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 (ASIC), and
- 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 appeal.
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 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 opinion,
- The importance of the public interest involved.