Macleod v Australian Securities and Investments Commission

The High Court of Australia considered an appeal by the Australian Securities and Investments Commission (ASIC) against an order of the Full Court of the Supreme Court of Western Australia. The dispute concerned the competency of ASIC to appeal to the Full Court against a single judge's decision that had set aside Mr Macleod's conviction on one count of an offence under the *Corporations (Western Australia) Act 1990* (WA). ASIC's right to appeal was predicated on the attraction of federal jurisdiction under s 75(iii) of the Constitution due to ASIC being a party to the proceedings.

The central legal issues before the High Court were whether ASIC was empowered to appeal to the Full Court of Western Australia against the single judge's order, and whether s 79 of the *Judiciary Act 1903* (Cth) incorporated s 206A(2) of the *Justices Act 1902* (WA) into federal law for this purpose. This involved determining whether the *Australian Securities Commission Act 1989* (Cth) "otherwise provided" for the purposes of s 79 of the *Judiciary Act*, thereby excluding the operation of the State legislation.

The High Court reasoned that while ASIC had been a party to the appeal before the single judge, its subsequent attempt to appeal to the Full Court was not a continuation of the original prosecution, which had concluded with the magistrate's orders. The Court held that the *Australian Securities Commission Act* did not grant ASIC the power to institute and conduct such an appeal. Consequently, s 79 of the *Judiciary Act* did not "pick up" s 206A(2) of the *Justices Act* because the Commonwealth legislation provided otherwise.

The High Court allowed ASIC's appeal, setting aside the orders of the Full Court of Western Australia and dismissing ASIC's appeal to that court with costs. The title of the respondent was also amended to read "Australian Securities and Investments Commission".