McLean and Australian Securities and Investments Commission

This matter concerned an appeal by Mr McLean against a banning order issued by the Australian Securities and Investments Commission (ASIC). The dispute arose from Mr McLean's involvement in transactions concerning MINI warrants, which ASIC alleged constituted market manipulation. The decision was made by Deputy President B W Rayment of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the banning order against Mr McLean was justified, and if so, what its appropriate duration should be. This involved considering whether Mr McLean's conduct amounted to market manipulation, specifically the setting of an artificial price for MINI warrants with the purpose of transferring profit or loss, and whether the market for these warrants reflected genuine forces of supply and demand. The Tribunal also had to weigh the public interest considerations against the circumstances of Mr McLean's involvement and the potential hardship a banning order might cause.

Deputy President Rayment acknowledged several mitigating factors in Mr McLean's favour, including that no actual loss was suffered, that he was directed to execute the transactions in a particular manner, that the primary responsibility lay with another individual, and the potential hardship a banning order would impose. However, the Tribunal was satisfied that, in light of ASIC's submissions regarding the public interest in protecting the public, deterring similar conduct, and maintaining investor confidence, a banning order was the preferable decision. The Tribunal affirmed the reviewable decision, ordering that the banning order would remain in effect for three years from the date of publication.