Burnell and Australian Securities and Investments Commission

The Administrative Appeals Tribunal considered a decision by the Australian Securities and Investments Commission (ASIC) to ban Ms. Burnell from providing financial services. The dispute arose from Ms. Burnell's involvement with companies that arranged insurance contracts without holding an Australian Financial Services Licence (AFSL) and without being appointed as authorised representatives of AFSL holders. ASIC's decision was based on the belief that Ms. Burnell was likely to contravene, or become involved in contraventions of, financial services laws.

The Tribunal was required to determine whether the conditions for making a banning order under section 920A(1) of the Corporations Act 1989 (Cth) were satisfied. Specifically, the Tribunal needed to assess whether Ms. Burnell's actions, and those of her companies, constituted a contravention of financial services laws and whether there was reason to believe she would likely contravene such laws in the future. The Tribunal also had to consider the appropriate scope and duration of any banning order, taking into account Ms. Burnell's prior banning and subsequent conduct.

The Tribunal found that Ms. Burnell's companies had indeed contravened the Corporations Act by arranging insurance without the necessary AFSL or authorisation. It rejected Ms. Burnell's defence that her companies acted as authorised representatives, noting that such authorisation must be in writing and that her argument was circular. Given the multiple breaches by her companies, with her involvement, and her defence of the conduct, the Tribunal concluded there was reason to believe she would continue to contravene financial services laws. Consequently, the conditions under section 920A(1)(h) were satisfied, making a banning order appropriate.

In light of Ms. Burnell's prior banning, her repeat offending behaviour through multiple companies after emerging from the first ban, her involvement in misleading and deceptive conduct, and her stance on the permissibility of acting without formal authorisation, the Tribunal determined that a permanent ban from all financial services activities was the appropriate order. The Tribunal also addressed Ms. Burnell's request for a non-publication order, affirming the default position of public publication of ASIC's banning decisions, consistent with the importance of a fully informed market and ASIC's statutory obligations.