Administrative Decisions (Judicial Review) Act 1977 s 16

Australian Securities and Investments Commission Act 1989 ss 5, 7, 11(4), 30 and 244

Australian Securities and Investments Commission Act 2001 ss 1(2), 261, 12, and 12A(1)

Corporations Act 2001 ss 9, 497(7), 601FL(2)(a),760A, 761A, 766A, 795B, 824B, 911A, 911B, 911D, 912A, 912C, 912CA, 912D, 913A, 913B, 914A, 915B, 915C, 915F, 920A, 920B, 920C, 920E, 920F, 922A, 922B, 1296(1), 1297(1), 1274, 1274A and1292(1)(d)

Allied Asia Holdings (Aust) Pty Ltd v Australian Securities Investments Commission [2002] FCA 566

Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222

Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 29 ALR 228

Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (Brian Lawlor) [1979] FCA 21; (1979) 2 ALD 1

Duncan v Companies Auditors Liquidators Disciplinary Board (2006) 93 ALD 401 [2006] FCA 1747

Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506

Hongkong Bank of Australia Ltd and Another v Australian Securities Commission (1992) 40 FCR 402; 108 ALR 70

Lewai v Minister for Immigration and Multicultural Affairs and Davidson [2001] FCA 1848

M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146; 199 ALR 290; 75 ALD 360

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6

Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217

Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; (1992) 34 FCR 169; 105 ALR 301; 25 ALD 545

NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292

Ni v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1143

Re an Applicant and Australian Prudential Regulation Authority and a Party Joined [2005] AATA 1294; (2005) 89 ALD 643; 42 AAR 206

Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696

Re Crossan and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 216

Re Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146; (2004) 38 AAR 482

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247; 2 ALD 33

Re Repatriation Commission and Delkou [1985] AATA 297; (1985) 8 ALD 454

Re Tweed and Australian Securities and Investments Commission [2007] AATA 1226

Re VBJ and Australian Prudential Regulation Authority [2005] AATA 642; (2005) 87 ALD 747

Re VBN and Ors and Australian Prudential Regulation Authority and a Party Joined [2006] AATA 718; (2006) 92 ALD 475; 44 AAR 231

Re WorldAudio Ltd and Austcoast Broadcasting Pty Ltd and Another [2006] AATA 177; (2006) 90 ALD 101

Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129

SRD v Australian Securities Commission [1994] FCA 1252; (1994) 52 FCR 187; 123 ALR 730

The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd [2001] WASCA 25

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1

XTWK and Australian Securities and Investments Commission (2007) 98 ALD 131; [2007] AATA 1890

DECISION AND REASONS FOR DECISION [2008] AATA 106

And: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

And: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

1. orders that the operation and implementation of the respondent's decisions dated 23 November 2007 (including but not limited to the publication of its decision in the Commonwealth Gazette under ss 920E(2) and 915F(2) and entering it in the Register maintained under s 922A of the Corporations Act 2001 and regulations thereunder) be stayed until the parties have had the opportunity to make submissions after the Tribunal has heard and determined the applications for review; and

(1) the applicants be described by the letters "PTLZ" and "VLDP" respectively for the purpose of the applications;

(2) publication of the name of the applicants and of any material tending to identify them be restricted to members and staff of the Tribunal, the parties and their representatives and professional advisers and staff of Auscript;

(3) publication of the evidence given before the Tribunal and of matters contained in documents lodged with the Tribunal be restricted to members and staff of the Tribunal, the parties and their representatives and professional advisers and staff of Auscript; and

Under s 920A of the Corporations Act 2001 (Corporations Act), the Australian Securities and Investments Commission (ASIC) made a banning order against PTLZ for a period of two years. The effect of its order was to prohibit PTLZ from providing any financial services during that period. ASIC made its decision on 23 November 2007 and, on the same day, decided to cancel the Australian financial services licence (AFSL) of VLDP under s 915C. It gave notice of those decisions to PTLZ and VLDP on 29 November 2007 and shortly afterwards posted on its website a press release setting out details of its decisions. Both PTLZ and VDLP immediately applied to the Tribunal under s 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) for a stay of the operation and implementation of ASIC's decisions and that ASIC not publish any media release or make any public disclosure relating to its decisions. They also applied for an order under s 35(2) of the AAT Act that they be described by pseudonyms for the purpose of the proceedings, that publication of and access to their names and of any material tending to identify them be restricted and that all hearings be held in private.

2. On 29 November 2007, I made orders under ss 35(2) and 41(2) staying the operation and implementation of the decisions and protecting the identity of PTLZ and VLDP until 6 December 2007. I also directed that ASIC publish through its Media Distribution List and post on each website on which it had given notice of its decisions of 23 November 2007 a further notice setting out the terms of my directions and orders and that by 10.00am on Friday, 30 November 2007, ASIC remove any reference to the names of PTLZ and VLDP from the Press Release it had published on 29 November 2007.

3. On 6 December 2007, the parties gave further evidence and made further submissions regarding the directions and orders that I had made. I continued them until 11 December 2007 when further evidence was given. I decided to continue the orders until I made my decision regarding whether the directions and orders should continue. I have now decided, in effect and so far as they remain relevant, that they be continued until the parties have had an opportunity to make submissions about their continuation at a time after the Tribunal has heard and determined the applications for review.

4. In this section of my reasons, I will give an outline of the submissions made on behalf of each of the parties. Those submissions were developed in greater detail at the hearing and in written submissions and I have had regard to them all.

5. On behalf of the applicants, Mr Sifris SC with Mr Hibble of counsel submitted that an application for a stay should not be conducted as a preliminary trial of the issues to be raised during the substantive hearing of the application for review. They relied on Re Repatriation Commission and Delkou.[1] The Tribunal, they continued, may make a stay order even where the applicant's conduct is in breach of the law.[2] Mr Sifris and Mr Hibble then expanded on the four factors: the prospects of success of the applications for review; the consequences for ASIC in carrying out its functions under the Corporations Act and for those whose interests are affected by the review of the decision if the stay were not granted; the consequences for the applicants if the stay were, or were not, granted; and any conditions that could be imposed and that would ameliorate any consequences of either granting or refusing a stay.

6. On behalf of ASIC, Ms Judd SC appearing with Mr Wilson of counsel, submitted that there is an insufficient evidentiary basis justifying an order staying the operation or implementation of its decision. They developed this submission by reference to the chronology of events and the evidence that had been given at the hearing of these proceedings.

7. Ms Judd and Mr Wilson drew a distinction between the issue of whether a stay should be granted and the issue of whether the applicants should continue to retain their anonymity and be known by a pseudonym. My attention was drawn to the proposition that, prima facie, proceedings should be open to the public and the public should be permitted to know what is the subject of those proceedings and whom they concern. My attention was drawn to the judgment of Hill J in SRD v Australian Securities Commission.[3] It was also drawn to five provisions that support the "public's right to know". They are s 1(2)(f) of the Australian Securities and Investments Commission Act 2001 (ASIC Act) and ss 760A, 920E(2), 915F(2) and 922A(2) of the Corporations Act. Sections 920E(2) and 915F(2) of the Corporations Act require, for example, that notices of ASIC's decisions be published in the Commonwealth Gazette (Gazette). Staying the operation of legislative requirements of that kind is very different from preventing ASIC from issuing a media release.

8. If a stay order were granted, anonymity was not necessary in order to preserve the applicants' business and, indeed, if it should be the case that they are permitted to trade, it is important that members of the investing public know that ASIC has made the decision. To grant the applicants both a stay and anonymity would cause undue harm to the public interest and that harm could not be remedied even if the orders were to be subject to their giving undertakings. The public has a right to know all relevant information about the persons and entities from whom they obtain financial services and about the allegations and admitted breaches in this case. Both clients and employees should be in a position to assess whether they need to start making plans in the event that the Tribunal upholds the banning order.

9. With regard to my order that ASIC not publish any media release or make any public disclosure regarding its decision, Ms Judd and Mr Wilson submitted that the power given by s 35(2) of the AAT Act does not extend beyond documents and material that have been received in evidence by, or lodged with, the Tribunal. ASIC's media release does not come within that category and so s 35(2) may not be relied on as a source of power to make the order. Furthermore, s 35(2) should not be used to undermine ASIC's ordinary and proper regulatory processes. The reasoning of the Federal Court in Duncan v Companies Auditors Liquidators Disciplinary Board[4] is, it was submitted, limited to using the power given by s 35(2) to stay the need for a body to comply with legislative requirements that would otherwise need to be complied with in certain time frames. Sections 920E(2) and 915F(2) are examples of legislative requirements of that type.

10. Section 41 of the AAT Act is a different matter. The Federal Court has held that it authorises an order staying the publication required by ss 920E(2) and 915F(2) as well as an order staying the entry of the decision in the Register maintained under s 922A and regulations made under that section. It did so in Duncan v Companies Auditors Liquidators Disciplinary Board[5] but, it was submitted, that case does not support a conclusion that the power under s 41 may be used in a situation in which ASIC has already issued a media release. Reference was also made to Allied Asia Holdings (Aust) Pty Ltd v Australian Securities Investments Commission[6] to support ASIC's submission that s 41 does not extend to making of a positive order of the kind I made. I had required ASIC to, in summary, publish a copy of my order and direction through its Media Distribution List and post a copy on each website on which it had given notice of its decisions in relation to the applicants and to remove any reference to their names from the Press Release it had published on 29 November 2007 on its website.

11. On the material that I have and for the purposes of deciding the application for a stay only, I have made the findings of fact set out in this section of my reasons. In making them, I have relied on the three affidavits of PTLZ and a document entitled "Breach Rectification Report".

12. VLDP has over 1,000 clients who have substantial funds invested through it. A small proportion of its current clients are wholesale institutions and the rest retail clients. Its core business is in providing an opportunity to selected retail clients to acquire securities traded on various overseas markets but not traded in Australia as well as in providing wholesale clients with the opportunity to maintain accounts to do the same. In so far as its retail clients are concerned, it provides advice about certain overseas' securities and facilitates the operations of overseas accounts to allow its retail clients to acquire and dispose of securities.

13. VLDP does not provide financial planning services, superannuation or taxation advice or advice on shares traded in Australia. It generally declines to advise small retail investors who need financial planning advice or who want to use it simply as a trading service and do not want to receive advice regarding the overseas' securities they are interested in. Many of the investments are the subject of margin loans and/or are traded in multiple currencies.

14. VLDP operates by introducing its clients to its parent company, VLDP Securities, which is owned by PTLZ. VLDP Securities is registered in the country in which the overseas' securities are traded. It is registered with the appropriate securities exchange in that country, subject to regulation in that country and is a member of the appropriate professional body.

15. Each client introduced to VLDP Parent is then introduced by it to another entity whose business is to provide support to various aspects of the financial services industry (Entity). The Entity holds an AFSL. Its relationship with VLDP Securities is governed by a clearing agreement. The Entity has custody of the funds of VLDP's clients and provides all administrative support. That support includes ensuring that the regulatory requirements are complied with. This arrangement facilitates the access that VLDP's clients have to the overseas' markets and to their trading in them. A consequence is that VLDP does not receive or hold any funds from its clients or hold any of the overseas' securities in which they have invested. All of their funds, assets and securities are held by the Entity.[7]

16. I accept PTLZ's evidence, which was not contradicted, that VLDP has not previously been the subject of any regulatory sanction. Three complaints have been made against it to the Financial Industry Complaints Service (FICS) and, in each case, the complaint has been resolved in its favour.[8] VLDP Securities has never received a complaint from a client since he has been a director. It is subject to an audit by a non-government regulator in the overseas' country every two years as well as with a government regulator. The last audit by the non-government auditor took place in March 2007 and it audited the Australian operations of VLDP as well those of VLDP Securities. VLDP Securities was assessed as fit to provide financial services in the overseas' market.

17. On 22 June 2007, ASIC gave the PTLZ and VLDP notice of a hearing before ASIC that would consider whether, in the case of VLDP, to cancel or suspend the AFSL or, in the case of PTLZ, to make a banning order. The notices were issued under ss 915C(4) and 920A(2) respectively and the hearings were both held on 13 September 2007. Each notice noted areas of concern to ASIC.

18. The areas of concern relating to VLDP focused on ss 912A(1)(a), (b), (f) and (g). In so far as s 912A(1)(b) is concerned, two of the licence conditions in respect of which it is said to be in breach relate to training required for those who provide financial product advice to clients. A further condition, Condition 8, requires VLDP to comply with certain base level financial requirements including the cash needs requirement. It may do so either by a reasonable estimate projection plus cash contingency basis or by the contingency based projection basis. PTLZ admitted that VLDP had not properly documented its procedures. He also admitted that VLDP had failed to comply with the requirement to provide a dispute resolution system and that it did not have a breach reporting system for reporting breaches of the financial services law.

19. The areas of concern relating to PTLZ focused on those relating to VLDP in view of his responsibilities as its responsible officer, compliance officer and sole director. They also focused on his having, in ASIC's view, failed to respond to a notice issued under s 30 of the ASIC Act in July 2006 to produce specified books in relation to VLDP. In failing to ensure that VLDP met its responsibilities, the delegate concluded generally that PTLZ has not yet demonstrated that he is able to implement the systems required to introduce and maintain the standards expected of participants in the financial services industry.

20. PTLZ decided that solicitors should be engaged and met with a number of different firms before settling on one of them. Having engaged solicitors, PTLZ decided to engage accountants and went through the same process with the solicitors' assistance. PTLZ engaged Ernst & Young (E&Y) and instructed them on 23 August 2007 to prepare a report that came to be entitled the "Agreed upon procedures report" (EY Report).[9] It was dated 12 September and sent to PTLZ on 13 September 2007 and assessed the adequacy of VLDP's current policies and procedures regarding the AFSL obligations, key policies and procedures, compliance policies and procedures, training records and register, complaints records and register, breach and incidents records and register, internal and external compliance reporting, documentation of AFSL financial requirements, responsible officer duties and training and evidence of compliance monitoring. The procedures agreed between E&Y and PTLZ and VLDP were that E&Y would assess documented arrangements and policies and procedures, assessing the extent to which they were operational and identifying gaps between them and relevant ASIC Regulatory Guides. The report comprised a 22 page table under seven headings. The headings were directed to the objective, the agreed procedures, the work undertaken by E&Y to assess compliance, its findings and its recommendations.

21. The E&Y Report identified a number of breaches or potential breaches of the Corporations Act. ASIC's hearings took place on 13 September 2007. VLDP proffered a draft of an Enforceable Undertaking at the hearing. It addressed the issues raised by ASIC in its notices of the hearings. Those issues related to VLDP's compliance or lack thereof with conditions of its AFSL and its obligations under s 912A of the Corporations Act.

22. With the assistance of the solicitors, VLDP prepared a Breach Notification Report dated 19 September 2007 (First Breach Notification). The report identified 25 breaches or likely breaches together with the obligations breached, the rectification or remedial or preventative action being taken in relation to the breaches, the parties responsible and the estimated time to rectify or remedy the breaches.[10] VLDP was noted as responsible for 16 of them and, together with the solicitors, for six of them. PTLZ was noted as responsible for one relating to the documentation of responsible officer training. An officer or staff member of VLDP was noted as responsible for the breach of the requirements regarding training set out in PS 146, which is now called RG 146.[11] Against each breach was entered an estimated time for completion. The solicitors sent a copy of the First Breach Notification to ASIC on 19 September 2007.[12] They noted that VLDP was prepared to negotiate the terms of an Enforceable Undertaking that addressed further issues of concern to ASIC.

23. ASIC declined to accept the Enforceable Undertakings offered by VLDP and PTLZ at the hearing on 13 September 2007 and notified VLDP of this in a letter dated 9 October 2007.[13]

24. On 25 October 2007, the solicitors sent ASIC a further Breach Notification Report regarding VLDP (Second Breach Notification).[14] It was in the same form as the first but was updated to show progress. In relation to the officer or staff member, for example, it showed that the task of rectifying it had been to prepare a predetermined script for back office employees to use to respond to queries from retail clients regarding financial product advice. It was noted as completed. In relation to others, progress had been made by the preparation of documentation but other steps, such as training or further review or assessment remained to be done. The progress is described by PTLZ in an affidavit and I accept that the description is consistent with the Second Breach Notification:

"(a) The development and implementation of client liaison scripts for use by all ... [VLDP] customer service representatives in dealing with clients;

(b) The creation of a detailed ... [VLDP] compliance manual which documented and formalised ... [VLDP's] policies and procedures. The creation of this manual addressed documentary concerns raised by ASIC in the Notices and by the EY Report;

(c) The development of an online training program with ASIC approved trainer ... for all of .... [VLDP's] RG 146 representatives;

(d) ... and ... [PTLZ] attended a Responsible Officer Training Course;

(e) Advice was sought in relation to the foreign exchange concern raised in the EY Report;

(f) The drafting of general advice warnings and their inclusion in all promotional, marketing and seminar materials;

(g) The reorganisation of the ... [VLDP] internal filing system;

(h) The drafting of a new Financial Services Guide;

(i) The drafting of a new Statement of Advice Template; and

(j) Undertaking an outsourced parties review."[15]

25. On 8 November 2007, VLDP's solicitors wrote to ASIC providing further information in relation to a likely breach of its AFSL in relation to possible dealings in relation to the matter of concern identified in (e) of the previous paragraph.[16] It had sought advice on the subject and, as a result of the advice, advised ASIC that VLDP was in actual breach of its obligations and that the breach was significant as it involved VLDP in acting outside the scope of its AFSL. At the same time, VLDP cease its execution of foreign exchange transactions on behalf of clients and PTLZ started to draft an application for a variation of its AFSL in order to allow it to conduct such transactions.

26. In a letter dated 7 November 2007 but received by the solicitors on 12 November 2007, ASIC advised that it had not changed its position regarding an Enforceable Undertaking. In its view, "the most effective regulatory outcome in this matter is for the delegate to make an administrative decision."[17] An Enforceable Undertaking was "... not an appropriate outcome for the Hearing as this is not an administrative remedy available to the delegate.'[18]

27. VLDP had ceased facilitating the relevant transactions referred to in the letter of 8 November 2007 and, on 20 November 2007, applied for a variation of its AFSL to enable it to engage in those transactions.[19]

28. On 23 November 2007, ASIC decided to issue a banning order against PTLZ for a period of two years and to cancel VLDP's AFSL.

29. ASIC wrote to VLDP on 29 November 2007 advising that it considered the application to vary to be "withdrawn" as VLDP's AFSL had been cancelled.[20]

30. Also on 29 November 2007, between 9.45 and 9.50am, notices of ASIC's two decisions were served on at the premises of the solicitors as well as at the business address of PTLZ and VLDP. They were served by two "teams" of ASIC's officers as I understand the situation. At or about 9.57am, the Press Release was sent to those on a Media Distribution List. Those persons include journalists, industry representatives and members of the public, who subscribe to the Media Distribution List.

31. On 29 November 2007, PTLZ and VLDLP applied for an order under s 41(2) of the AAT Act. My order was given on the same day in terms that:

1. orders that the operation and implementation of the respondent's decision dated 23 November 2007 (including but not limited to the publication of its decision in the Gazette under ss 920E(2) and 915F(2) and entering it in the Register maintained under s 922F of the Corporations Act 2001 and regulations thereunder) be stayed until close of business on 6 December 2007; and

(1) the applicant be described by the letters "PTLZ" for the purpose of the application;

(2) except as provided in paragraph 3 of this Order and Direction, publication of the name of the applicant and of any material tending to identify it be restricted to members and staff of the Tribunal, the parties and their representatives and professional advisers and staff of Auscript;

(3) publication of the evidence given before the Tribunal and of matters contained in documents lodged with the Tribunal be restricted to members and staff of the Tribunal, the parties and their representatives and professional advisers and staff of Auscript; and

(1) by 8.00 pm on Thursday 29 November 2007, publish through its Media Distribution List and post on each website on which it gave notice of its to each person to whom it gave notice of its decision of 23 November 2007, a further notice setting out the terms of this Order and Direction; and

(2) by 10.00am on Friday 30 November 2007, remove any reference to the name of the applicant from the Press Release it published on Thursday, 29 November 2007 on its website in relation to the applicant; and

32. At a further hearing on 6 December 2007, I extended the order until 11 December 2007 and then, on 11 December 2007, until I made this decision. At the last hearing, PTLZ presented a document updating the Second Breach Notification. This time it had an additional column referring to a number of manila folders and other folders containing documentary material supporting the statement of progress made in remedying or rectifying the 25 breaches.

Australian Securities and Investments Commission

33. ASIC is established by s 7 of the Australian Securities and Investments Commission Act 1989 and is continued in existence by s 261 of the ASIC Act. Apart from providing for ASIC, one of the other objects of the ASIC Act is to provide for its functions, powers and business.[21] Section 1(2) goes on to provide that:

"In performing its functions and exercising its powers, ASIC must strive to:

(a) maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and

(b) promote the confident and informed participation of investors and consumers in the financial system; and

(d) administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and

(e) receive, process and store, efficiently and quickly, the information given to ASIC under the laws that confer functions and powers on it; and

(f) ensure that information is available as soon as practicable for access by the public; and

(g) take whatever action it can take, and is necessary, in order to enforce and give effect to the laws of the Commonwealth that confer functions and powers on it."

34. Section 11(1) provides that ASIC has the functions and powers that are conferred on it by or under the corporations legislation, which includes the Corporations Act and the ASIC Act.[22] In addition, it has "... power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions."[23]

"... give ASIC a written direction about policies it should pursue, or priorities it should follow, in performing or expressing any of its functions or powers under the corporations legislation (other than excluded provisions)."[24]

The Minister must cause a copy of the directions under s 12(1) (Minister's Directions) to be published in the Gazette "within 21 days after the instrument is made".[25]

35. Division 2 of Part 7.6 of the Corporations Act requires a person carrying on a financial services business to hold an AFSL. Section 9 defines the term "financial services business" when it is used outside Chapter 7 but then only to give it the same meaning as when it is used in that Chapter. Section 761A defines the term as "... a business of providing financial services". A "financial service" has the meaning given in Division 4 of Chapter 7[26] but it is not defined in that Division as such. Rather, s 766A sets out the circumstances in which a person "provides a financial service". Those circumstances occur if the person:

"(a) provide[s] financial product advice (see section 766B); or

(b) deal[s] in a financial product (see section 766C); or

(c) make[s] a market for a financial product (see section 766D); or

(d) operate[s] a registered scheme; or

(e) provide[s] a custodial or depository service (see section 766E); or

(f) engage[s] in conduct of a kind prescribed by regulations made for the purposes of this paragraph."[27]

36. Regulations may be made that expand the range of persons who are taken to provide a financial service by prescribing that regulations may set out circumstances in which those facilitating the provision of a financial service may also be taken to provide that service.[28] Regulations may also be made setting out the circumstances in which persons are taken to provide, or not provide, a financial service.[29] A person is not taken to provide a financial service if that person's conduct is done in the course of work ordinarily done by clerks.[30]

37. Division 4 of Part 7.1 develops the circumstances in which a person provides a financial service. Subject to s 911A, a person who carries on a "financial services business in this jurisdiction" must hold an Australian financial services licence (AFSL) covering the provision of the financial services.[31] A "financial services business" is a business of providing financial services.[32] There are exemptions to the requirement to be licensed[33] and regulation of the circumstances in which a person may provide a financial service on behalf of another person who carries on a financial services business.[34] Those who are licensed to provide financial services must comply with the obligations set out in Division 3 of Part 7.6. The general obligations are set out in s 912A of the Corporations Act and I have referred above to those of most concern to ASIC at this time.[35]

38. The manner in which a person applies for a licence is set out in s 913A of Division 4 of Part 7.6. Section 913B(1) provides that:

"ASIC must grant an applicant an Australian financial services licence if (and must not grant such a licence unless):

(a) the application was made in accordance with section 913A; and

(b) ASIC has no reason to believe that the applicant will not comply with the obligations that will apply under section 912A if the licence is granted; and

(c) the requirement in whichever of subsection (2) or (3) of this section applies is satisfied; and

(ca) the applicant has provided ASIC with any additional information requested by ASIC in relation to matters that, under this section, can be taken into account in deciding whether to grant the licence; and

(d) the applicant meets any other requirements prescribed by regulations made for the purposes of this paragraph."

39. If the applicant is a natural person s 913B(2) is relevant for the purposes of s 913B(1)(c). It provides that ASIC must be satisfied that there is no reason to believe that that applicant is not of good fame or character. If the applicant is a body corporate, ASIC must be satisfied that there is no reason to believe that any of its responsible officers are not of good fame or character.[36] In considering good fame and character, ASIC must have regard to the factors set out in s 913B(4). It may impose conditions on any AFSL it issues.[37]

40. Division 3 of Part 7.6 sets out the obligations to which the holder of an AFSL is subject. The four general obligations of concern to ASIC are the following:

(a) do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly;

(f) ensure that its representatives are adequately trained, and are competent, to provide those financial services;

(g) if those financial services are provided to persons as retail clients - have a dispute resolution system complying with subsection (2);

41. Division 4 of Part 7.6 is concerned with the suspension and cancellation of AFSLs. It provides, as it were, for categories of suspension or cancellation. Section 915B, for example, provides for ASIC to immediately suspend or cancel an AFSL in certain circumstances. It may do so simply by giving the person a written notice of the fact. Section 915C provides for ASIC to suspend or cancel an AFSL in certain circumstances but only after it has given the licensee an opportunity to appear or be represented at a private hearing and to make submissions to it.[38] The circumstances in which ASIC may exercise its power occur in the following circumstances:

"(a) the licensee has not complied with their obligations under section 912A;

(aa) ASIC has reason to believe that the licensee will not comply with their obligations under section 912A;

(b) ASIC is no longer satisfied of the matter in whichever of subsection 913B(2) or (3) applied at the time the licence was granted (about whether the licensee, or the licensee's representatives, are of good fame and character);

(c) a banning order or disqualification order under Division 8 is made against a representative of the licensee and ASIC considers that the representative's involvement in the provision of the licensee's financial services will significantly impair the licensee's ability to meet its obligations under this Chapter.

(d) a banning order or disqualification order under Division 8 is made against a representative of the licensee and ASIC considers that the representative's involvement in the provision of the licensee's financial services will significantly impair the licensee's ability to meet its obligations under this Chapter [7]."[39]

The cancellation or suspension takes effect when written notice of it is given to the licensee.[40]

The publication of notice of a cancellation or suspension of an AFSL

42. Provision is made for the publication of the cancellation or suspension of an AFSL in s 915F(2):

"As soon as practicable after the notice is given to the licensee, ASIC must:

(a) publish a notice of the action in the Gazette; and

(b) if the licensee is a participant in a licensed market or a licensed CS facility - give written notice of the action to the operator of the market or facility."

A "licensed market" is "... a financial market [as defined in Division 5 of Part 7.1] the operation of which is authorised by an Australian market licence" issued under s 795B of the Act.[41] A "licensed CS facility" is a "clearing and settlement facility the operation of which is authorised by an Australian CS facility licence" under s 824B authorising a person to operate a clearing and settlement facility.[42] The word "publish" means:

"(a) in relation to a notice - means, in Chapter 7, publish by any means, including in a newspaper or periodical, on the Internet, by broadcasting or televising or in a cinematograph film; and

(b) in any case - includes issue."[43]

43. Division 8 of Part 7.6 provides for the banning or disqualification of persons from providing financial services. Section 920A provides that ASIC may make a banning order against a person by giving that person a written notice. Provided it has given the person to appear or be represented at a hearing and to make submissions to it,[44] ASIC may do so if:

"(a) ASIC suspends or cancels an Australian financial services licence held by the person; or

(b) the person has not complied with their obligations under section 912A; or

(ba) ASIC has reason to believe that the person will not comply with their obligations under section 912A; or

(bb) the person becomes insolvent under administration; or

(e) the person has not complied with a financial services law; or

(f) ASIC has reason to believe that the person will not comply with a financial services law."[45]

44. A banning order "...is a written order that prohibits a person from providing any financial services or specified financial services in specified circumstances or capacities."[46] It "... takes effect when it is given to the person against whom the order is or was made."[47] The order may prohibit the person against whom it is made from providing a financial service:

(b) for a specified period, unless ASIC has reason to believe that the person is not of good fame or character."[48]

A banning order may include a provision allowing the person against whom it was made to do, subject to specified conditions, specified acts or to do specified acts in specified circumstances that the order would otherwise prohibit that person from doing.[49] The effect of a banning order is that the person against whom it is made cannot be granted an AFSL contrary to the banning order.[50]

45. Section 920E(2) of the Corporations Act provides for publication of a banning order. It states that:

"ASIC must publish a notice in the Gazette as soon as practicable after making, varying or cancelling a banning order. The notice must state when the action took effect and:

(a) in the case of the making of a banning order - set out a copy of the banning order; or

(b) in the case of the variation of a banning order - set out a copy of the banning order as varied."

A banning order may include a provision of the type referred to in s 920B(3).[51] If it does and if the notice in the Gazette would be unreasonably long, the notice may set out a summary of that provision.[52]

46. Section 920F(1) provides that "A banning order given to a person must be accompanied by a statement of reasons for the order." ASIC may vary a banning order. If it:

"... varies a banning order made against a person, ASIC must, on request by the person, give the person a statement of reasons for the variation."[53]

The Tribunal's power to stay: s 41 of the AAT Act

47. In general terms, s 41(1) of the Administrative Appeals Tribunal Act 1975 ("AAT Act") provides that:

"Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision."

"The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review."

48. Unless satisfied that it is not practicable to give the decision-maker an opportunity to be heard,[54] the Tribunal must ensure that the decision-maker has a reasonable opportunity to make a submission in relation to whether an order should be made under s 41(2).[55]

The Tribunal's power to make a confidentiality order: s 35(2) of the AAT Act

49. In broad terms, ss 35(2)(b) and (c) of the AAT Act permit the Tribunal to prohibit or restrict the publication of evidence received by it or of matters in documents lodged with it. They must be seen in their context. That context begins with the general proposition in s 35(1) that, subject to the section itself, "... the hearing of a proceeding before the Tribunal shall be in public."[56] The public nature of the hearing is emphasised by the provisions of s 35(1A), which makes provision for those persons appearing at a hearing of a proceeding held in public by means of a telephone, closed-circuit television or any other means of communication.[57] In those circumstances, the Tribunal is required to take those steps that are reasonably necessary to ensure that the public nature of the hearing is preserved.

50. The Tribunal is also able to direct that a hearing or part of a hearing is held in private. That is provided for in s 35(2):

"Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding."

51. In deciding whether an order is desirable under s 35(2), the Tribunal must have regard to the matters set out in s 35(3):

(a) whether the hearing of a proceeding should be held in private; or

(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;

the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted."

Stay of operation or implementation of decision: the power given by s 41(2)

52. The scope of the power given to the Tribunal by s 41(2) of the AAT Act is at the heart of the submissions made on behalf of ASIC. Therefore, I will begin with several propositions that can be drawn from the AAT Act and the authorities regarding that power.

53. The first is that, if the Tribunal is to have power to stay the operation or implementation of a decision under s 41(2), it must first have power to review that decision. That is clear from the nature of the power given by s 41(2). It only permits the Tribunal to stay or otherwise affect the operation or implementation of the "... decision to which the relevant proceeding relates or a part of that decision ...". The "relevant proceeding" is "a proceeding before the Tribunal".[58] Given the definition of "proceeding" in s 3(1) and the fact that the Tribunal's central task is to review of decisions made in the exercise of powers conferred by an enactment,[59] the decision to which the relevant proceeding relates must be the decision under review. This interpretation is consistent with the principle expressed by Beaumont J said in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga,[60] in the context of the Federal Court's power given to it by s 23 of the Federal Court Act 1976 (Federal Court Act) to make an interlocutory order, "in relation to matters in which it has jurisdiction". His Honour said of that power that, as "... the stream cannot rise higher than its source...".[61] Therefore, in the circumstances of that case, the power to make an interlocutory order could not exceed the power given by s 16 of the Administrative Decisions (Judicial Review) Act 1977 or by s 39B of the Judiciary Act 1901 to grant final relief.

54. The second proposition is that s 41(2) does not permit the Tribunal to stay a decision but only to stay the operation or implementation of that decision. A decision and the operation and implementation of that decision are distinct matters. It is a proposition found in the judgment of Emmett J in Duncan v Companies Auditors Liquidators Disciplinary Board[62] and of Heerey J in the earlier case of Allied Asia Holdings (Aust) Pty Ltd v Australian Securities Investments Commission.[63] As expressed by Emmett J it is that:

"The power conferred by s 41(2) of the AAT Act is to stay or affect the operation or implementation of a decision. It is not, in its terms, a power to suspend or stay the decision itself."[64]

55. As the point was not directly in issue, his Honour perhaps did not focus on the fact that the power given to the AAT is not a power to "stay or affect the operation of a decision" as he noted.[65] It is instead a power "staying or otherwise affecting the operation or implementation of the decision" (emphasis added). The addition of the word "otherwise" could raise a question whether s 41(2) was intended to be read as separating the notion of an order "staying" a decision from the notion of an order "otherwise affecting the operation or implementation of" the decision. It could be thought that the provision is not clear but, when regard is had to the Explanatory Memorandum to the Administrative Appeals Tribunal Bill 1975, it becomes clear that the question should not be asked as Parliament had clearly separated the two and directed the Tribunal's power to the administrative action alone. The relevant passage reads:

"103, The lodging of an application for review should not operate to stay administrative action consequent upon the decision sought to be reviewed, unless the Tribunal, on special application and after hearing the decision, specially orders."

56. On behalf of ASIC, the third proposition is said to be that a stay should not be granted unless there is an evidentiary basis upon which to make the order. It is said that neither PTLZ nor VLDP has provided a sufficient evidentiary basis on which to grant a stay. I do not disagree with that proposition but I do have reservations about the manner in which the proposition is expressed in the case that is put forward to support it. In Re XTWK and Australian Securities and Investments Commission,[66] Mr Fice, Member, expressed it in this way:

"15. It is also necessary to mention that no party in a proceeding before the Tribunal bears a burden of proof to establish facts or to make out the case for review. However, an applicant for review before the Tribunal must provide to the Tribunal sufficient evidentiary material to enable it to exercise its discretion in accordance with law: see McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6. Put simply, the Tribunal must have sufficient evidence before it to enable it to come to a conclusion, after considering all relevant matters, that the discretion should be exercised in favour of the applicant for the stay."[67]

57. I have no difficulty with the first sentence as it reflects the law as I understand it to be. My reservation about this passage arises from the second sentence. It could be read as suggesting that the applicant for a stay has some sort of evidentiary burden in relation to a stay application. Taken together, the two sentences could be understood as meaning that, while there is no legal burden of proof, an applicant has an evidentiary burden in relation to an application for a stay made in the context of a review of a decision under the Corporations Act. I do not, however, think that Mr Fice would have intended his two sentences to be read in that way and it is clear from the remainder of his reasons that he did not.

58. In view of the submission, though, I will spend a moment on the principles that apply in merits review in relation to burdens of proof, be they legal or evidentiary. Woodward J in McDonald v Director-General of Social Security[68] emphasised that:

"... There is certainly no legal onus of proof arising from the fact that this is an 'appeals' tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT (not the material before the administrator, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's. ...".[69]

" It is possible to imagine a case where the Act which the administrator is applying places a requirement or onus on one or the other of the parties to an issue to establish a particular state of facts on which the administrator's decision would be based. If that were so, the same requirement or onus would apply before the AAT. ..."[70]

59. There was no such requirement, Woodward J decided, in the Social Security Act 1947 in relation to the granting of an invalid pension or in reviewing it from time to time.[71] The then Director-General, His Honour said:

"... must act in good faith on the information available to him, but no question of onus arises.

In my view, the answer is the same when the AAT seeks put itself in the position of the Director-General. It must act on the material which is before it but, as I have already pointed out, it is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks appropriate.

It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn - but it is not helpful to categorize this common sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way that the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it ..."[72]

60. The principle to be drawn from this case is that, unless a particular Act provides otherwise, neither party has a legal onus or an evidentiary onus of proof. The Tribunal may have regard to all material that is relevant and probative in order to decide whether, in the circumstances of this case, it is satisfied that it is desirable to make an order under s 41(2). That material may have been given to it by either party or by both parties. As a matter of commonsense, an applicant for that order would want to ensure that the Tribunal has sufficient evidentiary material to enable it to be satisfied but it is not the case that "an applicant for review before the Tribunal must provide to the Tribunal sufficient evidentiary material to enable it to exercise its discretion ..." (emphasis added).

61. The fourth proposition relates to the meaning of the expression "operation or implementation" of the decision. Emmett J distinguished the two:

"_... As a matter of ordinary English, '_operation' _includes the exertion of force or influence, a working or activity, a manner of working, or the way in which a thing works ... It also means the state of being operative, or the act, process or manner of operating ... On the other hand, '_implementation' involves completion or execution, fulfilment or putting into effect ..."[73]

62. In an earlier decision of Re VBJ and Australian Prudential Regulation Authority,[74] I had reached a similar conclusion but provided some examples to highlight the differences in the context of a disqualification decision made by the Australian Prudential Regulation Authority under the Superannuation Industry (Supervision) Act 1993 (SIS Act):

"49. ... The ordinary meanings of 'operation' include:

• '... an action or series of actions which have a particular effect ...';[75] and
• '... Exertion of power; the process of operating or the mode of operation; an effect brought about in accordance with a definite plan; action; activity. ...

Operation of law. This term expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the mere application to the particular transaction of the established rules of law, without the act or co-operation of the party himself.'[76]

_Those of 'implement', on which '_implementation' is based, are:

• '... to carry out, fulfil or perform ...'[77] and
• ' put (a decision or plan) into effect ...'[78]

50. In the context of a disqualification decision, its operation is prescribed by s 120A(4). It takes effect on the day it is made. That is the day on which it comes into operation and it does so by operation of that section without any step being taken beyond the making of the decision. Its implementation is something different. It includes all those steps that are required to give effect to the decision i.e. preparing the notice in accordance with s 345 to give to the person disqualified, giving that notice to the person as required by s. 120A(6) and causing particulars of the notice to be published in the Gazette as required by s 120A(7). I do not accept Mr Santamaria's submission that s 120A(7) gives APRA a choice whether it publishes particulars of a notice after its reviewable decision or after it has carried out its internal review. To my mind, it obliges APRA to publish whenever it has given notice under ss 120A(6) or 344(6). That is the natural meaning of the words and is consistent with the purpose of the SIS Act to protect the public."[79]

63. In Duncan v Companies Auditors Liquidators Disciplinary Board, Emmett J went on to consider a submission by ASIC that compliance with s 1296(1) of the Corporations Act could not be regarded as either the implementation or operation of a decision by the Companies Auditors Liquidators Disciplinary Board (CALD Board) to suspend Mr Duncan's registration as a liquidator. Section 1296(1) required the CALD Board to give Mr Duncan a notice of its decision and reasons, lodge a copy of that notice with ASIC and to publish a notice in the Gazette setting out the decision.[80] The CALD Board was required to do so within 14 days of its decision to suspend the registration. The effect of s 1297(1) was that the order suspending Mr Duncan's registration came into effect at the end of the day on which notice was served on him under s 1296(1).

64. Emmett J then considered the rationale of the CALD Board's obligation to make the decision known and of the inter-relationship between that and the Tribunal's power under s 41(2) of the AAT Act:

"... Section 1296(1) is consistent with a requirement for prompt public disclosure of certain matters in the interests of the public at large. It is easy to see the policy behind the requirement for prompt publication of a decision such as that under review.

Such a policy would explain, for example, the requirement of s 213 of the ASIC Act for the board to disclose otherwise confidential information to certain classes of bodies to assist them in their functions. One of the possible qualifications for registration as a liquidator is membership of a professional body. As such, a liquidator will be subject to professional disciplinary arrangements of that body. Gazettal of decisions by the board serves the purpose of bringing the board's decisions to the attention of such a body.

However, there is nothing in the legislative background to suggest that publication of the fact of a decision is in the public interest even if the decision is set aside. Deferring the obligation to comply with ss 1296(1)(b) and (c) until the question of the validity of the decision in question has been determined would not necessarily be inconsistent with the apparent object of those provisions.

I consider that the Tribunal has power to make an order affecting the operation of the board's decision in a way that would obviate the obligation to comply with s 1296(1). For example, an order that the obligations referred to in ss 1296(1)(a) and (b) be taken not to have arisen in relation to a particular decision would be an order affecting the operation of that decision. Such an order would have the effect that the board was not required to lodge with ASIC a copy of the notice of its decision, or to publish notice of its decision in the Gazette."[81]

65. A similar point was raised in Re VBJ and Australian Prudential Regulation Authority and I reached the same conclusion in considering whether s 41(2) gave the Tribunal power to affect APRA's statutory duty under ss 120A(6) and (7) of the SIS Act to publish particulars of a notice. I decided that APRA's statutory duty did not override any order made by the Tribunal under s 41(2) of the AAT Act so that it had to publish the particulars in any event. The corollary of this conclusion is that the Tribunal may make an order under s 41(2) affecting the regulatory body's obligation to comply with what would otherwise be its statutory duty. In Re VBJ, I gave three reasons for reaching my conclusion:

"52. First, every stay order that the Tribunal makes affecting the operation or implementation of a decision alters the way in which an enactment would otherwise operate in relation to that decision. A decision to recover overpayment of a social security benefit, for example, comes into operation immediately. The fact that the amount becomes a debt owed to the Commonwealth[82] imposes an obligation on the officers of the relevant Department or Centrelink to recover it as soon as possible. Some decisions are implemented on a continuing basis and others once only. Re Webber and Secretary, Department of Social Security_[83]_ provides and example. An order under s 41(2) of the AAT Act had been sought in respect of a decision affirming that Mr Webber's invalid pension should be paid at the married, rather than the single, rate under the Social Security Act 1991 ('SS Act'). The Tribunal analysed that decision as:

'... not one which once given is irrevocable either as to entitlement or as to the rate of payment. In this it differs from a decision that a lump sum of arrears is payable. That lump sum is computated [sic] once on the basis of events which have happened in the past and is paid once. Consequently, as in the case of Delkou, it can be said that once it has been paid, there is nothing left. All that can be done has been done. The case of continuing payments is different. It is a matter of practicality that they are not calculated, one each pension-day and that the amount of each instalment is calculated by dividing an annual amount by 26. The reality is that a different amount could be paid on each pension-day if the circumstances of the pensioner changed with that frequency as it is reviewable at any time.'[84]

A power to order a stay would have little, if any, use if it could not be used to affect what would otherwise be statutory obligations.

53. The second basis is a different view of the first. The courts have recognised that a statutory power to order a stay may affect statutory obligations and may do so even when they have taken effect in law. In Long v Minister for Immigration and Multicultural and Indigenous Affairs_,[85] RD Nicholson J recognised that a statutory power may stay a decision that has taken effect in law. At that time, ss 482(2) and (3) of the Migration Act provided that '... orders staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or part of that decision'[86] could be made if an application for review had been made under ss 476 or 477 of the Migration Act in relation to such a decision and the orders that could be made were those 'that the Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and the determination of the appeal'.[87] His Honour said of the decision by the Minister for Immigration and Multicultural and Indigenous Affairs to cancel Mr Long's permanent residency visa:_

'... absent statutory authority of the type which appeared in the former s 482 of the Act, the court has no power to stay an administrative decision which has taken effect in law so as to affect legal rights so that there is no continuing aspect of the decision remaining to be stayed. If, however, the decision has continuing effects the court has power, subject to any statutory provision, to stay those effects or some of them subject to it being otherwise appropriate for a stay order to be made. In this respect I note that s 15(1) of the Administrative Decisions (Judicial Review) Act distinguishes between the suspension of the operation of the decision and a stay of all or any proceedings under the decision.

I do not consider that a different result can be reached by placing reliance on s 23 of the Federal Court of Australia Act as the accepted source of the Court's power to stay. This is because, absent such a provision such as the former s 482(2), the decision to the extent it has taken effect is beyond stay.'[88]

54. The third basis arises from the nature of APRA's obligation under s 120A(7). It is an obligation to publish particulars of the notice 'as soon as practicable'. Publication is an aspect of the implementation of the decision. What amounts to publication as soon as practicable must be assessed in light of any order made by the Tribunal using its power under s 344(10) of the SIS Act and s 41(2) of the AAT Act to affect the implementation of the decision. The Tribunal's decision would not be overriding APRA's statutory obligation; rather, APRA's statutory obligation is determined by reference to s 120A(7) as affected by any order made under s 41(2) of the AAT Act.

55. Had APRA already published a notice before the Tribunal made an order, the Tribunal could not make an order affecting that publication. There would have been nothing left of the implementation to stay. Had APRA lodged the notice for publication but it had not yet been published, there may be something left to stay but that would depend on the circumstances as they are found to exist if that case ever arises."[89]

66. Applying these principles to decisions made under ss 920A and 915B, it would seem that ss 920E(1) and 915F(1) are concerned with the operation of the decisions. They make it clear that the decisions or orders take effect as soon as notice of it is given to the person who is the subject of the decision and so are operative at that time. Until then, the decisions exist as a matter of fact but no consequences attend the mere fact that they have been made. Giving notices under those sections is one way in which the decisions are implemented i.e. the way in which the decisions are carried out, fulfilled or performed.[90] Sections 920E(2) and 915F(2) are concerned with giving the public notice of the decisions and so also with their implementation.

What is the extent of ASIC's duties under ss 920E(2) and 915F(2) to publish notice of the cancellation of an AFSL and of a banning order?

67. Before I consider the effect of s 41(2) of the AAT Act, I must consider the nature of the statutory duties imposed by ss 920E(2) and 915F(2). Both duties require publication of a notice of the relevant order in the Gazette "as soon as practicable" after the order is made. The Corporations Act specifies the time within which acts and steps must be taken in various ways. This is one of them. Another way of expressing it appears in s 601FC(1)(l) of the Act. It requires the responsible entity of a registered investment scheme to report to ASIC any breach of the Corporations Act relating to that scheme and that has had, or is likely to have, a materially adverse effect on the interests of the members. The responsible member must report that breach to ASIC "as soon as practicable after it becomes aware of the breach".[91] Other provisions of the Corporations Act provide for definite periods within which an action must be performed or notice be given. Section 497(7), for example, provides that the directors of a company must give ASIC a copy of the report of the company's affairs , "not later than 7 days after ..." that report is laid before a meeting of creditors. Yet other sections provide for a hybrid of the other formulations. Section 601FL(2)(a) provides in part that, if a company chooses a company to be the new responsible entity and that company has consented to take on that role, the current responsible entity must lodge notice of the fact with ASIC "as soon as practicable and in any event within 2 business days after the resolution is passed."

68. The Chambers 21st Century Dictionary gives the ordinary meanings of "practicable" as:

"1 capable of being done, used or successfully carried out; feasible. ..."[92]

The Chambers goes on to compare the meanings of "practicable" and of "practical". Both words mean "able to be done, used, etc" but "... practical has the further connotation of 'efficient, sensible, useful' and therefore more judgemental ...".[93] The Macquarie Dictionary does not draw that distinction and has a different slant on the meanings of "practicable":

"1. capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible. ..."[94]

69. There are various authorities that have considered the expression "as soon as practicable". They include M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[95] NATB v Minister for Immigration and Multicultural and Indigenous Affairs[96] and Ni v Minister for Immigration and Multicultural and Indigenous Affairs.[97] These authorities reveal that the words "as soon as practicable" require reference to be made to the circumstances pertaining to the person and to the person's capacity to comply with the obligation as well as by reference to the obligation itself. The length of time permitted to a person under such an obligation is not judged by reference to the desires of a third party whose own interests may be affected by whether or not the obligation is fulfilled or by the time at which it is fulfilled. It would seem that the meaning attributed by these authorities is more in keeping with the meaning adopted by the Macquarie Dictionary than that in the Chambers.

70. I illustrate the last point by reference to the judgment of Stein JA, with whom Malcolm CJ and Wallwork J agreed, in The State of Western Australia v Rothmans of Pall Mall (Australia) Ltd.[98] Provisions in various limitations legislation required notice to be given to certain persons "as soon as practicable ... after the cause of action accrues." Stein AJ said:

"26 To determine the issue, all relevant circumstances must be taken into consideration, but these circumstances must relate to the giving of a notice of proposed action with respect to the cause of action which had accrued. I do not see that 'political' considerations, such as a wish not to upset of inflame continuing discussions or negotiations with the Government, are a relevant circumstance.

27 On behalf of the appellants, Mr Mitchell submitted that to be a relevant circumstance, the matter must impact on the ability of the respondent to give the notice required by the provision. In my opinion, this submission is correct. The negotiations with the Government clearly did not impact on the ability of the respondent to give the notice. By February 1998, the respondent had all of the information (including legal advice) that it needed to include in a notice. It knew of the circumstances upon which the proposed action would be based."

71. His Honour accepted a submission that the phrase "as soon as practicable" should be read "as soon as reasonably practicable" as it is probably inherent in the expression in any event.[99] His interpretation accords with the conclusion reached by the Full Court of the Federal Court in NATB when, relying on the ordinary meaning of the word "practicable", it said that "... at least some element of reasonableness is inherent in the notion of 'practicable' ...".[100] In this regard, it disagreed with a passage from the judgment of a differently constituted Full Court of the Federal Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs when it said:

" In the context of s 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses: cf Uebergang [v Australian Wheat Board[101]] at 306 per Stephen and Mason JJ. ..."[102]

72. In NATB, the Court considered the obligation imposed on an officer by s 198(6) of the Migration Act 1958 (Migration Act). The officer was obliged to remove as soon as practicable an unlawful non-citizen who is a detainee and who has made a valid application for a substantive visa that can be granted while in the migration zone but who does not have available any further administrative procedures under the legislation for obtaining that substantive visa. It analysed what was encompassed in the obligation. The obligation to "remove" a person "from Australia" necessarily entailed the person's being removed from Australia and, because it cannot have been Parliament's intention to dump the person in the sea beyond Australia's boundaries, taken to another country.

73. It was impossible to foresee all of the circumstances that would need to be taken into account in deciding what was reasonably practicable, the Full Court said. It was able to make some general observations:

"52 ... First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of 'practicable' set out at ... above. Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.

53 This second limitation is of critical importance to the resolution of the appellants' principal argument. In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.

54 Counsel for the appellants argued that it is unthinkable that Parliament intended to make an officer an executioner or torturer at one remove, and so Parliament must have intended the expression 'as soon as reasonably practicable' to do the work of relieving the officer of the obligation to send an unlawful non-citizen to death, torture or persecution.

55 We agree that Parliament cannot be supposed to have intended that persons would be removed from Australia to a country where they would be likely to suffer death, torture or persecution. But we are unable to accept that Parliament intended to avert this result by use of the expression 'as soon as reasonably practicable' in subs 198(6). If Parliament had intended to guard against this possibility, we would have expected it to do so expressly; for example, by adding to subs 198(6) an additional paragraph requiring the officer to be satisfied that the non-citizen would not be likely to suffer death, torture or persecution in the country to which he or she is to be removed.

56 It seems to us that Parliament sought, by other means, to guard against the situation contemplated by counsel. ..."

Consistent with the Full Court's approach, it would "... find it difficult to accept ... that the removal would be regarded as practicable, even without the qualifier 'reasonably' where no country was willing to admit the unlawful non-citizen."[103]

74. The views expressed in NATB were recognised as consistent with those in M38/2002.[104] I note in particular the passage from the judgment in M38/2002 when the Full Court said:

"... Whether the removal of a non-citizen is 'reasonably practicable', as distinct from merely 'practicable', may direct attention to a range of considerations, including factors relating to the unlawful non-citizen facing removal, and the interests of third parties who may be directly affected (such as, for example, the interests of third party states)."[105]

75. The examples given by the Full Court of circumstances that might be relevant show that they all pertain to the feasibility of the officer's removing the person from Australia. They do not pertain to considerations extraneous to issues affecting that feasibility and so to issues extraneous to the officer's carrying out the obligation imposed by s 198(6) of the Migration Act. So, for example, they do not extend to considerations of whether the person should be given an opportunity to pursue an avenue of review not provided for in the Migration Act or the illness of the non-citizen's family. The examples given by the Full Court in M38/2002 were:

" Doubtless, there will be other factors that, from time to time, will lead an officer to conclude that, at the time removal is contemplated, removal would not be reasonably practicable in the circumstances of the case. If, for example, the only country willing to receive an unlawful-non citizen were suffering from some severe natural disaster or were in a state of utter civil anarchy, the officer may well be entitled to conclude that his or her removal would not be reasonably practicable until the effects of the disaster were dissipated or some degree of order had been restored. ... The physical condition of a person facing removal may also lead an officer to conclude that his or her removal may also lead an officer to conclude that his or her removal in that condition would not make the removal reasonably practicable ...".[106]

76. Emmett J also focused on factors and circumstances relevant to the obligation under ss 198(5) and (6) of the Migration Act "... as soon as reasonably practicable ...".[107] His Honour said:

"11 The first ground relied on by the applicant concerns the proper construction of the expression 'as soon as reasonably practicable' where that expression appears in ss 198(5) and (6). The applicant contends that some meaning must be given to the word 'reasonably' and that meaning is given by having regard to the interests of an unlawful non-citizen who might be the subject of removal. In the present circumstances, the applicant contends that regard must be had to the interests of the applicant's wife and children in determining whether it is reasonably practicable for him to be removed.

12 The applicant contends that the power conferred by ss 198(5) and (6) cannot be exercised before a time that is reasonably practicable, having regard to the position of the applicant. Reliance is placed on the principle of statutory interpretation that where a statutory power affects the liberty of a person, and there is ambiguity in the construction of the statute, the statue should be construed in a manner that is favourable to the person. Though I do not doubt that proposition, the question is whether there is any ambiguity in the expression to which I have referred.

13 It is significant, in my view, that ss 198(5) and (6) are both directions to an 'officer'. Each requires that an officer remove an unlawful non citizen in certain circumstances. I do not consider that the expression 'as soon as reasonably practicable' can be construed as referring to the rights or interests of an unlawful non-citizen. The expression is simply a qualification of the duty of an officer to remove an unlawful non-citizen. Removal from Australia, under those provisions, is to be effected, by force of law, not as the result of the exercise of an administrative discretion. I do not consider that it is even reasonably arguable that the expression in question must be construed in the way contended for by the applicant. ..."[108]

77. Having regard to these authorities, it seems to me that the obligations to statutory duties imposed by ss 920E(2) and 915F(2) to publish notice of the relevant decision "as soon as practicable" must be read in the context of the circumstances prevailing at the time. A consideration of those circumstances will extend to the practicalities of publishing the notices and so to considerations such as the frequency of publication of the Gazette, the amount of time between the making of the relevant decision and the date of publication of the Gazette and the time to complete the procedural steps necessary to arrange publication of the notices.

78. Is any assessment of what amounts to publication "as soon as practicable" to take into account the fact that the subject of ASIC's decision may want to apply to the Tribunal for an order under s 41(2) of the AAT Act? That question takes me back to the judgment of Emmett J in Duncan v Companies Auditors Liquidators Disciplinary Board. His Honour made it clear that an order under s 41(2) of the AAT Act can obviate the obligation to comply with s 1296(1). That section imposes an obligation on the CALD Board to give certain notices within 14 days of its decision. In the case of ss 920E(2) and 915F(2), I would not think it necessary to go so far as to say that an order under s 41(2) can "obviate" the obligations they impose. I doubt whether it can "obviate" them in the sense of "remove"[109] them for, unlike that under s 1296(1), they are not obligations to take certain steps within fixed time periods but are obligations to take certain steps "as soon as practicable".

79. It follows that what amounts to publication "as soon as practicable" is something that will have to be determined having regard to the order under s 41(2). It may be that "as soon as practicable" means that the notices are never published because of the terms of an order under s 41(2). Even then, though, the obligations would both remain and be fulfilled. They would not be obviated by the order under s 41(2).

80. Publication after an order under s 41(2) has been made is one thing but the contemplation of publication before the subject of a disqualification or banning order has had any opportunity to apply for such an order is another thing. Is opportunity to be taken into account in deciding what is "as soon as practicable" and, if so, what sort of opportunity? Given that the authorities have focused not only on the obligation but on the circumstances pertaining to the person upon whom it is imposed and that person's capacity to comply, it seems equally appropriate that the obligation should be viewed against the whole framework of rights, powers and privileges and their corresponding duties, liabilities and obligations established by the Corporations Act, Regulations and ASIC Act. To do otherwise is to place an emphasis on one part of the scheme that is disproportionate to that placed upon it by Parliament. In the circumstances of this case, for example, Parliament contemplated that a person who is the subject of a disqualification order or a banning order may apply under s 41(2) of the AAT Act. If the obligation imposed by s 1(2)(f) of the ASIC Act is read with regard only to the physical possibilities of publication, Parliament's intention regarding s 41(2) is set at nought. It is set at nought whether, in the facts of the particular case, the reasons for making the decisions would support immediate publication of their having been made or whether another day or two could pass without any greater harm than has already occurred before the decisions were made.

Does ASIC have a statutory duty under s 1(2)(f) to ensure that information is available as soon as practicable for access by the public?

81. In essence, ASIC's position is that it has a statutory duty to give the public information. That information can take the form of a Press Release or a Media Release disseminated in whatever form and through whatever means, including the internet, it thinks appropriate. It finds support for that obligation in s 1(2)(f) of the ASIC Act. Unlike those in ss 920E(2) and 915F(2) of the Corporations Act, that obligation is not linked with any particular decision. It is an obligation imposed upon ASIC in relation to its "... performing its functions and exercising its powers ...". Like those in ss 915F(2) and 920E(2), the obligation is not expressed in terms of taking a step within a fixed time limit but in terms of its taking that step "as soon as practicable". There is no reason in the context of s 1(2)(f) to think that the expression "as soon as practicable" has any meaning different from the meaning it has in ss 920E(2) and 915F(2).

82. The obligation in s 1(2)(f) is to ensure that, in performing its functions and exercising its powers, ASIC must strive to ensure that "information" is available as soon as practicable for access by the public. If I were to have regard only to the word "information" and to s 1(2)(f) without the context of the other five paragraphs and without the introductory words to the section, I would conclude that it suggests a more broadly based obligation than those in ss 920E(2) and 915F(2), which are directed to particular notices about particular decisions. The word "information" encompasses "... knowledge gained or given; facts; news."[110] When read into the words of s 1(2)(f), the paragraph could read that ASIC must strive to ensure that knowledge gained or given to it is available as soon as practicable for access by the public. That interpretation assumes that the word "that" is used as a:

"... pronoun used instead of which, who or whom_, to introduce a relative clause which defines, distinguishes or restricts the person or thing mentioned in the preceding clause_".[111]

83. Section 1(2)(f) does not exist without its context and, when regard is had to the whole context, it becomes apparent that there is another meaning of "that" which is more apt. It is its meaning when used as an adjective and is:

"... indicating the thing, person or idea already mentioned, specified or understood  There's that girl I was telling you about. ...".[112]

When understood in this sense, the word "information" must be read as referring to the information to which reference had just been made i.e. the information referred to in s 1(2)(e) and so to information that is given to ASIC under the laws that confer functions and powers on it and that it is to receive, process and store, efficiently and quickly.

84. What information is incorporated within the description of information given in s 1(2)(e)? The Corporations Act and Regulations impose many obligations to provide information to ASIC. Some are imposed on a financial services licensee. As an example, I refer to ss 912C(1) and (3) obliging a financial services licensee to give ASIC a written statement containing specified information about the financial services provided or the financial services business being conducted by the licensee. The Regulations may also impose disclosure obligations.[113] Under s 912C(2), ASIC may require a financial services licensee to obtain an audit report. Section 912D imposes an obligation on a financial services licensee to report likely breaches of certain obligations under the Corporations Act.

85. The Corporations Act recognises that ASIC needs to manage the information it receives. It provides that ASIC is required to maintain a considerable number of Registers. The Regulations may prescribe the way in which they are established or maintained and the details that ASIC must enter in them. The provisions in relation to each have many similarities. As an example, I will refer to those in respect of the Register of financial services licensees, their authorised representatives, persons against whom a banning or disqualification order has been made or any other person or body prescribed by the Regulations.[114] Regulation 7.6.05(1) prescribes the information that must be kept in the Register of financial services licensees. It includes details of their names and business addresses, their AFSL licence and ABN numbers, details of any conditions on their AFSLs and "any other information that ASIC believes should be included in the register."[115] A person may inspect the Register or Registers relating to financial services and may make copies of them or take extracts from them[116] provided the person pays any fee prescribed by the Regulations.[117] As a Register maintained under s 922A in respect of financial services licensees is a prescribed register,[118] s 1274A provides that ASIC may permit a person to search it.

86. ASIC may refuse to register or receive a document submitted by lodgement if it contains matter contrary to law, matter that is, in a material particular, false or misleading in form or context, has not been completed because it contains an omission or misdescription or contains an error, alteration or erasure.[119] With some exceptions, and those in relation to financial services licensees are not among them, a person may inspect any document lodged with ASIC.[120]

87. I have given but the briefest outline of the information that is given to ASIC under the Corporations Act and so under one of the laws that confers functions and powers upon it. Information of that sort comes within s 1(2)(e) of the ASIC Act and so is information of the sort in respect of which ASIC is under an obligation to receive, process and store, efficiently and quickly. Given that ASIC is under an obligation to make most of the information referred to in s 1(2)(e) available to the public and the second meaning that may be ascribed to the word "that", it seems to me that s 1(2)(f) should be read as imposing an obligation upon ASIC in relation to the information in s 1(2)(e). That information does not extend to information of actions or decisions taken by ASIC.

88. To my mind, that interpretation is confirmed when I look to the final part of the context to which I made reference earlier. That part of the context comprises the introductory words to s 1(2). Those words make it clear that ASIC must strive to take the steps set out in the paragraphs that follow when it is "... performing its functions and exercising its powers ...". In adopting them, Parliament has made it clear that it is not intending to give ASIC further functions or powers in that section. Instead, it is imposing obligations or duties upon it. Section 1(2)(f) cannot be used as a source of power to take steps to give the public information that has not been given to it.

The extent of the obligation imposed by s 1(2)(f) of the ASIC Act

89. My conclusion that s 1(2)(f) is not the source of ASIC's power to issue a Press Release does not mean that ASIC does not otherwise have the power to do so. I have not explored the issue and have not come to a conclusion whether, for example, a source of its power would lie in the incidental power under s 11(4) of the ASIC Act. If that is indeed the source of the power, the obligation imposed by s 1(2)(f) would be to exercise as soon as practicable. That obligation would, in my view, be exercised in light of the matters to which I have already referred.[121]

Can an order be made under s 41(2) of the AAT Act affecting the Press Release?

90. If made under s 11(4), I note that I would not have power to review the decision to issue the Press Release as s 244 of the ASIC Act does not give the jurisdiction to review decisions made under that section.[122] Jurisdiction to review is a different matter from the power to stay the implementation of a decision by relying on the power in s 41(2). Provided the issue of the Press Release can be regarded as a step in, or a part of, the implementation of decisions that the Tribunal does have jurisdiction to review, the power given by s 41(2) can be used to affect it.

91. Should it be the case that ASIC does not have power to issue a Press Release of the sort it issued, can the Tribunal make an order staying or otherwise affecting that Press Release? Where it has been issued, the Press Release is a matter of fact. A comparison can be drawn between the fact of the issue of the Press Release and the fact of making a decision that is not supported by any legitimate source of power. The latter were considered in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (Brian Lawlor ).[123] Smithers J illustrated the practical consequences of a decision to revoke a licence made without a legitimate source of power:

" ... It is to be noted also that the subjects of reviews are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorized to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.

... But to decide to revoke the licence was also itself a decision according to the natural meaning of that term. Such a decision may have serious results for the citizen. No doubt the officers of the department will act upon it. Thus, after the decision in question had been made they would be expected to refuse to permit goods to be entered to the defendant's warehouse. In this case, also action was taken against the licensee under s 94 of the Customs Act. That action did not necessarily depend upon revocation but in all probability it would not have been taken had the decision to revoke the licence not been made. ..."[124]

92. A Press Release is not a decision even though it will have been issued on the basis of a decision. The two do, however, share something in common and that is so whether they have been made lawfully or not. That something is an expectation that inherently attaches to each i.e. an expectation that each will be acted upon. In the case of the decision described by Smithers J, there was an expectation that it would be acted upon by other officers in carrying out their duties as public servants. It is to be expected that a Press Release will be acted upon by members of the public be they themselves participants in the financial services market or members of the public seeking to invest their funds. At one end of the scale, they may act upon it by simply noting its contents and, at the other, by changing some of their financial arrangements to some extent. Placing the public in a position where such decisions may be made must be the purpose behind the release of a Press Release. Doing so is consistent with its express statutory obligations to publish notice of the decisions in the Gazette. Whether the information is released to the public in one way or the other, the release itself is part of the implementation of the decision. As an order can be made under s 41(2) of the AAT Act affecting the implementation of the decision, an order can be made affecting the Press Release.

Can the order under s 41(2) require the withdrawal of a Press Release?

93. Given that the Press Release had already been released, the question became whether the power in s 41(2) could be used to prevent a further release of the Press Release by ASIC and whether it could be required to withdraw that which it had already released. In view of Duncan v Companies Auditors Liquidators Disciplinary Board, there is no question that I could make an order preventing the further release.

94. My order requiring ASIC to withdraw the Press Release it had already distributed could be thought to be more problematic. ASIC clearly does and drew my attention to the judgment of Heerey J in Allied Asia Holdings (Aust) Pty Ltd v Australian Securities Investments Commission[125]. The applicant had sought injunctive relief under ss 19 and 23 of the Federal Court Act to restrain ASIC from publishing a Press Release until after the Tribunal had reviewed its decision to refuse to register the applicant as a general insurance broker. It was said that the Press Release would have a catastrophic impact upon its business. His Honour considered the prospects of success in the Tribunal on its substantive application and then went on to consider its prospects of success were it to seek an order under s 41(2) of the AAT Act. After setting out the provision, Heerey J said:

"... It is difficult to see conceptually how that jurisdiction would extend to making a positive order for the renewal of registration.

Thirdly, there is no proper material before me as to when an application for a stay might be made to the AAT, when such an application might be heard and the prospects of success. I do not think that I should proceed on the basis that a stay would be automatic once an appeal had been filed. The Commission would have the right to object to the granting of the stay: see s 41(4)(a) of the AAT Act."[126]

95. The practical effect of the position that Heerey J took was that the power under s 41(2) could not be used to renew the applicant's registration. All that the power could be used for was to stay or otherwise affect the operation or implementation of the decision that had been made i.e. to refuse to renew the registration. If the operation of the decision were stayed, that did not mean that the applicant remained registered by virtue of the exercise of the power. Under the provisions in the Insurance (Agents and Brokers) Act 1984 at the time ASIC had refused to renew, registration had effect for only a period of one year.[127] If stayed, the applicant's registration would have continued for a short time but would have expired by the effluxion of time and the effect of that legislation. The effect of any order that the Tribunal could have made under s 41(2) would have been at an end.

96. The fact that the applicant could not be restored to its former position as a registered insurance broker in Allied Asia Holdings (Aust) Pty Ltd v Australian Securities Investments Commission does not mean that the Tribunal does not have power to make an order requiring ASIC to do something, as opposed to not do something, under s 41(2). A "stay" in the context of s 41(2) is a "suspension ... or a postponement" [128] of the operation or implementation of the decision. Therefore, it can suspend the operation or implementation of something that is happening or it can postpone the commencement of its happening. I do not see any room for the Tribunal to use the stay power to make an order to require ASIC to go beyond suspending or postponing the operation or implementation of the decision.

97. The power in s 41(2) is not, however, limited to the power to make an order staying the operation or implementation of the decision under review. It extends to a power to make an order "otherwise affecting" the operation or implementation of that decision. As a stay order affects the operation or implementation of the decision, the word "otherwise", used as an adverb, clearly means that s 41(2) is contemplating an order that will affect that operation or implementation "in other respects ... [or] in a different way"[129] from the respects or way in which a stay order affects them. When used in this context, the word "affect" means "to have an effect on ..."[130] the operation or implementation of the decision.

98. An order of the sort that I made requiring ASIC to take steps to remove any reference to the names of PTLZ and VLDP from the Press Release published on its website requires it to take positive action rather than simply to cease or to refrain from taking action. The Press Release was issued as part of ASIC's implementing the decisions. The steps I required it to take had an effect on, and so affected, the way in which it had carried out that implementation and so the "implementation of the decision" or decisions under review. The steps that I required ASIC to take to send a copy of my order to those to whom it had previously sent the Press Release is of the same ilk. They also had an effect on the implementation of the decision.

99. As I said, a power to stay the operation or implementation of a decision would not have let me go so far but s 41(2) has clearly been drafted with the Tribunal's place in the continuum of administrative decision-making firmly in mind. It has been drafted in order to ensure that the Tribunal has an appropriate range of powers to make orders securing the effectiveness of the hearing and is not limited to those postponing or suspending the operation or implementation of the decision.

The principles relevant in considering whether to make an order under s 41(2)

100. I have considered s 41(2) of the AAT Act in various cases. Of relevance in this case are the cases of Re VBJ and Australian Prudential Regulation Authority and in Re Tweed and Australian Securities and Investments Commission[131]. One was considered in the same regulatory context and the other in a related regulatory framework sharing many common features with that of the Corporations Act. I adopt the principles that I set out in that case and will summarise them in this case:

(1) A banning order both imposes a penalty and protects the public.[132] It is punitive in the sense that it prevents a person from engaging or continuing to engage in a particular activity. At the same time, it is intended to protect the public or at least those members of the public who may otherwise seek from the person the services that are the subject of the banning order. It is intended to protect them by preventing a person from providing those services when that person is found not to meet the standards that Parliament has specified as the standards that must be met by those providing those services.

(2) The Tribunal may make an order under s 41(2) only if it is of the opinion that it is desirable to do so after taking into account the interests of any persons affected by the review.

(3) What is "desirable" means "what was worth having". What is worth having is to be assessed after taking into account the interests of any persons who might be affected by the review of the decision. Those persons whose interests might be affected will include the parties to the application but will go beyond them to include those whose interests were taken into account in making the decision or whose interests were taken into account by Parliament in giving APRA the power to make the decision as part of its regulatory role i.e. the interests of those whom Parliament has sought to protect. Those persons may not be able to apply for review of the decision under s. 27(1) of the AAT Act as they may not be "persons ... whose interests are affected by the decision" (emphasis added). That does not mean that they are not "persons who may be affected by the review" (emphasis added).

(4) In considering what is "desirable", regard should be had to matters such as:

• the prospects of success of VBJ's application for review of APRA's decision;
• the consequences for APRA in carrying out its functions under the SIS Act and for those whose interests are affected by the review of the decision if the stay were, or were not, granted;

∙ the consequences for VBJ if the stay were, or were not, granted;

∙ any conditions, such as undertakings, that could ameliorate any consequences of either granting or refusing a stay; and

∙ whether review is sought of APRA's reviewable decision or of its decision after its own review.

(5) If the Tribunal forms an opinion that it is desirable to make an order, the order that it makes must be one that it considers appropriate to secure the effectiveness of the hearing and determination of the application for review.

(6) For the reasons I gave in Re Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs,[133] I do not consider that the principles should be fashioned on the narrower basis of securing the processes of the hearing and the processes of the determination as decided in Re Crossan and Minister for Immigration and Multicultural and Indigenous Affairs[134] in the context of an application for review of a decision to cancel a visa under s 501 of the Migration Act 1958.

Confidentiality: the power given by s 35(2)

101. In the reasons for decisions published as Re VBJ and Australian Prudential Regulation Authority and Re an Applicant and Australian Prudential Regulation Authority and a Party Joined,[135] I set out at some length what I understand to be the principles that are relevant to an exercise of the power under s 35(2). I adopt my reasons in both cases and do not propose to repeat them. In Re VBN and Ors and Australian Prudential Regulation Authority and a Party Joined ,[136] I summarised the propositions that underpin the principles relevant in a consideration of whether an order should be made under s 35(2) and adopt them. They were:

• s 35(2) of the AAT Act distinguishes between the hearing and other aspects of a proceeding such as the evidence or the names of any witnesses;
• the hearing is to be in public and the Tribunal must try to ensure the preservation of the public nature of that hearing even when it permits a person to attend otherwise than in person;[137]
• a 'private hearing' means no more than that the public is excluded from the hearing; it does not of itself render confidential what has passed at the hearing;[138]
• if what has passed is to be rendered confidential, an order must be made under s 35(2) of the AAT Act;[139]
• in making an order under s 35(2), the Tribunal must have regard to those matters in s 35(3);
• the matters in s 35(3) require the Tribunal to have regard to:
  • (a) the desirability of:

(i) hearings of proceedings before the Tribunal being held in public; and

(ii) making available to the public and all parties, evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal; and

(b) reasons given as to why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted."[140]

102. The provisions of the enactment giving the Tribunal jurisdiction to review a decision may modify the operation of s 35 of the AAT Act. Section 344(11) of the SIS Act, for example, removes the Tribunal's discretion as to whether a hearing shall be in public or in private by requiring that it be in private. There are no provisions in the Corporations Act that specifically modify s 35 although there are provisions that provide context, as it were, and I will return to them.

103. In Re Pochi and Minister for Immigration and Ethnic Affairs,[141] Brennan J outlined the reasons for the Tribunal's having its hearings in public. He said that public hearings are:

"_... calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (_McPherson v McPherson [1936] AC 177 at 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it."[142]

104. The concept in this passage is inherent in s 35(1) of the AAT Act. It is a concept that was reflected upon by Hill J in SRD v Australian Securities Commission[143] in the context of an appeal from a decision of the Tribunal. The Tribunal decided that an accountant, who was a registered company auditor, had failed to carry out or perform adequately the duties of an auditor or the duties or functions of a registered company auditor under s 1292(1)(d) of the Corporations Act. In doing so, it set aside the decision of the CALD Board which had heard the matter in private. The Tribunal had made an order under s 35(2) of the AAT Act that the name of the accountant not be disclosed to persons other than the parties, their legal advisers and members of the Tribunal and had conducted its hearing and given its decision and reasons on that basis. It continued its order under s 35(2) pending the application for suppression of the accountant's name in the Federal Court proceedings. That application was made under s 50 of the Federal Court Act, which permits the Court to make an order forbidding or restricting the publication of evidence or the name of a party or witness "...as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth."

" The function of open justice allows the public to know accurately what and who is the subject of the Court's proceedings. A corollary is that it allows the public to know who and what is not subject to those proceedings. Accurate knowledge of such things prevents unwarranted suspicion or speculation as to the Court's business, which suspicion or speculation might embarrass or prejudice others engaged in the same professional field but not the subject of proceedings before the Board."[144]

106. In SRD v Australian Securities Commission, Hill J referred to and considered two passages from the judgment of Bowen CJ in Australian Broadcasting Commission v Parish:[145]

"... Bowen CJ illustrated, as examples of cases to which s 50 might be applied, the following (at 132):

'Thus, where the proceedings concern a secret process and publication of the process would destroy a secret process and publication of the process would destroy the subject matter of the proceedings and render them nugatory, an order is necessary to prevent prejudice to the administration of justice. Where proceedings are brought to restrain publication of confidential material, similar considerations apply.'

In speaking of the concept of prejudice to the administration of justice, the learned Chief Judge said (at 133):

'This is not a reference to the need to preserve open justice. It is, as I have already suggested, a reference to another public interest, that is the public interest that the Court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties.'

His Honour pointed out that the juxtaposition of prejudice to the administration of justice with prejudice to the security of the Commonwealth suggested that Parliament was not 'dealing with trivialities'."[146]

"... the balancing against the prejudice, which I will assume is likely to occur to the accountant and/or his firm by publication, on the one hand, with the countervailing public interest in open justice, on the other, to determine whether or not a suppression order should be made and if so upon what terms. As Parish's case shows, it would be an error to consider only the private interests of the applicant or his firm and to ignore other relevant public interests such as the preservation of the ability of a party to litigation to effectively achieve the remedy sought and the desirability of open justice."[147]

107. Justice Hill' consideration took place in the context of s 50 of the Federal Court Act. That of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs took place in the context of s 35 of the AAT Act. Brennan J considered the application of s 35(2) and said:

"... the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.

An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that the publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases - that is to say, where 'the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public' cannot be applied. Some of these exceptional cases are statutorily defined: see the Insurance Act 1973 s 63(14)."[148]

108. Both passages that I have set out from the reasons for decision of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs have a strong emphasis on the importance of a public hearing. Despite that, the final sentences acknowledge that a public hearing is not appropriate in some circumstances either because of legislative stricture or otherwise. Brennan J does not say in such cases that the power under s 35(2) should be used to ensure that information received at that hearing is never made public. Instead, he says that "the power is conferred in order to do justice ... where the 'principle that it is desirable that hearings of proceedings before the Tribunal should be held in public' cannot be applied"[149] (emphasis added). That is the principle that seems to underlie the passage from the judgment of Bowen CJ in Australian Broadcasting v Parish to which Hill J referred in SRD v Australian Securities Commission. It is consistent with the following passage from the judgment of Deane J in Australian Broadcasting Commission v Parish:

"The provisions of s 50 neither require nor warrant the court's abandoning, as its prima facie approach, the ordinary common law rule that justice should be administered in public and that there should be public access to the evidence placed before the court in public hearing. What the section ... recognizes is that there are occasions where the administration or interests of justice will make it desirable that there be a departure from the ordinary principle of the public administration of justice in open court."[150]

109. In Minister for Immigration and Multicultural and Indigenous Affairs v X,[151] Heerey and Weinberg JJ observed that s 50 of the Federal Court Act requires that an order must appear "necessary" to the court and not simply "desirable" or that there be "undue hardship" or "damage to reputation" if it were not made. They said:

"Distress and embarrassment by reason of publication of the identity of a person involved in litigation does not in itself amount to prejudice to the administration of justice. The importance of justice being done in public has been affirmed time and again ... Very often publicity is hurtful and embarrassing to someone but that is inherent in the nature of publication of court proceedings; often the more hurtful and embarrassing the proceeding the more newsworthy the report of it."[152]

110. In a context closely associated with this case, the Full Court of the Federal Court considered s 50 in Applicant Y v Australian Prudential Regulation Authority.[153] The Full Court dismissed an appeal from an order of Lindgren J under s 50 restricting disclosure of the identities of X and Y, who had been disqualified under s 25A of the Insurance Act 1973 on the basis that APRA was satisfied that they were not fit and proper persons to be or to act as a director or senior manager of certain insurers or non-operating holding companies. The Full Court accepted that:

"... there would be a real prejudice to the administration of justice if the appellants succeeded in their appeals and established that APRA has no power to disqualify X and Y, but suffered irreparable damage from the publication of the Reasons and the disclosure of the adverse findings of ..." APRA.[154]

111. In doing so, the Full Court considered the principle of open justice saying that it was one of the matters that must be placed in the scales in deciding whether to exercise the discretion under s 50. Other matters relate to any prejudice to the administration of justice. In that case, the Full Court had regard to X and Y's positions as senior managers of Z Co. Z Co had an excellent reputation and standing in the insurance industry and would be damaged if APRA's serious adverse conclusions and the disqualification of X and Y were to become known in the insurance industry. The reputation and performance of a company's management team is one of the most important factors in determining a company's credit rating in the insurance industry, the Full Court noted. If APRA had purported to disqualify X and Y in circumstances in which it did not have the power to do so, and Lindgren J had accepted that the question was not without doubt, X, Y and Z Co would suffer irreparable damage that could not be remedied by the quashing, on appeal, of the decision to do so.

112. A similar argument had been put to Hill J in SRD v Australian Securities Commission. He described it in this way:

" At the heart of the Accountant's case is the assertion made through his solicitor that if his identity becomes public his professional reputation will, in all likelihood, be adversely affected and the reputation and business of his firm may be adversely affected. As to the publication of the name of the firm, he asserts, through his solicitor, not only that the reputation and business of the firm might be adversely affected but also that it would be possible for members of the public to identify him or members of the public might wrongly assume that it is another partner of the firm who is the subject of the tribunal's decision. It is then submitted that if the accountant be ultimately successful in the appeal the publication now of the circumstances of the proceeding and the reprimand which he had received would not necessarily be remedied."[155]

"... The continued suppression of the name of the accountant and his firm gives rise to the appearance of special treatment or discrimination by the court to persons of a particular group or status. I use the word 'status' both in the sense of referring to registration of accountants as auditors or liquidators under the Law and in the sense of the standing obtained through the participation in the profession of accountancy, a profession in which the community places trust and confidence.

There is an analogy, albeit an imperfect analogy, between the present case and that of a person in respect of whom a prima facie case has been found and who has been committed for trial on a criminal offence. Criminal trials proceed in open court, notwithstanding the stigma that may attach to the person once charged with an offence. ...

The present is not, of course, criminal litigation. Further, in the present case it must be borne in mind that there has been a finding made by the Tribunal adverse to the accountant. That is not, of course, a finding of a Court. It is a finding made by the tribunal acting in place of an administrative decision-maker, the Board. The appeal to this Court, an application in the court's original jurisdiction, will be the first time that the matter will have come before a Court, albeit that the proceeding in the Court is restricted to correcting legal error. The factual findings of the Tribunal, if open on the evidence, stand."[156]

114. Hill J also considered whether it was relevant that Parliament had provided that the CALD Board's proceedings are to be heard in private:

" In my view, nothing turns upon the fact that Parliament has provided that proceedings before the Board are to be in private. It is easy to perceive the need for an auditor accused of misconduct having his name suppressed until, at the very least, he or she is given the right to answer the charges at a hearing before the Board. But no implication arises from this once the board's deliberations are concluded and breach of s 1292 has been found.

There is a fundamental difference between the Board and the Tribunal, on the one hand, and the Court, on the other. The former are part of the layers of administrative decision-making, the latter exercises the judicial power of the Commonwealth. As Deane J said in Parish (at 253):

Publicity 'is the authentic hallmark of judicial as distinct from administrative procedure': McPherson v McPherson [1936] AC 177 at 200 quoted by Gibbs J; Russell v Russell (1976) 9 ALR 103 ; 134 CLR 495 at 520.

There is nothing in the Law which evidences a Parliamentary intention that the private nature of the proceedings before the Board, with the possibility of the Tribunal's review being also in private, should be affected in appeals brought from a decision of the Tribunal."[157]

115. While it is true that the Tribunal is "part of the layers of administrative decision-making",[158] it would seem that Hill J's attention was drawn neither to s 35 of the AAT Act nor to the fact that the Tribunal is based on the judicial model.[159] Section 35(2) makes it clear that the Tribunal is to have regard to "the principle that it is desirable that hearings of the Tribunal should be held in public". That is a principle consistent with that in the courts and is a principle that is not necessarily consistent with decision-making processes in the Executive arm of government. Many of the decision-making processes are not public and, if personal privacy is concerned, may never become public. Social security pensions made by officers of Centrelink provide an example of that. Other decisions may be made in private although the fact that they have been made and the reasons for them may be made public at a later time. Certain commercial decisions or those affecting the environment may be examples of those. Section 35(2) clearly requires the Tribunal to put aside such notions of privacy even though it is necessarily part of the Executive arm of government because of the doctrine of separation of powers that applies under the Commonwealth Constitution. In requiring the Tribunal to take the desirability of public hearings as the basis of its consideration, s 35(2) acknowledges that there is a need for the public to have confidence that a tribunal based on the judicial model will demonstrate independence and fairness in carrying out all of its functions. The Tribunal's functions include the processes that lead to its reaching a decision. The evidence given to the Tribunal or the documents lodged with it are part of those processes.

116. Both s 35(2) and s 50 of the Federal Court Act recognise that there will be occasions on which a hearing cannot be heard in public or the evidence made known generally. Section 35(2) expressly recognises that by requiring it to pay due regard to any reasons that are given for the hearing to be held in private or for why publication or disclosure of the evidence should be prohibited or restricted. Section 50 does not direct the Federal Court in the same way but the outcome is arguably the same. In empowering the Court to make the order that appears to it to be necessary to prevent prejudice to the administration of justice or the security of the Commonwealth, s 50 is both on its face and according to the authorities to which I have referred, requiring it to consider competing reasons of the sort expressed in s 35(2). Where any difference may lie between the Tribunal and the courts is not so much in the matters that each must consider but in the way in which those matters are balanced in any particular case. Differences may arise in the balancing exercise between differently constituted courts[160] as much as between the Tribunal and the courts.

Should orders be made under ss 35(2) and 41(2) in this case?

117. Ms Judd and Mr Wilson submitted that the two questions should be considered separately. They are raised under separate sections of the AAT Act and raise separate issues. I accept that they are different and that different considerations apply to them. In the context of the Corporations Act, however, they do lead to overlapping considerations to some extent. That overlap arises from the fact that the implementation of ASIC's decisions requires notice of them to be published in the Gazette and, perhaps, otherwise. Staying the publication raises some of the issues that are raised in relation to whether a confidentiality order should be made. In either case, the public is excluded from knowledge, as it were.

118. PTLZ has given evidence regarding the way in which he entered the financial services industry and the nature of the business that he has developed for a considerable number of years. The development of VLDP has been his life's work and one to which he has made a huge commitment in terms of effort and finances. I accept the evidence of PTLZ that this means that his fortunes and those of VLDP are intertwined and that he is a key person in VLDP's success. I also accept that he has a strong belief that his reputation and that of VLDP would be damaged "incalculably" were confidentiality not maintained while the proceedings continued[161] and that loss of reputation would significantly damage the viability of the business.

119. I also accept that PTLZ has had discussions with the Entity whose business is to provide support to various aspects of the financial services industry. Those discussions have been directed to whether the Entity would accept instructions directly from VLDP's clients regarding their investments. It has advised that it would only accept direct instructions if those instructions were to liquidate the client's investments. The Entity will not accept instructions to maintain accounts or to acquire overseas' securities and it does not have resources in Australia to provide any service to VLDP's clients.

120. PTLZ believes that VLDP's clients will not be able to access or manage their investments properly if the cancellation of its AFSL is not stayed. As a consequence, they may be forced to sell down their investments at a time that they would not otherwise choose to do so. That in turn may trigger calls on margin loans and/or result in losses being incurred. VLDP's clients would be put to the additional cost of trying to locate the holder of an AFSL which was capable of providing them with the same service. If the decision is not stayed, it would take two to three months to transition large accounts but 12 months or so to transition all of the smaller accounts.[162]

121. On the basis of PTLZ's evidence and in light of the complexities of the specialised market in which VLDP operates, I accept that, if the cancellation of VLDP's financial services licence is not stayed, it will be unable to continue to operate. It will be unable to continue to employ its ten or so staff members and they will have to find alternative employment. PTLZ's future would also be in doubt as he has devoted much of his working life to it.

122. The effect of ASIC's decisions on PTLZ and on VLDP is relevant in considering whether their operation or implementation should be stayed. I am satisfied in this case that, unless the decisions are stayed pending the hearing, any success that PTLZ and VLDP may have in the Tribunal when it reviews them will be more in the nature of pyrrhic victories. VLDP's business will have been transferred to others in the financial services industry or its clients will have arranged with the Entity to liquidate their investments. The staff would have moved on. Remnants may remain in the form of the return of some clients and the existence of the business structure but it is reasonable to expect that a great deal of work would lie between a successful outcome in the Tribunal and success in business terms.

123. The outcome for VLDP and PTLZ is but one consideration. Of considerable importance is the protection of the public for it is to that end that the provisions of Chapter 7 of the Corporations Act are directed. It is to that end that the disqualification and banning provisions are directed. It is to that end that the publication provisions are directed so that members of the public generally as well as those engaged in the financial services industry are placed on notice. They can take the fact of disqualification or of banning into account in considering their business dealings and in arranging their affairs if those decisions have relevance to them. Public knowledge of the disqualification or of the banning means that there is another level of scrutiny, albeit informal, to ensure that those disqualified or banned are acting as they should and not as they should not.

124. Disqualification and banning decisions are not made lightly and should not be treated as anything other than serious. For all that, it must be recognised that there are various types of misconduct and of failures to comply with obligations that may lead to their being made. Some types of misconduct and failures immediately prejudice those who deal with those disqualified or banned. Other types open up the possibility of such prejudice even though they may not cause immediate prejudice. They do so by, for example, failing to put in place the safeguards and systems that are intended to minimise the risk of prejudice occurring to the retail clients who deal with those engaged in the financial services industry. Other types of conduct fall between the two.

125. On the information that I have, I consider that the type of conduct in which VLDP and PTLZ have engaged and the type of omissions they have made in meeting their obligations are those that leave open the possibility of prejudice. There is no evidence that they have caused actual prejudice to date. That does not mean that they are unimportant and, in the circumstances of this case, I have had regard to the steps that they are taking to rectify their actions and inactions. I have evidence of the progress that has been made and the risk to the public must be regarded as diminishing as compliance is achieved.

126. Having regard both to the interests of the public and to the effect of the decisions upon VLDP and PTLZ, I consider that the interests of the public are outweighed on this occasion by those of VLDP and of PTLZ. If I were not to grant the stay and they were successful, they would not have a viable business to return to. The effectiveness of the hearing would be compromised. Granting a stay of the disqualification and banning decisions ensures the effectiveness of the hearing in circumstances in which the prejudice to the public is not immediate and is being reduced by the ongoing work of VLDP and of PTLZ.

127. Publication of the notices of the decisions in the Gazette and of the Press Release is closely aligned on this occasion with the decision that I have just reached regarding the stay of the decision. Deferral of the publication of the particulars of the notice of the disqualification and of the banning order means that the public will not know of the decisions at this stage. It will mean that they cannot make other arrangements to transfer their investments or to plan for the contingency that the decisions will be affirmed on review. ASIC has referred to the public's "right to know" of its decisions and has referred me to s 1(2)(f) of the ASIC Act and ss 760A, 915F(2), 920E(2) and 922A(2) of the Corporations Act. These are all sections that impose obligations or duties upon ASIC to make certain information available but they do not translate to unqualified correlative rights in members of the public to know that information. They are obligations or duties that are necessarily qualified by the power of the Tribunal to stay or make an order otherwise affecting the operation or implementation of the decision. The correlative rights are similarly qualified.

128. In view of the ongoing work that is being undertaken to address the issues raised by the decisions and the nature of the issues they raise, I consider that the potential damage to the interests of those who are clients and of those who may become clients of VLDP is outweighed by the damage that is likely to be suffered by VLDP and PTLZ in the short term by publication of the notices in the Gazette and in the Press Release while their substantive applications for review in the Tribunal are awaiting resolution. The stay that I have already ordered should be continued until the resolution of substantive applications and until both parties have been given an opportunity to make submissions regarding the continuation or otherwise of the stay orders that I have made.

129. For the reasons that I have already given, I consider that I had the power to order the withdrawal of the Press Release. Given that it has now been withdrawn and the relevant notices circulated to those on the Media Distribution List, I need do no more. Any further issue of a Press Release is stayed by virtue of my decision.

130. The same considerations lead me to conclude that the proceedings should also be conducted in private and that they should not be subject to public scrutiny in the short term. The fact that I propose to make an order to that effect at this stage does not mean that the proceedings will necessarily remain confidential at all times. Whether VLDP and PTLZ are, or are not, successful on their substantive applications, other considerations will need to be taken into account.[163]

1. order that the operation and implementation of the respondent's decisions dated 23 November 2007 (including but not limited to the publication of its decision in the Commonwealth Gazette under ss 920E(2) and 915F(2) and entering it in the Register maintained under s 922A of the Corporations Act 2001 and regulations thereunder) be stayed until the parties have had the opportunity to make submissions after the Tribunal has heard and determined the applications for review; and

(1) the applicants be described by the letters "PTLZ" and "VLDP" respectively for the purpose of the applications;

(2) publication of the name of the applicants and of any material tending to identify them be restricted to members and staff of the Tribunal, the parties and their representatives and professional advisers and staff of Auscript;

(3) publication of the evidence given before the Tribunal and of matters contained in documents lodged with the Tribunal be restricted to members and staff of the Tribunal, the parties and their representatives and professional advisers and staff of Auscript; and

I certify that the preceding one hundred and thirty one paragraphs are a true copy of the reasons for the decision herein of

Signed: .......................................................................

Solicitor for the Respondent Australian Securities and Investments Commission

[1] [1985] AATA 297; (1985) 8 ALD 454 at [32]

[2] Re WorldAudio Ltd and Austcoast Broadcasting Pty Ltd and Another [2006] AATA 177; (2006) 90 ALD 101 at [17] and [23]-[24]

[3] [1994] FCA 1252; (1994) 52 FCR 187; 123 ALR 730 at 191; 734

[4] (2006) 93 ALD 401; [2006] FCA 1747

[5] (2006) 93 ALD 401; [2006] FCA 1747

[6] [2002] FCA 566

[7] Affidavit of PTLZ sworn on 5 December 2007 at [29]

[8] Affidavit of PTLZ sworn on 5 December 2007 at [31]-[32]

[9] Affidavit of PTLZ sworn 9 December 2007, Exhibit PTLZ-2

[10] Affidavit of PTLZ sworn 9 December 2007, Exhibit PTLZ-3

[11] No person was noted as responsible for Issue Breach No 11 regarding the informal monitoring of VLDP's risk management system.

[12] Affidavit of PTLZ sworn 9 December 2007, Exhibit PTLZ-4

[13] Affidavit of PTLZ sworn 9 December 2007, Exhibit PTLZ-6

[14] Affidavit of PTLZ sworn 9 December 2007, Exhibit PTLZ-8

[15] Affidavit of PTLZ sworn 9 December 2007 at [25]

[16] Affidavit of PTLZ sworn 9 December 2007, Exhibit PTLZ-10

[17] Affidavit of PTLZ sworn 9 December 2007, Exhibit PTLZ-13

[18] Affidavit of PTLZ sworn 9 December 2007, Exhibit PTLZ-13

[19] Affidavit of PTLZ sworn 9 December 2007, Exhibit PTLZ-11

[20] Affidavit of PTLZ sworn 9 December 2007, Exhibit PTLZ-12

[31] s 911A(1) Section 911D prescribes when a financial services business is taken to be carried on in this jurisdiction.

[44] s 920A(2) although that requirement may be modified: s 920A(3)

[56] Section 35 does not apply to a proceeding in the Security Appeals Division: AAT Act, s 35(1AA).

[60] [1992] FCA 41; (1992) 34 FCR 169; 105 ALR 301; 25 ALD 545

[61] [1992] FCA 41; (1992) 34 FCR 169; 105 ALR 301; 25 ALD 545 at 179; 311; 544

[62] (2006) 93 ALD 401; [2006] FCA 1747 at 40; [9] and [11]

[63] [2002] FCA 566 at [16]

[64] Duncan v Companies Auditors Liquidators Disciplinary Board (2006) 93 ALD 401; [2006] FCA 1747 at 40; [9]

[65] Emmett J had quoted the section correctly (2006) 93 ALD 401; [2006] FCA 1747 at 402; [2]

[66] (2007) 98 ALD 131; [2007] AATA 1890

[67] (2007) 98 ALD 131; [2007] AATA 1890 at 134; [15]

[68] [1984] FCA 57; (1984) 6 ALD 6

[69] [1984] FCA 57; (1984) 6 ALD 6 at 10

[70] [1984] FCA 57; (1984) 6 ALD 6 at 10

[71] [1984] FCA 57; (1984) 6 ALD 6 at 10-11

[72] [1984] FCA 57; (1984) 6 ALD 6 at 11

[73] Duncan v Companies Auditors Liquidators Disciplinary Board (2006) 93 ALD 401; [2006] FCA 1747 at 404; [11]

[74] [2005] AATA 642; (2005) 87 ALD 747

[75] Chambers 21st Century Dictionary, revised edition 1999 and see also 2002, Shorter Oxford English Dictionary, 5th edition

[76] Black's Law Dictionary, 6th edition, 5th reprint, 1991

[77] Chambers 21st Century Dictionary, revised edition 1999

[78] 2002, Shorter Oxford English Dictionary, 5th edition

[79] [2005] AATA 642; (2005) 87 ALD 747 at 761-762

[81] (2006) 93 ALD 401; [2006] FCA 1747 at 405; [18]- [21]

[82] Social Security Act, s 1222A

[83] (1989) 18 ALD 422

[84] (1989) 18 ALD 422 at 423

[85] [2002] FCA 774; (2002) 122 FCR 159; 71 ALD 657

[86] Migration Act, s. 482(3)

[87] Migration Act, s. 482(2)

[88] [2002] FCA 774; (2002) 122 FCR 159; 71 ALD 657 at 166; 663

[89] [2005] AATA 642; (2005) 87 ALD 747 at 762-763

[90] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[92] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers and see also a similar definition in Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press

[93] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[94] Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd

[95] [2003] FCAFC 131; (2003) 131 FCR 146; 199 ALR 290; 75 ALD 360

[96] (2003) 133 FCR 506; [2003] FCAFC 292

[97] [2004] FCA 1143 at [29]

[98] [2001] WASCA 25

[99] [2001] WASCA 25 at [24]

[100] (2003) 133 FCR 506; [2003] FCAFC 292 at 516; [48] (Wilcox, Lindgren and Bennett JJ)

[101] [1980] HCA 40; (1980) 145 CLR 266 at 305

[102] [2003] FCAFC 131; (2003) 131 FCR 146; 199 ALR 290; 75 ALD 360 at 164, 308; 377; [66] per Goldberg, Weinberg and Kenny JJ

[103] (2003) 133 FCR 506; [2003] FCAFC 292 at 516; [48]

[104] (2003) 133 FCR 506; [2003] FCAFC 292 at 518-520; [60]-[67]

[105] [2003] FCAFC 131; (2003) 131 FCR 146; 199 ALR 290; 75 ALD 360 at 166; 308; 377-378

[106] [2003] FCAFC 131; (2003) 131 FCR 146; 199 ALR 290; 75 ALD 360 at 166; 308; 378

[107] Migration Act, s 194

[108] Lewai v Minister for Immigration and Multicultural Affairs and Davidson [2001] FCA 1848

[109] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[110] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[111] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[112] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[122] See generally the discussion of s 11(4) and the Tribunal's jurisdiction in Hongkong Bank of Australia Ltd and Another v Australian Securities Commission (1992) 40 FCR 402; 108 ALR 70

[123] [1979] FCA 21; (1979) 2 ALD 1

[124] [1979] FCA 21; (1979) 2 ALD 1 at 23-24

[125] [2002] FCA 566

[126] [2002] FCA 566 at [11]- [12]

[127] Insurance (Agents and Brokers) Act 1984, s 21(3). The Act was repealed by the Financial Services Reform (Consequential Provisions) Act, s 3, Schedule 1, item 245, with effect from 11 March 2002.

[128] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[129] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[130] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[131] [2007] AATA 1226

[132] Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 at [26]- [38]

[133] [2004] AATA 146; (2004) 38 AAR 482

[134] [2002] AATA 216 at 27

[135] [2005] AATA 1294; (2005) 89 ALD 643; 42 AAR 206

[136] [2006] AATA 718; (2006) 92 ALD 475; 44 AAR 231

[138] [2005] AATA 1294; (2005) 89 ALD 643 at 665-659 and 663

[139] [2005] AATA 1294; (2005) 89 ALD 643 at 663

[140] [2006] AATA 718; (2006) 92 ALD 475; 44 AAR 231 at 480; 236-237

[141] [1979] AATA 64; (1979) 26 ALR 247; 2 ALD 33 at 270; 54

[142] [1979] AATA 64; (1979) 26 ALR 247; 2 ALD 33 at 270, 54

[143] [1994] FCA 1252; (1994) 52 FCR 187; 123 ALR 730

[144] [1994] FCA 1252; (1994) 52 FCR 187; 123 ALR 730 at 191; 734

[145] [1980] FCA 33; (1980) 29 ALR 228

[146] [1994] FCA 1252; (1994) 52 FCR 187; 123 ALR 730 at 190-191; 733-734

[147] [1994] FCA 1252; (1994) 52 FCR 187; 123 ALR 730 at 191; 734

[148] [1979] AATA 64; (1979) 26 ALR 247; 2 ALD 33 at 272-3, 55-6

[149] [1979] AATA 64; (1979) 26 ALR 247; 2 ALD 33 at 273, 56. I note that when Parliament enacted the Freedom of Information Act 1982 some three years after Brennan J's decision, it chose not to limit its application to administrative matters as it did in the case of the courts (s 5) and certain tribunals listed in Schedule 1 (s 6).

[150] [1980] FCA 33; (1980) 29 ALR 228; 43 FLR 129 at 253

[151] [2005] FCAFC 217

[152] [2005] FCAFC 217 at [21]

[153] [2005] FCAFC 222

[154] [2005] FCAFC 222 at [16]

[155] [1994] FCA 1252; (1994) 52 FCR 187; 123 ALR 730 at 189-190; 732-733

[156] [1994] FCA 1252; (1994) 52 FCR 187; 123 ALR 730 at 191-192; 734-735

[157] [1994] FCA 1252; (1994) 52 FCR 187; 123 ALR 730 at 193; 736

[158] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506 at 345; 509 per Davies J

[159] Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ

[160] The cases of Applicant Y v Australian Prudential Regulation Authority and SRD and Australian Securities Commission might be thought to illustrate such a difference.

[161] Affidavit of PTLZ sworn on 5 December 2007 at [52]-[57] and affidavit sworn on 11 December 2007 at [6]

[162] Affidavit of PTLZ sworn on 5 December 2007 at [51]

[163] It may be that those considerations will include those of the type I considered in Re VBN and Ors and Australian Prudential Regulation Authority and a Party Joined [2006] AATA 718; (2006) 92 ALD 475; 44 AAR 231