4. On the complaint of Robyn Ann Chapman, a duly authorised delegate of the Respondent, a summons was issued by a Justice of the Peace under the Justices Act 1986-1990 (Queensland), requiring the applicant to appear before a magistrate at Bundaberg to answer the complaint made by Ms Chapman. This was that between 1 December 1989 and 31 August 1991 at Bundaberg, the applicant being an insolvent under administration did, without the leave of the court, manage 2 corporations named in the complaint contrary to s 229(1) of the Corporations Law of Queensland. This Act reproduces as the law of Queensland, the terms of the model Commonwealth Act called Corporations (Name of State) Act. Section 7 of the State Act applies the Corporations Law as part of the law of Queensland. Section 55(1) vests jurisdiction under that Law in magistrates to hear matters with respect to the summary conviction of offenders or persons charged with offences against the laws of the State relating to Corporations.

5. An agreed statement from Ms Chapman was tendered. The agreed part of the text is as follows and forms the basis of my findings of fact-

"I, ROBYN ANN CHAPMAN of 240 Queen Street, Brisbane make the following

statement:

1. I hold the office of Executive Director, Investigations Branch,

Queensland Regional Office, Australian Securities Commission.

2. I am a delegate of the powers and functions of the Australian

Securities Commission under Part III of the Australian Securities

Commission Law of Queensland.

3. On 7 October 1992 I decided to cause a prosecution of Mr Toll to be

begun and carried on. (disputed sentence deleted)

4. Consequent upon my decision referred to in the preceding paragraph,

I made out a complaint under the Justices Act 1986 - 1990 (Queensland)

that Andrew Thorald (sic) Toll had contravened Section 229 of the

Corporations Law of Queensland.

5. I based my decision to make the complaint on the basis of advice

given to me by officers of the Australian Securities Commission.

Those officers provided their advice to me consequent upon an

investigation into the activities of Mr Toll.

6. The investigation of Mr Toll was commenced by the decision of

another officer under Section 13 of the Australian Securities

Commission Law of Queensland.

Signed

........................

Robyn Ann chapman

Dated : 18 December 1992"

6. This Tribunal has jurisdiction under s 1317B(1) of the Law to review a decision made "under this Law" by the Commission. Section 1317C excludes decisions made under specified sections of the Law, none of which has any application in the present circumstances. The respondent alleges that the decision to prosecute Mr Toll was not taken under the Law but under the Australian Securities Commission Act 1989 ("the ASC Act").

7. The relevant parts of s 49 of the ASC Act are as follows -

"s49(1) This section applies where -

(a) as a result of an investigation; or

(b) from a record of an examination;

conducted under this Part or a corresponding law, it appears to the

Commission that a person -

(c) may have committed an offence against a national scheme law, or

a relevant previous law, of this jurisdiction; and

(d) ought to be prosecuted for the offence.

(2) The Commission may cause a prosecution of the person for the

offence to be begun and carried on."

............

(5) Nothing in this section affects the operation of the Director of

Public Prosecutions Act 1983 or that Act as it applies as a Law of

this jurisdiction."

8. It is alleged by the respondent that a formal investigation was undertaken by the Commission and that as a result of that investigation a decision was made that the applicant "may have committed an offence" against a national scheme law, that he ought to be prosecuted and that the Commission caused the prosecution for the offence to be begun and carried on.

9. If that is the decision to be reviewed, clearly this Tribunal does not have jurisdiction. Applications may be made to this Tribunal for review of a decision under the ASC Act pursuant to s 244. Those applications, however, are restricted to matters arising out of specific sections, none of which has application in the present circumstances. As the decision of Ms Chapman was not made under the Law but was made under the ASC Act (as it is alleged) then, prima facie, the jurisdiction conferred by s 1317B of the Law would not extend to a capacity to review this decision.

10. The applicant, however, points to s 1315 of the Law which is in the following terms -

"s1315(1) Subject to this Law, in any proceedings for an offence

against this Law, any information, charge, complaint or application

may be laid or made by -

(a) the Commission

(b) a Commission delegate; or

(c) another person authorised in writing by the Minister to

institute the proceedings.

(2) A delegation for the purposes of paragraph (1)(b), or an

authorisation for the purposes of paragraph (1)(c), may relate to all

offences, or to specified offences, against this Law.

(3) Nothing in this section affects the operation of the Director of

Public Prosecutions Act 1983."

11. Whilst the applicant does not concede that the decision he seeks to have reviewed was made under the ASC Act, he asks that to the extent that it was implemented under the Law, the process of implementation under s 1315 should also be reviewed. In his affidavit in support of the application for a stay, it was alleged by the applicant's solicitor that the preliminary investigation was carried out in an unfair manner and that the Commission ought not to be both investigator and prosecutor. It was alleged that such a procedure was in breach of an agreement made on 29 June 1990 between the Federal and State Governments which was said to ensure that the Commonwealth Director of Public Prosecutions was to be responsible for prosecution of offences under the Law. It was further alleged that only 2 of the companies that employed the applicant had been targeted so that these matters could be conducted before a magistrate, without the intervention of the Director of Public Prosecutions.

12. In his submissions to me, the applicant's solicitor alleged that the steps taken under s 1315 of the Law were just as important to his client as the original decision to prosecute. The s 1315 steps included the making of decisions as to whether the case would be brought before a magistrate or would be heard at a higher level, whether the prosecution should be brought in the name of the Commission or otherwise, whether the hearing should be in Bundaberg or elsewhere, and so on. It was submitted that each of the steps taken in the implementation of the original decision, was a reviewable decision and to the extent that the original application required amendment, then the applicant sought leave to amend for this purpose. By not sending a brief to the Director of Public Prosecutions, and choosing to prosecute itself, it was submitted that the Commission had decided to proceed with the prosecution and that this was a reviewable decision under s 1315.

13. It was submitted that problems in the inter relationship of s 11 of the ASC Act and s 1317B of the Law, were demonstrated in the decision of the Full Court in Hongkong Bank of Australia Limited and Anor v. Australian Securities Commission and Ors 108 ALR 70 at 75. A particular possible view of the operation of s 11(4) of the ASC Act was postulated by their Honours, but left unresolved. In my view, the matters raised in that case have no bearing on the present proceedings. Their Honours were there concerned with the legislative character of s 597 of the Law and came to the conclusion that it was not expressed as a dispositive provision creating rights or liabilities, or reposing powers, or functions. In seeking the legislative source of power, their Honours then suggested that it might repose in s 11(4) of the ASC Act. They did not find it necessary to resolve this question however. All that was necessary for the decision was to find that the power was not based upon any section of the Law which gave rise to this Tribunal's jurisdiction to review.

14. There can be no doubt of the nature of the grant of powers in s 49 of the ASC Act. Section 11(1) of the ASC Act provides that the Commission has such powers as are conferred upon it under certain other Acts including the ASC Act. Section 49 confers the power to cause a prosecution in unequivocal terms. Section 1315 of the Law merely outlines the procedural steps to be taken once the decision to prosecute has been made. There may be something to be said for the argument that neater drafting would have placed s 1315 in the ASC Act, rather than in the Law. It does, however, have a function to play in its present setting.

15. A s 49 prosecution must be preceded by an investigation. There is no such requirement for a s 1315 prosecution. I was informed by counsel for the Commission, that a large number of routine prosecutions for such offences as failing to file an annual return on time, are instituted under s 1315 without recourse to preliminary investigations of a formal nature in each case.

16. However, whether the present Bundaberg proceedings can be described as a s 49 prosecution or a s 1315 prosecution, whether the decisions capable of being reviewed are said to be either the formation of the view by the Commission that a person may have committed an offence, or the causing of a prosecution, or whether the relevant decisions are the subsequent decisions relating to the way in which the prosecution is to be conducted, and whether the applicant should consequently be given leave to amend his application to include the latter category of decisions, all seem to me to be irrelevant. The fact is that none of this series of administrative steps can be regarded as a decision capable of being reviewed by this Tribunal because none of them is an "ultimate or operative determination" (Director General of Social Services v. Chaney [1980] FCA 87; (1980) 47 FLR 80 at 100).

17. The real question at issue between the parties is whether or not Mr Toll managed companies in prohibited circumstances. That issue will be determined by a court. All other steps pointed to by the applicant are what Northrop and Lockhart JJ. referred to in Edelsten v. Health Insurance Commission and Ors 96 ALR 673 at 683 as "mere stepping stones which may lead ultimately to the making of a decision which does affect the person's position". To adopt their Honours' reasoning, Parliament could not have intended that s 1317B of the Law should be a vehicle for review of every decision of the Australian Securities Commission. To interpret "decision" in the way contended for by the applicant would "involve a departure from the quality of finality, would lead to a fragmentation of the process of administrative decision making, and set at risk the efficiency of the administrative process". (Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 CLR 321 at 335.)

18. I reviewed the authorities on the meaning of "decision" for the purposes of the AAT Act in Re Gallivan Investments Limited and Australian Securities Commission [1991] AATA 211; 14 AAR 238. I reiterated those views in similar factual circumstances at first instance in Re Hongkong Bank of Australia Limited and Anor and Australian Securities Commission and Ors Decision No. 7945 11 May 1992. In the judgment of the Full Court on appeal, their Honours did not find it necessary to deal with this aspect of the original decision. They did not however, disavow the reasoning that led to the conclusion at first instance. This, of course, does not give added authority to my decision. It does mean, however, that the position as I stated it in Gallivan in September 1991 has remained unchallenged and has, presumably, been the basis upon which parties have arranged their affairs since that time.

19. The facts in this case bear a particular resemblance to the facts in Gallivan in that the Commission, pursuant to s 49 of the ASC Act, did no more than decide, as its primary decision, that Mr Toll "may have committed an offence" (s 49(1)(c)). Prima facie, this demonstrates that the primary decision from which all others have flowed, lacked the necessary element of finality settling the real issue between the parties. Until guilt or innocence is determined, all acts done leading up to the court's findings, can not be regarded as anything other than acts done preparatory to the making of a decision which will be reviewable in accordance with appropriate law at an appropriate time.

20. Indeed it is hard to imagine any circumstances in which an initial decision to refer a matter to an external court, panel, tribunal or other appropriate forum can ever be a reviewable decision. The essential character of such a decision is tentative in its application to the real issues. Even in Lamb v. Moss [1983] FCA 254; (1983) 49 ALR 533, the high water mark of reviewability, the court did not go so far as to hold that a decision to prosecute, as distinct from a committal decision, would be reviewable.

21. I find, therefore, that the Tribunal has no jurisdiction to review the alleged decision set out in the formal application, or any of the supplementary "decisions" referred to in argument. The application will therefore be dismissed.