Rogers and Australian Securities and Investments Commission

The Administrative Appeals Tribunal (AAT) considered a preliminary issue concerning its jurisdiction in a review proceeding between Mr. Rogers and the Australian Securities and Investments Commission (ASIC). The dispute arose from ASIC's inclusion of "Additional Client Files" in its Statement of Facts, Issues and Contentions, which Mr. Rogers argued were outside the Tribunal's jurisdiction as they had not been considered by the original decision-maker, the Financial Services and Credit Panel (FSCP).

The legal issue before the Tribunal was whether it had the jurisdiction to consider these Additional Client Files, which pre-dated the reviewable decision but were not before the FSCP when it made its determination to cancel Mr. Rogers' registration as a "relevant provider" and prohibit his re-registration. Mr. Rogers contended that these files constituted "post-decision allegations" and were therefore beyond the scope of the review, which should be limited to the material and questions before the original decision-maker.

The Tribunal reasoned that its role on review, as prescribed by s 43(1) of the AAT Act, is to stand in the shoes of the original decision-maker and make the correct and preferable decision based on the material before it. Crucially, the Tribunal held that it is not confined to the material that was before the primary decision-maker, provided the statutory question before the Tribunal remains the same as that which the original decision-maker was required to address. In this instance, the Tribunal found that the consideration of the Additional Client Files did not alter the fundamental statutory questions concerning whether Mr. Rogers had contravened financial services laws and, if so, what instrument should be issued. Therefore, the Tribunal concluded it had jurisdiction to consider the Additional Client Files.