised representatives and insurance brokers are required to
lodge forms FS 70 (profit and loss statement and balance sheet) and FS 71 (audit
report). Refer to the section below on key dates for timing of lodgement. Note that
It is possible to apply to ASIC under Section 989 D (3) for an extension of time for
Financial reporting
lodging the forms.

For AFSL holders that are not regulated by APRA, the Auditor’s are required to review
measures for ensuring compliance with all of the financial requirements set out in the Annual accounts
licence conditions, including: Under section 292 of the Corporations Act, public companies, disclosing entities,
large proprietary companies and certain small propriety companies (if required by
• Ability to pay all debts as and when they become due and payable;
ASIC) are required to lodge annual accounts.
• Total assets exceed total liabilities, or adjusted assets exceed adjusted liabilities;
at all times
• Sufficient cash resources are available to meet three months’ expenses plus
Other returns
adequate cover for contingencies, based on rolling three-month cash flow Bodies other than ASIC and APRA may also require some form of reporting from
projections that meet ASIC’s requirements; Brokers (similar to General Insurers). Brokers may be required to submit the following
returns if applicable:

Insurance
• Requirement to hold $50,000 of surplus liquid funds for licensees that hold more

brokers
than $100,000 of client funds; and • Fire Brigade Returns for Fire Service Levy (FSL)
• Tiered requirement to hold $50,000 to $10 million of adjusted surplus liquid funds • Workers Compensation
for licensees that have more than $100,000 of liabilities from transacting with
clients as a principal. • Stamp Duty

Furthermore, the management of all licensees will have to demonstrate to the auditor • Tax returns such as FBT return, Business Activity Statements (BAS) etc.
their procedures for ensuring compliance with Part 7.8 of the Corporations Act. This • Insurance Protection Tax – NSW government tax to assist builders warranty and
includes requirements in relation to financial records and financial statements, as well compulsory third party policyholders affected by the collapse of HIH.
as procedures relating to:

• Preventing unconscionable conduct;

• Complying with “anti-hawking” or cold-calling restrictions in relation to financial
products; and
• Adequate staff training and identification of breaches.
In addition, Section 990(K) contains “whistle-blowing” provisions that obligate
auditors to report to ASIC within seven days if they become aware of a situation that
may adversely affect the ability of the licensee to meet its obligations and that may
result in a breach of either:

• the conditions of the licence; or

• the requirements pertaining to trust accounts, financial records or financial
statements.

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 Key dates 4.5
The following are the lodgement requirements for AFS licensees:

• For an AFS licensee that is not a body corporate: within 2 months after the end of
its financial year.
Taxation
• For an AFS licensee that is a body corporate and that is a disclosing entity: within
3 months after the end of its financial year.
• For an AFS licensee that is a body corporate that is not a disclosing entity: within General developments
4 months after the end of its financial year The Government has continued with ambitious plans for significant tax reform.
Lodgement requirements for the other returns vary for periods in review and The comprehensive review of Australia’s tax system, otherwise known as the Henry
depending on state of operation. For fire brigade returns, the date of lodgement Review has been completed and the final report released to the public on 2 May
varies depending upon the state and class of business in which the premiums 2010 together with the Government’s response. Despite the 138 recommendations
are earned. in the Henry Report, the Government has only made a handful of announcements,
although there may be further announcements in the May budget.
Unaudited stamp duty returns are required to be submitted to the relevant
state government on a monthly basis. An annual return is also prepared. Again, The Government proposes to reduce the company income tax rate from 30 per cent
the lodgement date differs from state to state. This is the same for Workers’ to 29 per cent for the 2013-2014 income year and to 28 per cent from the 2014-2015
income year and introduce certain changes to the superannuation system including a

Insurance
compensation.

brokers
staged increase in the Superannuation Guarantee payment from 9 per cent to 12 per
Registered insurers must lodge an Insurance Protection Tax return by 15 August each cent. These initiatives are to a large extent funded by the Resource Super Profits Tax
year, which includes details of total premiums received from general insurance for the of 40 per cent.
previous year. A policyholder who takes out insurance with a non-registered insurer
must lodge a return within 21 days of the end of the month in which the premium One of the insurance specific recommendations in the Henry Report is the abolition
was paid. A payment of tax equal to 1 per cent of the premium must accompany the of specific taxes on insurance products, including stamp duties and fire service
return. An agent or broker may pay this on behalf of the policyholder. levies, which is consistent with the recommendations in the “Australia as a Financial
Centre: Building on our Strengths” report released by the Australian Financial Centre
Forum. The Government has not ruled out this recommendation although any
changes will need agreement from the State Governments.

Some other key tax developments during the year are listed below.

• The new Taxation of Financial Arrangements (TOFA) measures which provide

a comprehensive regime for the tax treatment of gains and losses arising from
financial arrangements have been legislated. The TOFA measures will apply to
eligible taxpayers for the income year beginning on or after 1 July 2010 unless
the taxpayer chooses to have the rules apply for income years beginning on or
after 1 July 2009 (i.e. the “early adopt” election). Taxpayers have a choice as to
how TOFA will apply to their financial arrangements.
• New tax consolidation measures were introduced into Parliament on 10 February
2010. One of the significant changes proposed is clarification of the income tax
treatment of rights to future income.

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 • The Federal Government has proposed a reform of Australia’s foreign source
income anti-tax deferral (attribution) rules. The proposal includes a rewrite of
Taxation of insurance brokers
the Controlled Foreign Companies (CFC) rules and the repeal of the Foreign Tax legislation does not contain specific provisions relating to the taxation of
Investment Fund (FIF) rules. The FIF rules will be replaced with a specific, authorised representatives and insurance brokers. One of the important tax issues
narrowly defined anti-avoidance rule that applies to offshore accumulation or roll- confronting authorised representatives and insurance brokers is the timing of
up funds. recognition of commission and brokerage income, as this income is often taxed at a
• The new International Dealings Schedule - Financial Services 2010 (the IDS-FS later point in time than it is recognised for accounting purposes. The ATO has issued
2010) was released by the ATO. The IDS-FS 2010 is the ATO’s newly proposed Taxation Ruling IT2626 to provide guidance on this issue. The terms of the contract
tax return schedule for large (> $250m turnover) financial services taxpayers or arrangement between the insurer and the authorised representative or insurance
to replace the Schedule 25A and Thin Capitalisation Schedule and provide broker will be of major importance in determining when commission and brokerage
additional information in relation to financial arrangements. For the 2010 Income income is derived.
year the IDS-FS is optional. However, the IDS-FS will be mandatory for affected
An authorised representative or insurance broker is able to recognise an amount of
taxpayers for the 2011 year. For early balancing 31 December substituted
commission or brokerage as income for tax purposes at different points of time.
accounting period taxpayers, this means that information will be required to be
collected and reported in the IDS-FS from 1 January 2010. Examples include:
• During 2009 (subsequent to the release of last year’s “Insurance Facts and
• When that amount has become a recoverable debt and the authorised
Figures Publication”), the Australian Government announced its support for 41
representative or insurance broker is not obliged to take any further steps before
of 46 recommendations that were made by the Board of Taxation in relation to
becoming entitled to payment.
its review of the Administration of the GST System. Generally these changes are

Insurance
brokers
aimed at reducing the administrative burden of complying with the GST legislation • When the insurance broker can first withdraw that amount from an insurance
and represent the most significant package of GST reform in 10 years. broking account.

While many supported recommendations were identified as applying from 1 July • When that amount has actually been received from the insurer in those situations
2010, the legislative process has only started for some of the recommendations with where the gross premium has been forwarded by the insured directly to the
either Exposure Drafts or Bills being introduced and debated in Parliament during insurer, provided that the receipt by the authorised representative or insurance
2010. We expect some but not all of the current proposed changes to be passed by broker of that amount had not been deferred unreasonably.
parliament prior to 1 July 2010 with the effective date of the changes ranging from 1 • When that amount has been withheld by the authorised representative or
July 2000 to 1 July 2010 (that is, some changes are likely to apply retrospectively). insurance broker from the net premiums passed onto the insurer.
Many of the changes have general application to business taxpayers and it is
important for each organisation to consider the impact of each of the proposed or Which of these different scenarios is most relevant in any particular situation will be
finalised changes. influenced by the terms of the contract between the authorised representative or
insurance broker and the relevant insurer.

The authorised representative or insurance broker will be allowed a deduction in

the year in which brokerage and commission is refunded where that amount had
previously been included in the assessable income of the authorised representative
or insurance broker.

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 Goods and services tax
Under the Australian GST legislation, some classes of insurance are treated
differently, leading to different implications for insurers and insured parties. Notes
Brokerage and fee income earned by insurance brokers will generally be subject to
GST, regardless of the type of insurance policy involved, however, some exceptions
apply such as brokerage in relation to the arranging of international transport.

We note that changes are currently being proposed to the GST legislation that
applies to cross-border transport supplies. In the event these changes are passed by
parliament, it is likely that they will apply from 1 July 2010. Based on current drafting,
the proposed changes are likely to alter the extent to which international transport
activities are GST-free or subject to GST and in turn, this will alter the GST treatment
of insurance broker services connected to these international transport activities.

For GST purposes, brokers are treated as agents of the insurer even though they
act on behalf of the prospective policyholder. As a result, the general rules regarding
agents apply for GST purposes.

Insurance
It is common place for brokers and insurers to use Recipient Created Tax Invoices

brokers
(RCTIs) in the process of documenting brokerage due for insurance sales. Particular
GST rules exist in relation to RCTIs and in 2009 a new Determination (RCTI 2009/1)
was released allowing RCTI agreements to be embedded in RCTIs. This development
was aimed at reducing the administration required to comply with the legislative
requirements regarding RCTIs.

Stamp duty
Insurance intermediaries (i.e. brokers) are not liable to pay stamp duty on insurance
policies, as the liability to pay duty falls on the registered insurer.

Where the insurance is provided by an unregistered insurer (e.g. overseas insurer),

the insured is the person who is liable to remit any duty payable in the relevant
jurisdictions. However, if the broker has remitted the duty on behalf of the insured,
the insured will generally be deemed to have complied with the relevant stamp duty
requirements.

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This publication is designed to provide an overview of the accounting, tax and regulatory environment relating to
insurance in Australia. Information contained in this booklet is based on the law and Government announcements
as at 16 April 2010.

The information presented in this publication should be used as a guide only and does not represent advice.
Before acting on any information provided in this publication, readers should consider their own circumstances
and their need for advice on the subject. PricewaterhouseCoopers insurance experts will be pleased to assist –
please contact your usual PwC contact or one of the experts listed at the end of this publication.

Insurance Facts & Figures 2010

© 2010 PricewaterhouseCoopers. All rights reserved. PricewaterhouseCoopers refers to the network of member
firms of PricewaterhouseCoopers International Limited, each of which is a separate and independent legal entity.

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