Visnic v Australian Securities and Investments Commission

In *Visnic v Australian Securities and Investments Commission*, the plaintiff, Mr Milan Visnic, challenged the constitutional validity of section 206F of the *Corporations Act 2001* (Cth). This provision empowers the Australian Securities and Investments Commission (ASIC) to disqualify individuals from managing corporations. Mr Visnic argued that this power, when exercised by ASIC, an executive body, constituted an invalid conferral of the judicial power of the Commonwealth, thereby infringing Chapter III of the Constitution.

The High Court was required to determine whether the disqualification power vested in ASIC by section 206F of the *Corporations Act* was an exercise of the judicial power of the Commonwealth. This involved considering whether the functions performed by ASIC under this section, such as determining the "public interest" and maintaining professional standards, were inherently judicial in nature. The Court also had to assess the relevance of the existence of concurrent judicial powers of disqualification held by Chapter III courts and whether the conferral of such a power on an administrative body like ASIC represented an impermissible circumvention of Chapter III.

The Court applied a "functional analysis" approach to determine whether the power exercised by ASIC was judicial. It reasoned that while some aspects of corporate officer disqualification could be vested in Chapter III courts, the functions conferred by section 206F were not exclusively judicial. The Court concluded that the federal regulation of corporations and their officers, as embodied in section 206F, was a constitutionally valid feature of public administration. The Court affirmed that, under the prevailing functional analysis, legislation of this nature would not be declared invalid.

The High Court dismissed the plaintiff's action.