In Australian Securities and Investments Commission v
Administrative Appeals Tribunal (2009) 181 FCR 130, the Full
Court of the Federal Court of Australia considered whether the
Administrative Appeals Tribunal (AAT) had the
power to make:
orders staying the publication of a banning order made by the
Australian Securities and Investments Commission
confidentiality orders restraining ASIC from informing the
public of its banning order.
Following the making of a banning order, ASIC is required to
publish a notice in the Commonwealth Government Gazette and enter
details of the banning order in a register maintained for that
purpose. After making a banning order against a person, but prior
to ASIC taking those steps, the affected person applied to the AAT
for a review of ASIC's banning order and interlocutory orders
staying the operation and implementation of the banning order.
The AAT made those orders pending the determination of the
ASIC argued that the AAT's power to stay the banning order
did not include a power to prevent ASIC entering details of the
banning order into a register that it is required to maintain or
issuing a media release concerning the making of the banning order.
This was because the publication of the banning order and its entry
into a register were merely related regulatory activity and did not
constitute steps to implement the banning order.
ASIC also relied upon the public interest in open government and
argued that this interest should not be weakened by an order of the
AAT precluding ASIC from fulfilling these duties.
The majority of the Full Court was of the view that the AAT did
have the power to make the orders in question and noted that
ASIC's focus on the AAT's power (or lack of power) to make
such orders was misplaced. Had it framed its arguments by reference
to the AAT's actual decision (which did not disclose any
substantive consideration of critical elements of the statutory
scheme), its submissions may have been more persuasive.
In this regard the majority noted that, in order to form an
opinion that it is desirable to make such orders, the AAT must
identify and take into account "the interests of any persons
who may be affected by the review". These
"interests" must be identified by reference to the
statutory scheme concerned.
In the case of a banning order, the statutory scheme is intended
to protect the public and the importance of an informed market is a
critical aspect of the Corporations Act 2001 (Cth). For
this reason, the AAT is required to balance the competing interests
of persons who may be affected by a banning order which include the
recipient of the banning order, his or her dependents, associates
and employees, actual and potential clients as well as the
interests of the public at large.
The majority and minority judgments contain important
observations in relation to the factors that the AAT must take into
account in making such orders that will assist in future cases.
These factors include:
The AAT must resolve potentially competing interests contained
within the relevant statutory scheme when determining whether
confidentiality orders are desirable,
The context of a banning order, as set by the statutory scheme,
is a fundamental element of the formation of the AAT's
The importance of the public interest involved.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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