Bolton and Australian Securities and Investments Commission
[2018] AATA 976
•24 April 2018
Bolton and Australian Securities and Investments Commission [2018] AATA 976 (24 April 2018)
Division:Taxation and Commercial Division
File Number(s): 2015/6020
Re:Nicholas Francis John Bolton
APPLICANT
AndAustralian Securities and Investments Commission
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:24 April 2018
Place:Melbourne
The Tribunal decides:
that in reviewing the respondent’s decision made under s 206F of the Corporations Act 2001 on 6 October 2015 to disqualify the applicant from managing corporations for a period of three years, it may:
(a)in so far as it is relevant, consider the applicant’s conduct up to the date of the decision made on review;
(b)as a step in the process of reviewing the respondent’s decision under s 206F, consider whether the applicant’s conduct is consistent with the law and do so on the basis of the civil standard of proof regardless of whether any inconsistency with the law might be the subject of criminal charges; and
(c)have regard to any findings of fact made by the Takeovers Panel in its order made under s 657D(2) of the Corporations Act 2001 or in its written statement of the reasons for its order on the basis that those findings are, in the absence of proof to the contrary, proof of the fact by virtue of s 658B(1); and
refuse the applicant’s request for an order under s 35 of the Administrative Appeals Tribunal Act 1975.
...................[sgd]...................................................
S A FORGIE
Deputy President
CORPORATIONS LAW – ASIC disqualification order – power to disqualify – whether any breach of s 206A a relevant consideration for the purposes of s 206F – extension of disqualification order possible during proceedings – Tribunal may have regard to whether an applicant has acted in contravention of s 206A of the Corporations Act in the period following being disqualified from managing corporations under s 206F as a step in making an administrative decision
PRACTICE AND PROCEDURE – AAT Act 1975 allows Tribunal to take into account conduct and material up to date of decision – Shi v Migration Agents’ Registration Authority applicable – s 206F of Corporations Act 2001 does not limit conduct to which decision maker may have regard
EVIDENCE – admissibility of evidence given in proceedings in the Tribunal in relation to disqualification admissible in criminal proceedings – protection against self-incrimination – contempt of court only possible where there would be interference with due administration of law
Legislation
Administrative Appeals Tribunal Act 1975
Australian Securities and Investments Commission Act 2001
Bankruptcy Act 2001
Competition and Consumer Act 2010
Conciliation and Arbitration Act 1904
Corporations Act 2001
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Criminal Code Act 1995
Migration Act 1958
Royal Commission Act 1954
Royal Commissions Act 1902
Supreme Court Act 1970 (NSW)
Cases
Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350; 234 ALR 618; 95 ALD 220; 61 ACSR 487
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; 60 ALR 1; [2009] ATC 20-134
Assurance Co v Fountain Page [1991] 3 All ER 878; 1 WLR 756
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; (2015) 255 CLR 352; 317 ALR 279; 147 ALD 470
Australian Securities and Investments Commission v McCormack [2017] FCA 672
Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342
Attorney-General (Cth) v Alinta Limited [2008] HCA 2; (2008) 233 CLR 542; 242 ALR 1; 64 ACSR 507
Baker v Campbell (1983) 153 CLR 52 at 127; 49 ALR 385
Brebner v Perry [1961] SASR 177
Cameron’s Unit Services Pty Ltd v Whelpton & Associates Pty Ltd and Anor (1984) 4 FCR 428; 59 ALR 754
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125; 124 ALR 493
Dolan and Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 at 215; 114 ALR 231 at 241; 31 ALD 510
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10; (1995) 128 ALR 391
Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255
Grassby v The Queen (1989) 168 CLR 1; 87 ALR 618
Hammond v Commonwealth of Australia (1982) 152 CLR 188; 42 ALR 327
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609
Hodgson v Imperial Tobacco Ltd [1998] EWCA Civ 224; [1998] 2 All ER 673
Jebb v Repatriation Commission (1988) 80 ALR 329
Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248; (2005) 147 FCR 516; 88 ALD 620
Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14; 163 LGERA 145; 106 ALD 232
Lockwood v Commonwealth (1954) 90 CLR 177
McMahon v Gould (1982) 1 ACLC 98; 7 ACLR 202
Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5; (2018) 351 ALR 650
Mohamed v Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 336
Murdaca v Australian Securities and Investments Commission [2009] FCAFC 92; (2009) 178 FCR 119; 258 ALR 223; 110 ALD 500; 73 ACSR 276
National Companies and Securities Commission v Bankers Trust Australia Ltd [1989] FCA 530; (1989) 24 FCR 217; 91 ALR 321
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 147 ALR 322; 25 AAR 276; 48 ALD 222
Project Blue SkyInc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490
Re Adams and the Tax Agents' Board (1976) 12 ALR 239
Re Cilli's Objection (1970) 15 FLR 426
Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347
Reid v Howard (1995) 184 CLR 1 at 11; 131 ALR 609 at 616; 69 ALJR 863
Re HIH Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler [2002] NSWSC 483; (2002) 42 ACSR 80
Re Hill and Inspector-General in Bankruptcy [2012] AATA 69
Re Howarth and Australian Securities and Investments Commission [2008] AATA 278; (2008) 101 ALD 602; (2008) 48 AAR 10
Re Phillips and Inspector-General in Bankruptcy [2012] AATA 788; (2012) 131 ALD 564; 58 AAR 452
Re Sage and Australian Securities and Investments Commission [2005] FCA 1043
Re Trkulja and Anor and Inspector General in Bankruptcy [2005] AATA 709
Re YFFM and Australian Securities and Investments Commission [2009] AATA 489
Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129; 209 ALR 271; 50 ACSR 242
Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361
Scott v Scott [1913] AC 417; [1911-1913] All ER 1
Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147
State of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25; 41 ALR 71
The King v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598
Tsiamis v Comcare [2013] FCA 684; (2013) 60 AAR 506
Visnic v Australian Securities and Investments Commission [2007] HCA 24; (2007) 231 CLR 381; 234 ALR 413; 61 ACSR 512; 95 ALD 18
REASONS FOR DECISION
Deputy President SA Forgie
Under s 1317B of the Corporations Act 2001 (Corporations Act), Mr Bolton applied for review of a decision that a delegate of the Australian Securities and Investments Commission (ASIC) made on 6 October 2015 to disqualify him from managing corporations for a period of three years. The delegate made that decision under s 206F of the Corporations Act. On 17 December 2015, I refused Mr Bolton’s request for an order staying the operation of ASIC’s decision and refusing his request under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act). ASIC now alleges that, since he was disqualified on 6 October 2015, Mr Bolton has breached ss 206A(1)(a), (b) and/or (c) of the Corporations Act and that those alleged breaches may be relied upon to extend the period of his disqualification. Mr Bolton’s conduct, which is said to amount to the alleged breaches, has been set out in the Reasons for Decision of the Takeovers Panel in Molopo Energy Limited 01 & 02.[1]
[1] [2017] ATP 10
On behalf of Mr Bolton, Mr Broadfoot QC with Ms Hutchins of counsel made oral submissions on 1 March 2018 in response to ASIC’s position regarding the alleged breaches and the findings of the Takeovers Panel. He submitted that I should not have regard to any allegation that Mr Bolton has breached s 206A and that I cannot rely on the Takeover Panel’s findings of fact as the Panel was not addressing any issue relating to s 206A. He has also submitted that I should make an order under ss 35(2) and (4) of the AAT Act so that the hearing takes place in private and any evidence given or information provided not be made public and that it not be used in any subsequent proceeding without leave of the Tribunal.
At the hearing held to consider these issues, Dr Bender with Dr Hoel of counsel submitted that I should have regard to alleged breaches of s 206A when reviewing the decision ASIC had made under s 206F. He also submitted that I should not make any order under s 35 or, if I did, that it should only be in the nature of a temporary or holding order and so subject to further review. I outline their submissions in more detail below. I also set out my reasons below for deciding that I may have regard to whether Mr Bolton has acted in contravention of s 206A of the Corporations Act in the period following his being disqualified from managing corporations under s 206F. My reasons also explain why I have refused to make an order under s 35 of the AAT Act.
BROAD OUTLINE OF THE SUBMISSIONS
Mr Broadfoot submitted that:
(1)The Tribunal is not empowered by s 206F to consider a breach of s 206A as a basis for imposing or extending a ban upon Mr Bolton from managing corporations.
(a)In some circumstances, an administrative decision-maker is required to undertake an enquiry as to whether a person has committed an offence. Those circumstances arise if the relevant legislation requires a decision-maker to make that enquiry as a step in the decision-making process.[2]
[2] ACMA v Today FM (Sydney) Pty Ltd [2015] HCA 7; (2015) 255 CLR 352; 317 ALR 279; 147 ALD 470; French CJ, Hayne, Kiefel, Gageler and Keane JJ (ACMA v Today FM); Re Phillips and Inspector-General in Bankruptcy [2012] AATA 788; (2012) 131 ALD 564; 58 AAR 452 (Phillips) and Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350; 234 ALR 618; 95 ALD 220; 61 ACSR 487; Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ (Albarran)
(b)Section 206F does not improperly confer upon ASIC a function or power pertaining to the exercise of the judicial power of the Commonwealth.[3]
[3] Attorney-General (Cth) v Alinta Limited [2008] HCA 2; (2008) 233 CLR 542; 242 ALR 1; 64 ACSR 507 at [160]; 594-595; 41; 546-547(Alinta); Visnic v Australian Securities and Investments Commission [2007] HCA 24; (2007) 231 CLR 381; 234 ALR 413; 61 ACSR 512; 95 ALD 18; Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ at [16]; 386; 417; 516; 22 (Visnic), Albarran, ACMA v Today FM and R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361; McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ
(2)That, however, does not preclude a consideration of Mr Bolton’s conduct under s 206F.
(a)If for example, he were found to have acted incompetently or dishonestly, had engaged in misleading or deceptive conduct or involved in breaches of fiduciary duty, misuse of confidential information or other improper behaviour, that would be conduct to which the Tribunal could have regard under s 206F because the public might require protection from such behaviour.
(b)The same conduct might, or might not, amount to a breach of s 206A but the Tribunal cannot conclude that it has amounted to a breach and then, based purely on that conclusion, decide that a further period of disqualification is justified. It must assess whether the conduct itself is worthy of disqualification.[4]
[4] Alinta and ACMA v Today FM
(3)Disqualification under s 206F is a penalty and this proceeding is a proceeding for the imposition of a penalty. That is not inconsistent with the proposition that the function or purpose of s 206F is to protect the public by disqualifying persons who present a risk.
(a)The process by which the protective function is carried out is penal: Rich v Australian Securities and Investments Commission[5] (Rich) but the primary function of the power to disqualify persons under s 206F is predominantly protective in nature.[6] whereas s 206A is punitive.
[5] [2004] HCA 42; (2004) 220 CLR 129; 209 ALR 271; 50 ACSR 242 at [37]-[38]; 147; 282-283; 253
[6] Murdaca v Australian Securities and Investments Commission [2009] FCAFC 92; (2009) 178 FCR 119; 258 ALR 223; 110 ALD 500; 73 ACSR 276 at [101(b)]; 128; 246; 507; 298; North, Kenny and Foster JJ (Murdaca)
(b)The main purpose or function of s 206A is qualitatively different from that of s 206F.
(i)The purpose of s 206A is to punish an individual for committing a breach of the provision. Therefore, disqualification upon breach of s 206A is automatic by virtue of s 206B and there is no need to consider whether that disqualification is justified or necessary to give effect to any purpose of protection.
(ii)Section 206A is concerned with the creation of a criminal offence for managing a corporation once a disqualification decision has been made. By that time, ASIC’s role under s 206F has been exhausted. That ensures that an applicant is not exposed to a double jeopardy through being subjected to a penalty in this proceeding for a contravention of s 206A and then being prosecuted in relation to the same conduct.
(4)Should the Tribunal decide that it is able to consider the s 206A matters or Mr Bolton’s conduct in relation to Keybridge Capital or Aurora, certain issues arise.
(a)The Tribunal should make two orders.
(i)One order should be made under ss 35(2) and (4) of the Administrative Appeals Tribunal Act 1975 (AAT Act) restricting the further use that may be made of the evidence in order to avoid prejudice to Mr Bolton.
·This order is necessary to ensure that Mr Bolton is not prejudiced in any future criminal proceeding because of evidence that he has given in a proceeding, such as this, for the imposition of a penalty. The Corporations Act contemplates that evidence used in civil penalty or pecuniary penalty proceedings will not be used in subsequent criminal proceedings.[7]
(ii)A second order should be directed to ASIC requiring it to produce all documents that were before the Takeovers Panel and requiring it to make available for cross-examination any of the persons who lodged affidavits or who gave evidence in the Takeovers Panel’s proceeding and upon whose evidence ASIC wishes to rely in this proceeding.
[7] Corporations Act; s 1317Q
On behalf of ASIC, Dr Bender submitted that the text of s 206F must first be analysed[8] and that analysis must be conducted in the context of the Corporations Act. The structure of the Corporations Act generally separates regulatory provisions relating to the imposition of disqualification or banning orders from those provisions creating criminal and civil penalty provisions.[9] Regard must be had to the purpose for which the power conferred by s 206F may be exercised and to the matters to which regard must be had under s 1(2) of the Australian Securities and Investments Commission Act 2001 (ASIC Act) when exercising that power. The purpose for which the power is given to ASIC is protective even though it may serve other purposes such as those of deterrence. Whatever those other purposes are, they do not include the imposition of a penalty or punishment. He relied on cases such as Rich[10] citing the propositions put forward by Santow J in Re HIH Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler[11] (Adler), Kamha v Australian Prudential Regulation Authority[12] (Kamha), Murdaca[13] and Australian Securities and Investments Commission v McCormack[14] (McCormack).
[8] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; 260 ALR 1; [2009] ATC 20-134 at [4]; 31; 10,156; French CJ, Hayne, Heydon, Crennan and Kiefel JJ and see also Project Blue SkyInc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490; McHugh, Gummow, Kirby and Hayne JJ; Brennan CJ dissenting
[9] Re Howarth and Australian Securities and Investments Commission [2008] AATA 278; (2008) 101 ALD 602; (2008) 48 AAR 10 (Howarth)
[10] [2004] HCA 42; (2004) 220 CLR 129; 209 ALR 271; 50 ACSR 242 at [47]-[50]; 151-155; 286-289
[11] [2002] NSWSC 483; (2002) 42 ACSR 80 at [56]; 97
[12] [2005] FCAFC 248; (2005) 147 FCR 516; 88 ALD 620; Emmett, Allsop and Graham JJ
[13] [2009] FCAFC 92; (2009) 178 FCR 119; 258 ALR 223; 110 ALD 500; 73 ACSR 276 at [101]; 143-144; 246-247; 521-522; 298-299
[14] [2017] FCA 672; O’Callaghan J
Dr Bender further submitted that an administrative body exercising a disqualification power may take into account breaches of an offence provision such as s 206A of the Corporations Act. To do so is not an exercise of judicial power. He relied on Albarran[15], Visnic[16] and ACMA v Today FM[17] (Today FM) as well as cases decided by the Tribunal in Re Trkulja and Anor and Inspector General in Bankruptcy[18] (Trkulja), Re Hill and Inspector-General in Bankruptcy[19] (Hill) and Re Phillips and Inspector-General.[20] Subject to its complying with ss 206F(1) and (2) and the need to exercise the power for proper purposes, the Full Federal Court decided in Murdaca that the breadth of s 206F(2)(b)(iii) enabled ASIC to “approach the exercise of its power of disqualification under s 206F(1)(c) in any way it thinks appropriate”.
[15] [2007] HCA 23; (2007) 231 CLR 350; 234 ALR 618; 95 ALD 220; 61 ACSR 487; Gleeson CJ,[16] [2007] HCA 24; (2007) 231 CLR 381; 234 ALR 413; 61 ACSR 512; 95 ALD 18; Gleeson CJ,[17] [2015] HCA 7; (2015) 255 CLR 352; 317 ALR 279; 147 ALD 470; French CJ, Hayne, Kiefel, Gageler and Keane JJ
[18] [2005] AATA 709; Senior Member Pascoe
[19] [2012] AATA 69; Senior Member Letcher QC
[20] [2012] AATA 788; (2012) 131 ALD 564; 58 AAR 452; Deputy President Forgie and Dr McRae, Member
In some instances, Dr Bender submitted, proceedings reviewing a banning order have run concurrently with criminal proceedings or, at least, with potential criminal charges pending. He referred to Tribunal decisions in Re YFFM and Australian Securities and Investments Commission[21] (YFFM) and to Re Sage and Australian Securities and Investments Commission[22] (Sage).
[21] [2009] AATA 489; Senior Member Penglis
[22] [2005] FCA 1043; Goldberg J
A person who comes within the definition of an “officer” in s 9 of the Corporations Act may act as a de facto director of a corporation although not officially appointed to that position. The prohibited conduct in s 206A(1) largely mirrors that definition with the consequence that s 206A prohibits someone from acting as a shadow director of a corporation. Such a person can be disqualified under s 206F.[23] It would be a fundamental inconsistency if the Tribunal could disqualify a shadow director but could not consider whether a person was in breach of a disqualification order by acting as a shadow director in breach of s 206A when considering whether to disqualify and the period of disqualification.
[23] Murdaca [2009] FCAFC 92; (2009) 178 FCR 119; 258 ALR 223; 110 ALD 500; 73 ACSR 276 at [85]; 140; 243; 519; 296 citing Ho v Akai Pty Ltd (in liq) [2006] FCAFC 159; (2006) 24 ACLC 1526; Finn, Weinberg and Rares JJ
With regard to the subsequent use that might be made of any evidence given by Mr Bolton in the proceedings, Dr Bender submitted that the privilege against self-incrimination would be sufficient to protect him. Should he claim it, no adverse inference can be drawn by the Tribunal.[24] Furthermore, ASIC has given some indications that it would not refer for criminal prosecution the matters that were, in April 2017, alleged to be breaches of s 206A. That relates to conduct alleged to have occurred between December 2016 and on or about 4 March 2016. There is no current criminal investigation relating to matters regarding the Takeover Panel’s decision in Molopo Energy Limited 01 & 02.[25] In relation to the securities of Molopo Energy Limited there is a current investigation whether there have been contraventions of ss 606 and 671B of the Corporations Act.
GENERAL DUTIES AND POWERS OF OFFICERS OF CORPORATIONS
[24] Tsiamis v Comcare [2013] FCA 684; (2013) 60 AAR 506 at [19]-[20]; 511-512; Flick J
[25] [2017] ATP 10
General duties and powers
Section 206F, with which I am concerned, falls within Part 2D.6 of Chapter 2D of the Corporations Act. Chapter 2D is concerned with officers, including directors,[26] and employees of corporations. Part 2D.1 sets out some of the most significant powers and duties of directors, secretaries, other officers and employees of corporations. It does not purport to set out all of them but the provisions of Part 2D.1 place Part 2D.6, and so s 206F, in some context.
[26] Corporations Act; s 9
The business of a company is to be managed by, or under the direction of, its directors. To that end, the directors may exercise all of the company’s powers under the Corporations Act other than those that are required by the legislation or by any company constitution to be exercised in general meeting.[27] Some of the duties are framed in terms of “civil penalty provisions”, and are identified in the table in s 1317E(1) as such, so that a person is liable to the imposition of a civil penalty if they are not met. I refer particularly to:
[27] Corporations Act; s 198A and see also 198E
(1)section 180(1):
A director or other officer must exercise powers and discharge duties with the degree of care and diligence that a reasonable person would exercise if a director or officer of a corporation in the corporation’s circumstances.
(2) section 181(1):
A director or other officer must exercise powers and discharge duties in good faith in the best interests of the corporation and for a proper purpose.
(3)section 182(1)
A director, secretary, other officer or employee of a corporation must not use his or her position to gain an advantage for him or herself or for someone else or cause detriment to the corporation.
(4) section 183(1)
A person who gains information because he or she has been a director, secretary, other officer or employee of a corporation must not improperly use that information to gain an advantage for him or herself or for someone else or cause detriment to the corporation.
(5) section 188(1)
A secretary of a company contravenes s 188(1) if the company contravenes any of the twelve provisions listed in that subsection.
Other duties are framed in terms of criminal offences. Section 184(1) provides for three sets of criminal offences in relation to a director or other officer’s recklessly or carelessly failing to exercise their powers and discharge their duties in the best interests of the corporation and for a proper use, using his or her position to use their position dishonestly to gain an advantage or cause detriment to the corporation. There is an overlap between the behaviour covered by the civil penalty provisions that I have identified in the previous paragraph and that covered by the criminal offence. If both a civil proceeding under one or more of those civil penalty provisions and criminal proceedings under s 184(1) are instituted, the provisions of s 1317G determine which of the proceedings is stayed. I come to this now.
Section 1317Q: restriction on admissibility in criminal proceedings of evidentiary material given or produced in proceedings for a pecuniary penalty order in relation to the officer
Section 1317Q provides:
“Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:
(a)the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and
(b)the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.”
A “pecuniary penalty order” is an order made by a Court under s 1317G. Section 1317G provides for a court to make a pecuniary penalty order in six situations. One, provided for in s 1317G(1), relates to the contravention of a corporation/scheme civil penalty provision. The second relates to the contravention of a financial services civil penalty provision and is provided for in s 1317G(1A). The other four relate to a contravention of particular provisions of the Corporations Act.[28] In all instances, a declaration of contravention by the person must also have been made under s 1317E and the contravention must have had the consequences identified in ss 1317G(1), (1A), (1BA), (1C), (1D) and (1E) as appropriate.
[28] Corporations Act; ss 1317G(1BA), (1C), (1D) and (1E)
A court must make a declaration under s 1317E if satisfied that a person has contravened a civil penalty provision.[29] A “civil penalty provision” is a provision specified in column 1 of s 1317E(1). Of the 46 provisions that are specified, those in items 1 to 13 and item 46 are corporation/scheme civil penalty provisions and those in item 14 and items 23 to 45 are financial services civil penalty provisions.[30] Once a declaration has been made and contraventions provided specific criteria are met, ASIC can seek a pecuniary penalty order under s 1317G.
[29] ASIC may apply for a declaration of contravention of a civil penalty order: Corporations Act s 1317J(1). It must do so no later than six years after the contravention; s 1317K.
[30] Corporations Act; s 1317DA
If it does so, the effect of s 1317Q is that evidence given in the proceedings for that order is not admissible in criminal proceedings if the conduct claimed to constitute the offence is substantially the same as the conduct claimed to constitute the contravention of the civil penalty provision. If the person were charged in respect of giving false evidence in the proceedings for a pecuniary penalty order, s 1317Q would not apply to render the evidence inadmissible.
In most instances, criminal proceedings can be brought against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether, among other outcomes, a declaration of contravention has been made against the person, a pecuniary penalty order has been made against the person, the person has been disqualified from managing a corporation under Part 2D.6 or, in the case of Australian financial services licences, a banning order has been made under s 920A or the Court has made a disqualification order under s 921A.[31] In other words, the civil proceedings leading to one or other of these outcomes will have been instituted and completed before the criminal proceedings are instituted.
[31] Corporations Act; s 1317P(1)
In some instances, criminal proceedings are started before proceedings for a declaration of contravention or a pecuniary penalty order are instituted against a person or are started after. In either case, provided the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention, the proceedings for the declaration of contravention or a pecuniary penalty order are stayed.[32] If the criminal proceedings result in a conviction in those circumstances, the civil proceedings are dismissed.[33] If the criminal proceedings do not result in a conviction, the proceedings for the declaration or order may be resumed.[34] Section 68(3) of the ASIC Act restricts the admissibility of certain evidence in criminal proceedings and I will turn to that now.
Section 68(3): restriction on admissibility in criminal proceedings or proceedings for the imposition of a penalty of oral information and signed record made in course of ASIC’s investigations etc
[32] Corporations Act; s 1317N(1)
[33] Corporations Act; s 1317N(2) and see also 1317M
[34] Corporations Act; s 1317N(2)
Under the ASIC Act, various investigation and information gathering powers are conferred on various bodies. Under Part 3, the Takeovers Panel established under Division 1 of Part 10 has power to conduct proceedings under Division 3 of that Part and under Division 2 of Part 11, the Disciplinary Board may hold hearings and take evidence. ASIC has power under Part 3 to make such investigations as it thinks expedient for the due administration of the corporations legislation where there is reason to suspect that a contravention of the corporations legislation (other than the excluded provisions) may have been committed or reason to suspect that there has been contravention of a Commonwealth, State or Territory law that concerns the management or affairs of a body corporate or managed investment scheme or involves fraud or dishonesty and relates to a body corporate or managed investment scheme or to financial products.
Section 68 applies to all such proceedings, hearings and investigations where a person is required to give information, sign a record or produce a book. It is not a reasonable excuse for the person to refuse or to fail to comply with the requirement that doing so might tend to incriminate the person or make the person liable to a penalty.[35] The person may, however, make the claim that making an oral statement giving information or signing a record might do so. If the person makes that claim before making the oral statement or signing a record and the statement or signing the record, as the case might be, might in fact tend to incriminate the person or make the person so liable, s 68(3) applies.[36] Section 68(3) provides:
[35] Corporations Act; s 68(1)
[36] Corporations Act; s 68(2)
“The statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in:
(a)a criminal proceeding; or
(b)a proceeding for the imposition of a penalty;
other than a proceeding in respect of:
(c) in the case of making a statement – the falsity of the statement; or
(d)in the case of signing a record – the falsity of any statement contained in the record.”
Since the High Court’s judgment in Rich, there can be no question that a proceeding in the Tribunal reviewing a decision made by ASIC to disqualify a director is a proceeding for the imposition of a penalty.[37] Section 68(3) can, however, only have relevance in this case in relation to any information given by Mr Bolton or any record he signed as required by ASIC if he first claimed privilege against self-incrimination and the statement or signing the record might in fact tend to incriminate him and it might tend to incriminate him or make him liable to a penalty.
[37] [2004] HCA 42; (2004) 220 CLR 129; 209 ALR 271; 50 ACSR 242 at [37]-[38]; 147; 282-283; 253-254. That is so even though the rationale for, and purpose of, disqualifying a person from managing corporations is properly characterised as protective.
If the particular circumstances to which s 68(3) applies do not arise, Mr Bolton will not be able to rely on s 68(3) of the ASIC Act to render inadmissible any oral or documentary information relevant to whether he has been in breach of s 206A. He can rely on the common law privilege against self-incrimination in giving evidence in the Tribunal’s proceedings. As the common law stands at the moment, he cannot rely on any privilege against the imposition of a penalty in proceedings in the Tribunal.[38]
[38] Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5; (2018) 351 ALR 650 at [82]; 673; Siopsis, Robertson and Bromwich JJ but an application for special leave to appeal to the High Court has been lodged by Mr Frugtniet.
HOW MAY A PERSON BE DISQUALIFIED FROM MANAGING CORPORATIONS?
Part 2D.6 of the Corporations Act is entitled “Disqualification from managing corporations”. A person ceases to be a director, alternate director or secretary of a company if that person becomes disqualified from managing corporations under that Part and he or she is not given permission to manage the corporation under ss 206F or 206G.[39] Part 2D.6 sets out the circumstances in which a person may be disqualified from managing corporations. Those circumstances fall into three groups.
[39] Corporations Act; s 206A(2)
Automatic disqualification without intervention by the Court or by ASIC
Sections 206B, 206EA and 206EB come within the first group and they provide for automatic disqualification without any requirement for Court or ASIC intervention under Part 2D.6.
Beginning with ss 206EA and 206EB, they provide that a person is disqualified from managing corporations if a court has made an order under other legislation disqualifying the person from managing corporations and that order is in force. In the case of s 206EA, the legislation under which the order has been made is either s 86E of the Competition and Consumer Act 2010 or s 248 of Schedule 2 to that legislation as that section applies as a law of the Commonwealth, a State or a Territory. In the case of s 206EB, a court will have made the relevant order under s 12GLD of the ASIC Act. Disqualification under both ss 206EA and 206EB lasts for as long as the relevant court order disqualifying the person from managing corporations is in force.
The circumstances provided for in s 206B fall into five categories. The first category is set out in s 206B(1), which provides:
“A person becomes disqualified from managing corporations if the person:
(a)is convicted on indictment of an offence that:
(i)concerns the making, or participation in making, of decisions that affect the whole or a substantial part of the business of the corporation; or
(ii)concerns an act that has the capacity to affect significantly the corporation’s financial standing; or
(b)is convicted of an offence that:
(i)is a contravention of this Act and is punishable by imprisonment for a period greater than 12 months; or
(ii)involves dishonesty and is punishable by imprisonment for at least 3 months; or
(c)is convicted of an offence against the law of a foreign country that is punishable by imprisonment for a period greater than 12 months.
The offences covered by paragraph (a) and subparagraph (b)(ii) include offences against the law of a foreign country.”
The other four categories are that the person is an undischarged bankrupt,[40] has executed a personal insolvency agreement under Part X of the Bankruptcy Act 2001 and its terms have not yet been fully complied with,[41] the person is disqualified from managing corporations at a particular time if disqualified from managing Aboriginal and Torres Strait Islander corporations under Part 6-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act)[42] or is disqualified under an order that has been made by a court of a foreign jurisdiction and that is currently in force from being a director of a foreign company or being concerned in the management of a foreign company.[43]
[40] Corporations Act; s 206B(3)
[41] Corporations Act; s 206B(4)
[42] Corporations Act; s 206B(5)
[43] Corporations Act; s 206B(6)
In each circumstance except for those prescribed by s 206B(1), the period of disqualification continues while the circumstance continues be it bankruptcy, disqualification under a foreign court order and so on. Where a person has been convicted of an offence that comes within s 206B(1), the period of disqualification starts on the day the person is convicted. The period of disqualification lasts for a period of five years after that day if he or she does not serve a term of imprisonment or, if he or she does, five years after the day on which he or she is released from prison.[44]
[44] Corporations Act; s 206B(2)
On ASIC’s application, the Court may extend the period of disqualification provided for under s 206B in relation to two of the categories of circumstances provided for in s 206B by an additional period up to 15 years if the circumstances in s 206BA exist. Section 206BA(1) provides:
“This section applies if:
(a)under subsection 206B(1); or
(b)as a result of the operation of subsection 279-5(1) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 and subsection 206B(5) of this Act;
a person is disqualified from managing corporations on being convicted of an offence.”[45]
[45] Section 279-5(1) of the CATSI Act, which mirrors s 206B(1) except in so far as it applies only to Aboriginal and Torres Strait Islander corporations, provides:
ASIC must make the application for an extension to the period of automatic disqualification either before the period of disqualification begins or before the end of the first year of disqualification.[46] ASIC may make that application only once in relation to the disqualification and, in determining whether an extension is justified, the Court may have regard to any matters it considers appropriate.[47]
[46] Corporations Act; s 206BA(3)
[47] Corporations Act; s 206BA(4) and (5)
Disqualification by order of the Court on an application by ASIC
Disqualification may also come about by the order of the Court made under the Corporations Act on an application by ASIC. The circumstances in which that may happen are specified in ss 206C, 206D, 206E and 206EAA. They form the second group of provisions in Part 2D.6 leading to disqualification. Each of those sections requires the Court to be satisfied that disqualification under it is justified and also specifies the circumstances that must exist before it may disqualify a person from managing corporations. Except for s 206D, the length of any period of disqualification is the period the Court considers appropriate. Section 206D does the same but places an upper limit of 20 years on the period.
Under s 206C, the specific circumstances that must exist are that a declaration has been made under s 1317E (which is a civil penalty provision) that the person has contravened a corporation/scheme civil penalty provision or a declaration has been made under s 386-1 of the CATSI Act that the person has contravened a civil penalty provision within the meaning of that legislation. If so satisfied, the Court may disqualify the person for a period that the Court considers appropriate.
Section 206D also requires that, within the previous seven years, the person has been an officer of two or more corporations when they have failed and the Court is satisfied that the manner in which the corporation was managed was wholly or partly responsible for its failing. Section 206D(2) sets out the circumstances in which a “corporation fails”.
The additional circumstance prescribed by s 206E may arise in one of three ways. The first arises if the person has at least twice been an officer of a body corporate that has at least twice contravened the Corporations Act or the CATSI Act. The second comes about if the person him or herself has contravened one or the other of them at least twice while an officer of a body corporate. The third arises if the person has been an officer of a body corporate and has done something that would have contravened ss 180(1) or 181 if the body corporate had been a corporation.
Section 206EAA confers power on the Court to disqualify a person from managing corporations if the person is disqualified under the law of a foreign jurisdiction from, in broad terms, being a director or person involved in the management of a foreign company or carrying on activities substantially similar to being a director or person involved in that management.
Disqualification by ASIC
Section 206F sits on its own in the third of the groupings of the provisions of Part 2D.6 and I will set out its provisions more fully. Section 206F(1) provides that ASIC may:
“disqualify a person from managing corporations for up to 5 years if:
(a)within 7 years immediately before ASIC gives notice under paragraph (b)(i):
(i)the person has been an officer of 2 or more corporations; and
(ii)while the person was an officer, or within 12 months after the person ceased to be an officer of those corporations, each of the corporations was wound up and a liquidator lodged a report under subsection 533(1) (including that subsection as applied by section 526-35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 about the corporation’s inability to pay its debts; and
(b)ASIC has given the person:
(i)a notice in the prescribed form requiring them to demonstrate why they should not be disqualified; and
(ii)an opportunity to be heard on the question; and
(c)ASIC is satisfied that the disqualification is justified.”[48]
[48] The reference to “corporations” includes references to Aboriginal and Torres Strait Islander corporations: Corporations Act; s 206F(1A).
In determining whether disqualification is justified, ASIC:
“(a) must have regard to whether any of the corporations mentioned in subsection (1) were related to one another; and
(b)may have regard to:
(i)the person’s conduct in relation to the management, business or property of any corporation; and
(ii)whether the disqualification would be in the public interest; and
(iii)any other matters that ASIC considers appropriate.”[49]
[49] The reference to “corporations” includes references to Aboriginal and Torres Strait Islander corporations: Corporations Act; s 206F(2A).
If ASIC disqualifies a person from managing corporations under s 206F, it must serve a notice, which must be in the prescribed form, on the person advising him or her of the disqualification. That is the effect of s 206F(3). Under s 206F(4), the disqualification takes effect from the time when that notice is served on the person.
In Murdaca, the Full Court explained:
“Section 206F is an alternative to Court action by ASIC. It is meant to be a quick and cheap alternative to Court action. However, it cannot be utilised just because ASIC feels that it would like to take action against a particular individual. Certain preconditions for action must be satisfied. But, in the end, the merits consideration by ASIC is intended to take place only once in the process -- not at two stages. In a sense, the preconditions provided for in subpars (a) and (b) of s 206F(1) are jurisdictional requirements which must be satisfied before ASIC’s power to disqualify under s 206F is enlivened.”[50]
[50] [2009] FCAFC 92; (2009) 178 FCR 119; 258 ALR 223; 110 ALD 500; 73 ACSR 276 at [101(e)]; 144; 247; 522; 299
A PERSON WHO IS DISQUALIFIED FROM MANAGING CORPORATIONS MAY BE GIVEN PERMISSION OR LEAVE TO DO SO
Even if a person has been disqualified from managing corporations under Part 2D.6, ASIC may give him or her written permission to manage a particular corporation or corporations. The permission may be subject to conditions and exceptions determined by ASIC. Its power to give such permission is found in s 206F(5).
If the person was disqualified from managing corporations by ASIC, he or she may apply to the Court for leave to manage corporations, a particular class of corporations or a particular corporation.[51] He or she must lodge a notice in the prescribed form with ASIC at least 21 days before commencing the proceedings[52] and, if an order is made, must lodge a copy of that with ASIC within 14 days.[53] The order granting leave may be subject to conditions and exceptions as determined by the Court.[54] On application by ASIC, the Court may revoke the order.[55]
[51] Corporations Act; s 206G(1)
[52] Corporations Act; s 206G(2)
[53] Corporations Act; s 206G(4)
[54] Corporations Act; s 206G(3)
[55] Corporations Act; s 206G(5)
THE OFFENCE OF MANAGING A CORPORATION WHEN DISQUALIFIED
Section 206A(1) sets out the circumstances in which a person who is disqualified from managing corporations may commit an offence:
“A person who is disqualified from managing corporations under this Part commits an offence if:
(a)they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
(b)they exercise the capacity to affect significantly the corporation’s financial standing; or
(c)they communicate instructions or wishes (other than advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors of the corporation:
(i)knowing that the directors are accustomed to act in accordance with the person’s instructions or wishes; or
(ii)intending that the directors will act in accordance with those instructions or wishes.
Note:Under section 1274AA, ASIC is required to keep a record of persons disqualified from managing corporations.”
The first element of the offence or circumstances that must exist is that the person is a person who is disqualified from managing corporations. That is a circumstance to which strict liability is applied by s 206A(1A). What is meant by “strict liability” is the subject of s 6.1 of the Criminal Code Act 1995 (CC Act). As s 206(1A) applies to only one circumstance of the offence, and it is a “physical element”, s 6.1(2) is applicable. It provides:
“If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b)the defence of mistake of fact under section 9.2 is available in relation to that physical element.”
Applied in the context of s 206A of the Corporations Act, s 9.2 of the CC Act would permit the person to run a defence that he or she had acted with a mistaken but reasonable belief that he or she were not disqualified from managing corporations.
It is a defence to a contravention of s 206A(1) if the person had permission to manage the corporation under either ss 206F or 206G and their conduct was within the terms of that permission.[56] A defendant bears an evidential burden in relation to this defence because he or she wishes to rely on a defence provided by law.[57] The evidential burden is the burden of adducing or pointing[58] to evidence that suggests a reasonable possibility that he or she has acted within the terms of a permission given under either ss 206F or 206G.[59]
[56] Corporations Act; s 206A(1B)
[57] CC Act; s 13.3(3)
[58] That may be evidence adduced by the prosecution or by the court: Corporations Act; s 13.3(4)
[59] See Criminal Code Act 1995; s 13.3(6)
WHEN IS EVIDENCE GIVEN IN PROCEEDINGS IN THE TRIBUNAL IN RELATION TO DISQUALIFICATION ADMISSIBLE IN CRIMINAL PROCEEDINGS?
General principles
The Tribunal’s preliminary procedures are directed to ensuring that the parties are prepared to engage in settlement negotiations, whether in the context of its alternative dispute resolution processes or privately, or, if no settlement agreement is reached, to engage in a hearing of the application for review. The parties will have lodged various documents including Statements of Facts Issues and Contentions (SFIC) and documents, including affidavits and primary documents, that are intended to be evidence relevant to the issues to be decided. Generally, they will do so in accordance with a direction given in the particular proceeding or in accordance with the general directions given in the General Practice Direction made under s 18B of the AAT Act and dated 30 June 2015. Documents may have been produced by third parties after being served with a summons to do so. At the hearing, the parties may, or may not, tender documents that are of an evidentiary nature whether they have been lodged by the parties or summonsed. If they do and the Tribunal admits them into evidence, they will become part of the evidence just as the oral evidence given by witnesses becomes part of the evidence.
Where no order has been made under s 35(2) of the AAT Act and the matter has been heard in public, anybody, whether a party or not, can have access to the documents that were admitted in evidence and, if available, to a transcript of the hearing. Anybody can also have access to documents such as the application for review, the Statements of Facts, Issues and Contentions (SFICs), submissions, decisions on preliminary points and the final review, written reasons where they are given and any notice of appeal.[60]
[60] Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10; (1995) 128 ALR 391; Mason CJ, Brennan, Dawson and McHugh JJ; Toohey J dissenting at 32-33; 403 per Mason CJ with whom McHugh and Dawson JJ agreed
Access to documents that the Tribunal has required a party or the parties to lodge and to documents whose production has been compulsorily required under summons in relation to a particular proceeding in the Tribunal and the use that may be made of those documents outside that proceeding are two different things. In this regard, the Tribunal is no different from a court.[61] There are limits placed upon their use and they were delineated by the High Court in Hearne v Street[62] by Hayne, Heydon and Crennan JJ:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise …, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery …, answers to interrogatories …, documents produced on subpoena …, documents produced for the purposes of taxation of costs …, documents produced pursuant to a direction from an arbitrator …, documents seized pursuant to an Anton Piller order …, witness statements served pursuant to a judicial direction … and affidavits …”[63]
[61] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 147 ALR 322; 25 AAR 276; 48 ALD 222; Sundberg J
[62] [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609; Gleeson CJ, Kirby, Hayne, Heydon and Crennan JJ
[63] [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609 at [96]; 154-155; 632
In Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd,[64] Hill J adopted a description of the obligation from the judgment of Hobhouse J in the earlier case of Prudential Assurance Co v Fountain Page:[65]
“ This undertaking is implied whether the court expressly requires it or not … It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information. However, treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from.”[66]
[64] (1994) 53 FCR 125; 124 ALR 493 at 132; 501
[65] [1991] 3 All ER 878; 1 WLR 756
[66] [1991] 3 All ER 878; 1 WLR 756 at 885, 764
The legal obligation does not, however, stand in the way of inconsistent legal obligations. This was explained by the High Court in Esso Australia Resources Ltd v Plowman:
“ It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, e.g. discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.”[67]
[67] [1995] HCA 19; (1995) 183 CLR 10; (1995) 128 ALR 391 at 33; 403 per Mason CJ and see also 36-37; 406-407 per Brennan J
In summary and assuming that the Tribunal has not made an order under s 35(2) of the AAT Act, the transcript of oral evidence given and documentary or other evidentiary material that is admitted in evidence during a hearing held by the Tribunal to review a decision made by ASIC under s 206F is available to the public. It may be used by the parties or by others in other proceedings, including criminal proceedings, without the need to seek the Tribunal’s leave. In this regard, it is also important to note the point made by Senior Member Penglis in YFFM and Australian Securities and Investments Commission:[68]
“It is, of course, a trite proposition that the Evidence Act, 1995 (Cth) does not apply to proceedings before the Tribunal. Accordingly, section 128 of the Evidence Act, which is designed to protect the evidence given in proceedings to which the Act applies from being used against the person giving the evidence in subsequent criminal proceedings where the person would otherwise be able to invoke the privilege against self-incrimination, does not apply to evidence given in this Tribunal. I note that although similar provisions exist in at least some State equivalents of this Tribunal (see, for example, s68 of the State Administrative Appeals Tribunals Act, 2004 (WA), the AAT Act contains no such provision.”[69]
[68] [2009] AATA 489
[69] [2009] AATA 489 at [55] A person may, of course, claim the privilege against self-incrimination in the Tribunal proceedings as that privilege has not been abrogated by the AAT Act.
Documentary or other evidentiary material that has not been admitted in evidence by the Tribunal but has been produced to it either by the parties, when required by a direction or order of the Tribunal or by the AAT Act itself, or by third parties when given a summons issued by the Tribunal, may not be used without leave of the Tribunal. That latter material is subject to the Harman principle as explained by cases such as Hearne v Street.
Confidentiality order under section 35 of the AAT Act
Although I do not question ASIC has given its indication that it will not refer certain matters for criminal prosecution in good faith, I can understand that Mr Bolton may find that indication of small comfort. The essence of Dr Bender’s submissions is that Mr Bolton should find additional comfort in his right to claim privilege against self-incrimination. I have looked to that privilege with his submission in mind.
The privilege against self-incrimination is not a rule of evidence[70] but a “… basic and substantive common law right. … It operates so that a person cannot be compelled ‘to answer any question, or to produce any document or thing, if to do so “may tend to bring him into the peril and possibility of being convicted as a criminal”’ ….”.[71] As it is not a rule of evidence, it is not affected by the provision in s 33(1)(c) of the AAT Act, which provides that the Tribunal is not bound by the rules of evidence but may inform itself on a matter in a manner that it thinks appropriate. Should a person choose to exercise his privilege, “… it is impermissible to draw any adverse inference, because the drawing of an adverse inference necessarily assumes that the answer would incriminate. …”.[72]
[70] Baker v Campbell (1983) 153 CLR 52 at 127; 49 ALR 385 at 442-443; 57 ALJR 749 at 780 per Dawson J
[71] Reid v Howard (1995) 184 CLR 1 at 11; 131 ALR 609 at 616; 69 ALJR 863 at 868 per Toohey, Gaudron, McHugh and Gummow JJ citing Sorby v The Commonwealth (1983) 152 CLR 281 at 288; 46 ALR 237 at 241 ; 57 ALJR 248 at 251 per Gibbs CJ quoting Lamb v Munster (1882) 10 QBD 110 at 111
[72] Dolan and Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 at 215; 114 ALR 231 at 241; 31 ALD 510 at 520 per Spender J
The privilege means that the Tribunal cannot compel a person to answer any question that might be put to him if his answer might expose him to the possibility of being convicted of an offence. Whether or not a question will in fact expose a person to that possibility will have to be determined at the time of the hearing:
“The claim by the witness, although on oath, even if there be no doubt as to his credibility, is not sufficient. It must be shown to the Court, from the circumstances, and the nature of the testimony that is sought to be educed, that there is reasonable ground he may be implicated in some offence by his answer.”[73]
The possibility of a person’s being convicted may also change over time. Where, for example, “… the risk is removed by a pardon or by lapse of time, certainly if there be a statutory limitation upon proceedings, the privilege of the witness no longer remains.”[74]
[73] Brebner v Perry [1961] SASR 177 at 181 per Mayo J
[74] [1961] SASR 177 at 180-181 per Mayo J
Kirby P explained the relevant principles in Accident Insurance Holdings Ltd v McFadden:[75]
“7. It is for the presiding judicial officer to determine whether the objection taken is good and whether there are reasonable grounds for the belief on the part of the witness that he or she is, or may be, in peril of future criminal or like proceedings if the answer is given. Just as the court must protect the privilege, it must also make sure that the rule is not abused; but applied only where its invocation is justified: see Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 at 403. The proper procedure in a claim for privilege is to object to each question as it is asked: see Ex parte Reynolds (at 294); Brebner v Perry [1961] SASR 177 at 180. It is not proper to refuse to be sworn or to decline to answer any questions at all or to claim a global protection from the privilege. Such a refusal may amount to a contempt of court: see Smith v The Queen (1991) 25 NSWLR 1 at 9. Nevertheless, a point will be reached in questioning where it will be unnecessary to persist with an entire cross-examination which is clearly futile by reason of the invocation of the privilege against self-incrimination. To demand a tedious repetition of questions, rebuffed every time by a claim of privilege which is upheld, would be pointless;”[76]
[75] (1993) 31 NSWLR 412 (CA)
[76] (1993) 31 NSWLR 412 (CA) at 423
It may be that a person wants to traverse all evidentiary areas in this Tribunal without relying on the protection of the privilege against self-incrimination. Is it possible for a person to choose to waive the privilege in that limited circumstance but claim it in, say, a criminal proceeding or to quarantine the evidence given in the Tribunal? Kirby P touched on this aspect in Accident Insurance Holdings Ltd v McFadden but it is apparent from the passage that the question can only be answered when the facts surrounding waiver or an alleged waiver are known. His Honour said:
“8. The privilege against self-incrimination may be waived in certain circumstances. In this respect it accords with other privileges. This much is clear law: see, eg, J H Wigmore, Evidence in Trials at Common Law (1961) Boston, Little, Brown & Co, vol 8 at 453ff and BTR Engineering (at 727). The presence of a privileged document in the hands of a third party does not necessarily destroy the privilege. The question remains whether the party entitled to the privilege has actually waived it: see Kennedy v Lyell (1883) 23 Ch D 387; Trade Practices Commission v Sterling (1979) 36 FLR 244; Hartogen Energy Ltd (In Liq) v Australian Gaslight Co (1992) 109 ALR 177; cf Giannarelli v Wraith [No 2] (1991) 171 CLR 592 at 604. The extent of possible waiver is, however, disputed. The respondents asserted, with the support of Wigmore, that it was available in two cases only, being the two mentioned by that author, viz, by contract or other binding pledge before trial and by voluntarily testifying in the case. I do not consider that this states the common law of Australia. It is conceptually unsatisfactory. It appears to be inconsistent with the passage of Lord Barker LC in East India Co v Atkins (1719) 1 Str 168 at 176; 93 ER 452 at 457 where it was pointed out that what was involved is ‘only a privilege, not an actual right’. It also appears incompatible with reasoning of the High Court of Australia in analogous cases: see, eg, Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 480. Nevertheless, as with any waiver, it is necessary to define with some precision what is waived. It will be rare that a person is taken to have waived all rights and privileges in respect of any prosecution for any offence arising out of circumstances only generally defined. The point of difficulty will be presented by the definition of the subject matter of the waiver. This will require assessment of the reasonable interpretation to be placed upon the conduct of the witness said to amount to the waiver.”[77]
[77] (1993) 31 NSWLR 412 (CA) at 424
Mr Broadfoot submitted that I should make an order under s 35 of the AAT Act. That section begins with the statement that:
“Subject to this section, the hearing of a proceeding before the Tribunal must be in public.”[78]
[78] AAT Act; s 35(1)
Qualifications to that general requirement are found in ss 35(2) and (3). Section 35(2) permits the Tribunal to direct that a hearing, or part of a hearing, may be held in private and to give directions as to those persons who may be present. The words themselves suggest that a private hearing is a hearing that is “not open to … the general public. …”.[79] As Lockhart J described it in National Companies and Securities Commission v Bankers Trust Australia Ltd:[80]
“… The essence of a private hearing before the Commission is that what takes place is in private and, therefore, by definition and of necessity not open or accessible to the public.”[81]
[79] Chambers
[80] [1989] FCA 530; (1989) 24 FCR 217; 91 ALR 321; Lockhart, Beaumont and Einfeld JJ
[81] [1989] FCA 530; (1989) 24 FCR 217; 91 ALR 321 at 221; 325
The mere fact that a hearing is not open to the public does not automatically lead to the conclusion that what is said and done at that hearing cannot be spoken of publicly. This was addressed by the House of Lords in Scott v Scott[82] and in later cases such as Hodgson v Imperial Tobacco Ltd,[83] where Lord Woolf took the view that, even when there is a private hearing, the public continues to have the right to know and observe what happens in that private hearing and arrangements need to be made to accommodate that right. The issues were addressed by Mahoney JA in Australian cases such as Attorney-General (NSW) v Mayas Pty Ltd[84] where he summarised the relevant principles:
“ There are two basic principles affecting proceedings in courts. Stated broadly they are: that the hearing of proceedings in a court — and, I think, of criminal proceedings in particular — should be open to the public; and that what takes place in those proceedings may be the subject of a fair and accurate report and of appropriate discussion. These two principles, while they are related, are distinct, in their operation and their rationale.
These principles are, of course, not absolute. They are subject to qualifications. In particular, they are subject to, as I shall describe it, the Scott qualification … Over-simplified, the Scott qualification authorises the court to depart from these principles if it is necessary to do so in order that justice be done in accordance with law.
The Scott qualification, that is, the considerations on which it is based, can authorise both in camera and non-publication orders. Proceedings may be ordered to be held in private and some or all of the public excluded: this is what was in issue in the McPherson case. And it may prevent the publication of what took place: this was what was in issue in the Scott case. A nonpublication order may be made for the purpose of making effective the exclusion of the public: this was what was discussed, for example, by Earl Loreburn in the Scott case. But it may also be made for other reasons. Thus, where proceedings are not held in camera, a non-publication order may be made to protect an informer …Non-publication may, I think, be ordered in blackmail cases:... Non-publication orders may, in my opinion, be made where necessary in the interests of national security. …
As I have indicated, sometimes the making of a non-publication order is justified because otherwise an in camera order would be ineffective and the purposes for which it was made would not be achieved. It is, I think, obvious that in some cases this may be so. The extent of the restrictions imposed by an in camera order, as such, is not free from doubt. It might be thought that, at least in some cases, the reason why an in camera order can validly be made should lead the court to conclude that, by implication, the in camera order also restricts publication. But in England it has been said that an in camera order does not, as such, restrict the subsequent publication of what has taken place in the court: see the Scott case (at 483) and Halsbury’s Laws of England, 4th ed, vol 9, par 20(10) at 17. If this be so, then it would follow that in some but not all cases in which it is appropriate that an in camera order be made, the considerations which made the in camera order appropriate would justify the making of a non-publication order: see, eg, the Scott case (at 447, 451).”[85]
[82] [1913] AC 417; [1911-1913] All ER 1
[83] [1998] EWCA Civ 224; [1998] 2 All ER 673 at 686
[84] (1988) 14 NSWLR 342; Hope, Mahoney and McHugh JJA
[85] (1988) 14 NSWLR 342 at 345-346
These are but a handful of the authorities that consider the issue but they set out the fundamental principles. They are that:
(1)a private hearing, whether required by legislation or ordered by a court or tribunal with appropriate power:
(a)limits those who may attend the hearing;
(b)does not of itself impose any restrictions on the publication of the evidence given at, or material or information relating to that private hearing;
(2)a particular enactment may:
(a)specify the consequences of a private hearing;[86] and/or
[86] The Industry Research and Development Act 1986 (IRD Act) preserves the Tribunal’s discretionary power to give directions as to who may be present at the hearing and directions of a kind referred to in ss 35(3) and (4): IRD Act; s 30E(4)(b). An enactment such as the Taxation Administration Act 1953 (TA Act) provides for a private hearing and is prescriptive as to the consequences of a private hearing. Section 14ZZE provides that:(b)confer power, either expressly or implicitly, on the court or tribunal to make orders specifying the consequences;[87]
[87] The IRD Act does so expressly but an Act such as the TA Act does so implicitly for there is no reference to the Tribunal’s specific powers under s 35 of the AAT Act. Justice Emmett took this view in(3)a tribunal such as the Administrative Appeals Tribunal, whose power is conferred by statute:
(a)has no power to impose any restrictions on publication unless:
(i)the power to do so has been expressly, or by necessary implication, conferred upon it; and
(ii)it has exercised that power within the bounds upon which it has been conferred;
(4)the matters relevant to Parliament’s deciding that proceedings should be conducted in private in a court or tribunal’s ordering that they be conducted in private may not equate precisely or at all with the matters that are relevant to whether an order should be made restricting publication of those proceedings.[88]
[88] It is clear from the passage from Lord Loreburn’s speech in Scott v Scott that there are many reasons for a private hearing but not all of them would justify a non-publication order:
Section 35(4) provides that:
“The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a)relates to a proceeding; and
(b)is any of the following:
(i)information that comprises evidence or information about evidence;
(ii)information lodged or otherwise given to the Tribunal.”
Section 35(4) must be read with s 35(5) of the AAT Act. It provides:
“In considering whether to give directions under subsection … (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a)that hearings of proceedings before the Tribunal should be held in public; and
(b)that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c)that the contents of documents lodged with the Tribunal should be made available to all the parties.”
In addition to these grounds, I would also have regard to the case of Reid v Howard. [89] The facts are summarised in the headnote to the report:
“ Former clients of a chartered accountant, having learned that he was misappropriating funds, applied for orders in the Supreme Court of New South Wales compelling him to disclose information about certain assets. The accountant claimed privilege against self-incrimination. The Court of Appeal accepted the claim for privilege but made orders compelling disclosure upon conditions intended to protect the accountant from the risk of prosecution. The Crown was not a party to the making of the orders.”[90]
The orders were designed to limit disclosure of the information that the accountant was required to lodge in affidavit form and to keep it from prosecuting authorities. The orders could be varied only by leave of a Judge of the Equity Division of the Supreme Court of New South Wales.[91]
[89] (1995) 184 CLR 1; 131 ALR 609; 69 ALJR 863; Deane, Toohey, Gaudron, McHugh and Gummow JJ
[90] (1995) 184 CLR 1 at 1
[91] (1995) 184 CLR 1 at 9; 131 ALR 609 at 614; 69 ALJR 863 at 871 per Toohey, Gaudron, McHugh and Gummow JJ
In their judgment in Reid v Howard, Toohey, Gaudron, McHugh and Gummow JJ referred to the inherent powers of a superior court such as the Supreme Court of New South Wales or its powers under s 23 of the Supreme Court Act 1970 (NSW). Such powers cannot be restricted to defined and closed categories, they said. Equally, they cannot:
“… authorise the making of orders excusing compliance with obligations or preventing the exercise of authority deriving from statute. Thus, neither can be exercised to authorise non-compliance with a search warrant issued in the exercise of statutory power as, apparently, was intended in the present case. Nor, of course, can either be exercised to excuse compliance with a subpoena issued by the Federal Court which might occur if, for example, bankruptcy proceedings were brought against the appellant. There are other difficulties with the orders. What considerations are to be taken into account by a judge of the Equity Division in deciding, pursuant to orders 6 and 7, whether or not to grant leave to the respondents' solicitors to disclose the information contained in the affidavits? If there is to be no disclosure, are proceedings to be conducted behind closed doors even though such a course is allowed only in exceptional cases when that is necessary in the interests of justice? These considerations lead to the conclusion not merely that the privilege is not to be modified or abrogated in favour of some different protection by judicial decision, but that its modification or the substitution of some different protection can effectively be achieved only by legislation.
Moreover and of more importance, the inherent power and the jurisdiction conferred by s 23 of the Supreme Court Act are to be exercised only as necessary for the administration of justice. … it is inimical to the administration of justice for a civil court to compel self-incriminatory disclosures, while fashioning orders to prevent the use of the information thus obtained in a court vested with criminal jurisdiction with respect to the matters disclosed. Nor is justice served by the ad hoc modification or abrogation of a right of general application, particularly not one as fundamental and as important as the privilege against self-incrimination.”[92]
[92] Reid v Howard (1995) 184 CLR 1 at 16-17; 131 ALR 609 at 619-620; 69 ALJR 863 at 871
The Tribunal cannot require Mr Bolton to waive his right to claim privilege against self-incrimination. If Mr Bolton were to choose to waive his right, principles of the sought considered in Reid v Howard might be equally relevant. It could be said that, if he were to make that choice, the Tribunal may be in a better position to have all relevant evidence, whether incriminating him or not, on which to come to its decision. Whether the possibility that the Tribunal would be better informed should lead to a confidentiality order’s being made in relation to the evidence that he gives then becomes the question.
That outcome would be a reason to which the Tribunal would be required to have due regard as well as the three principles set out in s 35(5) of the AAT Act directed to public scrutiny of the Tribunal’s proceedings. It would be an outcome that would flow from Mr Bolton’s choice not to rely on a protection available to him by law in the form of the privilege against self-incrimination. Given that the protection is available in law, I have concluded that I should not use my powers under s 35 to make an order to protect from public disclosure evidence that Mr Bolton has the means to protect through his own action if he wishes. The possibility that I may be better informed does not outweigh the principles that the Tribunal’s hearings should be open and the evidence and documents received in evidence should be made available to the parties and to the public. I have referred to the use that may be made of the evidence and of the documents received in evidence above.
For these reasons, I refuse to make an order under s 35.
MAY THE TRIBUNAL CONTINUE PROCEEDINGS TO REVIEW A DISQUALIFICATION DECISION WHEN CRIMINAL PROCEEDINGS ARE ON FOOT?
I am not concerned with the situation I have posed in the heading but, it is a situation that gives context to the situation I do face i.e. whether, as a step in any decision I may make under s 206F, I am able to consider whether Mr Bolton has engaged in conduct that constitutes the commission of an offence under s 206A by managing a corporation while disqualified. The answer to the question I have posed is that the Tribunal should not proceed to undertake a review if to do so would be in contempt of court.
There is no provision in the AAT Act that specifically gives the Tribunal power to stay its proceedings but the power to do so is implicit in the provisions of the AAT Act and the function that Parliament requires the Tribunal to perform. Section 25(1)(a) provides that “An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment.” Once there is such an enactment, a person who is a person permitted by the enactment to make an application has a right or privilege to make that application. Section 25(4) confers power upon the Tribunal “… to review any decision in respect of which application is made to it under any enactment.” Implicit in its power to review decisions must be the power to decide whether it indeed has that power in any given situation.[93]
[93] Re Cilli's Objection (1970) 15 FLR 426 at 428 per Blackburn J; The King v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 618 per Dixon J; and Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242 per Brennan J
Also implicit in the power expressly given to the Tribunal to review a decision must be the power to take the steps that will enable it to do so in accordance with all of the provisions of the AAT Act and of the enactment conferring power and the common law requirements that it act with procedural fairness. As Dawson J said in Grassby v The Queen,[94] “… notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise …”.[95]
[94] (1989) 168 CLR 1; 87 ALR 618
[95] (1989) 168 CLR 1; 87 ALR 618 at 16, 628
In a civil proceeding in a court, “[p]rima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court”.[96] It is no different in the Tribunal. Both parties are entitled to have the decision reviewed in the ordinary course of the procedure and business of the Tribunal. Procedurally, there are a number of steps that the parties must take. As the Tribunal has a considerable number of applications at any one time, the Tribunal itself must take certain steps to ensure that all are considered and resolved in an orderly and fair fashion according to its resources and the applications themselves. Among the steps that the Tribunal must take is the step to hear the application and review the decision. It must decide when to take that step and when not to.
[96] Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19 per Sugerman ACJ approved in McMahon v Gould (1982) 1 ACLC 98; 7 ACLR 202 at 206 per Wootten J and in Cameron’s Unit Services Pty Ltd v Whelpton & Associates Pty Ltd and Anor (1984) 4 FCR 428; 59 ALR 754 at 431; 757 per Wilcox J
The Tribunal’s power to control its procedure is a source of the Tribunal’s power to stay a proceeding. Apart from its implicit power, it also has express power under s 33(1)(a) to give “directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal” and examples are found in s 33(2A). Whatever the source, it is a power that can be used to manage the course of the particular application having regard to its needs and to the needs of the parties who must gather probative material, locate witnesses and the like and who must prepare for an alternative dispute resolution process or for hearing. It is a power that can be used to manage the proceeding more broadly having regard to the impact of other proceedings instituted in other courts or tribunals and extends to a power to direct that an application not be listed for hearing.
When there are administrative proceedings for review of a decision in the Tribunal and proceedings in a court arising out of common factual circumstances, the relevant question to ask is whether continuing with the administrative proceedings would be in contempt of the court in which the other proceedings have been commenced or are continuing. This was raised by the Tribunal in Re Secretary, Department of Social Security and Pluta[97] when it observed that “… it may well be a contempt of court for the Tribunal to proceed” to review the Secretary’s decision to cancel her sole parent’s pension had criminal charges been laid against Mrs Pluta.[98] The reason why the Tribunal’s continuing its proceedings may be a contempt of court had been explained by the Tribunal’s second President, Davies J, in VT85/618, 619, 646-648 and Commissioner of Taxation.[99] Where the issue to be decided in criminal proceedings is precisely the same as that to be decided in the Tribunal’s proceedings, Davies J did not decide whether there would be contempt of court were the Tribunal to proceed but observed:
“… It is … strongly arguable that the investigation of that issue by this Tribunal, including the examination and cross-examination of witnesses and the production of documents, while the same issue is being considered in the committal proceedings, would be a contempt of court as prejudicing the committal proceedings and the subsequent conduct of the trial.”[100]
[97] (1991) 23 ALD 317, O’Connor J, President and Mr Horrigan and Mrs Pavlin, Members
[98] (1991) 23 ALD 317 at 319
[99] [1987] AATA 202; (1987) 18 ATR 3613; 12 ALD 102; 87 ATC 686
[100] [1987] AATA 202; (1987) 18 ATR 3613; 12 ALD 102; 87 ATC 686 at 3619; 106; 689
There is an exception to this general principle if the action that would otherwise be a contempt of court is action that has been expressly authorised by legislation. Care must be taken to ensure that the course of action is specifically authorised. In the case of Lockwood v Commonwealth[101] (Lockwood), Fullagar J considered the Royal Commission Act 1954 under which letters patent had been issued to the Petrov Commissioners to enquire and report on certain matters relating to acts of espionage in Australia and other acts prejudicial to the security or defence of Australia. The legislation set out the terms of reference for the inquiry. During the inquiry, proceedings had been instituted in the High Court alleging slander and libel in so far as the Senior Counsel assisting the Commission had spoken certain words in the course of the proceedings and concerned with Document J and Exhibit 46 in the Commission’s proceedings.
[101] (1954) 90 CLR 177
Hayne and Heydon JJ took the same approach as Kirby J saying:
“ Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent’s fitness to provide immigration assistance was to be assessed. Unlike some legislation providing for pension entitlements,[[139]] in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element. It follows that when the Tribunal reviews a decision made under s 303, the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision. …”[140]
[139] See, eg, Freeman v Secretary, Department of Social Services (1988) 19 FCR 342; 9 AAR 255
[140] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 at [101]; 315; 413; 369-370; 490; 1165
Kiefel J, with whom Crennan J agreed on this point, came to the same conclusion regarding the Tribunal’s ability to have regard to evidence of conduct subsequent to MARA’s decision. It could have regard to it in so far as it concerned the question under s 303(1)(f) as to Mr Shi’s integrity and fitness to continue as a registered migration agent.[141] Her Honour’s path to that conclusion is a little different at the outset but converges with it a little later. Like the majority, Kiefel J placed some emphasis on s 43(1) of the AAT Act. She began with the principles established by the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs[142] saying:
“ The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed.[143] To the contrary of the argument put by the respondent on this appeal, that the Tribunal’s exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it.[144] In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address.[145] Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal’s general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light.[146] It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.[147]
In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account.[148] A decision had been made to cancel Mrs Freeman’s widow’s pension. The definition of ‘widow’, in the Act providing for the pension, did not include a widow who was living with a man, as his de facto wife. That circumstance applied to Mrs Freeman at the time of the decision. That was sufficient to disentitle her from receipt of a pension. The statutory scheme was such that a pension, once cancelled on this ground, could only be reinstated on a further claim being made.[149] Subsequent to the cancellation decision Mrs Freeman’s circumstances changed, such that she again qualified for the pension. His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel was made. The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision.[150]
The situation in Freeman was distinguished by Davies J from cases where the matter to be determined is a person’s entitlement to a pension.[151] Where that was the decision to be reviewed the Tribunal might not be limited to facts existing at a particular time, since the entitlement might be a continuing one. His Honour did not suggest, by this comparison, that the ambit of the decision to be reviewed was to be determined by a general description of what the decision concerned – a grant or a cancellation of an entitlement. In each case what is entailed in a decision is to be ascertained by reference to the statute providing for it.
The question which here arose for the Authority under s 303(1), which it answered, was whether it should exercise its powers, under paras (a) to (c) of the sub-section, because the grounds in paras (h) and (f) were established, in particular because the appellant had breached the Code of Conduct. That part of the decision which comprises the finding, that the ground in para (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code. The appellant accepted as much in his submissions.
There is another restriction which operates with respect to the evidence the Tribunal may consider as to this ground. The effect of the restriction appears to have been assumed in argument. The Tribunal does not acquire all the powers of the Authority, but only those necessary to review the decision made by it.[152] The Authority’s decision concerned particular conduct of the appellant, which it had investigated. The Tribunal does not have all the Authority’s disciplinary powers, and does not have its investigatory powers for the purposes given by the Migration Act. The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct.”[153]
[141] Kiefel J dissented on the second issue i.e. whether the Tribunal had power to issue a caution to the migration agent.
[142] (1979) 46 FLR 409
[143] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 40 at 421-422 per[144] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429-430.
[145] Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; 16 AAR 566 at 575.
[146] See, eg, Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J; Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442 at 453; Jebb v Repatriation Commission (1988) 8 AAR 285 at 289-290; Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; 16 AAR 566 at 575; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; 20 AAR 10 at 20-21.
[147] Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; 20 AAR 10 at 20-21.
[148] Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345; 9 AAR 255 at 258.
[149] As Davies J observed: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345; 9 AAR 255 at 258.
[150] Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344; 9 AAR 255 at 258.
[151] Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345; 9 AAR 255 at 258.
[152] Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442 at 452.
[153] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 at [141]-[147]; 328; 424; 379-381; 501; 1173
It seems to me that the following principles can be drawn from these judgments:
(1)The application of the general principles is subject to the particular legislative context in which the decision under review was made and in which it is being reviewed.
(2)The decision that the Tribunal must review is determined by reference to the statutory provisions conferring jurisdiction on it:
(a)For example, the decision reviewed by the Tribunal may be only one of the decisions that the original decision-maker is required to make in resolving an application made to it.
(3)The Tribunal will address the same issues or questions as those addressed by the original decision-maker:
(a)It does not address the same decision and so does not characterise the decision as, for example, a cancellation decision or an entitlement decision and address those same issues or questions in light of that characterisation.[154]
(4)Unless there is a temporal element in the legislation requiring a contrary conclusion, the Tribunal will review a decision as at the date it conducts that review and reaches its own decision.
(5)The Tribunal may have regard to evidence on issues and matters up to the date of its decision on review; and
(6)The task of the Tribunal:
(a)is to reach a decision that is the correct or preferable decision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case; and
(b)is not to decide whether the decision under review is itself the correct or preferable decision.
[154] In this, the High Court has moved from the way in which the Tribunal’s task was identified by reference to the decision made by the original decision-maker in Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255 (Davies J); Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44 (Davies J, President, Senior Member Ballard and Dr Garlick, Member); Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329; 8 AAR 285 (Davies J); Re Easton and Repatriation Commission (1987) 12 ALD 777; 6 AAR 558 ; Re Easton and Repatriation Commission (1987) 12 ALD 777; 6 AAR 558 (Davies J).
Application of principles to review of decision made under section 206F
A. The AAT Act
The starting point is s 43(5A) of the AAT Act when it provides:
“Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.”
The qualification set out in 43(5B) allows the Tribunal to:
“… specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.”
It follows that the Tribunal may defer the date its decision comes into effect whether it has decided to affirm the decision under review, vary it or set it aside and make a decision in substitution for it or remit the matter to the decision-maker for reconsideration with any directions or recommendations of the Tribunal. Once the Tribunal’s decision on review has come into effect, s 43(6) serves two purposes: deeming the decision to be that of the person whose decision is under review and providing for when the Tribunal’s decision comes into effect. In serving both purposes, s 43(6) is concerned only with a decision made by the Tribunal varying the decision of that person or with a decision made by the Tribunal in substitution for that person’s decision. It is not concerned with a situation in which the Tribunal affirms the decision that is under review.
In so far as its deeming purpose is concerned and subject only to a qualification relating to appeals under s 44, s 43(6) provides:
“A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes … be deemed to be a decision of that person …”.
Turning to its purpose in determining date of effect, s 43(6) provides that the varied or substituted decision:
“… upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.”
An affirmation of the decision is not dealt with in s 43(6) but that follows from the nature of an affirmation. Unless the relevant enactment provides to the contrary, affirmation of the decision under review simply leaves that decision in place. It is the decision of which review was sought which remains operative rather than the affirmation itself.[155]
[155] Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347 at 139; 354; Davies J, President, Mr Cusack and Mr Prowse, Members
B. Sections 206A and 206F and Part 2D.6 of the Corporations Act
The next step is to look at s 206F itself and the provisions of Part 2D.6 and the Corporations Act generally. The provisions of ss 206F(1), (2) and (3) set out the circumstances in which ASIC may disqualify a person from managing corporations but do not expressly establish any time at which they must exist. That must be read with the provisions of ss 206F(3) and (4). They provide that ASIC must serve a notice on the person whom it has disqualified advising of the disqualification. The notice must be in the prescribed form.[156] The disqualification takes effect from the time when the notice is served.[157] Therefore, it must follow that, at the time that ASIC decided to disqualify a person under s 206F, it must have been satisfied that the criteria had been met and that it was satisfied that disqualification was justified.
[156] Form 587 of Schedule 2 to the Corporations Regulations 2001
[157] Corporations Act; s 206F(4)
The Tribunal does not look at whether the decision that ASIC made was justified but looks afresh at the decision and makes up its own mind on what the decision should be. As Kiefel J said in Shi, it must address the “… same question as the original decision-maker was required to address. … Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision.” The same question in this case is whether Mr Bolton should be disqualified under s 206F. It is true that the question identifies the facts to which I must have regard in deciding whether Mr Bolton should be disqualified just as it did for ASIC when it made the original decision. The parties may have more detailed evidence than ASIC had to consider and the evidence may be evidence that relates to a period following the disqualification decision. The evidence, however, is focused on the essential question and issues that were before the original decision-maker.
One of the issues that must be addressed is the requirement imposed by s 206F(2)(b) to have regard to the person’s conduct in relation to the management, business or property of “any corporation”, whether disqualification would be in the public interest and any other matters considered appropriate. This requirement is broad enough to draw in a person’s behaviour in between the time of the original decision and the Tribunal’s decision on review. Behaviour that would be regarded as contravening s 206A would be drawn in. Interpreting s 206F in this way is consistent with the regulatory regime of Part 2D.6 and consistent with the principle that, although a disqualification decision is in fact the imposition of a penalty on the person, it will also be imposed for protective purposes consistent with ASIC’s responsibility to:
“maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy …”[158]
[158] ASIC Act; s 1(2)(a)
One factor that makes this case a little different from others is that, by interpreting s 206F in this way, there is the possibility that the Tribunal could find that the person should not have been disqualified at the time that ASIC made its original decision but has contravened s 206A and should be disqualified for that reason alone. That outcome has the feeling that the disqualification decision is pulling itself up by its own bootstraps and gives me pause for thought. I have, therefore, tested it by reference to a hypothetical situation to determine whether it is the outcome that Parliament intended by putting into place the scheme of disqualification set out in Chapter 2D.6.
In my hypothetical scenario, I have assumed that a person, whom I will call “Sebastian”, is a person in Mr Bolton’s circumstances but I do not in any way suggest that the hypothetical outcome would be the outcome in his case. I simply do not know what the outcome in his case will be because I am yet to hear the evidence and submissions on substantive issues.
ASIC has decided to disqualify Sebastian under s 206F and I have not stayed the operation or implementation of that decision. His disqualification took effect on 6 October 2015 when it was served on him. If it should be the case that Sebastian has, since October 2015 and before the hearing of his application for review, behaved in a way that is contrary to s 206A, then he would have committed an offence because he was, at the time, disqualified from managing corporations. In this hypothetical example, I am assuming that ASIC’s disqualification decision is not infected by jurisdictional error for that would raise the possibility that it lacked legal effectiveness.[159]
[159] See, for example, the discussion in Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14; 163 LGERA 145; 106 ALD 232 at [33]-[35] and [156]-[173]; 26-27 and 47-50; 160 and 180-183;243 and 262-265 per Moore and Lander JJ; Tamberlin J dissenting
What if, at the end of the review process, I were to decide that Sebastian’s disqualification was not justified under s 206F at the time that it was made but am satisfied that he has been in breach of s 206A in the period between ASIC’s decision and my decision? The offence provided for in s 206A is predicated upon the person’s being disqualified from managing corporations. If I were to affirm the decision because of Sebastian’s later actions, the disqualification decision would continue to be in effect from the day it was served on Sebastian. That would be so even though I am satisfied in this hypothetical case that he should not have been disqualified under s 206F when ASIC made the decision.
Can Parliament have intended that Part 2D.6 would operate so that the Tribunal’s review processes can be used to justify ASIC’s decision to disqualify a person under s 206F by reference to events that were yet to occur when it made its decision? In my hypothetical example, can it have intended that I should affirm ASIC’s decision and so put myself in the position of saying that Sebastian’s disqualification was not justified at the time that ASIC made its decision but, because his behaviour at a later time justified his disqualification, he should be disqualified anyway. That outcome suggests unfairness. Why should Sebastian be disqualified in a period in which he should not have been because of what he did later?
The answer lies in the regulatory scheme. Section 206F(2) does not limit the conduct to which ASIC or I can have regard to the two or more corporations that bring him within s 206F(1). It is broadly framed and permits regard to be had to Sebastian’s conduct in relation to the management, business or property of any corporation as well as whether disqualification is in the public interest and any other matters considered appropriate. Even though I have found in this hypothetical situation that Sebastian should not have been disqualified when he was, he has acted contrary to the disqualification order that had been made and that was legally effective for the period leading up to my review.
It would undermine the regulatory scheme if Sebastian, however aggrieved by the disqualification and however wronged, could be allowed to ignore such an order without regard being had to his behaviour. The Corporations Act provides for review of ASIC’s decisions under s 206F, among others, and that is the proper course for Sebastian to have taken.
To set the decision aside on review and to substitute a decision that Sebastian is disqualified from a date that is consistent with the date when he is found to have first contravened s 206A, would have the effect of removing the foundation on which I have found that Sebastian has in fact been in contravention. That would follow from the fact that the substituted decision becomes ASIC’s decision by virtue of s 43(6) of the AAT Act. The outcome would be the same if I were to vary ASIC’s decision to achieve the same outcome.
In my hypothetical scenario, it seems to me that the only course would be open to me to affirm ASIC’s decision. That is the only course that would reflect the situation as it was in fact at the time that Sebastian acted as he did.
THE FINDINGS OF THE TAKEOVERS PANEL
On 30 May 2017, the Takeovers Panel made a Declaration of Unacceptable Circumstances under s 657A of the Corporations Act and in relation to the affairs of Molopo Energy Limited. It has prepared a report setting out its findings leading to its making the Declaration. In essence, the Declaration focused on Mr Bolton’s involvement, either alone or with another person, in the affairs of two other corporations and on the way in which that involvement gave rise to unacceptable circumstances in the affairs of Molopo Energy Limited. In the course of making that Declaration, the Takeovers Panel made various findings of fact which it recorded in its written reasons.
The matters on which the Takeovers Panel made findings of fact relate to events that occurred after the date of Mr Bolton’s disqualification. They reflect on his conduct in relation to corporations. For the reasons I have given above, his conduct in relation to those corporations may be taken into account in reviewing ASIC’s decision to disqualify Mr Bolton under s 206F even though that conduct occurred after the date of that decision.
What of the status of the Takeovers Panel’s findings? Am I required to have regard to them or am I bound by them in considering Mr Bolton’s conduct in relation to Molopo Energy Limited and other corporations? The answer to that question lies, I think, in s 658B of the Corporations Act. It provides:
“(1) A finding of fact recorded in an order by the Panel, or a written statement of the reasons for an order of the Panel, is proof of the fact in the absence of evidence to the contrary.
(2)A certificate signed by the President of the Panel that states a finding of fact made in proceeding before the Panel is proof of the fact in the absence of evidence to the contrary.”
As I understand matters, the President of the Takeovers Panel has not issued a certificate of the sort referred to in s 658B(2). The Declaration that the Takeovers Panel made in relation to Molopo Energy Limited is not an order. Orders that the Takeovers Panel may make are set out in s 657D(2) of the Corporations Act. The orders the Takeovers Panel did make in in Molopo Energy Limited 01 & 02 are set out in Annexure C to its Reasons for Decision in. Section 658B(1) applies to findings of fact recorded in the orders themselves or in the statement of reasons for an order of the Panel. Section 658B(1) is expressed in terms that do not limit its application in any way. Therefore, it would seem to be equally applicable to proceedings in the Tribunal as in a court. In each instance, the finding of fact only stands as proof of the fact in the absence of evidence to the contrary. The interaction between s 658B(1) and evidence led in a particular proceeding in a court was considered by Beach J in Australian Securities and Investments Commission v Mariner Corporation Limited[160] (Mariner Corporation):
“… ASIC sought to invoke s 658B (1) and to tender various parts of the Panel’s determination and reasons, which were said to constitute findings of fact, as proof of such facts in the absence of evidence to the contrary. I allowed paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15 and 76 to be so tendered. I have treated such paragraphs accordingly, but they have little value. Detailed evidence was adduced on all matters covered by such findings. The findings had less weight than the detailed evidence.”[161]
[160] [2015] FCA 589
[161] [2015] FCA 589 at [412]
Care must also be taken in ensuring that a statement relating to a factual issue is a finding of fact and not a statement of opinion or even of the evidence. Again in Mariner Corporation, Beach J considered this issue:
“ASIC also sought to rely upon the ‘findings’ in [63], [64] (first sentence) and [68(a) and (b)]. I ruled that they were not ‘findings of fact’ within the meaning of s 658B (1). They used the language ‘we are not satisfied that’ ([63]), ‘it would have appeared’ ([64]) and ‘it appears to us that...’. I accept that [63] begins with ‘[a]lthough the finding is a grave one’. It seems to me that what was really being asserted was the Panel’s evaluative secondary opinions. In any event, even if these paragraphs had been admitted, they would not have taken ASIC far. The evidence in any event was that Mariner did not have detailed or binding commitments ([63]). Further, [68(a)] is focused on an objective test. Further, and in any event, such an evaluative judgment carries little weight, given the detailed evidence before me and the evaluative judgment that I have to make on the evidence.”[162]
[162] [2015] FCA 589 at [414]
At this stage, I am unable to determine what, if any, findings of fact have been made by the Takeovers Panel in Molopo Energy Limited 01 & 02 because it is a matter on which I need to give the parties an opportunity to make submissions.
DECISION
For the reasons I have given, I have decided that, in reviewing ASIC’s decision made under s 206F of the Corporations Act 2001 on 6 October 2015 to disqualify Mr Bolton from managing corporations for a period of three years, I may:
(a)in so far as it is relevant, consider Mr Bolton’s conduct up to the date of the decision made on review;
(b)as a step in the process of reviewing the respondent’s decision under s 206F, I may consider whether Mr Bolton’s conduct is consistent with the law and do so on the basis of the civil standard of proof regardless of whether any inconsistency with the law might be the subject of criminal charges; and
(c)have regard to any findings of fact made by the Takeovers Panel in its order made under s 657D(2) of the Corporations Act 2001 or in its written statement of the reasons for its order on the basis that those findings are, in the absence of proof to the contrary, proof of the fact by virtue of s 658B(1).
Again for reasons I have given, I have refused Mr Bolton’s request for an order under s 35 of the Administrative Appeals Tribunal Act 1975.
| I certify that the preceding one hundred and thirty seven [137] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
.................[sgd].................................................
Associate
Dated: 24 April 2018
Date of hearing: | 1 and 28 March 2018 |
| Counsel for the Applicant: Solicitor for the Applicant: Counsel for the Respondent Solicitor for the Respondent | Mr Andrew Broadfoot QC with Ms Brooke Hutchins Ms Naomita Royan Dr Philip Bender with Dr Adrian Hoel Ms Judith Birch Australian Securities and Investments Commission |
Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ
Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ
“A person becomes disqualified from managing Aboriginal and Torres Strait Islander corporations if the person:
(a) is convicted on indictment of an offence that:
(i)concerns the making, or participation in making, of decisions that affect the whole or a substantial part of the business of the corporation; or
(ii)concerns an act that has the capacity to affect significantly the financial standing of an Aboriginal or Torres Strait Islander corporation; or
(b) is convicted of an offence that:
(i)is a contravention of this Act and is punishable by imprisonment for a period greater than 12 months; or
(ii)involves dishonesty and is punishable by imprisonment for at least 3 months; or
(c)is convicted of an offence against the law of a foreign country that is punishable by imprisonment for a period greater than 12 months.
The offences covered by paragraph (a) and subparagraph (b)(ii) include offences against the law of a foreign country.”
“Despite section 35 of the AAT Act, the hearing of a proceeding before the Tribunal, other than the Small Taxation Claims Tribunal, for:
(a) a review of a reviewable objection decision; or
(b) a review of an extension of time refusal decision; or
(c) an AAT extension application;
is to be in private if the party who made the application requests that it be in private.”
The consequence is specified in s 14ZZJ. It provides that s 43 of the AAT Act is to be read as if it included ss 43(2C), (2D) and (2E). Their effect is that the fact that a hearing of a proceeding is conducted in private does not prevent the Tribunal from publishing its reasons for decision but it must ensure, as far as practicable, that its reasons are framed so as not to be likely to enable the identification of the person who applied for review.
in Brown v Commissioner of Taxation [2001] FCA 276; (2001) 47 ATR 143 at 145-146 when he said that: “... it would be a most unusual case where the tribunal, if asked, did not give directions that are contemplated by s 35(2) in a proceeding to which s 14ZZE applies. The tribunal is empowered to give directions for any reason, where it is satisfied that it is desirable to do so. Where a party exercised the right, under s 14ZZE, to have a hearing in private, that would be a very cogent reason for the tribunal to make an order under s 35(2)(b).”
“ It has been held that when the subject-matter of the action would be destroyed by a hearing in open Court, as in a case of some secret process of manufacture, the doors may be closed. I think this may be justified upon wider ground. Farwell LJ aptly cites Lord Eldon as saying, in a case of quite a different kind, that he dispensed with the presence of some of the parties ‘in order to do all that can be done for the purposes of justice rather than hold that no justice shall subsist among the persons who may have entered into these contracts.’ An aggrieved person, entitled to protection against one man who had stolen his secret, would not ask for it on the terms that the secret was to be communicated to all the world. There would be in effect a denial of justice.
Again, the Court may be closed or cleared if such a precaution is necessary for the administration of justice. Tumult or disorder, or the just apprehension of it, would certainly justify the exclusion of all from whom such interruption is expected, and, if discrimination is impracticable, the exclusion of the public in general. Or witnesses may be ordered to withdraw, lest they trim their evidence by hearing the evidence of others. Or, to use the language of Fletcher Moulton LJ, in very exceptional cases … where a judge finds a portion of the trial is rendered impracticable by the presence of the public, he may exclude them so far as to enable the trial to proceed. It would be impossible to enumerate or anticipate all possible contingencies, but in all cases where the public has been excluded with admitted propriety the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it in the hands of the Court.” [1913] AC 417; [1911-1913] All ER 1 at 445-446; 3-14
Lord Woolf has discussed the issues more recently in Hodgson v Imperial Tobacco Ltd [1998] EWCA Civ 224; [1998] 2 All ER 673 at 686. He said that a hearing in private may contribute:
“... to the administration of justice. They allow issues to be determined informally and expeditiously. They allow less strict rules as to representation to apply. They allow matters to be discussed which the parties might not wish to discuss in open court. They encourage openness. They are less intimidating to litigants which is particularly important in the case of the small claims jurisdiction ...”
Bowen CJ and Deane J; at 429-430 per Smithers J; and see Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325 at 336 per Deane J.
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