Hermes and O’Brien and Australian Securities & Investments Commission

The applicants, Hermes and O’Brien, sought review of a decision by the Australian Securities and Investments Commission (ASIC) not to direct the Australian Financial Complaints Authority (AFCA) to conduct a systemic issue investigation into the conduct of Bankwest and the Commonwealth Bank of Australia (CBA) concerning commercial borrowers. The Administrative Appeals Tribunal (AAT) was required to determine whether it had jurisdiction to review ASIC's decision.

The central legal issue before the Tribunal was whether ASIC's decision not to issue a direction to AFCA under section 1052C(1) of the *Corporations Act 2001* (Cth) was a reviewable decision by the AAT. The applicants contended that ASIC had erred in its decision-making process and that the AAT had jurisdiction to review this decision, arguing that ASIC had failed to properly consider their complaints and had misled them regarding their review rights.

The Tribunal found that it lacked jurisdiction to review ASIC's decision. It reasoned that ASIC's role in this context was one of oversight, and that the decision to conduct a systemic issue investigation rested with AFCA as an independent external dispute resolution scheme. The Tribunal noted that ASIC had no role in individual complaints handling and would not intervene in AFCA's decision-making processes. Consequently, ASIC's refusal to direct AFCA was not considered a reviewable decision by the AAT.

The application was therefore dismissed pursuant to section 42A(4) of the *Administrative Appeals Tribunal Act 1975* (Cth) for want of jurisdiction. The applicants did not have standing to seek a review of ASIC's decision in the Tribunal.