by Dr. Andrew D. Schmulow
Australian Journal of Corporate Law, Vol. 16, no. 1, 2003, pp: 38-49.
In the wake of the collapse of the insurer, HIH, this article proposes for discussion an alternative method of enforcing prudential regulations, especially in light of the admission by APRA before the HIH Royal Commission, and the commission’s own findings, which confirmed that APRA failed to adequately enforce existing prudential regulations — regulations which are designed to prevent fragility and ultimately collapses in the insurance and banking sectors. This article aims to investigate the feasibility of policy-only liability insurance for direct insurers as a market-based mechanism to replace prudential regulation in the wake of the failure of APRA to adequately regulate HIH. The hope of this writer is to encourage debate on alternative methods of prudential regulation and regulatory enforcement.