KIEFEL CJ, KEANE AND NETTLE JJ. Section 80(1)(f) of the National Consumer Credit Protection Act 2009 (Cth) ("the NCCP Act") provides that the Australian Securities and Investments Commission ("ASIC") may make a banning order against a person if ASIC has reason to believe that the person is not a fit and proper person to engage in "credit activities". Perforce of s 80(2) of the NCCP Act, and s 85ZW of the Crimes Act 1914 (Cth), ASIC must not take account of "spent convictions" in determining whether it has reason to believe that the person is not fit and proper. Section 327 of the NCCP Act provides for review by the Administrative Appeals Tribunal ("the AAT") of a decision by ASIC to make a banning order. Section 85ZZH(c) of the Crimes Act provides in effect, and so far as is relevant, that s 85ZW of the Crimes Act does not apply to a tribunal established under Commonwealth law. The AAT is a tribunal established under Commonwealth law. The question for decision in this appeal is whether, on review of a decision of ASIC to impose a banning order, the AAT may take spent convictions into account. For the reasons which follow, the question should be answered, no, and the appeal should be allowed.
Relevant legislative provisions
Section 80(1)(f) of the NCCP Act provides that ASIC may make a banning order against a person "if ASIC has reason to believe that the person is not a fit and proper person to engage in credit activities".
"Credit activity" is defined by s 6 of the NCCP Act in substance as including where the person is carrying on a business of providing or performing the obligations or exercising the rights of a provider of a credit service, consumer leases, or mortgages, or the person is a beneficiary of a guarantee or exercises the rights of a beneficiary of a guarantee, or is a person who engages in prescribed credit activities.
Read together, ss 81 and 82 of the NCCP Act provide in substance that the effect of a banning order is that the person against whom it is made must not engage in credit activities for the period of the banning order, subject to any express provision allowing the person to do specified acts that the order would otherwise prohibit.
Section 80(2) of the NCCP Act relevantly provides in substance that (subject to Pt VIIC of the Crimes Act), in making a decision whether to impose a banning order, ASIC must have regard to certain considerations including the criminal convictions of the person within ten years before the banning order is proposed to be made and any other matter ASIC considers relevant.
Section 85ZW of the Crimes Act (which is in Div 3 of Pt VIIC of that Act) provides in substance and so far as is relevant that, subject to Div 6, but despite any other Commonwealth law, or any State law or Territory law, the fact that a person has been charged with or convicted of an offence that is spent shall not be taken into account by a Commonwealth authority.
Section 85ZM provides in substance and so far as is relevant that a "conviction" includes a finding of guilt without entry of conviction and that a conviction is a "spent conviction" if the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended. The "waiting period" is defined in s 85ZL, so far as is relevant, as ten years in the case of a person not dealt with as a minor.
Section 85ZZH(c) (which is in Div 6 of Pt VIIC) provides, however, in effect that Div 3 of Pt VIIC does not apply, inter alia, to the taking into account of information by a court or tribunal established under a Commonwealth law, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing.
Section 327 of the NCCP Act provides so far as is relevant that a person affected by a decision made by ASIC under s 80(1)(f) of that Act may make an application to the AAT for review of the decision.
Section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides so far as is relevant that for the purpose of reviewing a decision, the AAT may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing affirming, varying, or setting aside the decision under review. If the AAT sets aside the decision under review, it must make a decision in substitution for the decision so set aside or remit the matter for reconsideration in accordance with any directions or recommendations of the AAT.
The facts
The appellant has a criminal record which includes being convicted in the United Kingdom in 1978 of 15 counts of handling stolen goods, forgery, and obtaining property by deception and theft (for which he was sentenced to a term of imprisonment and served two years) and by a finding (in Australia) by the Broadmeadows Magistrates' Court in 1997 that he committed an offence of obtaining property by deception in relation to the issue of airline tickets (for which no conviction was entered but he was fined $1,000) ("the spent convictions").
In determining that the appellant was not a fit and proper person to engage in credit activities, ASIC was precluded by s 80(2) of the NCCP Act from having regard to the spent convictions. On application for review of that decision, the AAT approached the review on the basis that it was entitled to, and it did, take the spent convictions into account because the convictions were "evidence of dishonest conduct that [was] relevant under the policy guidelines".
Proceedings below
On appeal to the Federal Court of Australia on a question of law as to whether the AAT took into account matters it was obliged to ignore, the primary judge (Bromberg J), adopting the reasoning of Middleton J in Toohey v Tax Agents' Board of Victoria concerning comparable Victorian legislation, as being, in Bromberg J's view, directly on point and not plainly wrong, held that the prohibition in s 85ZW of the Crimes Act against ASIC taking spent convictions into account did not apply to the AAT in the conduct of a merits review of ASIC's decision, by reason of s 85ZZH(c) of that Act. An appeal to the Full Court of the Federal Court (Reeves, Farrell and Gleeson JJ) was dismissed. In reaching their decision, the Full Court were of the view that the reasoning of White J, in dissent, in Kocic v Commissioner of Police, NSW Police Force, regarding comparable New South Wales legislation, was persuasive and fortified their conclusion that the primary judge did not make any error in concluding that the AAT was entitled to take the spent convictions into account.
The nature of administrative merits review
The enactment of the AAT Act established a new and substantially unprecedented regime of administrative merits review, distinguished principally by the AAT's jurisdiction to re-exercise the functions of original administrative decision-makers. The question for determination by the AAT on the review of an administrative decision under s 25 of the AAT Act is thus whether the decision is the correct or preferable decision. That question is required to be determined on the material before the AAT, not on the material as it was when before the original decision-maker. As Bowen CJ and Deane J held in Drake v Minister for Immigration and Ethnic Affairs, however, and has since been affirmed by this Court in Shi v Migration Agents Registration Authority, the AAT is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.
Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.
Construction of the National Consumer Credit Protection Act 2009 (Cth)
In this matter, the question which ASIC was required to decide under s 80(1)(f) of the NCCP Act was whether, having regard to the range of considerations specified in s 80(2), which, perforce of s 85ZW of the Crimes Act, excluded spent convictions, the appellant was not a fit and proper person to engage in credit activities.
Subject, therefore, to any clearly expressed contrary legislative intent, the question which the AAT was required to decide on review of ASIC's decision was whether, having regard to the same specified range of considerations, and thus excluding spent convictions, the appellant was not a fit and proper person to engage in credit activities.
Section 80(2) of the NCCP Act does not express a clear contrary legislative intent. The stipulation in s 80(2) that the criteria to which ASIC must have regard is "subject to Part VIIC of the Crimes Act 1914" is, in terms, directed only to ASIC; and so, in effect, says nothing about an AAT merits review of ASIC's decisions. As was earlier noticed, AAT merits review of ASIC's decisions under s 80(1) is separately provided for in s 327 of the NCCP Act; and s 327 also says nothing about the criteria to which the AAT may have regard in the conduct of the review.
It is necessarily implicit in the stipulation in s 80(2) of the NCCP Act that the criteria to which ASIC must have regard is subject to Pt VIIC of the Crimes Act only insofar as that Part is capable of application to ASIC. Section 85ZW of the Crimes Act is capable of application to ASIC because it specifies that spent convictions are not to be taken into account by a Commonwealth authority, and ASIC is such an authority. But s 85ZZH(c), which qualifies the operation of s 85ZW in relation to courts and tribunals, is incapable of application to ASIC because ASIC is not a court or tribunal.
The respondent contended in effect that it is implicit in the stipulation in s 80(2) of the NCCP Act that the criteria to which ASIC must have regard is "subject to Part VIIC of the Crimes Act 1914", and, since s 85ZW (which is within Pt VIIC) is subject in its application to courts and tribunals to the operation of s 85ZZH(c), that the statutory purpose of s 80(2) is not only to subject ASIC to the requirements of Pt VIIC insofar as they are capable of application to ASIC but also to subject the AAT in conducting a merits review of ASIC's decision to the requirements of Pt VIIC insofar as they are capable of application to the AAT. It followed, it was submitted, that the AAT can have regard to spent convictions when conducting its merits review of ASIC's decision because of the operation of s 85ZZH(c).
Arguably, it is possible to read s 80(2) of the NCCP Act together with s 85ZZH(c) of the Crimes Act as having that effect. The implication is obscure but the fact that the Full Court of the Federal Court have so construed the provision, and that other, first instance judges have construed comparable legislation in a similar light, means that it is a possibility which needs to be confronted. The likelihood of that construction, however, needs to be assessed against the background of the long-standing principles concerning the function of an administrative review tribunal in the conduct of merits review of administrative decisions, to which reference has been made. Against that background, it is improbable that Parliament would choose a technique of obscure implication in order fundamentally to alter the nature of administrative merits review of a decision made by ASIC under s 80 of the NCCP Act, or, equally, to alter the nature of merits review of any other administrative decision to which the provisions of Pt VIIC of the Crimes Act apply. A fortiori where, as in the case of s 80(2), there is not a word to suggest in any of the extrinsic materials, including the Explanatory Memorandum and Second Reading Speech, a parliamentary intent to the effect that the AAT was to exercise a function other than the function exercised by ASIC. In light of such a tenuous implication, it is more probable that Parliament did not have an intention of changing the nature of administrative merits review of ASIC's decisions in the way contended for by the respondent.
Comparison against other legislation
As against that, the respondent submitted that it is apparent from other Commonwealth legislation pertaining to specialist decision-makers that, where there is a legislative intent to exclude the operation of s 85ZZH of the Crimes Act in respect of a (secondary) decision-maker conducting a merits review, the legislation expressly so provides or specifically precludes the consideration of "spent convictions" as opposed to generally subjecting the decision to the whole of Pt VIIC of the Crimes Act. Reference was made in particular to s 290(2) of the Migration Act 1958 (Cth), which provides in substance that, in considering whether a person is a fit and proper person to be registered as a migration agent, the Migration Agents Registration Authority ("MARA") must take account of any relevant conviction "(except a conviction that is spent under Part VIIC of the Crimes Act 1914)"; to s 513 of the Fair Work Act 2009 (Cth), which provides in substance that, in deciding whether an official is a fit and proper person to be issued with an entry permit, the Fair Work Commission ("the FWC") must take into account any conviction of the person of a relevant criminal offence but that "[d]espite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part"; and to s 120(1)(a) of the Superannuation Industry (Supervision) Act 1993 (Cth) ("the Superannuation Industry Act"), which, so far as is relevant, defines a "disqualified person" in substance as one convicted of an offence in respect of dishonest conduct and provides, in s 120(4), that "Division 3 of Part VIIC of the Crimes Act 1914 does not apply in relation to the disclosure of information about a conviction of the kind mentioned in paragraph (1)(a), if the disclosure is for the purposes of this Part".
(i) The Migration Act 1958 (Cth)
Like ASIC, MARA is an original decision-maker. Its decisions under s 290(2) of the Migration Act are subject to merits review by the AAT. As the respondent contended, the mechanism in s 290(2)(c) of the parenthetical phrase "(except a conviction that is spent under Part VIIC of the Crimes Act 1914)" makes plain that MARA may not take spent convictions into account in making such a decision. Contrary to the respondent's submissions, however, the phrase has nothing, other than indirectly, to do with the AAT. Section 279(2) of the Migration Act, to which the respondent did not refer, provides that Div 3 of Pt VIIC of the Crimes Act applies in relation to MARA "as if it were a Commonwealth authority for the purposes of that Division". One effect of that stipulation is to engage the operation of s 85ZZH(g) of the Crimes Act - that being the only explicit exception applicable to Commonwealth authorities - which provides that Div 3 of Pt VIIC of the Crimes Act does not apply to a Commonwealth authority "for the purpose of assessing appointees or prospective appointees to a designated position". It follows that Div 3 of Pt VIIC applies in relation to the exercise of MARA's function under s 290 of the Migration Act (because that is not a function of assessing appointees or prospective appointees to a designated position) and so precludes MARA's consideration of spent convictions. Conceivably, MARA's decisions are also capable of characterisation as those of "a person" for the purpose of s 85ZZH(d) but, even if that were so, s 279(1) would operate to suspend that exception and so again preclude MARA's consideration of spent convictions.
What then is the purpose of the express provision in s 290(2)(c) for the exclusion from consideration of spent convictions? Given the complexity of the Migration Act, three possibilities present: the express exclusion of consideration of spent convictions is otiose; the express exclusion of spent convictions is included out of an abundance of caution; or the express exclusion of spent convictions is there for another reason. Of those three, the first is not improbable. In light of the previous structure of the legislation and the timing of amendment, it is possible that a previous, similar form of words was carried over into its present form without reflecting fully on the effect of s 279. The second possibility is also not improbable, in view of the risk that, in the absence of such an express exclusion, the stipulation in s 279(2) (that Div 3 of Pt VIIC of the Crimes Act applies in relation to MARA "as if it were a Commonwealth authority for the purposes of that Division") might be read as meaning that Div 3 of Pt VIIC applies in relation to MARA in the exercise of its functions under s 290 as if MARA were a Commonwealth authority exercising the function of assessing appointees and prospective appointees. The third possibility is far less likely and while it cannot necessarily be excluded, whatever other reason there might be for the express exclusion it surely cannot be to indicate anything about the function of a tribunal exercising merits review of MARA's decision. The legislation is too complex, and in its material respects far too distinct, to bear meaningfully on the construction of s 80(2) of the NCCP Act.
(ii) The Fair Work Act 2009 (Cth)
The FWC is not directly comparable to ASIC. It is an original administrative decision-maker for the purposes of s 513 of the Fair Work Act whose decisions are subject to appeal to the Full Bench of the FWC on the application of a person aggrieved or the Minister, and subject to merits review by the Full Bench. But the FWC is also a tribunal established under a law of the Commonwealth and so, but for the express negation of s 85ZZH(c), s 85ZZH(c) would apply to the FWC. The apparent purpose of the express stipulation in s 513(2) of the Fair Work Act that Div 3 of Pt VIIC of the Crimes Act applies in relation to the FWC for the purpose of making a decision "[d]espite paragraph 85ZZH(c) of the Crimes Act 1914" is, therefore, to limit the otherwise untrammelled generality of the express direction in s 513(1) of the Fair Work Act that the FWC must take into account any conviction of a relevant criminal offence. In effect, the same result is achieved in relation to ASIC's function under s 80(2) of the NCCP Act by the express prohibition in s 80(2) against ASIC having regard to spent convictions without need of reference to s 85ZZH(c) (because s 85ZZH(c) does not apply to ASIC).
(iii) The Superannuation Industry (Supervision) Act 1993 (Cth)
The Regulator under the Superannuation Industry Act is not directly comparable to ASIC either. The Regulator for relevant purposes is the Commissioner of Taxation, whose decisions under relevant provisions of the Superannuation Industry Act are subject to review by the AAT pursuant to s 344(8) of that Act. The apparent purpose of the express stipulation in s 120(4) of the Superannuation Industry Act that Div 3 of Pt VIIC of the Crimes Act does not apply to the disclosure of information to the Commissioner of Taxation for the purposes of Pt 15 of that Act is to prevent Div 3 of Pt VIIC of the Crimes Act otherwise operating according to its terms to prevent the disclosure of spent convictions to the Commissioner. It is not to exclude the operation of s 85ZZH(c), albeit that s 85ZZH(c) is within Pt VIIC, because the Commissioner is not a court or tribunal established under a law of the Commonwealth and so s 85ZZH(c) does not apply to the Commissioner. If s 85ZZH(c) did apply to the Commissioner, there would be no need to exclude the operation of Div 3 of Pt VIIC. By contrast, the purpose of s 80(2) of the NCCP Act is to ensure that Div 3 of Pt VIIC does apply, according to its terms, to ASIC in making a decision under s 80(2).
In short, none of the legislative provisions contained in other Acts to which the respondent referred suggests that the absence of an express stipulation that s 85ZZH(c) does not apply to the AAT in the conduct of a merits review of ASIC's decision under s 80(2) of the NCCP Act implies a legislative intention that s 85ZZH(c) applies to the AAT in the exercise of that function. Each of the provisions to which the respondent referred is, like s 80(2) of the NCCP Act, silent as to the AAT in the conduct of merits review of administrative decisions and implies nothing about the application of s 85ZZH(c) of the Crimes Act to the AAT in the exercise of that function.
The reasoning in Kocic v Commissioner of Police, NSW Police Force
It remains to deal with the Full Court's reliance upon the reasoning of White J in Kocic. In that matter, s 11(3) of the Firearms Act 1996 (NSW) provided in substance that a firearms licence must not be issued to a person unless the Commissioner of Police was satisfied that the person was a fit and proper person and could be trusted to have possession of firearms without danger to public safety or the peace. Section 12(c)(ii) of the Criminal Records Act 1991 (NSW) provided in substance that a reference to a person's character or fitness was not to be interpreted as permitting or requiring account to be taken of spent convictions. Section 16(1) of the Criminal Records Act provided in effect that s 12 did not apply to proceedings before a "court" (including the giving of evidence) or the making of a decision by a "court". Section 4(1) of the Criminal Records Act defined "court" as including a tribunal. Section 75 of the Firearms Act permitted a review by the Administrative Decisions Tribunal of a refusal by the Commissioner to issue a licence. Section 63 of the Administrative Decisions Tribunal Act 1997 (NSW) provided that, in determining an application for review of a reviewable decision, the Tribunal was to decide what the correct and preferable decision was having regard to the material then before it and could exercise all of the functions that were conferred or imposed by any relevant legislation on the administrator who made the decision. So far as is pertinent for present purposes, the question in Kocic was whether, on review of a decision of the Commissioner of Police not to issue a firearms licence, s 16(1) of the Criminal Records Act permitted the Administrative Decisions Tribunal to have regard to the applicant's spent convictions notwithstanding that the Commissioner had been prevented from doing so by s 12(c)(ii) of the Criminal Records Act.
Basten JA, with whom Leeming JA agreed with additional observations, held that it did not. As Basten JA observed, it presented as "counterintuitive" that an applicant for merits review of an administrative decision should be placed in a more disadvantageous position in relation to spent convictions than when before the original decision-maker. In his Honour's view, such an anomaly was to be avoided by treating the Administrative Decisions Tribunal's functions on review as limited to the functions of the original decision-maker - and therefore to be exercised according to the same legal principles - and by conceiving of s 12(c)(ii) of the Criminal Records Act as setting the legal parameters for the Commissioner's powers - and therefore the powers of the Administrative Decisions Tribunal on review of the Commissioner's decision. On that basis, his Honour concluded that s 16(1) of the Criminal Records Act was not to be understood as changing "the ground rules, as it were by a side wind, without any clear intention that it should have such an operation", but rather as having no application to a tribunal undertaking merits review of an administrative decision.
White J, in dissent, reasoned to the contrary that the notion that an administrative review tribunal's functions are limited to the functions of the original decision-maker requires qualification. His Honour was of the view that, although the function of an administrative review tribunal undertaking merits review of an administrative decision is frequently spoken of as the tribunal stepping into the shoes of the original decision-maker, it is more accurate to say that the function of the administrative review tribunal is to make the correct decision on the material before it. His Honour observed that the question before the Administrative Decisions Tribunal was not whether the Commissioner made the correct decision on the material before him but that s 16(1) of the Criminal Records Act permitted the Administrative Decisions Tribunal to have recourse to a wider range of materials than was before the Commissioner. White J reasoned that s 16(1) of the Criminal Records Act did not purport to vary the relevant considerations or "legal parameters" to be taken into account but merely the materials that could be taken into account in deciding whether the applicant was a fit and proper person according to those considerations. His Honour also rejected the idea that s 16(1) of the Criminal Records Act as so construed would place an applicant for administrative review in an invidious position. In his Honour's view, since spent convictions could be taken into account only if an applicant sought review of the Commissioner's refusal to issue a licence, the risk of revelation of a non-disclosed history could not worsen the applicant's position by reason of the Administrative Decisions Tribunal taking into account the history of those spent convictions because the applicant was already in the position of the Commissioner having decided to refuse the licence.
The reasoning of Basten and Leeming JJA is to be preferred. Under s 11(3) of the Firearms Act, the Commissioner's function was not simply to decide whether an applicant was a fit and proper person but to decide whether the applicant was a fit and proper person having regard to a restricted range of identified considerations which, by reason of s 12(c)(ii) of the Criminal Records Act, expressly excluded spent convictions. Contrary to White J's analysis, the function of deciding whether a person is a fit and proper person according to a restricted range of considerations is a different function from deciding whether that person is a fit and proper person having regard to a less restricted and thus more expansive range of considerations. If s 16(1) of the Criminal Records Act had applied to the Administrative Decisions Tribunal in the conduct of its merits review of the Commissioner's decision, it would have meant that the Administrative Decisions Tribunal was required to decide whether the applicant was a fit and proper person having regard to a less restricted and, therefore, different range of considerations from those to which the Commissioner was permitted to have regard. That would have meant that the Administrative Decisions Tribunal would have been required to discharge a different function from the Commissioner. Evidence of spent convictions could not be regarded as events occurring between the time of the Commissioner's decision and the time of review, to which the Commissioner could have had regard if they had existed at the time of the Commissioner's decision. The fact that they were spent convictions dictated that they occurred long before the Commissioner's decision was made. They were excluded considerations. And, as Basten JA concluded, the notion of an administrative review tribunal undertaking merits review of an administrative decision by reference to different considerations from those which the original decision-maker is required to take into account or prohibited from taking into account, and so exercising a different function from the administrative decision-maker, is such a substantial departure from established conceptions of administrative decision merits review that it would require a clearly expressed legislative intent to achieve that result. It followed, as his Honour held, that given that there was no such clearly expressed contrary legislative intent, s 16(1) of the Criminal Records Act was not to be interpreted as applicable to the Administrative Decisions Tribunal in conducting its merits review of the Commissioner's decision.
The majority's reasoning in Kocic fortifies the conclusion earlier expressed in these reasons that upon its proper construction s 80(2) of the NCCP Act does not make s 85ZZH(c) of the Crimes Act applicable to the AAT in the review of a decision of ASIC under s 80(1) of the NCCP Act. To adopt and adapt Basten JA's words, it is not to be supposed that Parliament intended to make such a profound change to the nature of merits review by a legislative side‑wind. The better view is that s 80(2) does not have that effect.
Conclusion
In the result, the appeal should be allowed and orders made in the terms proposed by Bell, Gageler, Gordon and Edelman JJ.