Kamha v Australian Prudential Regulation Authority

[2005] FCAFC 248

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Interrogate

Catchwords

1. Insurance
2. › Regulation of insurance industry
3. › Disqualification from holding senior positions
4. › Power to disqualify person not currently holding position
5. › Whether s 25A limited to persons currently in s 24(1) positions
6. › Insurance Act 1973 (Cth), ss 24, 25A
1. Constitutional Law (Cth)
2. › Legislative power
3. › Insurance power
4. › Whether law prohibiting person from holding senior insurance position is law with respect to insurance
5. › Whether validity depends on person's present or future connection with insurance industry
6. › Constitution, s 51(xiv)
1. Constitutional Law (Cth)
2. › Separation of powers
3. › Judicial power of the Commonwealth
4. › Whether administrative disqualification power constitutes exercise of judicial power
5. › Disciplinary jurisdiction distinguished from punishment of criminal offence
6. › Whether deterrent purpose renders power judicial
7. › Constitution, Ch III
1. Administrative Law
2. › Judicial review
3. › Relevant and irrelevant considerations
4. › Whether consideration of deterrence and maintaining industry standards is legally irrelevant to exercise of protective disqualification power
5. › Insurance Act 1973 (Cth), s 25A

Quick Take

APRA's power to disqualify under s 25A of the Insurance Act extends to persons who do not currently hold s 24(1) positions and is not limited by the person's present or future intention to hold such a position. Deterrence and the maintenance of industry standards are permissible considerations in exercising the disqualification power. The residual discretion under s 16 of the ADJR Act to refuse relief is available even where s 10(2)(b)(ii) is not engaged, but must be exercised on a correct factual and legal basis.