Frugtniet v Australian Securities and Investments Commission

The High Court of Australia considered an appeal by Mr Frugtniet against a decision of the Full Court of the Federal Court of Australia. The dispute concerned whether the Administrative Appeals Tribunal (AAT) was entitled to consider "spent convictions" when reviewing a decision by the Australian Securities and Investments Commission (ASIC) to issue a banning order. ASIC itself was prohibited from considering these spent convictions under section 80(2) of the National Consumer Credit Protection Act 2009 (Cth), due to Part VIIC of the Crimes Act 1914 (Cth) which governs spent convictions.

The central legal issue before the High Court was whether section 85ZZH(c) of the Crimes Act, which states that Division 3 of Part VIIC does not apply to Commonwealth tribunals, permitted the AAT to consider spent convictions on merits review, even though ASIC was prohibited from doing so in its original decision-making. The question was whether the AAT, in exercising its review powers, could take into account information that the original decision-maker was statutorily barred from considering.

The High Court, in allowing the appeal, reasoned that Parliament did not intend to fundamentally alter the nature of merits review by the AAT through the operation of section 85ZZH(c). The Court held that the prohibition on ASIC considering spent convictions under section 80(2) of the National Consumer Credit Protection Act was not overcome by section 85ZZH(c) in the context of an AAT review. Therefore, the AAT was not entitled to take into consideration the spent convictions when reviewing ASIC's decision.

The High Court ordered that the appeal be allowed, setting aside the orders of the Federal Court and remitting the matter to the Administrative Appeals Tribunal for reconsideration in accordance with the law. The respondent, ASIC, was ordered to pay the appellant's costs.