Babbage and Australian Securities and Investments Commission - [2023] AATA 3487

Babbage and Australian Securities and Investments Commission [2023] AATA 3487 (25 October 2023)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2022/2859
2022/3310

Re:Mark Babbage
APPLICANT

AndAustralian Securities and Investments Commission
RESPONDENT

DECISION
Tribunal:Senior Member O'Donovan
Date:25 October 2023
Place:Melbourne

The Tribunal varies the periods of the applicant’s bans to six years. The decisions under review are otherwise affirmed.
…………………………[sgd]…………………………
Senior Member O’Donovan
CATCHWORDS
TAXATION AND COMMERCIAL DIVISION - whether to make an order banning a person from providing financial services - whether to make an order banning a person from engaging in credit activities - where the applicant has engaged in serious dishonesty - where the applicant misled public officials - where the applicant fraudulently altered documents - where the applicant made false declarations - whether actions in a private capacity relevant to banning orders - where a ban will have significant personal impact - decisions varied to impose a shorter ban
LEGISLATION
Corporations Act 2001
Emergency Management Act 2005 (WA)
National Consumer Credit Protection Act 2009
Oaths, Affidavits and Declarations Act 2010 (NT)
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fraser and Australian Securities and Investments Commission [2011] AATA 944
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Musumeci v Australian Securities and Investments Commission [2009] AATA 525
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
Saffron v Federal Commissioner of Taxation (1991) 30 FCR 578
Williams and Australian Securities and Investments Commission [2018] AATA 2312
SECONDARY MATERIALS
ASIC Regulatory Guide 98
ASIC Regulatory Guide 218
REASONS FOR DECISION
Senior Member O'Donovan

2021 was a remarkable season for the AFL’s Melbourne Demons. The regular season began with 9 straight wins and finished with the club winning its first minor premiership since 1964. In the qualifying final and the preliminary finals Melbourne had wins and the grand final match-up meant that Melbourne was to face the much less fancied Western Bulldogs.
But Melbourne had disappointed its fans in the past. It had not won a grand final since 1964 It is easy to understand the desire of any long-term Melbourne fan to get to the game. A historic win was on the cards and no-one could say that Melbourne supporters were not long suffering.
But for Victorian fans of the club there was a complication. COVID-19 lock-down measures were in place to control the spread of the deadly Delta strain of the virus. As a result, the Grand Final was scheduled to be played in Perth. Entry into WA was tightly regulated. It was impossible for a Melbourne supporter living in Victoria to secure tickets for the Grand Final and then to travel to Perth to watch the game without breaking COVID rules.
The applicant worked as a financial planner and mortgage broker. He was also a Demons supporter. He was approached by a friend, die-hard Demons fan Hayden Burbank, with a plan to circumvent border restrictions to enable them to attend the game. The plan involved deceiving officials in the Northern Territory and Western Australia about the two men’s place of residence and the timing of their movements through the Northern Territory.
The plan succeeded and the pair, along with 61,000 other football fans, attended the Grand Final. They watched their team become AFL premiers for the first time in 57 years. They celebrated with the team in the stadium and in the change rooms afterwards.
Whatever joy this brought them was however to be short lived. After travelling south from Perth to the Margaret River region shortly after the game, the pair were apprehended by police and driven back to Perth in a paddy wagon, remanded in custody and charged with multiple criminal offences. After pleading guilty the applicant was sentenced to a 10-month jail sentence of which he served three. He pleaded guilty to further offences in the Northern Territory and received suspended sentences.
On 22 December 2021 a delegate of ASIC made a banning order under section 920A of the Corporations Act 2001 (Corps Act) banning the applicant from:
(a)providing any financial services;
(b)performing any function involved in the carrying on of a financial services business (including as an officer, manager, employee, contractor or in some other capacity); and
(c)controlling an entity that carries on financial services business;
for a period of 10 years.
On the same day the delegate made a banning order under section 80 of the National Consumer Credit Protection Act 2009 (Credit Act) which prohibited the applicant from:
(a)engaging in any credit activities;
(b)controlling, whether alone or in concert with one or more other entities, an entity that engages in any credit activities, and
(c)performing any function involved in the engaging in any credit activities (including as an officer, manager, employee, contractor or in some other capacity);
for a period of 10 years.
The effect of the banning orders has been that the applicant cannot continue to work as a financial planner and mortgage broker which was his principal occupation prior to the banning order.
The applicant seeks review of the delegate’s decisions. The applicant contends (among other things) that as his conduct was principally of a private nature and he has a long record of legal compliance in the context of his work as a financial planner and mortgage broker, no banning orders should be made. In the alternative, if such orders are made, they should be for a significantly shorter period.
ASIC contends that the banning orders are appropriate both in the terms in which they are made and the length of time for which they are imposed. ASIC contends that the high level of dishonesty involved in the applicant’s conduct, which included falsifying details on bank statements and presenting them to public officials for the purpose of deceiving them, justifies the terms and the length of the banning orders.
For the reasons which follow I largely agree with ASIC’s contentions.
Statutory Framework
ASIC may make a banning order under the Corps Act against a person if the person has been convicted of fraud.[1] It may do so without affording that person a private hearing if ASIC’s grounds for making a banning order are or include that the person has been convicted of serious fraud.[2]
[1] Corps Act section 920A(1)(c).
[2] Corps Act section 920A(3).
Similarly, ASIC may make a banning order under the Credit Act if a person is convicted of fraud.[3] It may do so without affording that person a private hearing if that person has been convicted of ‘serious fraud’.[4]
[3] Credit Act section 80(1)(c).
[4] Credit Act section 80(6A).
The applicant accepts that he has been convicted of serious fraud and that the discretion to impose banning orders is lawfully engaged. The only issue for the Tribunal to consider is how the discretion should be exercised.
ASIC has published guidelines to assist in the exercise of the discretion conferred by the Corps Act and the Credit Act – Regulatory Guide 98 and 218 respectively. Consistent with the seminal case of Re Drake and Minister for Immigration and Ethnic Affairs (No 2), because ASIC has adopted a general policy to guide the exercise of this discretion, I will apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.[5] It was not suggested by the applicant that the policy is unlawful or that I should not apply the framework. The applicant’s primary submission was that I should apply the Regulatory Guides but recognise that for various reasons the Regulatory Guides would not apply to him in a way which justified a 10-year ban, particularly because the conduct of which he had been convicted was private conduct rather than dishonest conduct in the performance of his duties in the relevant industries. I have used the relevant Regulatory Guides as an appropriate tool for guiding how my discretion should be exercised. In the unusual circumstances of this case the Regulatory Guides represent a useful starting point. However, in relation to some aspects of the matter, considerable care needs to be taken in applying them, particularly given that the applicant’s fraud was not related to his duties as a financial adviser or mortgage broker.
[5] (1979) 2 ALD 634, (‘Drake No 2’).
There are two other aspects of the legal framework which require discussion at the outset. The first is to note that the Tribunal is to some degree constrained in the factual findings that it can make because the trigger for the exercise of the discretion is a criminal conviction.
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection, that ‘…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error’.[6] While that decision was made in the context of a visa cancellation, the same principle applies here because the statutory discretion to ban was invigorated by the applicant’s fraud conviction in Western Australia.[7] The Federal Court has made clear that in such circumstances a person who makes representations cannot advance a factual position that undermines the essential conviction or sentencing facts.[8]
[6] [2019] FCAFC 202 at [68].
[7] See for example Saffron v Federal Commissioner of Taxation (1991) 30 FCR 578.
[8] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [195].
I do note however that the applicant is entitled, to a limited extent, to seek different findings from the Tribunal in relation to the criminal convictions which did not form the basis of the decision to make the banning order – i.e. the non-fraud convictions. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP v Minister for Immigration and Border Protection.[9] These principles are pithily summarised in the following passage of Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155 at [42], cited with approval by Justice Bromberg:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
[9] [2018] FCA 1803 at [41] - [77].
In the present case, the fact of a fraud conviction was the basis on which the ASIC delegate had authority to exercise the discretion. The fact that the offence carried a maximum penalty of more than 3 months in jail meant that it constituted ‘serious fraud’ which permitted the delegate to proceed without holding a private hearing.
In relation to the fraud convictions which provide the trigger for the banning orders I am bound by the sentencing remarks. In relation to the other convictions, I can form a view about the essential facts which underly the conviction and may depart from the conclusions which the relevant magistrate reached. However, the applicant has a heavy onus to discharge before I would do that.
The second aspect of the legal framework which requires discussion concerns the onus of proof. The respondent correctly noted that in the Tribunal there is no formal onus of proof but there is effectively a common-sense onus of proof. It relied on the Full Federal Court’s comments in Beezley v Repatriation Commission to the effect that if the applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour.[10] However, the respondent then submitted that the effect of this principle was that ‘the applicant is required to demonstrate some basis upon which the Tribunal would exercise its power to set aside the Decision under review.’ That is not the case in this statutory context. The Tribunal stands in the shoes of the decisionmaker and must decide whether it is satisfied that the statutory power to ban should be exercised and what the length and scope of the ban should be. It is for ASIC to provide evidence and information sufficient to meet the statutory requirements and persuade the Tribunal that the statutory power should be exercised in a particular way. In this case, the ‘practical onus’ discussed by the Federal Court in Beezley falls on ASIC, not the applicant.
[10] Beezley v Repatriation Commission [2015] FCAFC 165.
Evidence before the Tribunal
The evidence before the Tribunal consisted of the following exhibits:
(a)The report of Dr David List, dated 6 April 2023 (Exhibit A1);
(b)The reference of Jim Babbage, page 493 of the Court Book (Exhibit A2);
(c)The reference of Frances Ady, paged 495 of the Court Book (Exhibit A3);
(d)The reference of Nathan Lodge, page 497 of the Court Book (Exhibit A4);
(e)The reference of Clinton Sharpe, page 498 of the Court Book (Exhibit A5);
(f)The reference of Alex Lewit, page 758 of the Court Book (Exhibit A6);
(g)The reference of Kristopher Fall-Armytage, page 759 of the Court Book (Exhibit A7);
(h)The Letter of Apology of Mark Babbage, page 769 of the Court Book (Exhibit A8);
(i)The Defendant’s submissions in relation to the Western Australian charges, pages 760-786 of the Court Book (Exhibit A9);
(j)The report of Dr David List, pages 500-512 of the Court Book (Exhibit A10);
(k)The ASIC Information Sheet, pages 651-660 of the Court Book (Exhibit A11);
(l)A document printout of Google results when “Mark Babbage” is entered as a search term in the Google News function (Exhibit R1);
(m)The application for review of a decision dated 8 April 2022, pages 3-23 of the Court Book (Exhibit R2);
(n)A Letter from the ASIC Delegate to Sarah Thrift to the applicant and enclosures, pages 24-36 of the Court Book (Exhibit R3);
(o)The Magistrates Court of Western Australia sentencing remarks of Mark Babbage dated 13 October 2021, pages 59-66 of the Court Book (Exhibit R4);
(p)The Prosecution Notice for Mark Babbage, charge number PE42461 dated 12 October 2021, pages 67-68 of the Court Book (Exhibit R5);
(q)The Prosecution Notice for Mark Babbage, charge numbers PE40618 to PE 40620 dated 28 September 2021, pages 69-72 of the Court Book (Exhibit R6);
(r)Regulatory Guide 98: ASIC’s powers to suspend, cancel and vary AFS licenses and make banning orders, pages 73-224 of the Court Book (Exhibit R7);
(s)The application for review of a decision dated 8 April 2022, pages 227-246 of the Court Book (Exhibit R8);
(t)A Letter from the ASIC Delegate to Sarah Thrift to the applicant and enclosures, pages 247-258 of the Court Book (Exhibit R9);
(u)Regulatory Guide 218: Licensing: Administrative action against persons engaging in credit activities, pages 295-318 of the Court Book (Exhibit R10);
(v)An extract from the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, pages 320-348 of the Court Book (Exhibit R11);
(w)Regulatory Guide 273: Mortgage brokers: Best interest duty, pages 349-441 of the Court Book (Exhibit R12);
(x)The applicant’s Statement of Facts, Issues and Contentions dated 11 April 2023, pages 442-468 of the Court Book (Exhibit R13);
(y)The applicant’s reply submissions, pages 482-490 of the Court Book (Exhibit R14);
(z)The Expert Report instructions by Lim & Associates dated 23 February 2023, pages 514-515 of the Court Book (Exhibit R15);
(aa)The Northern Territory Local Court Complaint and Prosecution Brief, pages 662-735 of the Court Book (Exhibit R16);
(bb)The Western Australia Statement of Material Facts, pages 742-751 of the Court Book (Exhibit R17); and
(cc)The Northern Territory Certificate of Proceedings (Case No 22130365), pages 755-756 of the Court Book (Exhibit R18).
In addition, the applicant gave oral evidence, which included him adopting the factual matters set out in the statements of facts issues and contentions and the reply filed on his behalf.
Dr David List, a psychologist also gave evidence.
When the applicant gave evidence, he answered questions in a straight-forward way. At the end of his evidence I had concerns about his level of insight. I was also quite uncertain whether his account about his mental state in September 2021 was accurate. He maintained that a significant reason for him leaving Victoria was to address the mental health impact on him from Victoria’s lockdowns. However, the timing of his travel plans and his focussed attention on getting to Western Australia once he arrived in the Northern Territory was not consistent with the notion that his travel plans were an attempt to address mental health issues. Indeed that evidence looked more like an attempt to rationalise his conduct after the event.
Dr List is eminent in his field and was a thoughtful and considered witness. His report was useful in that it reported the applicant’s thoughts on his own wrongdoing. However, Dr List reached two conclusions in his report which in my assessment were not well supported. The first was:
…there were no indications that [the applicant] suffers from impulses or a history of difficulties with moral or legal principles arising from his professional abilities that are suggestive of further risks to the public health and safety from future professional misconduct.
If by this Dr List is suggesting that the applicant has not had difficulties with legal principles in the past which raise legitimate concerns about his professional conduct in the future, then that is not a conclusion I can readily accept in light of the applicant’s conduct in the Northern Territory.
Dr List also concluded that:
…it is my view that banning orders are unnecessary to protect the public from harm arising from the actions of [the applicant].
When this conclusion is considered in light of Dr List’s oral evidence that the applicant ‘mostly understands his actions were wrong’ this conclusion seems to be, at the very least questionable.
(dd)
Accordingly, I regard the report as a useful record of the applicant’s state of mind, but of more limited value as a basis for predicting the risk the applicant poses to the public in the future.
Facts
The following represent the Tribunal’s findings of fact. They are largely drawn from the applicant’s statement of facts issues and contentions. To the extent that any findings are controversial I have cited the evidence on which the findings are based.
Prior to being banned by ASIC, the applicant:
(a) provided mortgage broking services through his business, Babbage Finance Pty Ltd; and
(b) acted as a financial planner in his father’s financial planning business, Babbage Financial Services Pty Ltd.
The applicant’s path to the financial services industry was as follows. His initial university education was in aeronautical engineering. Following graduation, he discovered that if he wished to pursue a career in that field a move overseas was likely to be required. As he wished to remain in Australia, he re-trained as a mortgage broker and financial planner.

In 2013, the applicant founded the mortgage broking business, Babbage Finance Pty Ltd. From that time, he successfully operated and grew the business to service over 70 clients by October 2021. Babbage Finance Pty Ltd and the applicant were authorised to provide credit services by a third-party Australian credit licensee, My Local Broker Pty Ltd. The loan arranging business covered home loans, commercial loans, car loans and personal loans. From 2013, the applicant also worked with his father, Jim Babbage to provide financial advice to clients through the business, Babbage Financial Services Pty Ltd.
Jim Babbage and the applicant were qualified and authorised to provide financial advisory services as a representative of a third-party Australian financial services licensee, Capstone Financial Planning Pty Ltd. In the financial advisory business:
(a) Jim Babbage acted as the head of the financial planning practice and the applicant performed the role of an assistant financial planner;
(b) all financial advice was principally provided by Jim Babbage and documented under his name – however, the applicant assisted in:
(i) presenting statements of advice to clients; and
(ii) carrying out all implementation of advice including applying for products and transacting on behalf of clients;
(c) the financial advice provided was mainly in relation to investments (SMSFs and managed funds) and occasionally superannuation and life insurance; and
(d) the business serviced approximately 80 clients as at October 2021.
During the span of the applicant’s profession, the applicant has maintained an exemplary compliance record:
(a) the applicant, and his businesses, were consistently mindful of their compliance obligations and no compliance breaches were reported by the businesses to their respective licensees;
(b) the applicant, and his businesses, never received any complaints in relation to either financial planning or mortgage broking; and
(c) the applicant consistently met applicable continuing professional development training requirements and undertook mortgage broking compliance training biannually.
The applicant’s clients consistently reported being happy with the services provided by the applicant. This assessment made by the applicant himself was also supported by a number of references from former clients submitted to the Tribunal.[11] None of the references were queried by the respondent.
[11] See reference of Jim Babbage (Exhibit A2), Frances Ady (Exhibit A3), Nathan Lodge (Exhibit A4), Clinton Sharpe (Exhibit A5), Alex Lewit (Exhibit A6) and Kristopher Fall-Armytage (Exhibit A7).
The applicant ceased providing financial services and credit services in or around October 2021. Since that date, both businesses, Babbage Financial Services Pty Ltd and Babbage Finance Pty Ltd, have wound down given the applicant’s key role in each business and his inability to provide services.
Outside of his profession, the applicant’s achievements include:
(a) being part of the Australian ski team for a number of years post university and achieving a ranking of 30th in the world in dual moguls;
(b) co-founding the Kooyong Lawn Tennis Club Young Members Committee; and
(c) completing a thesis in relation to recycling fibreglass using acid etching in connection with the Department of Science and Technology.
The applicant occupied a position of trust in the Kooyong Lawn Tennis Club Young Members Committee by acting as the Treasurer for a period of 11 years. His role and responsibilities involved volunteering for around 80 hours per year and included:
(a) controlling the Committee bank account;
(b) drafting financial reports each year;
(c) completing budgets for events and paying bills;
(d) helping to organise 4 to 5 events per year; and
(e) procuring suppliers.
However, following media controversy surrounding the applicant’s attendance at the 2021 AFL Grand Final he was asked to resign from his role with the Kooyong Tennis Club and has since resigned.
The Applicant holds the following qualifications:
(a) Bachelor of Aerospace Engineering;
(b) Certificate 4 in Mortgage Broking;
(c) Diploma of Financial Planning; and
(d) partial completion of an Advanced Diploma of Financial Planning (now on hold).
The applicant’s work as a financial planner and mortgage broker was significantly disrupted by the onset of COVID restrictions. In the almost two years of COVID restrictions imposed in Victoria between February 2020 and the end of 2021 the applicant spent his summers at his family’s beach house in Portsea and spent his winters in his family’s ski lodge at Mount Hotham.
As the applicant notes in his statement of facts issues and contentions, by 14 September 2021:
(a) the State of Victoria had been subject to 225 days of lockdown which was, at the time, one of the longest and strictest in the world; and
(b) each state in Australia imposed restrictions on entry due to COVID.
The applicant at this time:
(a) was 38 years old;
(b) was single;
(c) lived alone in Mount Hotham.
The applicant, in his discussions with psychologist Dr List painted a grim picture of his lifestyle in the months leading up to the AFL Grand Final with his only outing being a bi-weekly trip to the supermarket. This, it turned out was something of an exaggeration. In his oral evidence the applicant conceded that he got out on weekends and was able to go bushwalking and would have brief interactions with people he knew when he did so.
The applicant also sought to persuade the Tribunal through Dr List that in the months leading up to the AFL Grand Final he was depressed with fleeting thoughts of suicide but no actual intention to commit suicide. I am not satisfied on the evidence available that this is the case. The applicant never attended a psychologist prior to seeing Dr List for the purposes of the Tribunal proceedings. He never visited a GP with any concerns about his mental health. He did not provide a single corroborating witness who could testify about his behaviour or demeanour at the relevant time. In these circumstances I am not prepared to accept a retrospective diagnosis of depression. I don’t doubt that the applicant felt flat and even unhappy during lockdown, but not to the extent of suffering from a psychiatric illness.
In September 2021, while the applicant was living at Hotham, the applicant, with his friend Mr Burbank, hatched the plan to attend the AFL Grand Final. On the evidence available to the Tribunal, it appears that the applicant was not the instigator of the plan but he was a willing participant.
The restrictions on travel from regional Victoria were lifted on 9 September 2021. The idea of attending the Grand Final was discussed between Mr Burbank and the applicant, but the applicant made no travel plans at this point. He waited until he knew that Mr Burbank had secured Grand Final tickets and then made arrangements to fly to the Northern Territory. The delay in departure until Grand Final tickets were secured satisfies me that the applicant’s travel was not for the purpose of addressing a significant mental health issue, but was undertaken for the sole purpose of attending the AFL Grand Final.
Mr Burbank then took steps to procure a residential tenancy agreement for premises in Darwin. Mr Burbank it would seem knew that premises at 1/56 Sabine Road Millner were unoccupied and a tenancy agreement with the owner could be arranged without difficulty. Mr Babbage was named as a tenant on the agreement which ran from 14 July 2021 to 13 July 2022. Mr Babbage did not sign the agreement (his signature was forged by Mr Burbank) but he was shown a copy at some point – on his recollection probably during the flight to Darwin. Mr Babbage knew that the lease existed, knew that it contained false information and knew that Mr Burbank’s intention was to use it to mislead public officials about where he resided. Mr Babbage adopted the address as his place of residence on documents which he forged.
When the applicant arrived in Darwin on 14 September 2021, he was required to isolate until he had a negative COVID test. On the day he arrived he was unable to get a COVID test despite a number of attempts to do so. On the following day, he underwent a COVID test Under the public health orders then in place, following the test the applicant was required to isolate until he received the result. He did not do that. Instead, he attended the Motor Vehicle Registry. He completed a Northern Territory driver’s licence application. In that document the applicant claimed that his residential address was 1/56 Sabine Road Millner. This was false and he knew it was false. Despite that, the applicant signed a statutory declaration incorporated into the form which declared that information supplied in the application was true and correct. The declaration was made under the Oaths, Affidavits and Declarations Act 2010 (NT).
The applicant also provided the motor registry with a copy of a National Australia Bank statement. The bank statement was a genuine statement from the applicant’s own visa account for the period 27 July 2021 to 26 August 2021. However, the statement had been altered by the applicant using Adobe Pro software so that it showed his address as 1/56 Sabine Road Millner NT 0810.
The applicant knew that the document was a forgery when he presented it to the officials at the Northern Territory motor registry. He presented the document to create the impression that he was a resident of the Northern Territory.
The applicant received a temporary licence and returned to his hotel. On 16 September 2021 the applicant received a negative COVID test result.
On or about 22 September 2021 the applicant completed a Good to Go (GTG) Pass Declaration which was required for his entry into WA. At the time the applicant filled out the Good to Go form he knew that:
(a)Victorian residents were generally not permitted to enter Western Australia (WA); and
(b)WA permitted entry to NT residents, provided that they had been in the NT for at least 2 weeks.
He was both a Victorian resident and at the time of departure had not been in the Northern Territory for two weeks.
As part of that declaration, the applicant claimed to be a resident of NT and submitted false proof of NT residency in the form of a temporary NT drivers’ licence and a bank statement.
Based on this declaration, the applicant was granted entry into WA.
The applicant claims that it was not the case that he left Victoria for the sole purpose of attending the AFL Grand Final. He claims that he also had a strong desire to escape Victoria’s lockdown against a background of deteriorating mental health. His intention was to stay in WA indefinitely following the Grand Final.
I am not satisfied that it was any part of the applicant’s motivation in leaving Victoria to resolve a significant mental health problem caused by the lockdowns. There is no contemporaneous evidence of a mental health problem - only self-serving statements to a psychologist more than 18 months after the event which were made in circumstances where the applicant had significant incentives (as a result of this proceeding) to gild the lily. Further, the applicant did not leave Victoria as soon as he was able. Instead, he delayed departure until he had secured Grand Final tickets. Finally, when he left Victoria, the applicant already had a plan to engage in significant dishonesty for the purposes of attending the AFL Grand Final. The fact that Mr Burbank had secured and drafted a tenancy agreement prior to departure from Victoria and showed it to the applicant on the plane confirms that the entire trip was premised on the pair attending the Grand Final. Indeed, all of the applicant’s dishonesty in the course of his travel was undertaken to secure access to WA in time for the AFL Grand Final. If the applicant had other motivations for leaving Victoria, they were very much secondary to his goal of attending the Grand Final. At the point at which the applicant left Victoria he could have gone to many destinations (including the Northern Territory) without breaking COVID rules and engaging in dishonesty. I am satisfied that the exclusive motivation for the dishonesty in which the applicant engaged was to secure entry to WA so that he could attend the AFL Grand Final.
On 25 September 2021, the applicant and the co-accused attended the AFL Grand Final in Perth. The applicant intended to remain in WA indefinitely and at least until the end of lockdown in Victoria.
On 28 September 2021, the applicant and the co-accused were arrested in Naturaliste, WA.
Following his arrest, the applicant received harsh treatment from the justice system.
The applicant:
(a) was driven to remand in a police divisional van which unexpectantly slammed its
brakes on during the journey while the applicant was not secured with any seatbelt
or restraint;
(b) on arrival at the remand centre, the applicant was subjected to media scrutiny with a pool of media waiting after being informed of his arrest;
(c) after spending 2 days in remand, he was transferred to prison where he was put in isolation for approximately 10 days despite 3 to 4 negative COVID tests and where he was not provided a pillow or television;
(d) was unable to receive bail as WA hotels would not take Victorian residents;
(e) was unable to receive legal advice for his bail hearing and the applicant was directed to use the same lawyer as the co-accused;
(f) was later permitted to engage a lawyer for the plea hearing;
(g) only received the charge related to fraud on the morning of the hearing which did not allow sufficient time for the applicant to receive considered legal advice; and
(h) was advised that he could possibly contest the charge of fraud, however:
(i) as the applicant could not receive bail, he would need to remain in custody until bail could be granted; and
(ii) in the event that the applicant was granted bail, he would need to remain in WA until the contested hearing which lawyers estimated would take approximately a year.
On 13 October 2021, the applicant pled guilty at the first available opportunity and was convicted in the Magistrates’ Court of Western Australia of:
(i) one charge of - with intent to defraud, by fraudulent means gaining a benefit pecuniary or otherwise, namely unlawful entry into WA; and
(ii) three charges relating to a failure to comply with a direction under sections 67, 70 and 72A of the Emergency Management Act 2005 (WA).
The WA Magistrates’ Court sentenced the applicant to a concurrent term of 10 months’ imprisonment with 7 months suspended. In total, the applicant served 3 months in custody.
On 22 March 2022, the applicant also pled guilty at the first available opportunity and was convicted in the Darwin Local Court of:
(a) obtaining a benefit by deception – by obtaining a NT drivers’ licence using documents which stated an address at which the applicant did not reside;
(b) knowingly uttering a forged document – being a bank statement with an incorrect residential address; and
(c) a contravention of an emergency declaration by attending the NT Motor Vehicle Registry while subject to isolation requirements.
The Darwin Local Court sentenced the applicant to a 6-month suspended sentence and undertakings of good behaviour for a total period of 12 months.
The NT convictions post-date and did not form part of the basis for ASIC’s decisions.
Prior to September 2021 the applicant:
(a) had never been in significant trouble with the law or police in his life; and
(b) occupied positions of trust both in his professional life and volunteer work without any suggestion of dishonest conduct.
Character references
In addition to evidence on the factual matters outlined above, a number of character references were provided in support of the applicant’s good character.
The applicant’s father Jim Babbage, who worked with the applicant and employed him as a financial adviser, attested to the applicant’s compliance with all applicable rules and regulations including professional development requirements for financial advisers. He noted that compliance audits were carried out by his firm’s authorising licensees which resulted in ‘no significant’ compliance issues being identified. He expressed the view that the applicant’s dishonest actions to secure attendance at the Grand Final were ‘out of character’. He explained that the convictions by the WA and the NT courts have resulted in the closure of Babbage Financial Services Pty Ltd and Babbage Finance Pty Ltd, the two companies in which the applicant was active. He goes on to say that ‘[the applicant] has never defrauded anybody and has always gone out of his way to help people.’ He considered the events leading to the convictions were ‘a totally isolated incident which does not require a banning order’. In the applicant’s father’s assessment, he is not a risk to his clients many of whom have indicated that they would continue to use the applicant.
Frances Ady, who had known the applicant professionally and personally for 17 years described the applicant’s offending conduct as ‘completely out of character’. She described his character as ‘respectful, considerate and polite with a quiet kind-hearted temperament’. She described how well the applicant did in assisting her business to restructure its financial arrangements when COVID hit. She stated that his misconduct ‘is not a true reflection of his morals or ability to provide reliable financial advice’. She goes on to say that the applicant’s ‘ability to continue his work would be an asset to small business owners and young families such as ours and with complete confidence I assure you would pose no risk to consumers’.
Nathan Lodge, a school friend of the applicant provided a statement setting out the applicant’s work in the community and his assessment of his character. He described the applicant’s conduct leading to his conviction in Perth as ‘completely out of character’ and the product of ‘blind passion’. He was confident that the applicant felt remorse, shame and regret and he provided an assurance that the applicant is a ‘truly trustworthy person’.
Clinton Sharpe, a work associate also described the applicant’s conduct as ‘very much out of character’. He said this on the basis that ‘all [the applicant’s] loan applications for all his clients with Mortgage Ezy have always been of the highest standards from my observations and complied with all the rules and regulations.’ He also testified to believing that the applicant understands ‘his error in judgement’. He did not believe that a ‘banning order was needed to protect the public from [the applicant’s] business dealing as all past business dealings have been professionally handled’ and ‘in my view… there has never been any complaints from any of his clients that I am aware of’.
Alex Lewit, a client who had used the applicant’s mortgage broking services, provided a statement expressing a sincere belief that the applicant’s errors were a one off. In Mr Lewit’s experience the applicant always acted ethically and honestly and despite knowing of his convictions he would be happy to use the applicant’s professional services again.
Kristopher Fall-Armytage, who had used the applicant as a personal financial planner, described the applicant as an ‘honest and reliable person based on our previous business dealings with him’. He described his belief that the applicant’s offending conduct to be ‘very uncharacteristic of his normal behaviour’. He stated that he would ‘definitely engage in any of his credit and financial services if his ban was lifted’. He goes on to say ‘this was clearly a mistake and a one off event, that occurred in a time where most of us were under consistent stress and anxiety (Melbourne lockdowns), this could be considered a black swan event’.
In his letter of apology to the WA Magistrates’ Court the applicant described his actions in the following terms.
It was my selfish actions to come and try and enjoy my team’s first win instead of thinking about the consequences of my actions. I let the excitement of a game take over my moral compass. I assure you that I will never be so stupid again and let this behaviour repeat. My sincerest apologies to all the people of Western Australia.
CONSIDERATION

The applicant accepts that the preconditions for the making of the banning orders are present but contends that either no banning orders should be made or if orders are made, they should be for a period of six months and be in terms which do not prevent the applicant from working in some capacity in the financial services and credit industries.
The respondent contends that the reviewable decisions should be affirmed and a ban of 10 years imposed.
The parties’ perspectives on the applicant’s conduct are very different.
From the applicant’s point of view:
(a)He is a person who has worked in the financial and credit industries for a lengthy period without blemish;
(b)His misconduct was a one-off event in very unusual circumstances which I can be confident won’t be repeated;
(c)The conduct can be explained in part by the applicant’s declining mental health at the time and his need to escape the Victorian lockdowns;
(d)The fraud and dishonesty occurred in a private context, not in the context of a service being provided to clients and so is largely irrelevant to the regulation of the credit and finance industries;
(e)The conduct has already been harshly punished by the criminal justice system and so there is no need for a further penalty to be imposed to achieve specific and general deterrence. Indeed, legal principle requires that the discretion should be approached on a modified basis in light of the punishments which have already been inflicted.
The respondent on the other hand submits:
(a)Regard should be had to the Regulatory Guides prepared by ASIC which emphasise that:
(i)A person who shows a deliberate disregard for compliance with the law poses a higher risk of further non-compliance than a person who fails to comply due to incompetence;
(ii)A person who has acted dishonestly, or has chosen to engage in conduct despite knowing that it could potentially adversely affect others, poses a higher risk than a person who did not realise the potential for adverse consequences;
(b)Factors of dishonesty and intent to defraud generally support a banning period of 10+ years;
(c)Even though the applicant’s conduct did not occur in his roles as a financial advisor or in the credit industry, the level of deceit involved in his conduct revealed a lack of moral fortitude to act honestly in all circumstances such that banning orders are appropriate to ensure he does not have access to documents and opportunities for deceit which participation in the credit and financial industries provides;
(d)The applicant’s submissions and evidence demonstrate a lack of insight into the seriousness of his offending giving rise to a risk of further offending. This lack of insight is demonstrated by the applicant’s focus on the fact that he did not directly use the forged lease created by Mr Burbank in circumstances where he used false documents based on it to enter Western Australia. The applicant’s denials that he travelled solely to Western Australia to attend the Grand Final also suggests a lack of insight. Further, Dr List provides a basis for concluding that the applicant continues to show deficits in relation to his insight into the wrongness of his behaviour;
(e)The applicant’s lack of insight means that he presents an ongoing risk to the financial services and credit industries. That risk requires a lengthy ban;
(f)It is not the case that the only conduct relevant to a ban is conduct which occurs in the course of carrying on the regulated occupation. In this case the ‘private’ conduct was fraudulent and dishonest which makes it relevant to a banning order. However, the fact that the conduct did not occur while the applicant was performing duties in the regulated industries is relevant and should be taken into account to some degree.
Factual and Legal Issues
Before proceeding to exercise the discretions which the statutes confer, it is necessary to deal with some preliminary factual and legal issues which will affect how the discretion is exercised. I have set out my factual findings above. One crucial finding is that the applicant did not leave Victoria for the purposes of dealing with a mental health issue. This finding has an impact on\how the discretionary aspects of the decision are approached which are worth elaborating on.
As I have explained at paragraph ‎57 above, the applicant could have left Victoria and stayed in the Northern Territory without breaking COVID Rules. If his mental health was a significant concern he could have ameliorated the symptoms he was experiencing as a result of the COVID lockdowns without engaging in any dishonesty. What made the applicant’s dishonesty necessary was his desire to attend the AFL Grand Final. I am satisfied that the only motivation for the applicant engaging in dishonesty was that desire. Given the timing of his departure from Victoria (delayed until Grand Final tickets had been secured) and the immediate steps he took to move on to Western Australia when he arrived in the Northern Territory, I am satisfied that the applicant’s motivation for the trip was not to deal with any mental health issues but to secure his attendance at the Grand Final.
Further, I am not satisfied that the applicant’s mental health required urgent relief from the lockdowns when he left Victoria. As explained in paragraph ‎44 above, the applicant never attended a psychologist prior to seeing Dr List for the purposes of the Tribunal proceedings. He never visited a GP with any concerns about his mental health. He did not provide a single corroborating witness who could testify about his behaviour or demeanour at the relevant time. In these circumstances I am not prepared to accept a retrospective assessment that the applicant was battling mental health issues. I don’t doubt that the applicant felt flat and even unhappy during lockdown, but not to the extent of suffering from a psychiatric illness. I do not accept that declining mental health was either the cause of the decision to leave Victoria or resulted in the applicant having an impaired ability to understand the impropriety involved in his conduct.
These findings have two consequences. First, I do not accept that there is what could be regarded as a more legitimate explanation for the applicant engaging in the dishonesty in which he engaged – i.e. a mental health explanation as opposed to a simple selfish desire to attend the AFL Grand Final. Second, I accept the respondent’s submission that the applicant lacks insight into the seriousness of his wrongdoing. In my assessment, the ‘escaping lockdown’ scenario is really an attempt to legitimise and justify his conduct and to cast it in a more sympathetic light. I would have more confidence in the applicant’s claims that the conduct will not be repeated if he accepted in a less qualified way the extent of his wrongdoing and the motivations for it.
Legal issues
The applicant has also advanced two legal propositions which I do not accept. It is necessary to examine these briefly before moving on to the exercise of the discretion.
Banning would not be consistent with the objectives of the relevant laws
I do not accept the applicant’s contention that banning orders in this case are not consistent with the objectives of the Corps Act and the Credit Act given that the applicant’s conduct occurred outside of the context of providing services in the relevant industries.
Section 760A of the Corps Act expressly states that the main object of Chapter 7 is to promote honesty by those who provide financial services.[12] The focus is on the honesty of those who provide the service, not just on honesty while providing the service. The distinction is subtle but important. Consumer confidence in financial products and services is enhanced if the people with whom they deal have a reputation for honesty as well as a private determination to be honest while providing the service. Consumers of financial products and services are often acquiring products and services which they have an imperfect understanding of and in those circumstances are uniquely dependent on the advisers with whom they deal. It is therefore essential to the efficient operation of the markets for those services that consumers are confident in the honesty of the people allowed to provide the service. This makes lapses in honesty in any context a matter which is relevant to promoting the objectives of the Corps Act.
[12] Section 760A(b).
There is no equivalent provision to section 760A in the Credit Act, but a similar objective can be discerned from the substantive obligations on licensees. At section 47 the Credit Act provides that:
A licensee must:
(a)do all things necessary to ensure that credit activities authorised by the license are engaged in efficiently, honestly and fairly;
In my assessment, it would be difficult for a licensee to claim that they had done all things necessary to ensure that credit activities were engaged in honestly, if they empowered a person with a reputation for dishonesty to provide services on their behalf. Accordingly, I am satisfied that both Acts seek to promote honesty by the people who provide credit and financial services, not just honesty when providing credit and financial services.
As a result, the fact that the applicant’s dishonesty occurred outside of the performance of his professional duties does not mean that it is completely or largely irrelevant to the question of whether he should be banned from those industries. The fact that the applicant’s dishonesty was not in the context of delivering services to clients is in my assessment much less significant for the purposes of considering the length of any banning order than the applicant contends.
As DP McCabe emphasised in Williams and Australian Securities and Investments Commission (albeit in the context of a different statutory trigger):[13]
…evidence of dishonesty occurring in most contexts is problematic since a commitment (and reputation for commitment) to honest dealing is essential to this role.
[13] [2018] AATA 2312 at [47].
The applicant however has submitted that the Tribunal:
…should not be influenced by judgments of what is or is not acceptable conduct in a person’s private life except where such conduct can be linked to a person’s duties under the Corporations Act and Credit Act. The responsibility of drawing such judgements in a person’s private life is within the realm of other laws, prosecutors and regulators.[14]
[14] Applicant’s SOFIC [89].
In my assessment, where the promotion of honesty on the part of those who participate in the industry is the objective that the Parliament is seeking to attain, dishonesty in most contexts is highly relevant to the question of whether a person should be permitted to participate in those industries. In this case there is a close link between the dishonesty in which the applicant engaged and the duties of a financial planner and mortgage broker. The duties of a financial planner and mortgage broker require them to be honest and reliable. These are essential qualities for the performance of the duties. If a person demonstrates that they do not have these qualities – by altering bank statements, by lying to public officials and swearing false declarations – they have created doubts about the appropriateness of allowing them to continue to work in the industry. It is quite wrong-headed to regard forgery and swearing false declarations as conduct which can be relegated to the private sphere and treated as irrelevant in deciding whether a person has sufficient integrity to continue to work in the credit and financial services industries.
The dishonesty in which the applicant engaged is highly relevant to whether he should be allowed to continue to provide credit and financial services, and to the extent that a banning order removes a person who is not honest from the industry and emphasises to others the need to be an honest person if they wish to participate in the industry, then such a ban is consistent with the objectives of both the Corps Act and the Credit Act.
Given criminal sanction no significant role for specific or general deterrence
The applicant also submits that in light of his criminal convictions and incarceration, specific and general deterrence do not have a significant role to play in deciding on the scope and the length of the banning orders.
The applicant contends that much less significance is placed on a banning orders’ objectives of personal and general deterrence in circumstances where a person has already faced criminal penalties.[15] The applicant relies on the Tribunal decisions in Musumeci v Australian Securities and Investments Commission,[16] and Fraser and Australian Securities and Investments Commission,[17] to support this proposition. Notwithstanding the eminence of the Tribunal members who have advanced the proposition, I am not persuaded that it should be embraced in every case, and particularly not in cases involving convictions for serious fraud. The fact of a fraud conviction alone is sufficient to trigger the discretion to impose a banning order. That indicates that such conduct is of particular concern to the Parliament even though it will inevitably have been dealt with by the criminal justice system. Further, the Parliament is so concerned about serious fraud that a conviction for conduct meeting that definition relieves ASIC of procedural obligations when imposing a banning order (s920A(3)). To find in these circumstances that the fact of conviction and sentencing has potential to reduce in significance two of the most important factors relevant to the making of a banning order does not sit easily with the significance that Parliament has placed on a fraud conviction and the discernible expectation that serious fraud convictions require prompt action. In this statutory context I do not accept that following a conviction for fraud, less emphasis should be placed on the objectives of personal and general deterrence in the exercise of a banning order where the person has already faced criminal penalties which consider such objectives. Notions of double jeopardy (hinted at in the applicant’s SOFIC at paragraph 113) have no place in this consideration either. It is clear that the Parliament expects that events which lead to fraud convictions will be highly relevant to whether banning orders are imposed and, as noted above, the statutory objective of ensuring that people operating in the industry are honest.
[15] See applicant’s SOFIC, [113].
[16] [2009] AATA 525.
[17] [2011] AATA 944, [38].
There is a role for deterring dishonesty both in the industry generally and in the case of the applicant. The prior criminal convictions should not be treated as already having achieved the goal of specific and general deterrence which a banning order would further.
Having settled then the main legal and factual controversies, it is necessary to consider the merits of the submissions on the breadth and length of the ban. To ensure that no important submissions have been missed, I have endeavoured to summarise all of the arguments advanced in one form or another in the applicant’s statement of facts issues and contentions. There is some repetition of matters already covered above, but I wanted to ensure that no argument was missed.
Outline of the applicant’s position
The applicant’s arguments in favour of imposing a much shorter and narrower ban or no ban at all are as follows:
(a)During lockdown the applicant developed serious mental health issues, including suicidal ideation, which led to a single foolish enterprise to escape lockdown and attend the AFL Grand Final;
(b)Attendance at the AFL Grand Final was not the sole reason for him ‘leaving Victoria’ as his reasons included a need to escape the lockdowns and stay in WA until they were over;
(c)The behaviour was out of character – a fact established by the absence of trouble with the law in the past and the fact that he had occupied positions of trust in various contexts without any suggestion of dishonest conduct;
(d)A lengthy and broad banning order would not be effective in achieving the objectives of the relevant legislation in promoting the confident and informed participation of investors and consumers in the financial system and fairness, honesty and professionalism by those who provide financial services. This contention is advanced on the basis that the applicant’s conduct was private conduct, which occurred outside of the context of providing financial services. The Tribunal should not be influenced by private conduct except where it is linked to duties in the Corps Act and the Credit Act;
(e)The purpose of a banning order is not to punish;
(f)The unusual circumstances which led to the breach, and in particular the lengthy COVID restrictions which led to the decline in the applicant’s mental health are unlikely to occur again so the public does not need to be protected from the applicant;
(g)None of the conduct entailed any risk of loss to a client;
(h)The conduct engaged in was far removed from the purpose of the legislation which provides for banning orders. Policing such conduct is not necessary;
(i)Before imposing a ban the Tribunal needs to conclude that the applicant is likely to commit future professional misconduct from which others require protection;
(j)The applicant is not a risk to the public;
(k)There is little strategic significance in taking action;
(l)The applicant has accepted the consequences of his actions by pleading guilty at the first available opportunity;
(m)The applicant’s behaviour and the behaviour of others in the industry is unlikely to be affected by a ban because his conduct ‘did not have anything to do with the provision of financial services’.
(n)There are mitigating factors including the personal hardship that will arise from the loss of his profession;
(o)In relation to the Credit Act, a ban will not encourage compliance with statutory obligations and community expectations, it does not involve serious corporate wrongdoing or serious risk or detriment to consumers or the market, the matter does not relate to the respondent’s regulatory and enforcement priorities, the concerns do not relate to the conduct of a business, the dishonesty posed no risk to consumers, there were no Credit Act breaches, the applicant accepted the consequences for his actions by pleading guilty, the applicant has an exemplary compliance record and there are mitigating factors.
(p)The applicant accepts that the conduct involves dishonesty but in light of the above the discretion to impose any ban under either legislative regime should not be exercised in this case.
(q)If a ban were to be imposed, it should be significantly shorter and more narrow because there is a need to balance the public interest with personal hardship;
(r)Much less significance is placed on objectives of personal and general deterrence in the exercise of banning orders where a person already faced criminal penalties as the applicant did in this case;
(s)Misconduct in a person’s private life should not result in more severe consequences than similar conduct in a person’s professional capacity;
(t)A ban of 10 years would irrevocably destroy the applicant’s career;
(u)Applying the regulatory guides, although appropriate to a degree in this case, should not be done slavishly given that the guides do not properly address a circumstance where a person has been convicted and punished as well as being dealt with by a ban, makes arbitrary distinctions between penalties of less than 3 years, between 3 and 10 years and more than 10 years and should not be applied mechanistically;
(v)If a ban is imposed it should be the same period under both Acts and served concurrently;
(w)This instance of bad behaviour had life changing consequences and is unlikely to be repeated.

To ensure that no submission is missed it is best to deal with them sequentially.
In relation to (a) and (b) as noted above, I am not satisfied that the applicant was dealing with a serious mental health issue when he decided to leave Victoria. I am satisfied that securing attendance at the AFL Grand Final was the motivation for the trip. I am not satisfied that it is appropriate to characterise the trip as one designed to resolve a mental health issue by escaping lockdown.
In relation to (c) I do accept that the behaviour was out of character. The applicant has no history of dishonest behaviour in his past. This favours a shorter banning order;
In relation to (d) I do not accept that a broad banning order would be ineffective in achieving the objectives of the relevant legislation. For reasons already discussed, it is my assessment that a banning order will be effective in promoting honesty by those who provide financial and credit services. I do not accept the characterisation of the conduct as ‘private’. Forging documents, misleading public officials and making false declarations in order to pursue a self-interested objective contrary to a public health goal is not easily characterised as ‘private’. It falls into a very different category to misleading a family member or friend about a personal matter. The dishonesty has a significant public component to it and is highly relevant to the work performed in the financial and credit industries;
In relation to (e) I accept that it is not the purpose of any banning order to punish. It is not my purpose in making the order in this case;
In relation to (f) I accept that there are good reasons to believe that the applicant is unlikely to engage in dishonest conduct on the same scale again. He has an unblemished record and he has many friends and clients who are willing to attest to his honesty in the past and their continuing trust in him into the future. But the fact remains that when the applicant’s integrity was tested, he engaged in very serious dishonesty to pursue his own interests. I do not accept the thesis that the applicant’s conduct was the product of such unusual circumstances the like of which we will never see again. The applicant has shown himself well capable of extreme dishonesty given the right circumstances. The public is entitled to expect that the regulation of financial and credit services will protect them from exposure to providers of services who are capable of serious dishonesty in pursuit of their own interests. As I discuss further below, it is not enough for a person to be for the most part honest in order to work in financial and credit services. To proceed on the basis that a person who has knowingly forged a bank statement and made false declarations to public officials is not a person who the public needs to be protected from, would involve minimisation of the dishonest conduct which has occurred.
In relation to (g), it is to some degree relevant that the dishonesty did not occur in the course of providing financial services and did not cause a loss to a client. But it is also important to recognise that the Corps Act objective is to ensure that the persons engaged in providing financial services are honest people. Chapter 7 is concerned with the character of the people providing financial services as much as it is with preserving standards in specific transactions with consumers. I accept that the context of the dishonesty is relevant to the scope and length of the banning order, but not so much so that it reduces significantly the length of ban which is appropriate.
In relation to (h) I do not accept the proposition that the policing of an industry participants’ general honesty and integrity is not relevant to participation in the financial and credit industries. As noted previously, one of the objectives of Chapter 7 of the Corps Act is to promote honesty by those who provide financial services and a similar objective can be discerned from the terms of the Credit Act. Consequently, proper scrutiny of its significance is essential to meeting the objectives of those Acts.
In relation to paragraph (i) I do not accept that before imposing a ban I need to conclude that the applicant is likely to commit future professional misconduct from which others require protection. No such legal threshold is imposed either expressly or impliedly by either the Corps Act or the Credit Act. To give but one example, if I was satisfied that a banning order would achieve general deterrence, that could be sufficient to justify the imposition of a banning order. I do not need to have drawn any conclusions about the applicant’s future conduct in order to justify a banning order. The discretion is not constrained in the manner suggested.
In relation to (j) I accept that it is appropriate to examine the extent to which the applicant represents a risk to the public. I cannot accept that in light of his past conduct the proper conclusion is that he is not a risk to the public. The applicant has engaged in forgery, the swearing of a false declaration and been dishonest with public officials. He did so to secure a comparatively modest benefit. Anyone capable of engaging in fraud in such a context cannot be judged to pose no risk to the public when holding a position of trust. I cannot guess about all of the ways in which the applicant’s integrity might be tested in the future. What I can say is that when it was tested in a quite modest way, he failed the test. In these circumstances I do not accept the conclusion that the applicant poses no risk to the public.
In relation to (k) I reject the notion that there is little strategic significance in taking action. The strategic benefit in imposing a significant ban in relation to the applicant is to emphasise the importance of honesty and integrity as a prerequisite for participation in the financial and credit industries. For the long-term health of both industries, honesty needs to be seen as an essential personal quality a person must possess in order to be accepted as an appropriate person to operate in the industry.
In relation to (l) I do accept that as a matter of fact the applicant did plead guilty at the first available opportunity. The significance of that fact in terms of contrition and determination to be honest in the future are hard to judge. It is clear that the early guilty plea in WA was in part influenced by the likelihood that the applicant would be remanded in custody in WA if a ‘not guilty’ plea was entered. The early plea in the Northern Territory was rewarded by a suspended sentence. Viewed in isolation the early pleas tell me very little about the applicant’s attitude to his dishonesty. Viewed in the context of the approach the applicant has taken in these proceedings, I am not persuaded that the applicant genuinely appreciates the magnitude of the dishonesty in which he engaged. Nor am I satisfied that he has a deep appreciation of how inappropriate his conduct was. I accept the respondent’s submission that applicant lacks insight into his own wrongdoing. There is very little in the evidence which amounts to an expression of remorse. There was no such expression at the hearing of this matter. The submissions which have been put on the applicant’s behalf seek to minimise as largely irrelevant to the work of a financial adviser or mortgage broker the conduct in question. None of this gives me any confidence that the guilty pleas reflect contrition and a genuine attempt to reflect on the significance of the wrongdoing.
The submission in paragraph (m) has two elements. The first is that the applicant’s own conduct will not be affected by a ban because his conduct had nothing to do with the provision of financial services. What this fails to recognise is that if there is a banning order the applicant will cease to provide financial advice and credit services. Whether he learns any lesson from a banning order is more uncertain, but that does not diminish the effect of the order in removing a person of questionable honesty from the relevant industries. The second element of the submission is that the behaviour of others is unlikely to be affected by a ban. Again, that is not a proposition I accept. For example, if a licensee under the Credit Act is considering whether to engage a person to perform credit activities and it discovers that the person has a history of fraud in other contexts, a banning order in this case will provide guidance as to the relevance and significance of a history of dishonesty for persons potentially wishing to enter the credit and financial industries.
There is considerable force in the submission made at paragraph (n). I am conscious that a lengthy banning order will remove the applicant from his chosen profession and may force him to re-train in another industry. These are significant hardships for a man in his mid-30’s. It appears from his circumstances that he enjoys a high degree of family support which may ameliorate some of the hardship in material terms, but the emotional impact of having to start again will be significant. It is appropriate to give this matter significant weight in determining whether to ban and the length of any ban.
The submission at paragraph (o) is essentially a repeat of submissions made and dealt with earlier.
The submission in paragraph (p) invites me to downplay the significance of an industry participant’s general honesty and integrity. For the reasons already explained, I regard those matters as of great importance when considering whether to make banning orders in both the Corps Act and the Credit Act.
In relation to the submission in paragraph (q), it is necessary for me to consider whether a shorter ban and a more narrow one should be imposed. The personal hardship of the applicant weighs heavily against a ban of the length imposed by ASIC. However as discussed further below, factors such as consistency in decision making and the seriousness of the dishonesty weigh strongly in favour of a ban of the length imposed by ASIC.
In paragraph (r) the applicant contends that much less significance is placed on objectives of personal and general deterrence when making a banning order in circumstances where a person has already faced criminal penalties.[18] I have dealt with this argument in paragraph ‎96 above. In circumstances where a fraud conviction triggers consideration of the banning order, I do not accept that the goals of specific and general deterrence which a banning order can promote, should be given limited emphasis when the criminal convictions also advance those objectives.
[18] See applicant’s SOFIC, [113].
In relation to the submission in paragraph (s) that misconduct in a person’s private life should not result in more severe consequences than similar conduct in a person’s professional capacity, I accept that as a broad proposition. How it assists the applicant is unclear. It is clear from ASIC’s Regulatory Guides that fraud is severely frowned upon and a 10-year ban is the starting point where dishonesty is involved. I am not contemplating a ban of longer than ten years.
In relation to the submission in paragraph (t) I accept as inescapable the reality that a 10-year ban will destroy the applicant’s career as a financial advisor and mortgage broker. It is inevitable that if a ban of that length is imposed, or even a ban of more than 5 years, he will have to re-train and seek employment in a different field. I accept that this is a very harsh outcome.
In relation to the relevance of ASIC’s Regulatory Guides, I accept the submission in paragraph (u) that they should not be applied slavishly. Any decision must take into account the particular circumstances of the case. It is however worth emphasising that the Regulatory Guides do indicate that 10+ years is the starting point when considering dishonest conduct and conduct where there is an intention to defraud. ‘Otherwise engaging in fraud’ is identified as an example of conduct which attracts that kind of ban. While I do not intend to follow the Regulatory Guides slavishly, to promote consistency in decision making, proper regard should be had to them when deciding if and for how long a banning order should be imposed.
I accept the submission summarised in paragraph (v) that if a ban is imposed it should be for the same period under both Acts and served concurrently.
I also accept the submission at (w) that this instance of bad behaviour had life changing consequences and is unlikely to be repeated. There is a large body of evidence before me which describes how out of character the conduct was. There are however many matters relevant to my decision which must be considered of which a low chance of repetition is only one.
What is the appropriate length and scope of the ban?
As should be clear from the matters set out above, there are many aspects of the applicant’s submissions which I do not accept. I do however accept that he has generally behaved honestly towards his clients in the past, and he has retained their confidence into the future. On a personal level he has been punished already by the criminal justice system and a banning order of any significant length will have very adverse consequences for him personally. I am also willing to accept that the conduct in question was out of character, which provides hope that it will not be repeated. These considerations favour a relatively short ban or one of relatively narrow scope.
But preventing the applicant from behaving inappropriately in the future is not the only relevant matter when imposing a banning order. As the Regulatory Guides make clear, the statutory regimes are intended to ensure that investors and consumers feel confident when dealing with any person who is licensed to engage in financial services or credit activities.[19] For investors and consumers to have that confidence it is important that they believe at all times that they are dealing with honest people who have integrity. It is difficult to engender that confidence if it is widely known that persons who have forged documents, misled public officials and made false declarations continue to participate in the industry. Accordingly, while there are some personal factors which favour a shorter, narrower ban, these sit along-side more general factors which favour a longer ban.
[19] RG 98.8 and RG 218.6.
Having considered all of the matters raised with me, I have decided to impose a ban which, although shorter than the ban imposed by ASIC, will exclude the applicant from the credit and financial industries for the foreseeable future. The length of the bans which I have chosen will almost certainly require the applicant to find another occupation.
I have considered very carefully the evidence which supports the conclusion that the applicant’s conduct on this occasion was out of character, was an isolated incident and unrelated to his work. All of those submissions have substance to them. However, I am persuaded that despite these matters, substantial banning orders are appropriate.
My reasons for that view are as follows. First, and most importantly, the dishonesty in which the applicant engaged was very serious. Forging documents, especially a bank statement regardless of the reason should be conduct that is anathema to a financial adviser and mortgage broker. When it is coupled with the making of false declarations and the misleading of public officials it demonstrates a capacity for calculated dishonesty which has no place in the credit and financial industries.
The importance of the honesty of the providers of mortgage broking and financial services cannot be overstated. For the long-term health of both industries, honesty needs to be seen as a personal quality which a person needs to possess before they can participate in those industries. It is not appropriate for either industry to be seen as a place where chancers can participate and prosper. The applicant, in a very public way, showed himself to be a person who was willing to make an assessment of his own interests and the likelihood of getting caught and based on that calculus to engage in significant dishonesty. To treat that kind of behaviour as mostly irrelevant to whether a person is the kind of person who should participate in the credit and financial industries is to significantly downplay the importance of honesty in the proper functioning of the systems. A banning order of significant length in this case will send a message about the importance of having honest people operating in these industries and will signal to the industry that the altering of documents, misleading of public officials and making false declarations carry very heavy consequences for those involved, even if no client is harmed.
The temptation to be dishonest in matters large and small is ever present within the financial and credit industry – particularly so because there are some forms of dishonesty which advantage both the broker and client but pose a threat to the system overall if practised on a large enough scale. The Banking Royal Commission exposed the risks and conflicts that credit service providers are regularly subject to.[20] There were cases identified where the use of mortgage brokers resulted in the lender receiving incomplete or false information on which to assess proposed loans. The final report noted that the financial incentive for brokers to secure approval of an application remains significant thus creating the temptation to misrepresent a client’s creditworthiness. Clearly the work of a loan intermediary provides opportunities for a small level of dishonesty with a low chance of detection. Consequently, honesty is an essential quality for anyone who wishes to work in the credit services industry. If a person has been thoroughly dishonest in any context, it is highly relevant to whether or not they should be allowed to continue to work in it.
[20] See for example the passage on intermediated home lending at page 325 of the Court Book.
Regrettably the applicant has demonstrated little insight or appreciation of how significant his dishonesty was.
The applicant relies heavily on the notion that his conduct was ‘private’ to advance the idea that because no clients were affected, any ban will not improve conduct within the financial services industry or even his own conduct.
The premise on which much of the applicant’s submissions sit is that the Tribunal should accept that the applicant diligently complies with the regulatory framework required of him in his professional life and so there is no point in punishing him for extreme dishonesty outside of that context because he knows he has to behave differently in relation to professional matters. Indeed, in the report prepared by Dr List, the applicant explains:
I wouldn’t do the wrong thing in my work because there were all these arbitrary [COVID] rules they made – one day something was fine, the next day it wasn’t. Financial planning is all about the fiduciary duty to the client – look out for the risks for the client. It’s about helping them. So it didn’t seem like there was any rhyme or reason to the changes in the rules. But the financial planning rules are developed over many years, to keep the system working correctly.
In essence the applicant is saying that he would never breach rules in his professional life because he understands they are important and essential to the proper operation of the financial system, but the COVID rules fell into a different category as they seemed arbitrary and to some degree incoherent.
The important thing to observe is that there is nothing arbitrary or peculiar about any rules that require a person to tell the truth. The rules which the applicant broke were not just COVID rules, they were rules which required basic honesty of the applicant in the conduct of his affairs.
Rather than conforming with the general expectation that on important matters a person will be honest, the applicant engaged in deliberate, unlawful dishonesty. Leaving aside the fact that the behaviour he engaged in carried the risk of causing an outbreak of the Delta strain of COVID in a stadium full of people, the rules he was expected to obey were, for the most part, not peculiar COVID rules, but integrity rules of general application. It is surprising that it needs to be said but when a public official asks you where you live, everyone is expected to tell the truth. When a public official asks you how long you have been in the Northern Territory, the expectation is the same. These are not complex, arbitrary or situation specific rules. They are necessary rules for the proper working of the community. It is a very serious matter that the applicant did not follow these rules and of significant concern that he does not see them as having any implications for his work as a financial adviser and mortgage broker. The applicant’s lack of insight supports a banning order which excludes him from the credit and financial industries for a significant period.

ASIC through its Regulatory Guides has made clear that conduct involving fraud and dishonesty would generally attract a banning order of more than 10 years. Consistency in decision-making requires that proper consideration be given to that guidance.
On the other hand, there are significant factors personal to the applicant which argue for a shorter, narrower ban. First, he has already been harshly dealt with and I am sure has learnt that there are serious consequences for behaving as he did. Second, if a banning order of any significant length is imposed he will be forced to find a different profession and retrain. His clients will lose the benefit of his skills as will the companies to which he has provided his services. Third, his conduct did not harm a client and, it has to be conceded it did occur in unusual circumstances. These factors are relevant to an assessment of the risk the applicant poses in the future, but are not in my assessment as significant as the applicant contends they are.
In light of these personal matters I have decided not to impose a 10 year ban. However, given the nature of the dishonesty which included forging bank statements and misleading public officials, the applicant’s lack of insight and the need to emphasise to participants in the financial and credit industries the fundamental importance of honesty in the work that they do, a significant ban which excludes the applicant from participation in the industry is appropriate.
I have decided that a six year ban under each Act is appropriate. The bans are to commence on the dates of the decisions under review. The scope of the bans are otherwise unchanged. The bans run concurrently.

I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan

....................................[sgd]....................................
Associate
Dated: 25 October 2023

Date(s) of hearing: 24, 25 August 2023

Counsel for the Applicant: Mr Oliver Scoullar-Greig

Solicitors for the Applicant: Lim & Associates Lawyers

Counsel for the Respondent: Laura Hilly

Date(s) of hearing:	24, 25 August 2023
Counsel for the Applicant:	Mr Oliver Scoullar-Greig
Solicitors for the Applicant:	Lim & Associates Lawyers
Counsel for the Respondent:	Laura Hilly