One of the privileges – and responsibilities – afforded to the actuarial profession
is that of self‑regulation. Member discipline is a key element of any such self‑regulatory
regime.
In the Institute’s case, the Disciplinary Scheme is contained, for legal reasons,
in a Schedule to the Constitution of the Institute. An important feature of the
Scheme is its degree of independence from the general governance arrangements of
the Institute. To the greatest extent possible, there is a separation of powers
between the functional components of the Scheme and the Institute’s Council. This
independence helps to ensure fairness and impartiality in the operation of the Scheme,
as well as minimise potential conflicts of interest.
The Institute has produced a guide for those wishing to make a complaint about the conduct of a member of the Institute.
Click here to access the guide.
Click here to access a copy of the rules of the Disciplinary Scheme.
There are three types of Actionable Conduct under the Scheme (whether by act or
omission), namely:
- professional misconduct
- unsatisfactory professional conduct; and
- conduct likely to bring discredit upon the Institute or the profession of Actuary
Professional misconduct" includes:
- conduct occurring in connection with the provision of Professional Services that
involves a substantial or persistent failure to reach or maintain a reasonable standard
of competence or diligence
- conduct that would (if established) justify a finding that a Member is not a fit
and proper person to engage in the provision of Professional Services and includes,
but is not limited to, dishonesty or misleading or deceptive professional conduct;
and
- knowingly breaching, subverting or avoiding a mandatory requirement of any or all
of the Constitution, Code of Professional Conduct, a Professional Standard or relevant
requirements imposed under legislation including subordinate standards and rules.
"Unsatisfactory professional conduct" includes:
- conduct in connection with the provision of Professional Services that falls short
of the standard of competence and diligence that a member of the public is entitled
reasonably to expect of a Member or an Actuary as the case may be; and
- a breach or breaches of, or non-compliance with, any or all of the Constitution,
Code of Professional Conduct, a Professional Standard or standards imposed by relevant
requirements under legislation including subordinate standards and rules, and which
is either negligent and substantial, or negligent and persistent.
Certain enumerated conduct will constitute prima facie evidence of Actionable Conduct
by a member, namely where a member:
- is or has been convicted of an indictable criminal offence;
- has been found to have acted fraudulently or dishonestly by any court of competent
jurisdiction or tribunal or equivalent professional body to the Institute in Australia
or elsewhere;
- has been found by any court of competent jurisdiction or tribunal or equivalent
professional body to the Institute in Australia or elsewhere to have engaged in
misleading or deceptive conduct in civil proceedings;
- has been the subject of an adverse determination by a Regulatory Body in Australia
or elsewhere;
- is or has become 'insolvent under administration’ as defined in the Corporations
Act 2001 (Cth);
- has breached a determination of a Tribunal or Appeal Board of the Scheme including
but not limited to an enforceable undertaking; or
- failing to disclose, when applying to become a member, that he or she had
- been convicted of an indictable criminal offence;
- been found to have acted fraudulently or dishonestly by any court of competent jurisdiction
or tribunal or equivalent professional body to the Institute in Australia or elsewhere;
- been found by any court of competent jurisdiction or tribunal or equivalent professional
body to the Institute in Australia or elsewhere to have engaged in misleading or
deceptive conduct in civil proceedings;
- been the subject of an adverse determination by a Regulatory Body in Australia or
elsewhere; or
- become 'insolvent under administration' as defined in the Corporations Act 2001
(Cth).
Any person may make a complaint about the conduct of an actuary.
Once a complaint has been made, an Investigating Sub-Committee will be formed to
investigate the complaint. The Committee, having investigated the matter, then makes
a determination as to whether or not there is a prima facie case of Actionable Conduct.
If the Committee determines that the complaint is frivolous or that there is no
such prima facie case of Actionable Conduct, then the complaint is dismissed. If
not, then the Committee prepares a report for the Tribunal.
Click on the graphic above for an illustration of the key features and structure
of the Disciplinary Scheme.
The Tribunal conducts a private hearing into the matter. At this stage, the actuary
concerned may be legally represented or, indeed, represented by another member.
The onus of proof rests with the Convenor of the Professional Conduct Committee
and the standard of proof is the civil standard (‘on balance of probabilities’).
The enumerated determinations that the Tribunal may make are that the actuary has:
- not committed or been engaged in Actionable Conduct;
- not committed or been engaged in Actionable Conduct but that concern be expressed
in relation to his or her conduct;
- committed or been engaged in Actionable Conduct and that he or she be given a warning
in relation to such conduct;
- committed or been engaged in Actionable Conduct and that there shall be a penalty
such that he or she be:
- reprimanded;
- suspended as a Member for such period as the Tribunal specifies;
- directed to undertake specific action including education, retraining, or supervised
practice as the Tribunal specifies; or
- expelled as a Member.
In the event that the Tribunal, for any reason, does not make a determination, the
complaint must be dismissed.
The Tribunal can make orders as to costs.
The Scheme provides for certain rights of appeal to the Appeal Board. The Appeal
Board has discretion whether to hear the appeal or not. The Appeal Board may affirm,
amend, vary or rescind any determination of the Tribunal. Again, the onus of proof
rests with the Convenor of the Professional Conduct Committee and the standard of
proof is the civil standard (‘on balance of probabilities’). A determination of
the Appeal Board is final.
The Scheme sets out various other requirements in relation to proceedings, including
with respect to:
- confidentiality;
- publicity; and
- conflicts of interest.
As to publicity, the Scheme provides for such – including the names of those involved
- at certain stages of the disciplinary process. Such publicity can have strong
reputational impacts.
