Blazejczyk and Australian Securities and Investments Commission

This matter concerned an application by Mr Blazejczyk seeking to vary a banning order made by the Australian Securities and Investments Commission (ASIC). ASIC had prohibited Mr Blazejczyk from providing any financial services for a period of five years due to uncontested breaches of the *Corporations Act 2001* (Cth). These breaches included failing to act in the best interests of clients, failing to give priority to client interests, and failing to include required information in Statements of Advice concerning remuneration and interests in associated entities. Mr Blazejczyk accepted the prohibition period but sought to limit the scope of the banning order to only prohibit him from providing "personal advice" to "retail clients," arguing that a broader prohibition was unduly harsh and unnecessary to achieve the statutory objects.

The Tribunal was required to determine the correct or preferable decision regarding the scope and period of the banning order. Specifically, the court had to consider whether a prohibition limited to personal advice to retail clients would adequately protect the public and achieve the objects of Chapter 7 of the *Corporations Act*, which include promoting confident and informed decision-making by consumers and professionalism by financial services providers. The Tribunal also had to consider the interplay between the scope of the banning order and its duration, and whether these elements could be considered in isolation or needed to be assessed holistically to achieve the legislative purpose.

The Tribunal noted that banning orders can be permissive, allowing specified acts under certain conditions. It also highlighted that the exercise of discretion in making a banning order should promote the objects of Chapter 7 of the *Corporations Act* and ASIC's obligation to promote confident and informed participation in the financial system. Drawing on established principles, the Tribunal considered factors such as public protection, personal and general deterrence, the applicant's understanding of their role, the seriousness of contraventions, propensity for future misconduct, and the balance between personal hardship and public interest. The Tribunal expressed concern that considering the scope of the order in isolation from its period of prohibition might lead to error, suggesting that a longer prohibition period might be warranted for a limited scope, or conversely, a shorter period for a broader scope.

The Tribunal directed the parties to make further written submissions on the appropriate scope and period of the banning order, indicating that it maintained an open mind on the final decision. The court noted that the five-year period might be too harsh, irrespective of whether it was confined to personal advice to retail clients.