Peter Hanlon and and Australian Securities & Investments Commission Assistant Treasurer JOINED PARTY

[2015] AATA 1019

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2014/5299
Taxation and Commercial Division            )

Re: Peter Hanlon
Applicant

And: Assistant Treasurer
Respondent

And: Australian Securities & Investments Commission
Other Party

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2015/1521
Taxation and Commercial Division            )

Re: Peter Hanlon
Applicant

And: Australian Securities & Investments Commission
Respondent

And: Assistant Treasurer
Other Party

DIRECTION

TRIBUNAL:              Egon Fice, Senior Member

DATE:   8 January 2016

PLACE:                    Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the written statement of reasons for the decision in this application as follows:

1. At paragraph 2 of the decision, delete the words Mr Peter Hanlon may be described as a sports journalist. He has a particular interest in cricket.

..........................[sgd].........................................

Egon Fice, Senior Member

[2015] AATA 1019

Division	TAXATION & COMMERCIAL DIVISION
File Number	2014/5299
Re	Peter Hanlon
APPLICANT
And	Assistant Treasurer
RESPONDENT
And	Australian Securities & Investments Commission
JOINED PARTY
File Number	2015/1521
Re	Peter Hanlon
APPLICANT
And	Australian Securities & Investments Commission
RESPONDENT
And	Assistant Treasurer
JOINED PARTY

Decision

Tribunal	Egon Fice, Senior Member
Date	23 December 2015
Place	Melbourne

The decisions under review are affirmed.

...............................[sgd].........................................

Egon Fice, Senior Member

Catchwords

BUSINESS NAME REGISTRATION – availability of business name for registration – proposed business name of ‘Pommiebasher’ – unavailability of business name from being of a kind that is undesirable – undesirability due to offensiveness – ‘Pommiebasher’ offensive when devoid of sporting or historical context – ‘Pommiebasher’ likely to be offensive to public or section of public – exercise of Ministerial discretion to make business name available for registration – no basis to exercise discretion – decisions under review affirmed

Legislation

Acts Interpretation Act 1901 (Cth) s 15AA

Business Names Registration Act 2011 (Cth) ss 16, 18 – 20, 24, 25, 27, 57, 58, 80

Business Names Registration (Availability of Names) Determination 2012 (Cth) s 8

Legislative Instruments Act 2003 (Cth) s 13

Trade Marks Act 1995 (Cth) s 42

Cases

Boughey v The Queen (1986) 161 CLR 10

Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389

Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876 (17 August 2010)

Poignand v NZI Securities Australia Ltd (1992) 37 FCR 363

St George Bank Ltd v Federal Commissioner of Taxation (2009) 176 FCR 424

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367

Secondary Materials

Little, William, H W Fowler and Jessie Coulson, The Shorter Oxford English Dictionary (Oxford University Press, 3^rd revised ed, 1983)

Macquarie Dictionary Online <

Moore, Bruce (ed), The Australian Concise Oxford Dictionary (Oxford University Press,
3^rd ed, 1997)

Wiktionary, Pommie-basher (20 November 2013) <

REASONS FOR DECISION

Egon Fice, Senior Member 

23 December 2015

1. There are two applications for review before me which have been brought by Mr Hanlon in his capacity as trustee of the Peter Hanlon Memorial Trust.  The Respondent in the first matter (2014/5299) is the Assistant Treasurer, although the decision was made by the Minister for Finance in his capacity as acting Assistant Treasurer.  The Australian Securities and Investments Commission (ASIC) was joined to that application as a party.  In the second proceeding (2015/1521), ASIC is the respondent and the Assistant Treasurer has been joined as a party.  The reasons for these two applications being brought in the form that they have will become apparent presently.

2. Mr Peter Hanlon may be described as a sports journalist.  He has a particular interest in cricket.  On 15 December 2013 Mr Hanlon, in his capacity as trustee for the Peter Hanlon Memorial Trust, lodged an application with ASIC seeking to register the business name Pommiebasher.  In a letter dated 19 December 2013 ASIC informed Mr Hanlon that it refused to register the business name Pommiebasher because it considered that name to be undesirable.  It was undesirable because it considered it to be offensive. 

3. On 6 January 2014 Mr Hanlon requested the Minister or his delegate make the name available for registration under s. 27(2) of the Business Names Registration Act 2011 (the Act) even though the name was of an undesirable kind for the purposes of the Act.

4. In a letter dated 3 March 2014 ASIC notified Mr Hanlon that an ASIC member or staff member acting as delegate of the Minister under s. 80 of the Act had determined to refuse consent to the proposed business name being available to be registered. Dissatisfied with that decision, Mr Hanlon applied to the Minister for review of the delegate’s decision pursuant to s. 57(2) of the Act. On 3 July 2014, the Minister affirmed the delegate’s decision to refuse to make the name available to Mr Hanlon under s. 27(2) of the Act.

5. Section 58(1) of the Act provides that an application may be made to the AAT for review of a decision made or taken to have been made by ASIC or the Minister under section 57.  Mr Hanlon lodged an application with the AAT seeking review of the Minister’s decision on 13 October 2014 (matter number 2014/5299).  On 12 January 2015 the AAT ordered that ASIC be made a party to that proceeding.

6. The second application to the AAT arises from ASIC’s refusal to register Pommiebasher as a business name.  Section 57(1) of the Act provides that if a reviewable decision is made by ASIC other than as a delegate of the Minister (as is a refusal to register a business name), the applicant may lodge an application with ASIC seeking an internal review of the decision.  Mr Hanlon sought internal review of that decision by ASIC and in a letter dated 25 March 2015, ASIC informed him that it affirmed the original decision to refuse to register the proposed business name, Pommiebasher.

7. Mr Hanlon then lodged an application with the AAT on 1 April 2015 seeking review of the ASIC internal review decision in accordance with s. 58(1) of the Act (matter 2015/1521).  On 20 May 2015 the AAT joined the Assistant Treasurer as a party to the second proceeding.

8. The issues I am required to determine are:

   (a)whether or not the name Pommiebasher is of a kind that is undesirable because it is likely to be offensive to members of the public or members of any section of the public; and

   (b)if the name Pommiebasher is of a kind that is undesirable, whether or not the Minister’s decision made under s. 27(2) of the Act was the preferable decision.

   The stated objects of business name registration

9. Division 5 of the Act deals with the objects of the Act and consequences of registration.  Relevantly, the objects of the Act as set out in s. 16 as follows:

   (1)  The objects of this Act are:

   (a)to ensure that if an entity carries on a business under a business name, those who engage or propose to engage with that business can identify the entity and how the entity may be contacted; and

   (b)to remove the inconvenience caused by the registration of business names under the law of more than one jurisdiction within Australia.

   (2)…

   (3) The objects of this Act are also:

   (a)to avoid confusion by ensuring that business names that are identical or nearly identical are not registered; and

   (b)to ensure that business names that are undesirable (for example, because they are offensive) are not registered; and

   (c)to ensure that business names that should be restricted for any other reason (for example, because they might mislead consumers) are not registered.

   (4) The objects mentioned in subsection (3) are achieved by rules dealing with the availability of business names.

10. Essentially, ASIC must register a business name to an entity if it is satisfied that the matters set out in s. 24(1) of the Act are satisfied.  Relevantly, it provides:

    (1)  ASIC must register the business name to the entity if ASIC is satisfied that:

    (a)…

    (b)…

    (c)the name is available to the entity; and…

11. A business name is available to an entity in the circumstances set out in s. 25 of the Act.  Relevantly, it provides (emphasis in original):

    A business name is available to an entity if:

    (a)…

    (i)     …

    (d)either:

    (i)     the name is not of a kind that is undesirable; or

    (ii)    the name is of a kind that is undesirable but the Minister has determined under subsection 27 (2) that the name is available to the entity; and…

12. Section 27 of the Act deals with undesirable names.  Relevantly, it provides:

    (1)The Minister may, by legislative instrument, determine the kinds of name that are undesirable for the purposes of this Act.

    (2)The Minister may determine in writing that a business name specified in the determination is to be available to an entity specified in the determination, even though the name is of a kind that is undesirable.

    (3)A determination under subsection (2) is not a legislative instrument.

13. The relevant legislative instrument in this case appears to be the Business Names Registration (Availability of Names) Determination 2012 (the Business Names Registration Determination) which came into effect on 28 May 2012. Part 3 deals with the kinds of name which are undesirable. Relevantly, s. 8 sets out the following characteristics to be considered:

    (1)A business name is undesirable if the name has one or more of the characteristics in the table.

    ItemCharacteristic

    1In the opinion of ASIC, it is likely to be offensive to:

    (a)     members of the public; or

    (b)     members of any section of the public…

    Statutory construction

14. The phrase in the opinion of ASIC, it is likely to be offensive to… set out in s. 8 of the Business Names Registration Determination must be construed according to the principles applied to any legislation. This is explained in s. 13 of the Legislative Instruments Act 2003           in the following way:

    13 Construction of legislative instruments

    (1)  If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears:

    (a)the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and

    (b)expressions used in any legislative instrument so made have the same meaning as in the enabling legislation as in force from time to time; and

    (c)any legislative instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the rule-maker.     

15. Relevantly, I must be mindful of the provisions set out in section 15AA of the Acts Interpretation Act 1901.  It provides:

    In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

16. In this case, I am particularly concerned with the words likely and offensive.  Neither of those words are defined in the legislative instrument and therefore they must be given their ordinary meaning having regard to the context in which they appear in that document.  Furthermore, I am mindful of what the High Court of Australia (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) said in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389. The Court said this about dealing with individual words in a phrase, at 396 – 397:

    The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question.  In R v Brown (31), a recent House of Lords decision, Lord Hoffmann said:

    “The fallacy in the Crown’s argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence… This is not the way language works.  The unit of communication by means of language is the sentence and not the parts of which it is composed.  The significance of individual words is affected by other words and the syntax of the whole.”

17. More recently, the correct approach to the statutory construction of a phrase was dealt with by the Full Court of the Federal Court of Australia (Emmett, Stone and Perram JJ) in St George Bank Ltd v Federal Commissioner of Taxation (2009) 176 FCR 424 where Stone J said, at 431:

    The long-standing tension in the construction of statutes (and other legal documents) between giving words their “literal” meaning and construing them in the context of the document in which they appear is well-known.  However, this way of articulating the problem is somewhat misleading.  While words may have a stand-alone meaning or meanings which may be found in a dictionary, generally oral or verbal communication does not proceed by way of individual words but by language; by words used in conjunction with one another to express propositions or sentiments or otherwise communicate meaning.  The task of a court in construing a statute is to construe the language of the statute, not the individual words.

18. I should also heed the caution expressed by Rares J in Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876 (17 August 2010) where he said, at [38]:

    The meaning of a word used in ordinary speech or writing is a question of fact.  Dictionaries provide a useful and often important source or aid from which the answer to that question of fact can be determined.  However, it is not legitimate to defer to one particular usage in one dictionary as the only meaning for a word.

19. The starting point of this analysis necessarily needs to be examination of dictionary definitions of the words in question, having regard to the context in which they appear in the legislative instrument.  The word likely is defined as follows in the Macquarie Dictionary Online:

    1.probably or apparently going or destined (to do, be, etc.): likely to happen.    

    2.seeming like truth, fact, or certainty, or reasonably to be believed or expected; probable: a likely story.

20. The Shorter Oxford English Dictionary defines the word likely in the following relevant way (p. 1213):

    2.Having an appearance of truth or fact; seeming as if it would happen, or prove to be as stated; probable

21. The courts have also made a number of statements about the meaning of the word likely. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979)

    
    

    27 ALR 367, a trade practices case, the Full Court of the Federal Court (Bowen CJ, Evatt and Deane JJ) was required to determine whether certain conduct had the likely effect of causing substantial loss or damage. Deane J said, at 382:

    The conclusion which I have reached is that, in the context of s 45D(1), the preferable view is that the word ‘likely’ is not synonymous with “more likely than not” and that if relevant conduct is engaged in for the purposes of causing loss or damage to the business of the relevant corporation, it will suffice, for the purposes of the sub-section, if that conduct is, in the circumstances, such that there is a real chance or possibility that it will, if pursued, cause such loss or damage.

22. The Tillmanns Butcheries case was referred to by the High Court of Australia in

    
    Boughey v The Queen

    (1986) 161 CLR 10. Gibbs CJ said, at 14:

    It is trite to say that the meaning of a word will be influenced by the context in which it appears. In my opinion the word ‘likely’ in ss. 156 and 157 of the Criminal Code Act means ‘probable’ and not ‘possible’. That is its natural meaning.

23. However, Mason, Wilson and Deane JJ said, when referring to Tillmanns Butcheries,

    
    

    at 21:

    In our view, the word ‘likely’ is used in both ss. 156(2)(a) and 157(1) with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial – a “real and not remote” – chance regardless of whether it is less or more than 50 per cent…

24. In an interlocutory decision dealing with the Trade Practices Act 1974, the Federal Court of Australia (Gummow J) in Poignand v NZI Securities Australia Ltd (1992) 37 FCR 363 said, at 371:

    The phrase ‘likely to’ is susceptible of various meanings, and takes its colour from the statutory context.  It may indicate a degree of contingency falling short of probability.…

    As matters stand on the present motion, I accept the submission by the applicant that there is a real chance or possibility that the unit holders are likely to suffer loss or damage by the conduct complained of against the respondents.  It may be that some lesser degree of contingency will suffice for s 87(1A) and for s 45D.  But that is a question for another day.

25. In my opinion, in the context in which the word likely appears in the Business Names Registration Determination, it should be given the meaning which conveys the notion of a substantial and a real, not remote, chance that members of the public or members of a section of the public would be offended if the name in question were registered.  That is because, when dealing with words which may cause offence, it seems logical to accept a lesser degree of certainty particularly as it may apply to a section of members of the public.

26. Perhaps more difficult is the meaning which should be attributed to the word offensive.  The Macquarie Dictionary Online relevantly defines the word offensive as:

    1.    causing offence or displeasure; irritating; highly annoying.

    …

    3.    Repugnant to the moral sense, good taste, or the like; insulting.

27. The Shorter Oxford English Dictionary defines offensive in the following way (p. 1439):

    2.  Hurtful, injurious.

    3.    Giving, or of a nature to give, offence; displeasing; annoying; insulting.

28. Although I was referred to a number of cases in which the word offensive was addressed, most of those deal with criminal matters which, in my opinion, are unhelpful in this particular case.  As for other AAT cases which have dealt with the use of offensive words, they have, essentially, been determined in the context of the particular case before the Tribunal.  I do not find them helpful.  As I trust will become apparent presently, it is the context in which the expression Pommiebasher is intended to be used by Mr Hanlon which gives rise to his claim that it is not offensive or, if I consider it is likely to offend, then the Minister’s discretion should be exercised so that the expression becomes available.

    The meaning conveyed by the expression pommiebasher

29. A glance at the accepted dictionaries makes it clear that there is no such word as Pommiebasher.  It is a colloquial expression.  Furthermore, it is plainly an expression derived from two words; the word pom or pommy (sometimes spelt pommie), and the word basher.  Although Mr Hanlon was critical of ASIC for its analysis of the expression Pommiebasher essentially by disaggregation of the two words used, the expression itself can only be understood from an understanding of the two words involved.  Nevertheless, I agree with Mr Hanlon that it is the expression which must be considered in determining whether it is offensive.  Moreover, it needs to be examined in light of the purpose which it is intended to serve as a registered business name. 

1. I should point out that an online dictionary calling itself Wiktionary does refer to
   Pommy-basher as a noun and defines it as:

   1.    Someone who habitually criticizes England or English people.

2. The Macquarie Dictionary Online defines the word Pom as:

   noun Colloquial (sometimes derogatory, racist) (also lower case) a person who is resident in or has migrated from the British Isles, especially England:…

   …

   Usage: Historically a mild put-down for a newly-arrived British immigrant, this term became merely a colloquialism for ‘English’ or ‘British’, used informally in contexts that might be affectionate, pejorative, or neutral, depending on the intent of the speaker.  However, the use of Pom or Pommy as a label has come to be seen by some people as racist and derogatory in line with the increased sensitivity to all forms of stereotyping.

3. The Shorter Oxford English Dictionary defines pommy as (p. 1626): Australian.  1916.  [Of unkn.  Origin.]  A newcomer from ‘the old country’. The Australian Concise Oxford Dictionary (3^rd ed) defines pommy as (p. 1041): Aust. colloq.  a British (esp. English) person, esp. a recent immigrant to Australia.

4. While the word bash is often understood in the sense to strike bluntly or heavily (The Australian Concise Oxford Dictionary, p. 104), it is also defined as: criticise strongly; denigrate; abuse.

5. The sense in which the word Pommiebasher is understood by Mr Hanlon, particularly because of his interest in sporting competitions (cricket and rugby) between England and Australia, is a person who habitually strongly criticises or denigrates the members of, predominantly, the English cricket team and also, possibly, their rugby team. 

6. The problem for Mr Hanlon is that the expression Pommiebasher may, as is described in the Macquarie Dictionary Online when referring to the word Pom, be used in a context which is affectionate, pejorative or neutral.  It depends on the intention which the speaker wishes to convey.  Hence, it may be readily accepted, particularly amongst most cricket followers, that the expression is used with affectionate intent in a sporting context.  However, it will not always be seen in that way.  It is not unknown for serious racial tensions to arise out of sporting events (for example between English and European football teams).  Even in cricket, there has been fairly recent criticism of what is commonly described as sledging.  Even though sledging may not be intended in a racist way, it has not been unusual for the object of the sledging to see it as racist.  In any event, the question in this case needs to be answered in the context of a registered business name.

   Pommiebasher as a registered business name

7. The registration of an entity’s business name is a serious matter and is a requirement for entities intending to conduct business in Australia.  Registration serves the purposes of the objects set out in s. 16 of the Act.  One of those objects is to ensure that names which are undesirable are not registered.  It is an offence under the Act to carry on a business under a name which is not registered to that entity (s. 18).  An entity must include its business name on communications in writing with another entity (s. 19).  It is required to display its business name at places which are open to the public (s. 20).

8. Although Mr Hanlon pointed out that Pommiebasher has been accepted by the Registrar of Trade Marks in respect of clothing, footwear, headgear, beers, mineral and aerated waters and other non-alcoholic drinks, fruit juices and fruit drinks, those products are readily associated with sporting events.  The same cannot be said of a registered business name.  That has a much wider audience application and particularly exposure to persons who are not necessarily followers of cricket or rugby, or who do not understand the way in which the colloquial expression is frequently used. 

9. The second point of distinction regarding trademarks is the basis upon which an application for a trademark may be rejected.  Section 42 of the Trade Marks Act 1995 provides:

   An application for the registration of a trade mark must be rejected if:

   (a)the trade mark contains or consists of scandalous matter; or

   (b)its use would be contrary to law.

10. In a legal sense, scandalous is often used in the way described by The Shorter Oxford English Dictionary: Of a statement, etc.: Not pertinent to the case, irrelevant.  It is usually described as material used to discredit a particular person or party to litigation although not being relevant to the matters in that particular case.  In a general sense, the dictionary defines scandalous as (p. 1896):

    1.Of the nature of or causing an occasion of offence; also, bringing discredit on one’s class or position.

11. Plainly, causing an offence can be referred to as scandalous even though that may not be a common alternative expression.  However, it is offensive because it does not address a relevant aspect of the trademark sought to be registered.  It seems to me that whatever rationale is applied to a trademark registration application when determining whether or not it is scandalous, it is in a different context to that which is involved in the registration of a business name.  Similarly, the fact that the word Pommiebasher is regularly used in media reports does not necessarily give rise to its suitability as a registered business name.  That is because media reports frequently describe the context in which the phrase is being used whereas a registered business name remains devoid of any context.  The business conducted under a registered business name may change, without a new name being registered.  Hence, if the desirability of registering a business name is considered only in the context of a sporting event, that would plainly not satisfy the legislative requirements.  One needs to look much wider than that.

12. Also important as far as a registered business name is concerned is that it must not be likely to be offensive to members of the public or the members of any section of the public.  Given that there are likely to be many people who are followers of cricket and who would not find the expression Pommiebasher offensive, it is reasonable to conclude that it is not likely to be offensive to all members of the public.  However, the test extends also to members of any section of the public.

13. I had in evidence an affidavit from Ms Judith Birch, a public servant employed by ASIC.  Attached to her affidavit were a number of documents including media releases from the Advertising Standards Bureau.  In the release dated 24 January 2007, the Advertising Standards Board highlighted the difference between good-humoured and derogatory advertising by banning an advertisement which portrayed Poms as whingers.  The Board had previously dismissed complaints about the use of the word Pom in other advertisements determining that the word in isolation was generally acceptable as a term with affectionate overtones. However, the negative words used in the advertisement in the case in question detracted from that nature leaving it with a derogatory and almost hostile meaning.  In fact, in its determination, the Board said:

    This time the Board felt that the negative words used in the radio ad detracted from the otherwise playful nature of ‘Pom’, leaving it with a derogatory and almost hostile meaning… the Board noted that its [the radio ad] content did not carry the context of the Ashes cricket series, nor the traditional sporting rivalry between Australia and England.

14. With respect to what Mr Hanlon has said particularly about the word Pom, the addition of any derogatory term in conjunction with that word can change its nature from being affectionate to becoming derogatory.  In a media release dated 20 December 2006 the Board found that the word Pom was part of the Australian vernacular, largely used in playful and often affectionate terms.  It was not ordinarily used in a way to vilify or incite racial hostility towards people of British extraction particularly when considered in the context of cricketing tradition and the affectionate rivalry between the two countries.  However, as is demonstrated by the first media release, it doesn’t take very much, even when the context in which the word is used is known, for an affectionate colloquial expression to become something which is offensive.

15. I also had in evidence an extract from The Australian National Dictionary Centre, an organisation jointly funded by Oxford University Press Australia and The Australian National University where the expression Pom was examined.  It stated the following:

    At the Centre we are often pressured by external groups to alter our labelling of the words pom and pommy.  We label them simply as colloquial and do not add the labels derogatory or offensive.  Of course, it is possible that the words might be used offensively or in a derogatory way, but they can also be used in a good-humoured and even affectionate way.  Cricket authorities have recently had to decide on their attitude towards the terms in the context of a clampdown on racial abuse at cricket matches.  Newspaper reports at the end of September indicated that the authorities had referred or deferred to a 1997 ruling by the Human Rights and Equal Opportunity Commission (HREOC).  As reported by the newspapers, Cricket Australia was advised that ‘pom was not hurtful when used in isolation, but said using the word with others could be deemed racist’.  Although it was not stated explicitly, most took this to mean that pommy bastard or whingeing pom might get you into trouble at the cricket.

16. I had in evidence a number of media articles which referred to a group of English migrants in Perth who describe themselves as the British People Against Racial Discrimination.  They are members of a section of the public, albeit small, consisting of some 14 West Australians and 12 Victorian members, who consider the expression Pom as being derogatory and offensive.

17. It should be apparent from the material to which I referred above that there is evidence that the word Pom when combined with a derogatory word can be offensive to members of a section of the public.  That is particularly so where the expression is used outside the context of cricket or another sporting event.  That of course is always the case with a registered business name.  Using Pommiebasher as a registered business name does not convey any insight into the entity’s business.  For that reason, it is very different to use that expression in a media article about a cricket match between England and Australia.  Devoid of the cricketing or sporting context, I find that the expression Pommiebasher is likely to be offensive to members of a section of the public. It follows I find that its use as a registered business name is undesirable. That leaves me to determine whether the Minister’s decision made under s. 27(2) of the Act was the preferable decision.

    Should Pommiebasher be registered even though the name is of a kind that is undesirable

18. Section 27(2) of the Act grants to the Minister an unfettered discretion to allow a business name to be registered irrespective of the fact that the Minister, by legislative instrument, has determined that it is undesirable. However, the fact that the discretion is unfettered does not mean that there are no boundaries in the exercise of that discretion. A discretion granted under a statutory provision must be exercised in accordance with the law, or in plain language, consistent with the intention expressed by the provision in question in its context in an Act.

19. In other words, the Minister, although accepting that a proposed business name is undesirable because it is offensive to members of the public or members of a section of the public, may nevertheless form the view that registration should be granted.  Ordinarily, one would expect that discretion to be exercised on the basis of evidence and submissions made by an applicant for registration.

20. I should point out that the Treasury Executive Minute given to the Minister for his guidance in relation to a decision under s. 27(2) of the Act is inaccurate. Regardless, it does not affect the decision made by the Minister.

21. Section 27(2) must be read in conjunction with subsection (1). Subsection (1) provides that the Minister may, by legislative instrument, determine the kinds of names that are undesirable for the purposes of the Act. Therefore, the Minister’s discretion applies only to a business name of the kind specified in the legislative instrument or, as it is stated in subsection (2), the determination. In this case, it applies to a business name which, in the opinion of ASIC, is likely to be offensive to members of the public or members of any section of the public. Plainly, the Minister does not review ASIC’s decision that the proposed business name is undesirable because it is considered to be offensive to members of the public or a section of the public.

22. The Minister takes that to be an accepted fact and determines whether, despite ASIC’s finding that the proposed business name is undesirable, he should exercise the discretion conferred on him by s. 27(2) and allow the proposed business name to be registered. In exercising his discretion under s. 27(2) the Minister is not substituting his decision for that of ASIC. It is not about an applicant providing sufficient cogent evidence to the Minister to warrant an overturning of ASIC’s decision. It is about an applicant, by evidence and submissions, convincing the Minister to exercise his discretion to allow registration despite the undesirable nature of the proposed business name.

23. I hasten to add that in conducting a review of the Minister’s decision pursuant to s. 58 of the Act, I am not concerned with the reasons given by the Minister for arriving at his decision.  A review before this Tribunal is a de novo hearing on the merits. Given the discretionary power contained in s. 27(2), I am simply required to determine whether the decision made by the Minister was the preferable decision based on the evidence which was before me on the hearing of this matter. However, it is clear to me that Mr Hanlon has proceeded with a review of the Minister’s discretionary decision on the wrong basis.

24. Essentially, the only evidence I had from Mr Hanlon was that which he provided to ASIC on his application for registration and subsequent internal review of the original decision.  That material focused on whether the expression Pommiebasher was likely to cause offence.  As I have already said, this review (matter 2014/5299) is not about whether the expression is offensive, but rather, despite being undesirable because it is likely to offend, the Minister should make it available for registration.

25. Perhaps I should draw the inference that what Mr Hanlon is aggrieved about is that the expression Pommiebasher has not been met with open disapproval when used in reporting sporting events.  He described the expression as being used by the English about Australians who enjoy taking down English sporting prowess.  Even if I were correct about that, it would not form a sound basis for the exercise of the Minister’s discretion.  That is because, as I explained in the ASIC decision, a registered business name is something which is put before the public at large without any context.  Devoid of context, it is difficult to find a reason why the Minister would exercise the discretion to make the name Pommiebasher available for registration. With respect to Mr Hanlon, he has not provided me with any material which, standing in the shoes of the Minister for the purposes of this review, provide me with any sound basis for the exercise of the discretion provided for in s. 27(2).

    Conclusion

26. I have found, on the evidence put before me on hearing this matter, that the name which Mr Hanlon wishes to register as a business name is undesirable because it is likely to be offensive to a section of the public.  It follows that I must find that the decision made by ASIC on 25 March 2015 was the correct decision.  I affirm that decision.

27. Although Mr Hanlon appears to have treated his application to the Minister as a review of ASIC’s decision to refuse to register the business name Pommiebasher, and it appears to have been treated in that way by the Minister, the Minister’s decision was said to have been made pursuant to s. 27(2) of the Act. That was not a review of the decision made by ASIC that the proposed business name Pommiebasher was likely to be offensive to a section of the public but rather, it was a determination by the Minister as to whether he should exercise his discretion and make the name available irrespective of the fact that it was undesirable. 

28. In conducting a review of a decision, the Tribunal is not concerned with the reasons given by the original decision maker in arriving at the decision.  It is simply required to determine whether the decision was the correct or preferable decision having regard to the evidence which was before it on the hearing of the matter.  Having considered the evidentiary material, I have found that the decision made by the Minister conveyed in his letter dated 3 July 2014 was the correct decision.  I affirm that decision.

I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

..............................[sgd]..........................................

Associate

Dated 23 December 2015

Date of hearing	26 October 2015
Applicant	In person
Counsel for the Assistant Treasurer	Mr S Rebikoff
Solicitors for the Assistant Treasurer	Australian Government Solicitor
Counsel for ASIC	Mr R Knowles
Solicitors for ASIC	Australian Securities & Investments Commission