RKTF and Australian Securities & Investments Commission

The Administrative Appeals Tribunal (AAT) considered an application by RKTF for a stay of a decision made by the Australian Securities and Investments Commission (ASIC). The dispute concerned the implementation and operation of a banning order issued by ASIC under section 920A of the *Corporations Act 2001* (Cth), including ASIC's duty to publish the decision in the Government Gazette and record it in relevant registers, as well as the possibility of an informal media release.

The primary legal issue before the Tribunal was whether it was desirable to grant a stay of ASIC's banning order, or part of it, pursuant to section 41(2) of the *Administrative Appeals Tribunal Act 1975* (Cth). This required the Tribunal to consider the interests of any persons who might be affected by the review, including the applicant, and to determine if such an order was appropriate for securing the effectiveness of the hearing and determination of the application for review. The Tribunal also considered an application for a confidentiality order.

The Tribunal noted that the starting point under section 41(1) of the *AAT Act* is that an application for review does not affect the operation or implementation of the decision under review. The Tribunal's power to grant a stay under section 41(2) is discretionary and contingent on it being desirable after considering the interests of affected persons. In this instance, the applicant, a financial adviser since 2001 and sole shareholder of his corporate advisory business, argued that the banning order would lead to the cancellation of his membership with the Association of Financial Advisers and significantly impact his business operations. He also highlighted his unblemished record. The Tribunal considered the consequences to the applicant, the public interest, and the balance struck by the legislature in enacting the relevant provisions.

The Tribunal refused the application for a stay of the decision under review and also refused the application for a confidentiality order.