Administrative Appeals Tribunal Act 1975 (Cth), ss 35,41,42

Administrative Review Tribunal Act 2024 (Cth) ss 32, 70, 71

Corporations Act 2001 (Cth) ss 1274AA, 206F, 588G , 5988GA

Australian Securities and Investments Commission Act 2001 (Cth), s 1

Anas Hanieh and Tax Practitioners Board [2024] AATA 3251

Australian Securities & Investment Commission v Administrative Appeal Tribunal [2009] FCAFC 185; (2009) 181 FCR 130

Azzopardi and Secretary, Department of Social Services [2019] AATA 105

Bayahow and Australian Skills Quality Authority [2025] ARTA 176

Caratti and Australian Securities Investment Commission (Practice and procedure) [2024] ARTA 103

Carter and the Tax Practitioners Board [2025] ARTA 632

Hopfner and Tax Practitioners Board [2019] AATA 851, [7]

McNamara v Secretary, Department of Social Services [2016] AATA 189

Panganiban and Australian Securities and Investments Commission [2016] AATA 703

Poidevin and Australian Securities and Investments Commission [2009] AATA 798

Re Nguyen and Australian Securities and Investments Commission [2011] AATA 398

Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114

Shi v Migration Agents Registration Authority [2008] HCA 31

Explanatory Memorandum Administrative Review Tribunal Bill 2024 (Cth)

1. On 30 June 2025, a delegate of the Respondent (ASIC) made an order under s 206F of the Corporations Act 2001 (Cth) (CA) disqualifying Mr Raftery (also referred to as the Applicant) from managing a corporation for a period of 2 years and 6 months (Disqualification Decision). [1]
2. The Disqualification Decision was because of the Applicant's role as a director in a group of companies that was wound up in insolvency between 19 April 2023 and 12 May 2024. The companies in question are:

(a) Aussie Frozen Fruit Pt Ltd (AFF); > > (b) In2Food (WA) Pty Ltd (In2Food WA); > > (c) In2Food (Industrial) Pty Ltd (Industrial); > > (d) In2Food (Manufacturing) Pty Ltd ( Manufacturing); and > > (e) In2 Food (Operations) Pty Ltd (Operations) > > (collectively the Companies)

3. In2Food WA, Industrial, Manufacturing and Operations were run as a single enterprise known as In2Food Group. The Companies were run as two arms of a business under the name Produce Republic. They were involved in the frozen food industry.
4. A professional management team was engaged by Mr Raftery to run the business on a day to day basis. The Applicant engaged with the management team regularly and was involved in key decision making.
5. The Applicant is also the director of Remagen Capital Management Pty Ltd (Remagen) which is a private investment firm. Remagen was the primary source of funding for AFF and the In2Food Group. The Applicant also personally advanced funds to the Companies.
6. Remagen ceased funding the businesses and the Applicant resigned as a director of AFF and the In2Food Group companies. At the time he said the was due to a conflict of interest as result of Remagen's decision to stop funding which caused the cessation of the AFF and In2Food Groups trading activities.
7. The Companies were the subject of reports lodged by the liquidators under s.533(1) of the CA.[2]
8. On 15 August 2024, ASIC issued to the Applicant a Notice to Demonstrate Why Disqualification Should Not Occur (Notice) under s 206F(b)(i) of the CA. The notice was accompanied by a document which set out details of ASIC's concerns regarding Mr Raftery's conduct, which included insolvent trading, a failure to keep records and a lack of due care and diligence leading to a breach of obligations to file business activity statements (BAS) for In2FoodWA.[3]
9. Mr Raftery responded to the Notice by providing two affidavits, written submissions, a statement from an insolvency expert. He also attended a hearing before the delegate on 4 February 2025.[4]
10. In addition to the material provided by Mr Raftery, the delegate also had the benefit of the Report to Creditors prepared by the Liquidators of AFF and the In2FoodGroup.
11. Mr Anthony Miskiewicz, the Liquidator of AFF, in his report dated 8 August 2023 opined that:[5]
    • AFF was insolvent from 1 October 2021, when the company had insufficient assets to meet its liabilities;
    • The initial estimate of a potential insolvent trading claim is $9 million based on the debts incurred after the date of insolvency; and
    • he is not aware of any advice sought in respect to insolvent trading in the period prior to their appointment.
12. The In2Food Group Liquidators, Matthew Levesque-Hocking and Todd Gammell in their reported dated 19 July 2024 opined that:[6]
    • The Companies may have become insolvent from 21 June 2022. The date of insolvency may be even earlier, but will require a more detailed analysis and investigation;
    • The initial estimate of a potential insolvent trading claim for the Companies is $12.5 million based on their assessment of the increase in liabilities from 30 June 2022 to 28 February 2023.
13. ASIC's delegate was satisfied that AFF was insolvent in the final six months of trade and Mr Raftery was aware of the insolvency during this period. The Applicant had therefore breached his obligations under s 588G of the CA in respect to AFF. The delegate considered it unnecessary to make any finding in respect to whether the Applicant had contravened s588G of the CA in relation to In2FoodGroup. The delegate also decided that a disqualification order would be in the public interest given the total losses to the unsecured creditors, which totalled more than $43 million and that those creditors included statutory creditors.
14. The Disqualification Decision has been in effect since 30 June 2025 or shortly thereafter.
15. The Applicant filed an application for a review of the Disqualification Decision with the Tribunal on 4 July 2025. Accompanying the review was an interlocutory application seeking a stay of the implementation of the Disqualification Decision, entry of the Disqualification Decision in the register maintained under s127AA of the CA (Register) and any associated media release under s 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), and an application for confidentiality orders under s70 of the ART Act.
16. The interlocutory applications are opposed by ASIC. Pending the determination of the Applicant's stay application, ASIC agreed not to make an entry in the Register or to make a public announcement by way of media release.
17. At the interlocutory hearing, the Applicant relied upon:
    • An affidavit of Simon John Raftery sworn on 31 January 2025[7] (Raftery 1) and exhibits, which was relied upon before the delegate;
    • An affidavit of Simon John Raftery sworn on 3 February 2025[8] (Raftery 2), which was relied upon by the delegate;
    • An affidavit of Simon John Raftery dated 1 October 2025 (Raftery 3) and exhibits;
    • An affidavit of Simon John Raftery dated 8 December 2025 (Raftery 4) and exhibits; and
    • Their written and oral submissions
18. ASIC relied upon written submissions dated 15 December 2025 as well as the oral submissions made at the interlocutory hearing.

The Corporations Act 2001 (Cth) (the CA)

1. Section 206F(1) of the Corporations Act provides that ASIC may disqualify a person from managing corporations in the following circumstances:

(1) ASIC may disqualify a person from managing corporations for up to 5 years if: > > (a) within 7 years immediately before ASIC gives a notice under paragraph (b)(i): > > (i) the person has been an officer of 2 or more corporations; and > > (ii) while the person was an officer, or within 12 months after the person ceased to be an officer of those corporations, each of the corporations was wound up and a liquidator lodged a report under subsection 533(1) (including that subsection as applied by section 526-35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006) about the corporation's inability to pay its debts; and > > (b) ASIC has given the person: > > (i) a notice in the prescribed form requiring them to demonstrate why they should not be disqualified; and > > (ii) an opportunity to be heard on the question; and > > (c) ASIC is satisfied that the disqualification is justified.

1. The general rule is that making an application to the Tribunal seeking a review of a decision does not affect the operation of the decision.[9] There is no automatic right to a stay and the Tribunal will only make an order staying or otherwise affecting the implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.[10]
2. While no party has a specific onus of proof, it is generally accepted that it is the Applicant who will need to provide the Tribunal with sufficient evidentiary material to ensure the discretion is exercised in accordance with the law.[11]
3. In determining whether to grant a stay, the Tribunal should not limit its enquiry to the interests of the Applicant. Section 32(7)(b) of the ART Act prescribes that the Tribunal must consider the interests of any person who may be affected by the review of the decision. In weighing the potential competing interests, the Tribunal should have regard to the objects of the statutory scheme under which the reviewable decision was made.
4. The determinative criterion for the exercise of the Tribunal stay power, being to secure the effectiveness of the review, is not subject to an exhaustive list of permissibly relevant considerations.[12] There are, however, a few key factors that have been identified in the case law[13] which can assist the Tribunal with this task. They include:

(i) the prospects of success; > > (ii) the consequences to the Applicant; > > (iii) the public interest; > > (iv) the consequences for the Respondent in carrying out its functions depending on whether a stay is granted or not; > > (v) whether the application for review would be rendered nugatory if a stay were not granted; and > > (vi) any other relevant matter.

5. The facts and circumstances of the case, including the nature and content of the reviewable decision, will affect the respective weighting to be given to each of the factors under consideration with respect to the granting of a stay.[14] Consideration of the public interest is recognised in the authorities as not only a relevant consideration but an important and often critical consideration.[15]
6. A stay order can be subject to conditions[16] and usually has effect until the decision of the Tribunal on the application for review comes into operation.[17]
7. The Tribunal's power in s 32(2) of the ART Act is to be treated no differently to the AAT's power under s.41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), with respect to preventing or modifying consequential ancillary acts arising from the implementation of the decision under review. In this case, in relation to the Disqualification Order, the Tribunal's power would extend to staying the making of an entry on the Register and preventing any media release if appropriate to do so.[18]

1. Section 70 of the ART Act provides the Tribunal with the power to order that information tending to reveal the identity of the parties, witnesses and person related or otherwise associated with them, not be published or disclosed. The order may prohibit or restrict the publication or other disclosure to some or all of the parties to the proceeding.
2. The standard practice used to restrict publication or disclosure by the Tribunal has been through the use of a pseudonyms or the non-publishing of the reasons for decision.
3. Section 71 of the ART Act sets out the requirements that apply to the Tribunal's consideration when deciding whether to make an order under s 70. More specifically, s 71(2) provides as follows:

(2) In considering whether to make an order under subsection 69(3) or section 70 in relation to a proceeding, the Tribunal must have regard to the following: > > (a) the principle that it is desirable that hearings of proceedings in the Tribunal are held in public; > > (b) the principle that it is desirable that evidence given before the Tribunal is made available to the public; > > (c) the principle that it is desirable that evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding; > > (d) any reasons in favour of making an order, including the following: > > (i) in any case - the circumstances of the parties to the proceeding and other persons connected to the proceeding; > > (ii) in any case - the harm (if any) that is likely to occur to a person if the order is not made; > > (iii) in relation to an order under section 70 - the confidential nature (if any) of the information; > > (e) any other matters that the Tribunal considers relevant.

4. As the Explanatory Memorandum Administrative Review Tribunal Bill 2024 (Cth) (EM) explains, s 71(2)of the ART Act is equivalent to s 35(5) of the AAT Act with some refinements made to ensure there is an 'adequate balance between the principle of open justice and the need to protect sensitive, confidential and/or personal information'.[19] The EM provides examples of considerations that may favour the granting of an order such as the particular vulnerabilities of the parties, whether the information may cause reputational damage to the party and whether the safety of a party may be compromised.[20]
5. As observed by General Member Ross in Carter and the Tax Practitioners Board[21] the authorities concerning the principles to be applied in respect of s 35(5) of the AAT Act are still of relevance. The requirement of the Tribunal to balance the principles of open justice with the circumstances of the parties and the harm that could result if an order is not made has not changed. The changes from the predecessor provisions simply provide greater specificity in how the balance of the relevant considerations can be struck.

1. The parties submitted, and the Tribunal agrees, it is not appropriate at this interlocutory stage, to embark upon a full consideration of the merits of the substantive application. The Tribunal must exercise caution when assessing prospects of success so early in the review process, and where the evidentiary material remains incomplete. [22] For present purposes, it is sufficient for the Applicant to demonstrate there is a reasonable basis to doubt or question the Respondent's Disqualification Decision.
2. The Tribunal must form its view on the material presently before it at the stay hearing, recognizing that some of that material may not have been before the original decision-maker at the time when the reviewable decision was made.[23]
3. The Applicant submitted that he has strong prospects of success on his substantive application on the basis that :

• Firstly, the delegate's finding of insolvent trading with respect to AFF was premised on a fundamental error of fact, namely that AFF had an estimated total deficiency of $45,710,568 at the time it was wound up. The Applicant contends that this figure is wrong as it reflects the total creditors, rather than the total deficiency. Further, the total creditors figure is also overstated as a number of creditors should be excluded materially impacting on the calculation.[24] The Applicant says these errors informed the finding the conduct was mid-range.
• Secondly, the delegate's finding of insolvency in relation to AFF did not adequately address the contra indicators of insolvency, such as the substantial funding provided by related parties to meet debts as and when they fell due and the significant inventory on hand that, if unwound in the ordinary course at contracted selling prices, would have brought in sufficient revenue to pay claims of non-disputed trade creditors.[25] In addition, the delegate did not refer to the report prepared by Mr Silvia, which concluded that AFF and the companies in the In2Food Group had access to further funds to meet working capital requirements from the related entities.
• Thirdly, the delegate's decision to ban Mr Raftery for two-and-a-half years was disproportionate to the contravention of s 588G having regard to mitigating circumstances. Those circumstances include that there was no suggestion Mr Raftery had acted dishonestly, the business failures were driven by events out of his control, he had a reasonable basis for believing that he could make the Companies profitable and his conduct should be assessed on the basis that the failures represented a single and isolated failure, rather than serial unrelated failures. The Applicant argued the length of the disqualification did not reflect these mitigating circumstances.
• Fourthly, the delegate did not address the safe-harbour provisions in the CA having regard to the context in which Remagen acquired the Companies and it's investment strategy of turning around distressed companies.

1. The Respondent submitted the Applicant does not have a strong case sufficient to justify a stay, having regard to the following:
   • Even if the Tribunal were to accept the Applicant's estimate in respect of the deficiency (which is not admitted), there is still a significant deficiency of $8 million. The Applicant has failed to explain why a different calculation of total deficiency would lead the Tribunal to conclude that AFF was not insolvent at the time it incurred debts. Even if the Applicant can establish at the review hearing that the amount of total deficiency was less than the delegate found, that is not a material circumstance that would lead to a conclusion that AFF was solvent at the relevant time.
   • In assessing solvency, the focus remains whether in all the circumstances, AFF was able to pay all its debts as they became due and payable. There is sufficient evidence contained within the report to creditors that AFF, and in particular the significant amounts of creditor debt overdue, which leads to a conclusion of insolvency.
   • There was good reason not to place any weight on Mr Silvia's report which explicitly states that it was not prepared as an expert witness report and seeks to provide commentary on the solvency of AFF and In2Food based on limited materials, being the Applicant's own affidavits and the liquidators' reports. There is no detailed financial analysis and the content is limited comments directed to the availability of externally funding from related parties in the months prior to the insolvency.
   • The safe-harbour provisions in s 588GA of the CA were not raised in the Applicant's written or oral submissions before the delegate. In raising these provisions now, the Applicant does not positively argue that s 588GA would apply just that it should be considered.
2. The Tribunal understands that the Liquidators of AFF and the In2FoodGroup have not commenced any recovery action against Mr Raftery or any other party arising out of the insolvency of the Companies.
3. On a fair reading of the delegate's reasons, it is not plain that the finding in respect of the total deficiency was material to the conclusion on insolvency or that the contravention was toward the mid- range of misconduct, which informed the length of the disqualification. Even accepting the Applicant's recalculation, the existence of a substantial deficiency remains. That circumstance, of itself, is not immaterial and would not displace the finding of insolvency by the delegate or have any impact on the length of any disqualification.
4. The Liquidator's analysis paints a bleak picture of the financial position of AFF which was persistently poor for an extended period of time. There were several indicators of insolvency present from September 2021 and AFF's financial position deteriorated significantly from June 2022. Trade creditors grew exponentially such that by the Liquidator's appointment more than 82% of trade creditors were more than 90 days overdue. To the extent that external funding may have been available, it was not utilised to service existing debt.
5. Although disputing insolvency is likely to be challenging, I accept it is a live issue and will also be the subject of expert evidence at the hearing. Further, the Tribunal may have a different view as to the weight to be attributed to the mitigating factors asserted by Mr Raftery, which in turn may impact upon the seriousness of the contravention.
6. In respect of the application of the safe-harbour provisions, they have been raised in general terms and on the material presently before the Tribunal appear weak. There is insufficient evidence currently before the Tribunal to be satisfied the statutory provision can be engaged in this case.
7. While I am satisfied that the Applicant's case is not completely devoid of merit and there will be arguments explored and advanced at a final hearing, the prospects are also not sufficiently strong to justify the grant of a stay, without more.

1. The Applicant says that the facts of this case are unusual in that the protection of third parties favours the grant of a stay. Mr Raftery remains the director of several entities that are engaged in litigation or other action to recover approximately $15 million for third party investors in Remagen and associated entities. [26]
2. The Applicant argues that the third party investors will suffer financial losses if he is not able to continue as a director. This is because his historical knowledge of the relevant events make him best placed to give instructions on the entities' behalf for the recovery of investor funds through litigation and asset sales.
3. In his evidence, Mr Raftery explained potential alternative directors have declined appointment citing litigation risk, the companies' financial condition, and perceived conflicts of interest. In his view appointing a receiver or liquidator to conduct recovery action in his place is not practicable because the costs associated with any such appointment will reduce investor recoveries and there is a real risk that external administrators will discontinue proceedings or resolve them on uncommercial terms. If no suitable alternative is found, those recoveries will need to be abandoned. Further, some of the investors have expressed a wish for Mr Raftery to continue to pursue recovery of funds on their behalf.[27]
4. The Applicant also submits there may be other adverse financial consequences for investors should his disqualification remain in effect. BlackRock Alternative Advisors LLC (Blackrock), the largest cornerstone investor in Remagen's investments, is likely to require immediate exit or repayment from an investment, which in turn will diminish the likelihood of investors recovering their investments. Mr Raftery is also concerned that should the decision become public it will be used to undermine the legal proceedings or negotiations for asset sales related to the current recovery actions.[28]
5. The Applicant has taken steps to minimise any risk noting that he has relinquished multiple directorships and will agree to limit directorships to those required by statute or for which there is no suitable replacement. He will also agree to limit operations to the recovery actions on behalf of investors. [29]

In balancing interests that are competing, priority must be given to those whose interests are protected in the statutory scheme.[30] It is also important to keep in mind the role of the regulator, whose responsibilities are set out in s 1 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and which relevantly include promoting the confident and informed participation of investors and consumers in the financial system and ensuring that information is available as soon as practicable for access by the public.

1. In the context of making banning orders under the Corporations Act, Downes and Jagot JJ said:

"[C]areful consideration...must be given by the AAT in any exercise of power under s.41(2) of the AAT Act to the balance of competing rights and interests struck by Parliament as embodied in the terms of the Corporations Act, particularly the balance between the rights and interests of the recipient of the banning order and of the public including existing and potential future clients of the recipient of the banning order. As we have said, the scheme which the provisions of the Corporations Act embody--with the potential making of a banning order to remain private unless and until ASIC decides to make such an order having given the recipient an opportunity to be heard - is not mere statutory background or a neutral factor in the process of the formation of the required opinion about what is desirable under s.41(2) of the AAT Act. The scheme which Parliament has established in the Corporations Act, and the public interest in the right of the market to know relevant information as soon as practicable, must be treated as a fundamental element in the decision-making process required under s.41(2) of the AAT Act."[31]

2. Disqualification orders under the CA are made by ASIC to protect the public interest and therefore the need to protect the community is paramount when assessing competing interests. Disqualification orders also serve a deterrent purpose not only against the specific director but to the market more generally.
3. On the evidence before the Tribunal, it appears limited enquiries have been made in respect of arranging an alternate director. The evidence does not establish that no suitable person could assume the directorships on an interim basis nor that external administration would undermine recovery actions. The asserted prejudice is speculative. The inconvenience of, or dissatisfaction with, the alternatives does not outweigh the risk in the Applicant continuing as the director.
4. While some investors have expressed support for the Applicant continuing as director, I place limited weight on those endorsements. The statutory regime is protective and directed to the public at large. The preference of particular investors, especially those who reverser a fraction of the overall investment, cannot displace broader public interest considerations.
5. The Applicant's concerns that a cornerstone investor will withdraw implicitly recognises the information is material to investment decisions. The possibility that a critical stakeholder may alter their position if informed actually underscores the importance of ensuring the ability to make informed decisions.
6. It is also relevant that the Applicant seeks to remain in control of entities who have suffered significant losses in connection with the collapsed Companies, and in which third parties have invested funds. The fact the Applicant's conduct did not include dishonesty and that a large portion of the significant losses sustained by the Companies were borne by the Applicant and his related entities does not diminish the public interest considerations in this matter. The statutory power is protective and is not confine to historical conduct, it extends to those presently exposed to corporate risk.
7. The Applicant remains a director of many companies, some of which have continued in operation since the Disqualification Decision took effect several months ago.[32] There is no clear evidence as who is presently exercising effective control over those entities, what arrangements have been implemented since the disqualification took effect or how substantial investor funds (approximately $30 million dollars) or recovery activities are being managed. The lack of transparency heightens rather than diminishes public interest concerns.
8. Granting a stay may convey a message that continued participation in corporate management can be justified for reasons of convenience or commercial preference, diminishing the general deterrent effect of the provision.

1. The Applicant in his submissions accepted that prejudice or hardship was not, of itself, a sufficient basis for securing a stay but invited the Tribunal to consider the consequences for Mr Raftery and his associates in making its decision.
2. In addition to the irreparable harm to the Applicant's reputation and the consequences for Remagen and associated entities outlined above, there would also be irreparable harm to the entities acting as trustees of his Self-Managed Superannuation Fund (SMSF Entities). More specifically, the SMSF Entities are borrowers under loan facilities that will enter into default if Mr Raftery ceases to be a director and there will be adverse consequences for Mrs Raftery's superannuation noting that she is also a member of the SMSF Entities.[33]
3. In respect of the reputational risk, this is an ordinary and foreseeable consequence of regulatory action of this kind. In the present matter, the underlying conduct has already been the subject of media attention and is in the public domain.[34] The reputational consequences to a certain extent have already occurred. The implementation of the decision, if made public, may result in some additional attention, but the reputational impact is unlikely to be materially greater than what has already been experienced.
4. The Disqualification Decision has been operative for more than six months. No evidence has been produced to demonstrate the prejudice or hardship asserted. To the extent this factors weights in favour of a stay, it is only marginally so and must also be weighed against the risk of the Applicant continuing as a director, and particularly the public interest.

The Consequences to ASIC in carrying out its regulatory functions

1. The Applicant contends a stay will not affect ASIC's ability to carry out its regulatory functions. The Respondent says there is a public interest in the decision being implemented immediately and the disqualification being recorded on the register as it ensures that investors can participate in the financial system in an informed and confident way.
2. While the grant of a stay would not have any adverse effect on the performance of ASIC's regulatory functions, there is a public interest in ASIC's decisions generally being implemented immediately and being visible on the Register. In that sense the factor is not entirely neutral but does not weigh decisively wither way.

1. The parties agree the review would not be rendered nugatory should a stay not be granted.

1. I accept that it is a real concern for the Applicant that the review may not be resolved before the disqualification period expires. That concern, however, is more appropriately addressed through case management or an expedited listing . Possible further delay does not weigh in favour of a stay.

1. The Disqualification Decision has now been in place for almost 8 months. A refusal by the Tribunal to grant a stay will have the effect of maintaining that status quo until the determination of the Application for Review.
2. I have considered and weighed up the factors relevant to the grant of a stay in this matter and I am not satisfied that it is desirable to stay the operation or implementation of the Disqualification Decision to secure the effectiveness of the review. The public interest considerations in this matter outweigh the prospects of success and consequences to the Applicant and third parties.

1. Mr Raftery has applied for orders under s 70(1) and (2) of the ART Act prohibiting the publication or disclosure of information likely to reveal Mr Raftery's identity or information relating to these proceedings. The Applicant contends that the confidentiality orders should be made regardless of whether the disqualification order is stayed pursuant to s 32(2) of the ART Act.
2. The power to make confidentiality orders must be exercised in accordance with s 71 of the ART Act, which requires consideration of the general desirability that evidence given before the Tribunal is made available to the public, the harm that is likely to occur to a person if the order is not made, and any other matters that the Tribunal considers relevant.
3. As express provisions of the ART Act make clear, proceedings are to be conducted in public unless there are compelling reasons to depart from this course. Open justice is the starting point. It is for the Applicant to establish the case is 'out of the ordinary.'[35]
4. Mr Raftery accepts that there must be good reasons for a confidentiality order and that financial and reputational damage from disclosing the banning order ordinarily is not sufficient. He says, however, in addition to those matters disclosure of the Disqualification Decision would have adverse consequences not only for Mr Raftery, but also Remagen investors on whose behalf Mr Raftery is undertaking recovery efforts. There is also a risk that BlackRock will withdraw its investment.
5. The Disqualification Decision concerns regulatory action taken by ASIC under the CA directed to protection of the public. There is a public intertest in ensuring that regulatory matters are heard and determined in an open forum. The statutory framework of the CA and ASIC Act contemplate that the functions of the Respondent are generally exercised publicly, consistent with its protective and disciplinary role.
6. The harm asserted extends beyond the Applicant personally and is said to encompass harm to the Remagen investors and Mrs Raftery.
7. One of the consequences of the principle of open justice is that unflattering, unpalatable or damaging facts may occasionally be disclosed. As Senior Member Benk explained 'it is common for sensitive issues to be litigated, and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle of open justice'. [36] To the extent Mr Raftery asserts reputational and associated financial damage, this alone is not a cogent reason for granting a confidentiality order.[37] As I have previously stated, the liquidation of the Companies has already attracted media attention and so any further damage is likely to be minimal.
8. As I have already stated, the submission that public disclosure may prompt an investor to alter their commercial decisions underscores the materiality of the information. The possibility that informed participants may reassess their position is the Disqualification Decision were to be known is not a reason for suppression, if anything, it reflects the rationale of open justice in a regulatory context.
9. The evidence suggests that aspects of the matter have been disclosed in certain circumstances where their continued support is sought. It is not apparent why border transparency would be unjustified if selective disclosure has already occurred. The principle of open justice does not accommodate disclosure to a chosen audience while shielding the same information for the wider public.

Conclusion in respect of the confidentiality orders

1. Weighing the matters identified in s 71 of the ART Act, I am not satisfied the Applicant has established harm to displace the desirability of open proceedings. The consequences are either inherent, speculative or consistent with transparency.

1. The application for a stay order under s 32(2) of the ART Act is refused
2. The application for a confidentiality order under ss 70(1) and 70(2) of the ART Act is refused.

Administrative Law Team, Australian Securities Investment Commission

[9] s 32(1) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act)

[11] McNamara v Secretary, Department of Social Services [2016] AATA 189 at [12]

[12] Panganiban and Australian Securities and Investments Commission [ 2016] AATA 703 at [7]

[13] The cases frequently cited being Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114 and Poidevin and Australian Securities and Investments Commission [2009] AATA 798

[14] Hopfner and Tax Practitioners Board [2019] AATA 851, [7]

[15] See for example ASIC v AAT [2009] FCAFC 185; (2009) 181 FCR 130 and Re Nguyen and Australian Securities and Investments Commission [2011] AATA 398, [26] - [27]

[18] Caratti and Australian Securities Investment Commission (Practice and Procedure) [2024] ARTA 103 at 62

[19] Explanatory Memorandum, Administrative Review Tribunal Bill 2024 (Cth) at paragraph 535

[21] [2025] ARTA 632 at [17] - [19]

[22] Bayahow and Australian Skills Quality Authority [2025] ARTA 176 at [36]

[23] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].

[24] The Raftery 3 affidavit deposes the creditors which ought to be excluded include the Remagen principal debt of $17.53m and accrued interest of $8.98m which comprise the non-callable, unsecured subordinated debt from Remagen investors and entities that was written off after AFF's liquidation, $4.53m contributed by entities associated with Mr Raftery to meet operating shortfalls, recovery of $1.46m by a secured creditor, Scot Pac, through the receivership, related party claims totalling $270,402 and disputed trade claims of approximately $5m, arising from the supply of fruit by farmers that AFF rejected

[25] The Raftery 1 affidavit at 41 and 46

[26] Raftery 3 at 9, 41-43,47, 57-60, 63-66 and 71-74

[30] Australian Securities and Investment Commission v the Administrative Appeal Tribunal [2009] 181 FCR at [51].

[35] Azzopardi and Secretary, Department of Social Services [2019] AATA 105

[36] Anas Hanieh and Tax Practitioners Board [2024] AATA 3251 at 46

[37] Australian Securities & Investment Commission v Administrative Appeal Tribunal [2009] FCAFC 185; (2009) 181 FCR 130