Schroeder and Australian Securities and Investments Commission

This matter concerned an application by Mr Mark Schroeder to review a decision by the Australian Securities and Investments Commission (ASIC) to ban him from providing financial services for six years. ASIC had made the banning order under section 920A of the *Corporations Act 2001* (Cth) after finding that Mr Schroeder, a director of a financial services company, had been involved in the company's contraventions of financial services laws and was likely to contravene such laws in the future. The delegate also considered whether Mr Schroeder was of good fame or character, but found this ground was not made out, attributing his shortcomings to a lack of competence and understanding rather than a serious character flaw.

The primary legal issue before the Tribunal was whether it should apply the *Corporations Act 2001* (Cth) in its form as it stood at the time of ASIC's decision, or in its amended form. During the course of the Tribunal's proceedings, the *Corporations Act 2001* (Cth) had been amended by the *Financial Sector Reform (Hayne Royal Commission Response – Stronger Regulators (2019 Measures)) Act 2020* (Cth). The Tribunal was required to determine the effect of the transitional provisions within the amending legislation on the conduct of its review.

The Tribunal reasoned that, in the absence of express provisions to the contrary, it was required to apply the law as it stood at the time of its own decision. The Tribunal found that the amending legislation contained transitional provisions that mandated the application of the *Corporations Act 2001* (Cth) in its current, amended form to proceedings such as this one. Therefore, the Tribunal concluded that it must conduct its review based on the *Corporations Act 2001* (Cth) as amended by the *Financial Sector Reform (Hayne Royal Commission Response – Stronger Regulators (2019 Measures)) Act 2020* (Cth).