FEDERAL COURT OF AUSTRALIA

Kamha v Australian Prudential Regulation Authority [2005] FCA 480

INSURANCE – insurance companies – disqualified persons – Australian Prudential Regulation Authority – power to disqualify where person not presently employed in relevant position – deterrence an irrelevant consideration in exercise of discretion

ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – existence of other review or appeal rights – whether adequate provision made by other law –discretion to refuse relief

Acts Interpretation Act 1901 (Cth), s 15A

Administrative Appeals Tribunal Act 1975 (Cth), ss 41, 63

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 10(2)(b), 16

Insurance Act 1973 (Cth), ss 2A, 24, 25, 25A, 26, 27, 63, 126, Pt III, Div 5, Pt VI

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, referred to

Clyne v New South Wales Bar Association (1960) 104 CLR 186, cited

Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151; (2004) 206 ALR 488, distinguished

Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, cited

Hill v Repatriation Commission [2005] FCAFC 23, cited

Lamb v Moss (1983) 49 ALR 533, followed

McGowan v Migration Agents Registration Authority (2003) 129 FCR 118, followed

New South Wales Bar Association v Evatt (1968) 117 CLR 177, cited

Re Altim Pty Ltd [1968] 2 NSWR 762, cited

Re Ferrari Furniture Co Pty Ltd [1972] 2 NSWLR 790, cited

Re Magna Alloys & Research Pty Ltd (1975) 1 ACLR 203, cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, referred to

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, applied

Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 78 ALJR 1354; (2004) 209 ALR 271, referred to

Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 172, distinguished

Wyeth Australia Pty Ltd v Minister for Health & Aged Care [2000] FCA 330; (2000) 61 ALD 372, followed

ASHRAF IBRAHIM HELMY KAMHA v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY AND DARRYL ROBERTS

NSD 271 OF 2005

GYLES J

22 APRIL 2005

SYDNEY

THE COURT ORDERS THAT:

The proceeding stand over to enable submissions to be made as to the appropriate orders to give effect to these reasons including costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant, Ashraf Ibrahim Helmy Kamha, was born in 1946.  He is a commerce graduate and holds a Diploma in General Insurance.  He joined the general insurance industry in 1979 when he commenced employment with the American International Group Inc where he held senior underwriting and management positions.  In 1994 he commenced employment with FAI General Insurance Limited (FAI General).  That company was a wholly owned subsidiary of the listed company FAI Insurance Limited (FAI) and was the entity through which FAI conducted its general insurance business. 

2                     FAI General had three main divisions, one of which was the Commercial and Professional Insurance Division (CPID) which managed, inter alia, commercial public liability risks and professional indemnity risks written internationally and in Australia.  The applicant held the position of General Manager of CPID.  Between 1994 and January 1997 he reported to a Mr Angus MacIver.  Between January 1997 and November 1997 he reported to Mr Rodney Adler (Adler).  Between November 1997 until September 1998 he reported to Mr Daniel Wilkie (Wilkie), who was appointed Chief Operating Officer of FAI in November 1997 and managed and controlled CPID.  Between February 1997 and September 1998, the applicant was a Director of FAI General.  The applicant left FAI in September 1998 and, according to his evidence, had been systematically and gradually stripped of his authority by Wilkie with the concurrence of Adler.  By that time he had instructed lawyers in relation to bringing a claim for constructive dismissal.

3                     In 1999 the applicant, along with an international reinsurer, established Dexta Corporation Limited (Dexta), an insurance agency acting for a number of Australian and foreign insurers.  The trustee company of his family trust held a 60 per cent interest in Dexta.  Between May 1999 and July 2003 the applicant was the Managing Director of Dexta.  From July 2003 until August 2004 the applicant held the position of Non-Executive Director and Consultant to Dexta.  He resigned as a Director in August 2004 and ceased acting as a consultant at that time.  In October 2004 the trustee of the family trust disposed of its interest in Dexta.  Since that time the applicant has not had any involvement with Dexta or with any insurance business.  Dexta was not, and has never been, a body falling within Div 5 of Pt III of the Insurance Act 1973 (Cth) (the Act).  It was not a general insurer, a foreign general insurer or an authorised NOHC within the meaning of s 24 of the Act.

4                     The Australian Prudential and Regulatory Authority (APRA) sent a Show Cause Notice dated 9 August 2004 to the applicant in the following terms (omitting formal parts):

‘INSURANCE ACT 1973 (‘THE INSURANCE ACT’)

PROPOSED DISQUALIFICATION UNDER SECTION 25A

I note that you were a senior executive with FAI Insurances Ltd (FAI) from June 1994 to September 1998.  You were also a director of FAI General Insurance Company Ltd in the period February 1997 to September 1998.  You are currently a Director of Dexta Corporation Ltd.

On the basis of the information referred to in this letter, I have come to the preliminary view that you are not a fit and proper person to be or to act as someone referred to in paragraph 24(1)(a), (b) or (c) of the Insurance Act, that is:

(a)               a director or senior manager of a general insurer (other than a foreign general insurer); or

(b)               a senior manager, or agent in Australia for the purpose of section 118 of the Insurance Act, of a foreign general insurer; or

(c)               a director or senior manager of an authorised NOHC.

I have, therefore, come to the preliminary view that you should be disqualified from being or acting as someone referred to in paragraph 24(1)(a), (b) or (c) of the Insurance Act, pursuant to subsection 25A(1) of the Insurance Act.  Copies of sections 24 and 25A are at Attachment A to this letter.

My preliminary findings and the evidence and other material I have relied upon are set out in Attachment B to this letter.  The information upon which I have proceeded to date is provided on the accompanying compact disk.  Please advise me if you require access to any additional material.  For your information I note that there is considerable amount information [sic] available on the HIH Royal Commission website (www.hihroyalcom.gov.au).

APRA’s Proposed Action

Given the above preliminary views, I propose to recommend to the appropriate delegate of the Australian Prudential Regulation Authority (“APRA”) that you be disqualified pursuant to subsection 25A(1) of the Insurance Act.

Opportunity to make submissions

Before I reach a final view on the above matters, you may wish to make submissions as to why APRA should not make a decision under subsection 25A(1) of the Insurance Act to disqualify you from being or acting as someone referred to in paragraph 24 (1)(a), (b) or (c) of the Insurance Act.’

[Attachments not reproduced]

5                     Sections 24, 25, 25A, 26, 27 of the Act, so far as is relevant, are as follows:

‘24(1)  A disqualified person must not be or act as:

(a)     a director or senior manager of a general insurer (other than a foreign general insurer); or

(b)     a senior manager, or agent in Australia for the purpose of section 118, of a foreign general insurer; or

(c)     a director or senior manager of an authorised NOHC.

…

(4)  A body corporate must not allow a disqualified person to be or act as:

(a)     if the body corporate is a general insurer (other than a foreign general insurer)—a director or senior manager of the insurer; or

(b)     if the body corporate is a foreign general insurer—a senior manager, or agent in Australia for the purpose of section 118, of the insurer; or

(c)     if the body corporate is an authorised NOHC—a director or senior manager of the NOHC.

…

(7)  In a prosecution under subsection (5), it is a defence if the defendant:

(a)     contacted APRA within a reasonable period before allowing the person to be or act as a director, senior manager or agent (as the case may be); and

(b)     was advised by APRA that the person was not a disqualified person.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see section 13.3(3) of the Criminal Code).

…

25(1)   A person is a disqualified person if, at any time:

(a)     the person has been convicted of an offence against or arising out of:

(i)                 this Act; or

(ii)               the Financial Sector (Collection of Data) Act 2001; or

(iii)             the Corporations Act 2001, the Corporations Law that was previously in force, or any law of a foreign country that corresponds to that Act or to that Corporations Law; or

(b)     the person has been convicted of an offence against or arising out of a law in force in Australia, or the law of a foreign country, if the offence concerns dishonest conduct or conduct relating to a financial sector company (within the meaning of the Financial Sector (Shareholdings) Act 1998); or

(c)     the person has been or becomes bankrupt; or

(d)     the person has applied to take the benefit of a law for the relief of bankrupt or insolvent debtors; or

(e)     the person has compounded with his or her creditors; or

(f)     APRA has disqualified the person under section 25A.

Note: APRA may determine that a person is not a disqualified person (see section 26).

…

25A(1)   APRA may disqualify a person if it is satisfied that the person is not a fit and proper person to be or to act as someone referred to in paragraph 24(1)(a), (b) or (c).

(2)   A disqualification takes effect on the day on which it is made.

(3)   APRA may revoke a disqualification on application by the disqualified person or on its own initiative. A revocation takes effect on the day on which it is made.

(4)   APRA must give the person written notice of a disqualification, revocation of a disqualification or a refusal to revoke a disqualification.

(5)   As soon as practicable after a notice is given to a person under subsection (4), APRA must cause particulars of the disqualification, revocation or refusal to which the notice relates:

(a)   to be given:

(i)          if the person is, or is acting as, a person referred to in paragraph 24(1)(a)—to the general insurer concerned; or

(ii)        if the person is, or is acting as, a person referred to in paragraph 24(1)(b)—to the foreign general insurer concerned; or

(iii)      if the person is, or is acting as, a person referred to in paragraph 24(1)(c)—to the authorised NOHC; and

(b)   to be published in the Gazette.

(6)   Part VI applies to a disqualification under this section or to a refusal to revoke such a disqualification.

26(1)   Despite section 25, APRA may determine (in writing) that a person is not a disqualified person. APRA may do so on its own initiative or on the application of the person.

(2)   However, APRA may only make the determination if it is satisfied that the person is highly unlikely to be a prudential risk to any general insurer or authorised NOHC.

…

27(1)   This section applies to a person who is:

(a)     a director or senior manager of a general insurer (not including a foreign general insurer); or

(b)     a senior manager, or agent in Australia for the purpose of section 118, of a foreign general insurer; or

(c)     a director or senior manager of an authorised NOHC.

(2)   APRA may direct (in writing) that the general insurer or authorised NOHC remove the person from the position if APRA is satisfied that the person:

(a)     is a disqualified person; or

(b)     does not meet one or more of the criteria for fitness and propriety set out in the prudential standards.

…’

6                     Correspondence concerning particulars followed and, by letter dated 29 October 2004, the applicant provided APRA with a detailed response to the Show Cause Notice. 

7                     On 15 October 2004 the applicant offered to give an undertaking pursuant to s 126 of the Act that he would ‘not seek or agree to be or act as’ one of the persons referred to in s 24 of the Act.  Section 126 is as follows:

‘126(1)    APRA may accept a written undertaking given by a person in connection with a matter in relation to which APRA has a function or power under this Act.

(2)    The person may withdraw or vary the undertaking at any time, but only with APRA's consent.

(3)    If APRA considers that the person who gave the undertaking has breached any of its terms, APRA may apply to the Federal Court for an order under subsection (4).

(4)    If the Federal Court is satisfied that the person has breached a term of the undertaking, the Federal Court may make all or any of the following orders:

(a)     an order directing the person to comply with that term of the undertaking;

(b)     an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c)     any order that the Federal Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d)     any other order that the Federal Court considers appropriate.’

8                     By letter dated 16 February 2005 the applicant was informed that the second respondent, Dr Darryl Roberts, a delegate employed by APRA, had formed the intention to disqualify the applicant pursuant to s 25A of the Act.  By letter dated 17 February 2005 the second respondent provided reasons for his proposed decision.

9                     The applicant alleges that there are, in effect, two decisions made by APRA through its delegate.  The first is that the delegate is ‘satisfied that the applicant is not a fit and proper person to be or to act as someone referred to in paragraph 24(1)(a), (b) or (c)’ – described as the ‘satisfaction decision’.  The second is the decision in all the circumstances to exercise his discretion to disqualify the applicant under s 25A – referred to as the ‘discretionary decision’.  Whether or not that is a correct analysis is debateable, but it will suffice for the purposes of discussion.

10                  The satisfaction decision was founded upon the findings of the HIH Royal Commission.  The application of those findings to the statutory issue by APRA involved interpretation and selection and, in particular, involved making independent secondary findings based upon the Royal Commission findings.  It was concluded that the applicant had been dishonest in relation to three topics: 

(1)               the manipulation of case estimates;

(2)               the public liability portfolio as at 30 June 1997; and

(3)        information provided to PricewaterhouseCoopers as at 30 June 1998 relating to the international portfolio. 

11                  The reasons for the discretionary decision, having referred to the offering of the signed and confidential undertaking and to the subjective circumstances of the applicant, proceeded as follows:

‘138.    Although you have undertaken not to hold a section 24 position, I nonetheless am of the view there is a public interest in proceeding to disqualify you for the purposes of section 25A, particularly given the concerns I have regarding your honesty and probity.

…

140.     In my view, the protective powers under section 25A of the Act may be exercised for the purposes of upholding the standards of honesty and probity amongst all those acting in section 24 positions in the general insurance industry.  I consider that it is appropriate to disqualify a person who has departed from the standards of honesty and probity as a means of maintaining those standards in section 24 professions.

141.     In addition, notwithstanding your undertaking of 5 November 2004, having regard to the length of your experience within the insurance industry and your age, in my view there is some prospect that you may seek to hold a section 24 position in the future unless you are disqualified.’

12                  The applicant seeks to challenge each decision on various grounds.

13                  It is contended that the manner in which the satisfaction decision was made:

(1)               breached procedural fairness in a number of respects;

(2)               involved error in the manner in which the findings of the Royal Commission were used and, in some cases, departed from;

(3)               involved error in applying Briginshaw v Briginshaw; and

(4)               erred in many detailed respects in relation to the findings of dishonesty on each of the three heads. 

14                  The applicant invokes many grounds of challenge available pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and under the general law.  This involved leading evidence and lengthy written and oral submissions on his behalf.  This aspect of the case has expanded considerably from the time the hearing was fixed during interlocutory hearings before Allsop J. 

15                  The challenge to the discretionary decision is more limited in scope.  Two of the contentions are as follows.  First, that the decision is beyond power.  Secondly, that the decision was influenced by punishment of the applicant and deterrence of others, each being an irrelevant consideration pursuant to the Act.  There are also other, more ambitious grounds taken.

16                  There is an issue as to whether this case of judicial review should proceed at all in view of Pt VI of the Act.  Section 63 provides the right to have an adverse decision reconsidered by APRA which can confirm, revoke or vary the decision and, if that is not done within 21 days after receipt of a request for reconsideration, APRA is deemed to have confirmed the decision.  In that event, or if there is an actual confirmation or variation, there is then a right to a full merits review by the Administrative Appeals Tribunal.  Furthermore, as soon as a request is made for reconsideration, the stay provision (s 41) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) applies as if the making of the request were the making of an application to the Administrative Appeals Tribunal for a review of that decision. 

17                  I am satisfied that it is appropriate to determine the two identified issues in relation to the discretionary decision.  I will then consider what should happen to the balance of the case.

18                  The first issue is lack of power.  It is submitted that, as the applicant has not been in a s 24 position for some years and as there is no immediate threat of his taking up such a position, he cannot be disqualified pursuant to s 25A.  It is submitted that s 25A must be read down.  Construed literally it would enable a highly damaging finding to be made and be made public by APRA against a person with no connection at all with the insurance industry.  There would be a presumption against such an unreasonable result.  Such a conclusion would not be consistent with the stated objects of the Act as set out in s 2A that is as follows:

‘2A(1)    The main object of this Act is to protect the interests of policyholders and prospective policyholders under insurance policies (issued by general insurers and Lloyd's underwriters) in ways that are consistent with the continued development of a viable, competitive and innovative insurance industry.

(2)   This Act, and the prudential standards determined by APRA under this Act, achieve this mainly by:

(a)   restricting who can carry on insurance business in Australia by requiring general insurers, and the directors and senior management of general insurers, to meet certain suitability requirements; and

(b)   imposing primary responsibility for protecting the interests of policyholders on the directors and senior management of general insurers; … ^’

19                  It is submitted that, construed as it has been by APRA, s 25A would not be a law with respect to insurance.  Thus, it is necessary to read the section in a manner which would not exceed the legislative power of the Commonwealth (s 15A Acts Interpretation Act 1901 (Cth)) by limiting its operation to those in a s 24 position.  It is submitted that the language of s 25A(5) is consistent with the construction of the provision advanced by the applicant as it is framed upon the assumption that a qualified person is actually in one or other of the three alternative situations at the time of the disqualification. 

20                  Counsel for APRA pointed to the very wide and unequivocal terms of s 25 and indicated that many persons would be disqualified, and sensibly disqualified, although they had never had anything to do with insurance.  It is submitted that too much was being made of s 25A(5) on behalf of the applicant and that s 25A(5)(a) would only be activated ‘if’ the person is or is acting in a relevant position.  It is submitted that whatever limitations, constitutional or otherwise, there may be in relation to s 25A, in the present case there was an adequate nexus as the conduct relied upon took place whilst the applicant was acting in a s 24 position as senior manager of a general insurer.

21                  In my opinion, it is not possible to read down s 25A to apply only to those who are presently in a s 24 position.  No such limitation appears in s 25 and the language of s 25A is to be contrasted with the explicit terms of s 27.  Section 25A(5) does, at first sight, give support to the argument for the applicant but, in my view, the explanation of it by counsel for APRA is correct.  Any abuse of s 25A can be checked, either by administrative law proceedings or exercise of the right to review provided by the statute.  The general object of the Act is of no assistance to the applicant on this point.

22                  I should add that I have consulted the Explanatory Memorandum and Second Reading Speech in relation to the introduction of s 25A in 2002.  The stated purpose was to bring the Act into line with Superannuation Industry (Supervision) Act 1993 (Cth), also administered by APRA, presumably a reference to s 120A(3) of that Act.  The terms of that section give some modest support to the submission on behalf of APRA in the present case.

23                  The second issue was put in various ways during the course of argument but can be summarised for present purposes as a contention that the discretionary decision to disqualify was influenced by punishment and deterrence, neither of which was a legitimate consideration pursuant to the Act.  It is contended for the respondent that neither of those considerations did affect the decision but that, even if deterrence were taken into account, it would not be an irrelevant consideration.

24                  There is no express reference to punishment or deterrence in the reasons.  Indeed, the powers are described as ‘protective’.  I am not satisfied that punishment as such can be said to have been an operative consideration.  Punitive effects are to be distinguished from a punitive purpose.  However, I am satisfied that par 140 of the reasons reflects an intention that disqualification would have a wider impact than simply preventing the person disqualified from being or acting in the positions referred to in s 24(1).  That more limited purpose is dealt with as, in effect, a separate topic in par 141.  It seems to me that, when understood in context, the language of par 140 is consistent only with the power being exercised in order to make an example of the party disqualified to others acting in s 24 positions.  The question is whether that purpose is permitted by the statute.  Attributing a label such as deterrence or punishment may illuminate but will not answer that question.

25                  Uninstructed by authority, I would consider that the power of disqualification in question here is entirely protective, being designed to protect the public by preventing persons from being involved in the management of general insurers who are not suitable to fulfil that role.  Counsel have referred to authority in relation to other statutes.

26                  Counsel for the applicant referred to the following passage in Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 172 (at [42]):

‘It may be that if the sole, or a substantial, factor justifying cancellation of a visa were the deterrence of others from committing a crime, the purpose of the decision may be punitive, which might be an irrelevant consideration (see Re Sergi and The Minister for Immigration and Ethnic Affairs (1979) 2 ALD 224 at 231 and Gungor and The Minister (1980) 3 ALD 225 at 227 and 232).’

27                  However, the Court then went on to say (at [44]):

‘It cannot be said that to have regard to the beneficial consequences for Australia flowing from the exercise of the discretion to cancel the visa is to have regard to a consideration foreign to the purpose for which the discretion is granted.  But for the grant of a visa, the appellant would have no right to remain in Australia.  The exercise of the discretion was not directed to the punishment of the appellant.  The possible consequence of deterring other non-citizens from committing similar offences was not an irrelevant consideration in the exercise of the discretion conferred on the Minister by s 501(2) to decide whether the appellant should be permitted to remain in Australia (see generally Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 at [75]-[77]).’

28                  The decision in Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151; (2004) 206 ALR 488 is a reasoned consideration of s 501 of the Migration Act 1958 (Cth) and should be regarded as authoritative compared with the earlier Administrative Appeals Tribunal decisions referred to in Tuncok.  However, the context of s 501 is, in my opinion, too far removed from the present circumstances to be of any real value in this case.

29                  The authorities in relation to professional disbarment are closer to home and point in the other direction, as the purpose of that power is described as ‘entirely protective’ (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 per Gleeson CJ, Meagher JA and Handley JA at 637F–638B citing Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201–202 and New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183–184). 

30                  The cases concerning disqualification of directors and officers of corporations were recently reviewed (for a different purpose) by the High Court in Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 78 ALJR 1354; (2004) 209 ALR 271.  Although not directly relevant to the precise point of that decision, the review by McHugh J of the practice as to the manner in which the corporations law disqualification provisions have been applied in recent times demonstrates that general deterrence is now taken into account. 

31                  It is of interest to note that the early cases described s 122 of the Companies Act 1961 (NSW) (that created an offence of certain disqualified persons acting as a director or promoter or taking part in the management of a company if that took place without the leave of the Court) as protective.  Bowen CJ in Eq in Re Magna Alloys & Research Pty Ltd (1975) 1 ACLR 203 said as follows (at 205):

‘The policy to which s. 122 gives effect is that a person convicted of an offence of any of the types specified in that section is not to be permitted to act as a director or to take part in the management of a company.  The section is not punitive.  It is designed to protect the public and to prevent the corporate structure from being used to the financial detriment of investors, shareholders, creditors and persons dealing with the company.  In its operation it is calculated to act as a safeguard against the corporate structure being used by individuals in a manner which is contrary to proper commercial standards.’

The provision had earlier been described by Street J as ‘entirely protective’ (Re Ferrari Furniture Co Pty Ltd [1972] 2 NSWLR 790 at 791 applying Re Altim Pty Ltd [1968] 2 NSWR 762 at 764).

32                  It is not necessary that I trace the subsequent path of legislative changes and judicial decisions to see how that principle altered so as to permit the practice described by McHugh J in Rich or express any view as to the appropriateness of the practice.  I am satisfied that the practice described is not a proper guide to the construction or application of s 25A of the Act.  Among the differences between this statute and the corporations legislation is that in the case of s 25A the decision is made by the regulator rather than a court and that there is no provision that is the equivalent of s 126 of the Act in the corporations legislation.

33                  In one sense it can be said that general deterrence is an aspect of protection of the public, distinct from punishment, and so within the statutory penumbra.  However, it seems to me that the legislature has chosen a particular means of protecting the public, namely, by disqualification from participation in the affairs of the company rather than by the stigmatism of the individual as an example to others.  In my opinion, the obligation to advertise and notify a decision is to assist in making the decision effective rather than effecting a policy of denunciation of the individual concerned.  It follows that, in my opinion, the delegate misconstrued the effect of s 25A and so took into account an irrelevant consideration.

34                  It does not automatically follow that the applicant is entitled to relief.  In the first place, that consideration was not the only factor taken into account in making the discretionary decision.  In the second place, there is an alternative remedy provided by Pt VI of the Act.

35                  In my opinion, the first point is not applicable in these circumstances.  It is unusual for a matter not to be remitted to the decision maker in the event that an irrelevant consideration has been taken into account (Hill v Repatriation Commission [2005] FCAFC 23 at [81]–[82]).  I do not read par 141 of the decision as amounting to a separate and stand-alone basis for the decision regardless of the conclusion reached in par 140.  I read those paragraphs as cumulative.  The applicant is entitled to have the discretion to disqualify considered free of any misconception as to the purpose of the relevant provision.  It would also be fair to the decision maker to have the opportunity of that reconsideration bearing in mind that par 141 was subject to considerable criticism by counsel for the applicant.  Indeed, it is alleged that the discretionary decision was so unreasonable that no reasonable person could have so decided if the enforceable undertaking and the age and history of the applicant are taken into account.  In that connection, Counsel for APRA points out that the section relating to enforceable undertakings (s 126) applies generally and is not directed to this particular situation. 

36                  I do not consider that Pt VI is a reason for not remitting this aspect of the matter for reconsideration as will appear when I consider the effect of Pt VI generally. 

37                  Once it became apparent that the case for the applicant was expanding APRA moved as follows:

‘1.     That the application be dismissed or the Court refuse to grant the application pursuant to section 10(2)(b)(ii) Administrative Decisions (Judicial Review) Act 1977.

2.            That in the exercise of its discretion, the Court dismiss or refuse to grant the application under s. 39B of the Judiciary Act 1903.

3.            In the alternative to paragraph 1, that the application be dismissed or the Court refuse to grant the application pursuant to section 10(2)(b)(ii) Administrative Decisions (Judicial Review) Act 1977 except in so far as the application concerns the allegations that:

3.1.    the Act does not authorise the making of the decision; and

3.2.    the power was exercised for a purpose other than a purpose for which the power was conferred.

4.            In the alternative to paragraph 2, that the Court dismiss or refuse to grant the application under s. 39B of the Judiciary Act 1903 except in so far as the application concerns the allegations that:

4.1.    the Act does not authorise the making of the decision; and

4.2.    the power was exercised for a purpose other than a purpose for which the power was conferred.’

38                  Section 10(2)(b) of the ADJR Act, so far as is relevant, is as follows:

‘10(2)(b)    the Federal Court … may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:

…

(ii)   that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.’

By virtue of s 10(3) ‘review’ includes a review by way of reconsideration.  Further, it is clear enough from the terms of s 16 that the grant of relief pursuant to the ADJR Act is discretionary.  (See Lamb v Moss (1983) 49 ALR 533 at 546–551; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 338; McGowan v Migration Agents Registration Authority (2003) 129 FCR 118; and Wyeth Australia Pty Ltd v Minister for Health & Aged Care [2000] FCA 330; (2000) 61 ALD 372 at [42]–[47].)

39                  I declined to make the orders sought.  There was real doubt as to whether s 10(2)(b) of the ADJR Act was engaged, as the decisions in question were arguably not ‘reviewable decisions’ within the meaning of s 63 of the Act.  That being so, and as the applicant’s case was not complete, I was not prepared to make a pre-emptory order at that stage.

40                  The case is now complete.  The applicant has completed its submissions.  Counsel for the respondent has made some general submissions in reply, but will need significant further time to give a comprehensive answer.  My present view is that I should exercise the discretion to decline relief on all grounds but for those issues that I have already determined.  There is no reason to decline relief based upon the finding as to the deterrence point.

41                  The better view is that s 10(2)(b) of the ADJR Act is not applicable as Pt VI of the Act only applies to disqualification. The satisfaction decision is not a disqualification.  However, it is reviewable under the ADJR Act by parity of reasoning with Bond (see per Mason CJ at 339).  The same reasoning raises a doubt as to whether the ‘discretionary decision’ is a reviewable decision – it can be seen as no more than a step along the way to disqualification with no statutory basis or significance.  That point is not taken, but illustrates the artificiality of the applicant’s position.  If the discretionary decision is a reviewable decision, it is not a disqualification as such.  However, all of the complaints made about the process, whether substantive or procedural, can be considered on their merits, both on reconsideration by APRA and on review by the Administrative Appeals Tribunal.  In my opinion, leaving aside the two discrete issues that I have determined, those procedures are the appropriate means of resolving the complaints of the applicant. 

42                  The argument to the contrary largely turned upon the effect of disqualification.  It was contended that the applicant should not have to suffer disqualification, with the attendant publication pursuant to s 25A(5), if he had arguable grounds to prevent that occurring.

43                  That circumstance loses much of its force in the present case.  There is no direct effect upon the present employment of the applicant.  There is no evidence of any likely immediate effect upon the livelihood of the applicant.  The possible harm would be to the reputation of the applicant.  However, the disqualification would be based upon the public findings of the HIH Royal Commission.  This proceeding has also been held in public.

44                  Furthermore, the effect of s 63(11) is that the power to stay granted by s 41 of the AAT Act applies immediately upon the making of a request for reconsideration pursuant to s 63(2).  That unusual procedure appears to me to be designed to deal with the situation that has arisen here.  Counsel for APRA has indicated the possibility of co-operation in applying those provisions in this case.  Both the reconsideration and the review are held in private. 

45                  It has not been contended on behalf of APRA that the scheme of the Act, and the existence of full merits review, denies a duty to accord procedural fairness to the applicant, but, as was said by Gleeson CJ and Hayne J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [35], the review is relevant to the context of such a duty (see also the authorities referred to by McHugh J at [145]–[146]).  In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 the High Court said (at 578):

‘It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness”.’

46                  For similar reasons, the whole process needs to be considered in relation to administrative law complaints apart from procedural fairness.  The protective purpose of s 25A will often require prompt action in the public interest.  That purpose may be frustrated if full-scale judicial review of intermediate decisions on all grounds is to be permitted.  It may be sensible to deal with discrete issues that, if made out, would show the proceeding to be completely misconceived (as with the power argument here) or to be infected by a serious misconception of law (as in the case of the deterrence point here).  It does not follow that all potential grounds of challenge should be considered.  The history of this proceeding illustrates the point.  If the proceeding had been concerned only with limited discrete issues, as appears to have been originally contemplated, it would have been completed long before now.  Completing the hearing and delivering judgment on all issues will take months rather than days or weeks.  In any event, in my opinion, the remaining issues are better determined on the merits than by a court on judicial review.

47                  Furthermore, the reconsideration required by my finding as to the defect in the discretionary decision could lead to that decision being reversed.  In that event, the consideration of the other issues will have been unnecessary.

48                  The discretion to refuse relief pursuant to s 16 of the ADJR Act is established by the authorities to which reference has been made.  To the extent that any quia timet relief in relation to an operative decision not yet made could be granted pursuant to the general law (as to which there has been no argument), a similar discretion exists (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82).  Each should be exercised.

49                  In summary, the power point is rejected, the deterrence point is upheld and the claim to the balance of the relief is declined as a matter of discretion.  The matter must be remitted to APRA to be dealt with according to law.  The proceeding will stand over to enable submissions to be made as to the appropriate orders to give effect to these reasons including costs.

Associate:

Dated:              22 April 2005