By Christine Henchman LLB (Syd)
In an ASIC banning order case, the High Court has unanimously allowed an appeal from the Federal Court to stress that the notion of the Administrative Appeals Tribunal undertaking merits review by reference to different considerations from those which the original decision-maker was required to take into account was such a substantial departure from established conceptions of administrative decision merits review that it would require a clearly expressed legislative intent to achieve that result . Such intent was not to be found here in the relevant legislation – arguably it could be so found by implication, but the implication was obscure and thus quite inadequate to the task: Frugtniet v Australian Securities and Investments Commission  HCA 16.
The facts – banning orders and the relevance of past convictions
The powers of ASIC to make a banning order in this case (reason to believe that the person was not a fit and proper person to engage in “credit activities”) arose under s 80 of the National Consumer Credit Protection Act 2009 (Cth) (the NCCP Act) and although s 80(2) required ASIC to have regard to any criminal convictions within ten years of the proposed banning order, s 80(2) made the provision subject to Pt VIIC of the Crimes Act 1914 (Cth) with a Note to s 80(2), spelling out in terms the provision in Div 3 of Pt VIIC (s 85ZW) which prohibited regard to “spent convictions”. Spent convictions included convictions where the sentence was not more than 30 months or where the person was not sentenced to imprisonment for the offence. The appellant’s criminal record showed two “spent convictions’. Abiding by the legislation, ASIC, in considering whether to impose a banning order upon the appellant, did not have regard to those “spent convictions”.
However, in exercising its merit review powers pursuant to s 327 of the NCCP Act and s 25 of the Administrative Appeals Tribunal Act 1975 (Cth), the AAT did have regard to the spent convictions which applied to the appellant. In so doing, it relied on s 85ZZH(c) in Div 6 of Part VIIC of the Crimes Act which provided so far as relevant: “Division 3 does not apply in relation to the disclosure of information to or by, or the taking into account of information by a person or body referred to in one of the following paragraphs for the purpose specified in relation to the person or body: … (c) a court or tribunal established under a Commonwealth law.. . for the purpose of making a decision, including a decision in relation to sentencing”. The AAT was a tribunal within the meaning of that provision.
However reliance upon s 85ZZH(c) was held to be ill-founded. The High Court held that the powers of the AAT, on a review of a decision made by ASIC under the NCCP Act, were unaffected by s 85ZZH(c) and ordered that the AAT decision be set aside and the matter be remitted to it for reconsideration in accordance with law.
Bell, Gageler, Gordon and Edelman JJ explained:
- Section 85ZZH(c) did nothing to alter the statutory jurisdiction of the AAT. In particular, it did not make a spent conviction relevant to be taken into account in the exercise of its jurisdiction.
- Except where altered by some other statute, which had not occurred here, the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act required the AAT to stand in the shoes of the primary decision-maker so as to determine for itself on the material before it the decision which it considers should be made in the exercise of the powers conferred on the primary decision-maker. The AAT exercises the same powers as the primary decision-maker, subject to the same constraints. The AAT must address the same question the primary decision-maker was required to address and that question determines the considerations that must or must not be taken into account by the AAT in reviewing that decision.
- Were it otherwise, the AAT could not sensibly remit the matter to ASIC for reconsideration because ASIC would then be required to ignore the spent convictions and any decision by the AAT varying or in substitution of ASIC’s decision would be deemed by s 43(6) to be a decision of ASIC, even if that varied or substituted decision took into account spent convictions which ASIC was required to ignore.
Kieffel CJ, Keane and Nettle JJ:
- Concurred with the view of the majority in Kocic v Commissioner of Police, NSW Police Force  NSWCA 368 where parallel NSW statutory provisions were relevant to the Administrative Decisions Tribunal (NSW) when reviewing a decision concerning the issue of a firearms licence. There Basten JA (Leeming JA concurring) concluded that s 16(1) (of the Criminal Records Act 1991 (NSW) (similar to s 85ZZH(c)) was not to be understood as changing the ground rules, as it were by a side wind, without any clear intention that it should have such an operation, but rather as having no application to a tribunal undertaking merits review of an administrative decision.
- Explained that the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. However the AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker.