Sahay and Australian Securities and Investments Commission

The matter before Deputy J W Constance P concerned an appeal by Mr Sahay against banning orders made by the Australian Securities and Investments Commission (ASIC). The dispute arose from Mr Sahay's convictions for serious fraud offences, specifically intending to defraud by false or misleading statement, making false documents, and using false documents. These convictions stemmed from his actions as the sole director of Ask Consultancy Services Pty Ltd, where he prepared and submitted loan applications to Bankwest and Suncorp-Metway Ltd containing digitally altered bank statements and false representations regarding applicants' savings.

The court was required to determine the appropriate period for banning orders under both the *Credit Act* and the *Corporations Act*. Specifically, the issues were whether the power to impose a banning order was enlivened by Mr Sahay's fraud convictions and, if so, what the appropriate duration of such an order should be, considering the totality of his circumstances, including the non-custodial penalty imposed by the criminal court, his subsequent remedial measures, and his professional history.

Deputy J W Constance P affirmed the decision to impose permanent banning orders. The court reasoned that Mr Sahay's convictions for serious fraud enlivened the power to make such orders. While acknowledging that the criminal sentence indicated the offences were at the lower end of the seriousness scale, the court emphasised that the purpose of banning orders is not punitive but rather to protect the public from harm and maintain confidence in the financial and credit industries. The court applied the principles from *Howarth and Australian Securities and Investment Commission*, highlighting the importance of public protection and industry integrity, which are equally applicable to the credit industry.

The court concluded that the decision of the ASIC Delegate to permanently ban Mr Sahay from engaging in credit activities under the *National Consumer Credit Protection Act 2009* (Cth) and from providing financial services under the *Corporations Act 2001* (Cth) should be affirmed.