Rogers and Australian Securities and Investments Commission

This matter concerned an application for a stay of a decision made by the Australian Securities and Investments Commission (ASIC) to cancel Mr Rogers' registration as a relevant provider and prohibit him from re-registration for two years. The application was heard by Senior Member G Lazanas of the Administrative Appeals Tribunal (AAT).

The legal issues before the Tribunal were whether the discretion under s 41(2) of the AAT Act was enlivened to grant a stay, and if so, whether a stay was desirable for the purpose of securing the effectiveness of the hearing of Mr Rogers' application for review. The Tribunal was required to consider factors including the applicant no longer providing financial services involving scoped advice, the financial consequences for Mr Rogers, and public interest considerations, particularly in light of a significant portion of the ban period potentially passing before the hearing.

The Tribunal reasoned that the discretion to grant a stay was enlivened. While acknowledging ASIC's submission that public interest considerations, including the deterrent effect of banning orders, favoured refusing a stay, the Tribunal also considered arguments regarding the public interest in the accessibility and affordability of financial advice, and the government's encouragement of scoped advice. The Tribunal noted that a significant portion of the ban would have passed before the substantive review, which weighed in favour of granting a stay to ensure the effectiveness of the hearing. The Tribunal also considered ASIC's intention to introduce additional client files not before the original decision-maker, which Mr Rogers' counsel argued was impermissible.

The Tribunal granted the application for a stay of the ASIC decision. The stay was conditional upon Mr Rogers not providing scoped advice for the duration of the stay. The Tribunal indicated that the question of jurisdiction, concerning the admissibility of the additional client files, would be determined separately.