Dibben and Australian Securities and Investments Commission
[2001] AATA 812
•6 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 812
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/758
GENERAL ADMINISTRATIVE DIVISION )
Re CRAIG DIBBEN
Applicant
And AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date6 September 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/758
)
GENERAL ADMINISTRATIVE DIVISION )
Re CRAIG DIBBEN
Applicant
AndAUSTRALIAN SECURITIES AND INVESTMENT COMMISSION
Respondent
DIRECTION
Tribunal : Senior Member M D Allen
Date : 6 September 2001
Place : Sydney
Direction: UPON hearing John Swan, the representative of the Applicant and Mr Lynch, Counsel for the Respondent, I DIRECT:-
THAT the Tribunal does have jurisdiction in the matter of this application for review.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - whether refusal by Respondent to remove Applicant's name from register was a decision capable of review by Tribunal.
Corporations Law – s1274 and s1274A
Administrative Appeals Tribunal Act 1975 – subss3(3)
N. MacDonald Pty Ltd v Hamence 1 FCR 45
Deputy Commissioner of Patents v Board of Control of Michigan Technological University 28 ALR 551
Chapmans Ltd v Australian Stock Exchange Ltd 137 ALR 433
Director-General of Social Services v Hales 78 FLR 373
Australian National University v Burns 43 ALR 25
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 6 September 2001
Date of Decision 6 September 2001Representative for Applicant Mr John Swan
Solicitor for Respondent Ms Sue Williams, Australian Securities and
Investments Commission
DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/758
MR D. ALLEN, SENIOR MEMBER
CONFIDENTIAL and AUSTRALIAN SECURITIES
AND INVESTMENTS COMMISSION
SYDNEY, THURSDAY, 6 SEPTEMBER 2001
MR ALLEN: In this matter the applicant made a request to the Australian Securities and Investments Commission to delete his name from a register kept by that body. The register is one of banned and disqualified persons and the applicant's request is summed up in a letter dated 15 January 2001 written by the barrister acting for the applicant, the relevant passage of that letter reads:
On behalf of Mr C.R. Dibben I write to express his deep concern of the fact that ASIC has been publishing certain information on its web page under the heading Registers of Banned and Disqualified Persons. Under the further subheading of Banned Securities Representatives you show his name, address and starting and ceasing date.
The letter continued:
This publication is misleading to say the least and you are requested to remove it.
Now, at the outset let me say that it seems to me that the publication is not so much misleading as it shows a state of facts which do exist, namely that the applicant was for a period banned as operating as a securities representative.
The respondent declined to take any action and as a result of that refusal to take action the applicant sought review by this Tribunal. The actual application for review refers to the decision as being ASIC's refusal to cease publishing the name of Craig Robert Dibben. When it says publishing I take it to mean not only that the particularised information occurs on the web page of the Australian Securities and Investment Commission but also is contained in a register maintained by the said Commission.
At the outset let me say having regard to the provisions of section 1274A of the corporations law and I can see no bases upon which the respondent's publication of its register on a website can in any way be challenged by the applicant. Taken at its most fundamental it seems that what the applicant is challenging is the entry in the
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register maintained by the respondent which shows that he at one period was disqualified.
Section 25 of the Administrative Appeals Tribunal Act 1975 states inter alia that an enactment may provide that application may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment.
Decision is further defined in subsection (3) of section 3 of the AAT Act and in particular subsection (3) it is said:
A reference in this Act or decision includes a reference to (g) doing or refusing to do any other act or thing.
It seems to me that the refusal to remove the applicant's name and details from the register is a decision. However, the respondent argues that any decision if such there be is not one made under an enactment. So far as corporations law is concerned section 1317B says:
Subject to this part applications may be made to the Tribunal for review of the decision made under this law by B, the Commission.
Meaning of course the Australian Securities and Investment Commission.
Subsection (1) of section 1274 of the said Act then reads:
The Commission shall subject to this law keep such registers as it considers necessary in such form as it thinks fit.
The question of whether a decision has or has not been made under an enactment was discussed by the Full Court of the Federal Court in Chapmans Ltd v Australian Stock Exchange Ltd, 137ALR 433. At page 440 the court said:
There decision will be a decision made under an enactment where that decision is one made in pursuance of or under the authority of a relevant enactment.
As the judgments of Bowen CJ, Lockhart J in Australian National University v Burns points out:
The difficulty lies not in understanding the meaning of the words under an enactment but rather in applying the word under to particular circumstances.
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The court then continue:
For the decision to be properly characterised as one made under a relevant enactment the decision will need to be one which the statute requires or authorises. Australian Broadcasting Tribunal v Bond.
An example of a decision required by a statute was given in N. MacDonald Pty Ltd v Hamence 1FCR 45. His Honour Neeves J said:
There are many activities in the ordinary course of administrating the affairs of government that may be carried on independently of any statutory provision expressly or impliedly authorising the particular activity. One may put to one side for present purposes the need for parliamentary appropriation of funds to meet any necessary expenditure. I do not doubt that the activities of the Canberra Tourist Bureau in publishing periodically a list of accommodation facilities in Canberra and making the necessary decisions as to what information such publications should contain are activities which do not require express or implied statutory authority.
That does not mean however the term decision should be construed narrowly as was said by his Honour Lockhart J in Director General Social Security v Hales 78FLR 373. Decision was a word of indefinite and wide meaning and that it must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope for review by the Administrative Appeals Tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the Administrative Appeals Tribunal and the manifold and diverse circumstances which attract the power of the decision-maker all call for a liberal approach to the definition of the word decision.
His Honour's remarks in that case found resonance also in the decision of his Honour Smithers J sitting as a member of the Full Court of the Federal Court in Deputy Commissioner of Patents v Board of Control of Michigan Technological University, 28ALR 551 at 560/561.
After reference to Collector of Customs New South Wales v Brian Lawlor Automotive Pty Ltd 24ALR 307 his Honour went on to say:
As I said in Lawler's case at page 335, there is a distinction between the decision and action taken upon it. It is the decision itself which is the important thing. Whether right or wrong it may have serious results for the citizen. Such serious
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results may follow from the decision not to exercise
power or that a power does not exist just as they may follow from a decision made in the purported exercise of a power which does not exist.
It is important because of this that it is with actual administrative decisions that the AAT Act is concerned.
As was said by Bowen CJ in Lawlor's case at page 317:
As I have said in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was a power to make the decision was right or wrong.
His Honour continued:
It was also pointed out by Bowen CJ in Lawlor's case that it would be unsound to adopt an interpretation of section 25 of the AAT Act which would restrict reviewable decisions under the Act to those only which constitute a legally effective exercise of powers conferred by an enactment.
He said:
The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal free of technicalities against that decision on questions of fact and law.
In this matter subsection (1) of section 1274 of the corporations law says that:
The Commission shall keep such registers as it considers necessary in such form as it thinks fit.
It seems to me that when a subsection refers to the form in which the registers are to be kept it not only means the physical keeping of them but also the information which occurs in those registers.
The applicant wishes to challenge that and I take into account, as submitted by Mr Lynch, that in effect the challenge is to the form of the register. That is to say to the decisions by the Commission as
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other hand that may be a very cogent reason why the decision under review should be affirmed.
Keeping the two matters separate, that is to say the strength of the applicant's case as opposed to the jurisdiction of this Tribunal to entertain it, it seems to me that the respondent by refusing to delete material in its register referring to the applicant has using the reference by his Honour Lockhart J in Hales supra that decision is a word of indifferent and wide meaning, made a decision under the enactment, namely the enactment which enables it to maintain the register, and therefore this Tribunal does have jurisdiction.
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