Consideration
14 The legislative scheme under which this application is brought is analogous to the scheme for disqualified persons under Part III, Division 5 of the Insurance Act 1973 (Cth) (the Insurance Act). In particular, the relevant wording of s 26 of the Insurance Act is identical to s 245B of the Life Insurance Act. Further, the disqualification requirements in s 25A of the Insurance Act, are, in substance, the same as those in s 245A of the Life Insurance Act.
15 In Burroughs v Australian Prudential Regulatory Authority [2016] FCA 775; (2016) 340 ALR 267, Allsop CJ held that a court, in exercising its discretion to revoke a disqualification made under s 26 of the Insurance Act should be guided by the considerations found in s 25A of the Insurance Act. Further, while the court is not required to make a positive finding of a person's fitness and propriety in the nature of a jurisdictional fact, it is required to have regard to previous conclusions pertaining to an applicant's fitness and propriety, and whether those conclusions continue to be sufficiently justified (see Burroughs v Australian Prudential Regulatory Authority [2016] FCA 775; (2016) 340 ALR 267 at [67]).
16 The same approach is to be taken here. That is, it is appropriate to consider the factors set out in s 245A in assessing whether to accede to Mr Szuch's application. Section 245A(3) permits a court, when deciding whether someone is a fit and proper person, to consider: (a) any matters specified in the regulations for the purposes of this paragraph; (b) any criteria for fitness and propriety specified in the prudential standards; and (c) any other matters the court considers relevant. Further, s 245A(4) permits a court, in deciding whether the disqualification of an appointed actuary is justified, to consider the person's conduct in relation to the functions or duties of an actuary.
17 In my view, the previous conclusions relating to the applicant's fitness and propriety do not continue to be justified, for these reasons:
(1) The conduct that led to Mr Szuch's disqualification is not attributable to deficiencies in Mr Szuch's character, diligence, honesty or integrity, which are important "criteria for fitness and propriety specified" in the relevant prudential standard (APRA's CPS 520 Fit and Proper Standard).
(2) Because Mr Szuch has continued to practise as a general actuary since the declaration, and has not committed any breaches in that time, I am satisfied that his conduct over the period of his disqualification supports a finding that his disqualification is no longer justified (c.f. Burroughs v Australian Prudential Regulatory Authority [2016] FCA 775; (2016) 340 ALR 267 at [132]).
(3) Approximately 13 years have passed since the declaration, and Mr Szuch now acknowledges that his interpretation of the methodology required to comply with the new standards was incorrect, thereby demonstrating a "clear insight into the nature of his … past wrongdoings … and … human capacity to change" (Burroughs v Australian Prudential Regulatory Authority [2016] FCA 775; (2016) 340 ALR 267 at [76]).
(4) APRA does not oppose the order that Mr Szuch seeks. As Allsop CJ said in Burroughs v Australian Prudential Regulatory Authority [2016] FCA 775; (2016) 340 ALR 267 at [135], "APRA's role in determining the prudential standards for insurance in Australia coupled with the close working relationships" with industry "mean that the views of APRA as industry regulator will be accorded significant weight by the Court" in an application of this kind.
(5) Mr Szuch has provided an undertaking that, relevantly, means that he will not be appointed actuary of a life insurance business regulated by APRA. There is, thus, no risk that Mr Szuch may again engage in the conduct that led to the declaration, which in turn negates any prudential risk for the life insurance industry. In considering this factor, it is important to acknowledge that the purpose of the disqualification regime in the Life Insurance Act is to protect the general public and not to punish individuals (c.f. Burroughs v Australian Prudential Regulatory Authority [2016] FCA 775; (2016) 340 ALR 267 at [61]). In those circumstances, it is clear that Mr Szuch's disqualification does not further any of the Life Insurance Act's protective functions.
18 It was for the above reasons that, upon the giving of Mr Szuch's undertaking, the court ordered on 20 March 2018 that, pursuant to paragraph 245B(1)(b) of the Life Insurance Act, the applicant is not a disqualified person.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.