FEDERAL COURT OF AUSTRALIA
Frugtniet v Australian Securities and Investments Commission [2016] FCA 995
ORDERS
Applicant | ||
AND: | AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Applicant’s Amended Notice of Appeal dated 8 May 2015 be dismissed.
2. On or before 29 August 2016, the Applicant file and serve any submission as to the costs of the appeal.
3. On or before 5 September 2016, the Respondent file and serve any responding submissions.
4. In the event that the Applicant does not file any submission pursuant to Order 2, the Applicant pay the Respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BROMBERG J:
1 On 26 June 2014 a delegate of the respondent (“ASIC”) made an order permanently prohibiting the applicant (“Mr Frugtniet”) from engaging in any credit activities (“banning order”). The banning order was made under s 80 of the National Consumer Credit Protection Act 2009 (Cth) (“NCCP Act”). By s 327 of the NCCP Act, Mr Frugtniet was entitled to apply to the Administrative Appeals Tribunal (“AAT”) for review of ASIC’s decision to make the banning order. He did so apply. On 6 March 2015, the AAT affirmed the decision under review. It gave written reasons for its decision, which are published as Frugtniet v Australian Securities and Investments Commission [2015] AATA 128.
2 Mr Frugtniet appealed to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). By his Amended Notice of Appeal dated 8 May 2015 (“ANOA”), Mr Frugtniet seeks orders including that the AAT’s decision be set aside. His ANOA includes thirteen purported questions of law. In his written submissions in reply, Mr Frugtniet abandoned the sixth and eighth. I will adopt the structure of quoting each ground, and the paragraphs of the AAT’s reasons to which it relates, as I come to consider it. I will not, therefore, here set out the grounds in full. It suffices here to say that the grounds substantially complained that the AAT took into account matters that it was obliged to ignore, or failed to take into account matters to which it was obliged to have regard. ASIC objected to the competency of grounds 3, 5, 7, 9–11, and 13.
Legislation
3 Section 80 of the NCCP Act provides, so far as is material to this proceeding, as follows:
80 ASIC’s power to make a banning order
(1) ASIC may make a banning order against a person:
(a) if ASIC suspends or cancels a licence of the person; or
(b) for a person other than the trustees of a trust—if the person becomes insolvent; or
(c) for a natural person—if the person is convicted of fraud; or
(d) if the person has:
(i) contravened any credit legislation; or
(ii) been involved in a contravention of a provision of any credit legislation by another person; or
(e) if ASIC has reason to believe that the person is likely to:
(i) contravene any credit legislation; or
(ii) be involved in a contravention of a provision of any credit legislation by another person; or
(f) if ASIC has reason to believe that the person is not a fit and proper person to engage in credit activities; or
(g) if a prescribed State or Territory order is in force against the person; or
(h) in any other circumstances prescribed by the regulations.
(2) For the purposes of paragraphs (1)(e) and (f), ASIC must (subject to Part VIIC of the Crimes Act 1914) have regard to the following:
(a) if the person is a natural person—the matters set out in paragraphs 37(2)(a) to (f) and subparagraph 37(2)(g)(i) in relation to the person;
(b) if the person is not a natural person:
(i) [not relevant]
(ii) [not relevant];
(c) any criminal conviction of the person, within 10 years before the banning order is proposed to be made;
(d) any other matter ASIC considers relevant;
(e) any other matter prescribed by the regulations.
Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
…
4 The ground relied upon by ASIC’s delegate was set out in s 80(1)(f)—namely, that Mr Frugtniet was not a fit and proper person to engage in credit activities. Accordingly, s 37(2)(a)–(f) and (g)(i) were relevant by operation of s 80(2)(a). They provide as follows:
37 When a licence may be granted—applicants other than ADIs
…
Matters ASIC must have regard to
(2) For the purposes of paragraphs (1)(b) and (c), ASIC must (subject to Part VIIC of the Crimes Act 1914) have regard to the following:
(a) whether a registration under the Transitional Act, a licence or an Australian financial services licence of the person has ever been suspended or cancelled;
(b) whether a banning order or disqualification order under Part 2-4 has ever been made against the person;
(c) whether a banning order or disqualification order under Division 8 of Part 7.6 of the Corporations Act 2001 has ever been made against the person;
(d) whether the person has ever been banned from engaging in a credit activity under a law of a State or Territory;
(e) any relevant information given to ASIC by a State or Territory, or an authority of a State or Territory, in relation to the person;
(f) if the person is not the trustees [sic] of a trust—whether the person has ever been insolvent;
(g) if the person is a single natural person:
(i) whether the person has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001; and
…
The AAT’s Reasons for decision
5 It suffices here to set out the essential elements of the AAT’s reasoning. At [3], the AAT identified the relevant issues as follows:
3. The issues before the Tribunal are:
• Does the Tribunal have reason to believe that Mr Frugtniet is not a fit and proper person to engage in credit activities? If so:
• Should the Tribunal make a banning order against Mr Frugtniet? If so:
• What should be the duration of the banning order?
6 From [4]–[7] the AAT set out extracts from certain ASIC regulatory guides. At [9], it recorded that Mr Frugtniet had disclosed that he had been convicted of certain offences in the Leeds Crown Court in the United Kingdom, on 4 January 1978.
7 At [10], the AAT stated that on 15 November 1995, the Victorian Administrative Appeals Tribunal had made findings in relation Mr Frugtniet’s involvement in the travel agency Tarson Pty Ltd, in breach of a condition imposed upon that agency concerning Mr Frugtniet’s involvement.
8 At [11] the AAT said that on 24 November 1997 Mr Frugtniet was found guilty in the Broadmeadows Magistrates’ Court of obtaining property by deception, in connection with certain airline tickets. No conviction was recorded.
9 At [12], the AAT recounted that in March 1998 Mr Frugtniet had been charged with six counts of theft and three counts of attempted theft in connection with his employment at the ANZ Bank.
10 At [13], the AAT set out that in October 1999 Mr Frugtniet had applied to the Migration Agent Registration Authority (“MARA”) for registration as a migration agent, and had answered “no” to the question whether he was the subject of criminal charges still pending before a court or had been convicted of an offence which was not spent. At that time, said the Tribunal, he was the subject of the pending ANZ charges. In March 2000 he was acquitted of those charges.
11 At [14], the AAT gave the history of Mr Frugtniet’s unsuccessful application to be admitted to practice as a barrister and solicitor in Victoria. The application was lodged in August 2000 and was refused on 22 October 2001. On 1 May 2002 the Supreme Court of Victoria dismissed an appeal against that decision (Frugtniet v Board of Examiners [2002] VSC 140 (Pagone J)).
12 At [15], the AAT stated that on 21 May 2002 MARA initiated a complaint against Mr Frugtniet in relation to his “conduct as a migration agent concerning possible false declarations arising from his answers to questions about his involvement in past investigations or inquiries.” On 3 February 2003 MARA decided to take no further action “at this stage”.
13 At [17], the AAT recorded that on 27 July 2004 Mr Frugtniet again applied for admission to legal practice in Victoria. The application was refused on 11 February 2005 and on 24 August 2005 the Supreme Court of Victoria dismissed an appeal (Frugtniet v Board of Examiners [2005] VSC 332 (Gillard J)).
14 The AAT said at [19] that, on 24 September 2004, a differently-constituted AAT had made a decision on an application by Mr Frugtniet in relation to the overpayment of certain social security payments (Frugtniet v Secretary, Department of Family and Community Services [2004] AATA 996). In that proceeding, findings were made to the effect that Mr Frugtniet had made deliberately-false statements in support of his application for benefits.
15 At [21], the AAT set out that on 11 July 2005 the entity Unique Mortgage Services Pty Ltd (“UMS”) entered into an agreement with “Australian Finance Group” (“AFG”) pursuant to which UMS would receive commissions for referring customers to AFG. In a document provided to AFG, Mr Frugtniet declared that he had not been convicted of an offence involving a criminal charge relating to fraud, dishonesty or deceptive conduct in the previous ten years, that he had not been refused membership of a statutory professional body, and that he had not been subject to disciplinary proceedings by a statutory professional body.
16 At [25], the AAT said that on 8 April 2011 the Victorian Civil and Administrative Tribunal granted an application by the Law Institute of Victoria and decided that Mr Frugtniet was, for three years, a disqualified person under the Legal Profession Act 2004 (Vic) (“LP Act”). The basis was, the AAT stated, that in May 2010 Mr Frugtniet had deliberately and falsely represented to a barrister that he was a solicitor and that he had deliberately given to a magistrate the false impression that he was a solicitor. On 13 August 2012, the Court of Appeal of the Supreme Court of Victoria dismissed Mr Frugtniet’s appeal against the decision, other than in respect of a finding by the VCAT of contempt (Frugtniet v Law Institute of Victoria Limited [2012] VSCA 178).
17 The AAT went on at [27] and [28] to record that in consequence of becoming a disqualified person the Business Licensing Authority cancelled Mr Frugtniet’s conveyancing licence and imposed conditions on the conveyancing licence of UMS. The conditions included that Mr Frugtniet was not permitted to be involved in UMS’s business. However, said the Tribunal, “Mr Frugtniet has continued to be involved with UMS.”
18 At [29], the AAT set out that on 16 January 2013 the Tax Practitioners Board terminated Mr Frugtniet’s registration as a tax agent and prohibited for five years his registration as a tax agent, on the basis that he was no longer a fit and proper person to be registered as a tax practitioner. Mr Frugtniet’s review of that decision in a differently-constituted AAT was unsuccessful (Frugtniet v Tax Practitioners Board [2014] AATA 766).
19 The AAT said at [31] that, on 6 November 2014, MARA cancelled Mr Frugtniet’s registration as a migration agent following a complaint about the provision of false information to authorities and a finding that Mr Frugtniet was not a fit and proper person to be a migration agent.
20 At [32], the AAT discussed an issue concerning the correctness of Mr Frugtniet’s statement to the AAT that he “appear[ed] to have been successful as a migration agent for 16 years without attracting detrimental attention”. It discussed a further issue as to whether Mr Frugtniet was correct in saying that there had been not a single complaint concerning his services as a credit provider at [33] of its reasons.
21 From [36]–[51], the AAT considered the matters set out above. Most of Mr Frugtniet’s complaints in relation to the AAT’s reasons relate to these paragraphs. At [52], the AAT concluded as follows:
For these reasons the Tribunal finds that Mr Frugtniet has not shown himself to possess the attributes of good character, diligence, honesty, integrity and judgment as set out in RG 204.177, and the Tribunal is satisfied that, having regard to the relevant factors in s 80(2) and s 37(2) of the NCCP Act, it has reason to believe that Mr Frugtniet is not a fit and proper person to engage in credit activities.
22 From [53]–[59], the Tribunal considered whether, in light of its conclusion in the previous section, it should make a banning order against Mr Frugtniet, and it considered what should be the duration of the banning order. No complaint is made in relation to these paragraphs. At [60] the Tribunal recorded that it affirmed the decision under review.
Legal issues of more-general application
“Question of law” and ASIC’s notice of objection to competency
23 As I mentioned above, ASIC objected to the competency of grounds 3, 5, 7, 9–11, and 13. In each case, the objection was (in effect) that Mr Frugtniet was inviting inquiry into the AAT’s assessment of the evidence, or was otherwise inviting merits review (see [3.17], [3.19], [3.21], [3.24]–[3.26] and [3.28] of ASIC’s written submissions).
24 The scope of the phrase “question of law” in s 44 of the AAT Act was recently considered by a five-member Full Court of this Court in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315. Special leave to appeal that judgment was refused: Commissioner of Taxation of the Commonwealth of Australia v Haritos [2015] HCATrans 337. At [62] of Haritos, the Full Court set out its conclusions:
(1) The subject matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
(2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
(3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.
(4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.
(5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.
(6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
(7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
(8) The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.
(9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe (1986) 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.
(10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; Etheridge; HBF Health Funds and Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.
Especially relevant here is item (6).
25 Many of Mr Frugtniet’s impugned grounds are, in substance, complaints that the AAT took into account matters to which it was not entitled under the NCCP Act. In other words, he alleged that irrelevant considerations (in the sense considered in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24) were taken into account. An “irrelevant” consideration, in this sense, is one that the AAT was bound to ignore. Mr Frugtniet’s argument in relation to grounds of this kind was, in a word, that the NCCP Act exhaustively prescribed the nature of matters that were permissible to take into account and that the AAT had taken into account other matters not so prescribed.
26 Had the AAT taken into account a thing that it was precluded by the NCCP Act from taking into account, that would be an error of law. Inquiry into whether something that the AAT did take into account was so precluded is a question of law. Mr Frugtniet’s grounds that are of this kind are, in my opinion, proper questions of law within the meaning of s 44 of the AAT Act and the notice of competency would fail insofar as it relates to such grounds. I will consider in the context of each impugned ground whether or not it is of this nature.
“Irrelevant considerations”
27 There is another issue of application to several grounds. It again relates to the issue of “irrelevant considerations.” It is appropriate to quote from Mason J’s reasons for judgment in Peko-Wallsend (at 39–40) (emphasis added):
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors—and in this context I use this expression to refer to the factors which the decision-maker is bound to consider—are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard:
28 It is interesting that s 80(2)(d) provides that ASIC “must” have regard, inter alia, to “any other matter [it] considers relevant.” This appears to have the effect of converting into a mandatory relevant consideration anything that ASIC considers to be relevant. In other words, if ASIC considers that a matter is relevant to whether it has “reason to believe that [a] person is not a fit and proper person to engage in credit activities”, it would be a jurisdictional error to fail to have regard to that matter.
29 It is not absolutely clear that this was intended. Paragraph 2.202 of the Explanatory Memorandum to the National Consumer Credit Protection Bill 2009 (Cth) (“EM”) provides as follows (emphasis added):
2.202 In determining whether a person is not a fit and proper person to engage in credit activities ASIC is authorised to take into account:
• the matters listed in subsection 37(2) (as set out in paragraph 2.74);
• any criminal convictions of the person, within 10 years before the cancellation or suspension of the licence; and
• any other matters ASIC considers relevant.
30 But, there is no doubt that ASIC was at least authorised to take into account s 80(2)(d) matters, and it is not necessary in this application to determine whether it was required to take them into account so I will dwell no further on this point.
31 The question whether a person is a “fit and proper person to engage in credit activities” elsewhere arises in the NCCP Act. Section 37(1)(c) provides that ASIC must not grant a person a licence unless “ASIC has no reason to believe that the applicant is not a fit and proper person to engage in credit activities”. The matters to which ASIC must have regard for the purposes of s 37(1)(c) are set out in s 37(2) and includes “any other matters ASIC considers relevant” (s 37(2)(i) NCCP Act). Section 80 likewise directs attention to paragraphs of s 37(2).
32 The EM in relation to s 37(2) sheds some light on the meaning of “any other matter ASIC considers relevant”. As it appears to me that s 37(2) is more or less analogous to s 80(2), what is relevant to one is likely to be instructive in relation to the other. I set out below paragraphs 2.79–2.80 and 2.83–2.84 of the EM (bold italics are as in the original; passages that are only italicised are my emphasis):
2.79 The matters identified in subsection 37(2) are relevant to determining both whether or not the applicant is likely to contravene the obligations in section 47 and whether the fit and proper person requirement is met. Where present they will not necessarily be grounds for refusing a licence but they will be matters that always need to be considered by ASIC. For example, where a person has been convicted of serious fraud, the circumstances of the offence may show such a disregard for the interests of other persons or so great an abuse of their confidence or trust that ASIC can conclude the person is not a fit and proper person. [Part 2-2, Division 3, subsection 37(2)]
2.80 Apart from the specific matters listed in subsection 37(2) ASIC may also take into account any other matters it considers relevant, in deciding whether or not to grant the applicant an ACL. The scope of the information is only limited by the extent to which it is relevant to this question. It would generally include the past business practices of the applicant, as this can be seen as an indicator of future behaviour. For example, a history of having provided credit or financial services without holding a licence when this would be required in law, would usually be relevant, and may be more relevant than a breach of the law that can be characterised as technical
…
2.83 The test is whether they are likely to contravene the obligations under section 47. ASIC may take into account any information relevant to this question, such as:
• the extent of compliance by the applicant with analogous obligations while a registered person (where applicable);
• a history of the applicant that exhibits a reluctance to comply with State or Territory credit legislation prior to applying for the licence or while it is being considered;
• conduct of the applicant that shows deliberation and planning in wilfully disregarding the law; or
• any other conduct of the applicant that may lead ASIC to conclude, on reasonable grounds, that the applicant is not likely to comply (for example, where information from a State or Territory as to the activities of the applicant as a member of an organised criminal group warrants this conclusion).
2.84 Secondly, ASIC must have no reason to believe that the applicant is not a fit and proper person to engage in credit activities [Part 2-2, Division 3, paragraph 37(1)(c)]. This may cover situations such as where the person:
• lacks appropriate knowledge, skills, judgment or character;
• has been subject to adverse findings in relevant criminal or civil proceedings, reflecting on their character; or
• breached fiduciary obligations in a way that demonstrates they are not a fit and proper person.
33 It is quite plain that the legislature intended that s 37(2)—and thus s 80(2)—confer broad scope to ASIC in its consideration of whether a person is a fit and proper person to carry out credit activities.
34 Grounds 2 and 4 relied upon Part VIIC of the Crimes Act 1914 (Cth) (“Crimes Act”) in alleging that the AAT was prohibited from taking into account certain matters. Ground 2 concerned whether it was permissible to take into account a conviction occurring in 1978; ground 4 concerned whether it was permissible for the AAT to have taken into account a finding of guilt (without the recording of a conviction) occurring in 1997. It appeared to me that Mr Frugtniet advanced two arguments in favour of the proposition that consideration of these matters was forbidden. First, the express reference to mandatory consideration of criminal convictions within the prior ten years (s 80(2)(c)) impliedly excluded consideration of any other criminal convictions, and of findings of guilt in which convictions were not recorded. In effect, Mr Frugtniet submitted that to consider, under authority of s 80(2)(d), a conviction that was eleven years old was inconsistent with the mandatory requirement to take into account convictions that were up to ten years old. Second, Mr Frugtniet relied upon the express reference in s 80(2) to ASIC’s obligation to have regard to matters being “subject to Part VIIC of the Crimes Act 1914”.
35 I cannot accede to the first argument, either as a matter of grammar and syntax, or by reference to its context. In the first place, there is no inconsistency. By s 80(2)(c), convictions up to ten years must be considered and it would be a jurisdictional error to fail to have regard to them. A conviction that was eleven years old would not be a mandatory consideration for the purposes of s 80(2)(c), and so if ASIC failed to have regard to it there would be no jurisdictional error. On the other hand, ASIC would be permitted to have regard to the conviction, should ASIC consider it relevant, under s 80(2)(d). In other words, and expressed simply, up to ten years convictions are mandatory relevant considerations; after ten years they are merely permissible considerations which, if considered by ASIC to be relevant, arguably become mandatory considerations in the way discussed above. There is nothing especially incongruous about that construction. It is not necessary to read the section as prohibiting consideration of 11-year-old convictions so as to avoid inconsistency.
36 Mr Frugtniet would construe subsection 80(2) as having the effect that where a matter is expressly enumerated in a paragraph other than s 80(2)(d), that express enumeration “covers the field” in relation to the subject matter. He would read the scope of the catch-all provision (s 80(2)(d)) as having been commensurately diminished. I do not agree that this is the logic underlying the section. Rather, it appears to me that the legislature considered that certain matters would always and inevitably be relevant to an assessment of whether a person was fit and proper to carry on credit activities. They are those matters set out in s 80(2)(a)–(c) and in s 37(2)(a)–(g)(i). But, the legislature also considered that certain matters may be relevant in some cases, but not in others, and that it did not have perfect foresight so as to exhaustively list every matter that must or could be taken into account. Thus, it enacted s 80(2)(d) so that ASIC had authority to “take into account any other matter it consider[ed] relevant”, limited only, perhaps, by “the extent to which it is relevant to this question” (c.f. 2.80 of the EM).
37 The purpose of provisions like s 37(2) and s 80(2) is assuredly the protection of the public. That is obvious from its content, and in any event so much is expressed at 2.196 of the EM: “[t]he intention of a banning order is to protect the public, rather than being an order to punish or impose a penalty (although this will usually be a necessary consequence).” In that light I can well understand a legislature deciding that, after ten years, convictions and conviction-related matters are no longer necessarily relevant and ASIC may permissibly disregard them. It is less congruous with a public-protection purpose to posit that the legislature decided that convictions and conviction-related matters were necessarily irrelevant after 10 years, or that even if they were relevant (in the sense of probative) they were nevertheless not to be taken into account. The latter interpretation would seem to me to permit significant undermining of the public-protection purpose of the provision, and I can think of no logical reason why the legislature would choose to expose its public-protection purpose to such undermining.
38 I have considered, but I cannot accept, the proposition that the legislature’s view was that s 80(2)(c) is in furtherance of some policy that convictions ought restrict a person’s professional opportunities for ten years and no more. There is nothing in the words of the section or its context that makes me think there was any such policy. As to the logic with which the section was constructed, requiring consideration of X is not the same thing as prohibiting the consideration of not-X. As to context, there is nothing in the scheme of the NCCP Act overall, or s 80 more specifically, taking into account the relevant passages of the EM, that leads me to think that the legislature was especially concerned to balance public protection against the interests of people in having a “clean sheet” after ten years. Quite the contrary: while the EM notes that the purpose of s 80 is not to punish, it is expressly recognised that “punish[ment] or impos[ition of] a penalty … will usually be a necessary consequence” of the section’s public-protection purpose.
39 What, then, of the reference to Part VIIC of the Crimes Act in s 80(2)? If Mr Frugtniet’s interpretation of s 80(2) is correct—in the sense that convictions beyond ten years are prohibited considerations by implication from s 80(2)(c)—s 80(2) goes further than the Crimes Act in prohibiting consideration of aged convictions. Part VIIC has the effect that convictions are “spent” after ten years, but only if the person’s sentence to imprisonment was of 30 months or less (s 85ZM(2)(b) and s 85ZV). For convictions in respect of which there was a longer sentence of imprisonment, the conviction is never spent. Also, Div 4 of Part VIIC contemplates that if a further conviction occur during the “waiting period,” the earlier conviction may not be spent until the end of ten years after the later conviction. It would be consistent with the Part VIIC of the Crimes Act—which expressly deals with it being prohibited to have regard to certain convictions—for ASIC to have regard to a 15-year-old conviction for which the sentence was three years. So too would it be consistent with Part VIIC for ASIC to have regard to a 15-year-old conviction if, eight years after the conviction, a person was convicted on indictment of another offence. Mr Frugtniet’s submission is that s 80(2), a section that expressly refers to Part VIIC of the Crimes Act, has the effect—by implication—that neither conviction could be taken account of. I cannot accept that submission.
40 In my opinion the purpose of the parenthetical reservation in s 80(2) is simply to provide that if Part VIIC of the Crimes Act prohibits having regard to a matter, then notwithstanding the word “must” in s 80(2) ASIC is obliged not to have regard to that matter. Its purpose is to prevent the inconsistency arising whereby one act (the NCCP Act) requires regard be had to a matter and another act (the Crimes Act) prohibits regard being had to that matter. The inconsistency is resolved in favour of the Crimes Act.
41 I accept that Part VIIC of the Crimes Act has broader implications. It seems to me clear that it has the potential to limit the operation of s 80(2)(d). I accept, for example, that if it is prohibited under the Crimes Act to have regard to a conviction, s 80(2)(d) would not have the effect of permitting regard being had to that conviction. So too could Part VIIC limit the operation of s 80(2)(c). For example, if a conviction that was less than 10 years old was quashed, s 85ZU(b)(ii) would prima facie preclude ASIC taking that conviction into account, notwithstanding s 80(2)(c). For reasons I will explain in my consideration of grounds 2 and 4, however, that is not enough for Mr Frugtniet to succeed.
42 In summary, I do not construe s 80(2)(d) as limited by s 80(2)(c) in the sense that the latter “covers the field”. Assuming a conviction older than 10 years is probative of whether a person is a fit and proper person to engage in credit activities, if it is not prohibited under Part VIIC of the Crimes Act to have regard to that conviction then s 80(2)(d) permits regard being had to it. I do, however, construe both paras 80(2)(c) and (d) as being limited by Part VIIC of the Crimes Act. Otherwise, as I have said, s 80(2)(d) is a provision of broad import and permits regard being had to anything probative of the question whether a person is a fit and proper person to engage in credit activities. I turn now to briefly consider what that entails.
“Fit and proper person to engage in credit activities”
43 The matters that ASIC takes into account must have relevancy to whether the applicant is a “fit and proper person to engage in credit activities.” It would be an error of law, for example, to take into account that an applicant had green eyes or supported a particular football side. However, that does not deny that there is a broad range of matters that may go to fitness and propriety. The following quote from the reasons of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 is illustrative:
The expression “fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
44 “Credit activities” include such things as carrying on the business of providing credit, providing a credit service, being the lessor of a consumer lease, being the mortgagee of a mortgage, and being the beneficiary of a guarantee (s 6 NCCP Act). Provision of a “credit service” is the provision of “credit assistance” or acting as an “intermediary” (s 7 NCCP Act). “Credit assistance” involves suggesting that a consumer apply for a particular credit contract with a particular credit provider, suggesting that a consumer increase the credit limit of a particular credit contract, and various other matters broadly in the nature of providing advice to consumers in connection with credit contracts (s 8 NCCP Act). “Acting as an intermediary” is, again in broad terms, acting as an intermediary between a credit provider and a consumer in connection with securing a provision of credit for the consumer under a credit contract, or acting as an intermediary between a lessor and a consumer for the purpose of securing a consumer lease for the consumer (s 9 NCCP Act).
45 It is plain that many consumers to whom “credit activities” are provided would have serious financial exposure to dishonesty on the part of a licensee. In that sense, such consumers are vulnerable. The purpose of the licensing scheme is, inter alia, to ensure that “credit activities” are performed by persons who are fit and proper to perform them, in order that the exposure and vulnerability of consumers is lessened. That is also why there is an obligation on licensees to ensure that credit activities are engaged in “efficiently, honestly and fairly” (s 47(1) NCCP Act).
46 Or, as it was put at 2.14 of the EM:
2.14 The objectives in introducing the licensing system are to improve the conduct of the industry over time, and to address concerns such as those identified above, by having a market environment for credit in which:
• lenders and intermediaries act honestly and have adequate resources and competency to carry on their businesses;
• borrowers who suffer losses because of a breach of their obligations by lenders or intermediaries are able to obtain compensation; and
• dishonest or incompetent lenders and intermediaries are prevented from continuing to operate.
47 That is the context in which it is to be assessed whether a particular matter is relevant to an applicant’s fitness and propriety to undertake credit activities.
Ground 1: [25] of the AAT’s reasons
48 Ground 1 was as follows:
Whether the Tribunal erred in law by taking into account irrelevant considerations and applying an interpretation of the Credit Act upon which it was not entitled to do so, namely that the applicant was required to notify the respondent of his disqualified status arising from the order of the VCAT proceedings resulting in significant error (Tribunal Decision at [25]).
49 At [25], the AAT said this (emphasis added):
On 8 April 2011 the Victorian Civil and Administrative Tribunal (VCAT) granted an application by the Law Institute of Victoria and decided that Mr Frugtniet was, for three years, a disqualified person under the Legal Profession Act 2004 (Vic.) (the LP Act). The basis for the decision was that on 25 May 2010 Mr Frugtniet had deliberately and falsely represented to a barrister that he was a solicitor; and had deliberately given to a magistrate the false impression that he was a solicitor. On 13 August 2012 the Victorian Court of Appeal dismissed Mr Frugtniet’s appeal against the decision other than a finding by VCAT of contempt (Frugtniet v Law Institute of Victoria Limited [2012] VSCA 178). At the time of becoming a disqualified person Mr Frugtniet was required to notify the respondent of his status as a disqualified person in respect of his connection with the Australian credit licence held by UMS.
50 Mr Frugtniet took issue with the italicised passage. He said that the AAT must have meant that there was a legal obligation upon him to notify ASIC. He said that there was not, in fact, a legal obligation upon him, and that in finding the contrary the AAT had erred in law.
51 In reply, ASIC made three arguments: “firstly, this wasn’t a matter that really [fitted] into the tribunal’s ultimate decision; secondly, even if it did, then the tribunal wasn’t referring to a statutory obligation; thirdly, even if it was referring to a statutory obligation, there was such an obligation by virtue of the need for a compliance certificate to be filed by the licensee each year.”
52 Evaluation of the first argument requires closer consideration of the AAT’s reasoning. The impugned passage appears at [25]. At [26], the AAT recorded a submission by Mr Frugtniet that “at the time of becoming a disqualified person under the LP Act he was not a disqualified person for the purposes of his credit activities and was not required to notify the respondent.” But these matters are not specifically mentioned anywhere in the AAT’s section entitled “Consideration”, running from [36]–[52]. Mr Frugtniet submitted that the observation at [25] was bound up in the AAT’s ultimate conclusions at [50]–[52], which I will set out below:
50. On all the material before the Tribunal there is no doubt that Mr Frugtniet has been the subject of multiple findings of dishonesty by courts, tribunals and other bodies. He has been told repeatedly that his conduct is unacceptable and that he needs to demonstrate that he has changed his behaviour before he can be considered to be a person of integrity, trustworthiness and good character. However in his evidence to the Tribunal Mr Frugtniet has continued to minimise the nature and seriousness his past actions and his dishonest conduct. The Tribunal does not accept that he has shown genuine remorse for a lack of candour in the past.
51. Mr Frugtniet has been told that he is required to disclose his past conduct in a complete and accurate manner. Despite this, he has shown a complete lack of insight into his past conduct, and has failed to make full and frank disclosure to the Tribunal. His action in failing to disclose to the respondent and to the Tribunal, until the hearing of the application under review, the decision by MARA on 6 November 2014 to cancel his registration as a migration agent shows that he has learnt nothing from previous findings about his character. Similarly his assertion that he has not been the subject of a single complaint about his behaviour as a credit facilitator is wrong and misleading.
52. For these reasons the Tribunal finds that Mr Frugtniet has not shown himself to possess the attributes of good character, diligence, honesty, integrity and judgment as set out in RG 204.177, and the Tribunal is satisfied that, having regard to the relevant factors in s 80(2) and s 37(2) of the NCCP Act, it has reason to believe that Mr Frugtniet is not a fit and proper person to engage in credit activities.
53 In that light, and for reasons that follow, I accept ASIC’s submissions that Mr Frugtniet’s failure to disclose to ASIC that he had become a disqualified person for the purposes of the LP Act was not a factor that entered into the Tribunal’s dispositive reasoning.
54 From [3]–[35], the AAT set out facts and recorded submissions. It recorded arguments that were made by Mr Frugtniet and by ASIC, but did not resolve competing submissions. It was not, in those paragraphs, engaged in an exercise of reconciling disputed propositions of fact or law. The findings of fact that appear to me to enter into the AAT’s deliberations are those set out from [36]–[49]. Just about every factual matter to which there is reference in [3]–[35] has a correlate in [36]–[49]. Paragraphs in the “Consideration” section resolve factual and legal issues, and questions of relevance, and set out matters that the AAT considered to be relevant in relation to the ultimate question whether it had reason to believe that Mr Frugtniet is not a fit and proper person to carry on credit activities.
55 The correlate to paragraphs [25] and [26] appears to be paragraph [45]. The basis for the VCAT’s disqualification order was Mr Frugtniet’s actions at Werribee Magistrates’ Court. At [45], the Tribunal referred to those actions and said that “Mr Frugtniet has not gained an insight into the serious nature of his actions.” Nothing was said about the failure to disclose that disqualification to ASIC. And, that failure was not specifically mentioned at [50]–[52], whereas another failure to disclose (relating to MARA) was.
56 Mr Frugtniet submitted that the reference to “all the material before the Tribunal” at the beginning of [50] included a reference to matters set out prior to the “Consideration” section. I do not agree. It would be an odd thing for the Tribunal to set out findings of fact upon which it intended to rely from [3]–[35] and then to again set them out from [36]–[49]. Rather, I think that from [3]–[35] the Tribunal was engaged in a process of summarising the evidence (including arguments as to what should be made of it) and the submissions, and that from [36]–[49] it resolved such disputes as it considered required resolution and set out those matters upon which it intended ultimately to rely. The absence of reference in [36]–[49] to any obligation to disclose to ASIC the fact of being a disqualified person leads me to conclude that it was not a matter upon which the AAT relied in making its decision.
57 Against what I have said about [3]–[35] being a summary of evidence and argument, it might be put that the last sentence of [25] reads like a conclusion of law. So it does. But if it were a conclusion of law, it would be unique in the context of [3]–[35]. It would be the only conclusion expressed in that range of paragraphs (i.e., the range prior to the “Consideration” heading) as to a contested proposition of law. I say “contested” because it is apparent from the transcript, and indeed from the last sentence of [26], that Mr Frugtniet contended that he was not under an obligation to disclose his disqualification to ASIC.
58 But if the Tribunal was not recording a conclusion as to a contested proposition of law, what was it doing? I think that it was recording, with respect somewhat unclearly, the content of a submission that Mr Frugtniet had put to the VCAT, which was in evidence before the AAT. The submission that Mr Frugtniet had put to the VCAT was this:
Furthermore, a disqualification order would effectively mean that under Section 86 of the National Consumer Credit Protection Act 2009, I would be required to notify the Australian Securities and Investment [sic] Commission, who may cancel my licence or making a banning order which would mean that I would not be authorised to engage in credit activity to which a disqualification applies.
59 In cross-examination before the AAT, Mr Frugtniet explained that he later came to the view that he was not legally obliged to notify ASIC.
But you never notified ASIC of your disqualified status, did you?---No, I didn’t.
Thanks?---Because – because it wasn’t a requirement.
Okay. You didn’t think it was necessary or that you were – you didn’t think you were legally compelled to do it?---Well, in terms of the Act, I mean I gave this statement, if you like, I’m just looking at it. If you look, this is after the proceedings I think had ended. This was more a plea.
Yes, I accept that?---You accept that. And effectively I was saying as to what I would and wouldn’t have to do, but effectively I gave the view that I didn’t have to, no.
60 At [25] and [26] the AAT said, inter alia, these two things:
Mr Frugtniet was required to notify the respondent of his status as a disqualified person.
Mr Frugtniet said that at the time of becoming a disqualified person under the LP Act he was not a disqualified person for the purposes of his credit activities and was not required to notify the respondent.
61 In my opinion, the best explanation for these statements is that they record, albeit somewhat inaccurately, the ebb and flow of the cross-examination and Mr Frugtniet’s own understanding of his legal obligations. To be accurate, the first extract should have read, “Mr Frugtniet thought at the time that he was required to … .” Reading the Tribunal’s reasons as a whole, I think that is really what the Tribunal intended.
62 It follows, for two reasons, that ground 1 fails. The first reason is that, on a fair reading of the AAT’s reasons, it was not in fact expressing a conclusion of law at [25], erroneous or otherwise. Accordingly, [25] can betray no error of law. The second reason is that the Tribunal did not, in affirming ASIC’s decision, have regard to any failure by Mr Frugtniet to comply with any requirement to advise ASIC of his disqualification. Accordingly, any error of law was immaterial.
63 It is unnecessary to consider ASIC’s second and third arguments, namely that the AAT was referring to a moral rather than a legal obligation, or that there was in fact a legal obligation. I was not, however, much taken with either argument.
64 I should, however, say a word about Mr Frugtniet’s argument, advanced in submissions in reply (although not expressed in the ground itself), that disqualification from practice as a lay associate under the LP Act was irrelevant to whether Mr Frugtniet was a fit and proper person to carry on credit activities. This must be rejected. Mr Frugtniet said that disqualification “was not in any way relevant to the vocation of credit activities as clearly defined under the Credit Act”. This is plainly wrong. If a person is disqualified from practice as a lay associate (for example) for having engaged in dishonest conduct, that is probative of whether, in providing credit activities, the person is likely to engage in dishonest conduct. It is clearly relevant and might reasonably have been taken into account. A Full Court of this Court, of which I was a member, rejected a similar submission in Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15.
Ground 2: [38] of the AAT’s reasons
65 Ground 2 was this:
Whether the Tribunal erred in the interpretation and construction it placed on the National Consumer Credit Protection Act 2010 (the Credit Act) that a spent conviction under Commonwealth legislation was relevant as evidence of dishonest conduct under policy guidelines (Tribunal Decision at [38]).
66 At [38] of the AAT’s reasons, it said this:
Mr Frugtniet maintained that his term of imprisonment in 1978 in the United Kingdom was a spent conviction under Commonwealth legislation and had no relevance to the application under review. The Tribunal does not accept this assertion because the conviction is evidence of dishonest conduct that is relevant under the policy guidelines.
67 This ground raised whether the AAT erred in taking into account matters relating to spent convictions. Mr Frugtniet accepted, in the course of his oral submissions, that this was a fair summary of the point:
HIS HONOUR: …You say that, given that the legislation identifies certain convictions as being a relevant consideration, the only regard the tribunal can have to those convictions and anything arising from those convictions is by reference to the specific consideration dealing with convictions. That’s what you’re saying, isn’t it?
MR FRUGTNIET: Yes, I am. I am.
68 It will be apparent from what I have said above at [27]–[42] that I reject the submission that, because s 80(2)(c) deals expressly with certain convictions, all other conviction-related matters are impermissible considerations. If the convictions had been less than 10 years old, it would have been an error for the AAT to have failed to take them into account. That does not carry with it the corollary that convictions that are more than 10 years old are necessarily irrelevant such that it is an error to take them into account. The AAT formed the view that the historical convictions were “evidence of dishonest conduct”, in other words, that they were probative of whether Mr Frugtniet was a fit and proper person to carry on credit activities. That view having been formed, the AAT was prima facie authorised to take the matter into account (s 80(2)(d)).
69 But, Mr Frugtniet emphasised that s 80(2) of the NCCP Act applied “subject to Part VIIC of Crimes Act”. The offences of which Mr Frugtniet was convicted were “foreign offences” within the meaning of s 85ZL of the Crimes Act. Accordingly, for the purposes of Part VIIC, Mr Frugtniet’s conviction of “an offence” was spent if he “was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended.” The waiting period is ten years (s 85ZL Crimes Act).
70 There was an issue whether, in relation to any particular offence, Mr Frugtniet was sentenced to a term of more than 30 months. The AAT found only that “[h]e was sentenced to a term of imprisonment and served two years” (at [9]). ASIC submitted (at [3.15]) that “the evidence before the Tribunal was that the applicant had been sentenced to four years’ imprisonment in respect of his offences in the United Kingdom”. Mr Frugtniet submitted in reply that he was never sentenced to a term of four years’ imprisonment, that no sentence at any one time exceeded two years, and that two consecutive sentences of two years do not make a four year sentence in respect of any one conviction.
71 The AAT not having made findings about Mr Frugtniet’s term of imprisonment, it is open to me under s 44(7) of the AAT Act to make a finding of fact. There are various factors I would have to consider (c.f. s 44(7)(b)), about which no submissions were made. I would be disinclined to make findings concerning the length of Mr Frugtniet’s sentence or sentences. However, it is not necessary that I do so because, assuming Mr Frugtniet is correct about his terms of imprisonment, his argument fails for another reason.
72 Assume that Mr Frugtniet’s sentences in relation to offences were all less than 30 months. They would be “spent convictions” within the meaning of s 85ZM of the Crimes Act. Accordingly, subject to Div 6, Mr Frugtniet is not required, “in any State … to disclose to any Commonwealth authority in that State … for any purpose, the fact that [he] has been charged with, or convicted of, the offence” (s 85ZV(2)(b)). And, again subject to Div 6, where it is lawful for Mr Frugtniet not to disclose in particular circumstances or for a particular purpose that he was charged with or convicted of an offence, “anyone else who knows … that section 85ZV applies to the person in relation to the offence shall not … in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence” (s 85ZW(b)).
73 Section 85ZZH in Div 6, however, provides (relevantly) as follows:
85ZZH Exclusions
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, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing;
74 ASIC submitted that, even if ASIC was prohibited from taking account of spent convictions, the AAT was not so prohibited. That would, it seems to me, give rise to strange outcomes. It would mean that the AAT in reviewing the decision of ASIC, could take account of material that ASIC was not permitted to take into account.
75 Notwithstanding that there may be some strange outcomes and difficulties attendant upon the interpretation urged upon me by ASIC, the plain words of s 85ZZH(c) tend in favour of my acceding to the submission. In any event, there is authority on the question. In Toohey v Tax Agents’ Board of Victoria (2007) 171 FCR 291, the Tax Agents’ Board was required to consider the applicant’s fitness and propriety to prepare income tax returns. The applicant had, more than ten years prior, pleaded guilty to a charge of failing to file a tax return. He argued that ss 85ZV and 85ZW of the Crimes Act had the effect that the Tribunal was bound not to take account of those matters. Middleton J held, at [30], as follows:
The operation of those 2 provisions under Div 3 of Pt VIIC of the Crimes Act—ss 85ZV and 85ZW—are, in express terms, made subject to Div 6 of Pt VIIC. Section 85ZZH relevantly says that Div 3 does not apply in relation to the taking into account of information by a tribunal established under a Commonwealth law for the purposes of making a decision. In my view, that provision is of general import, and does not just apply where a tribunal is making a determination specifically referred to it in relation to a conviction, or where it is otherwise bound to take into account a conviction. Accordingly, in my view, ss 85[ZV] and 85ZW have no application to the circumstances of this case.
76 That holding seems to me to be directly on point. Unless I am of the view that Middleton J was plainly wrong, I should follow Toohey: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 at [88] (Greenwood J, with whom Sundberg J agreed). There might well be room for debate as to whether some other interpretation of the relevant sections is open that avoids the strange outcomes I mentioned above, but if there is it was not put to me, and I cannot say that Middleton J was plainly wrong. Accordingly, following Toohey, I find that the AAT was not precluded by Pt VIIC of the Crimes Act from taking into account Mr Frugtniet’s foreign convictions. Nor, as I have earlier concluded, was it precluded from doing so by implication from the language used in s 80(2) itself. Accordingly, ground 2 is not made out.
77 ASIC also submitted that the Tribunal had not had regard to a conviction itself. Rather, its regard was to the conduct in respect of which charges were brought and a conviction recorded. The distinction relied upon is that between taking into account the fact that a person committed a burglary on 1 July 2010, and taking into account that the person was convicted and sentenced to 2 years’ imprisonment for having committed a burglary on 1 July 2010. The former, said ASIC, would be permissible, even if the latter were not.
78 It is not necessary to address the legal submission because the factual predicate is not made out. The AAT specifically stated that “the conviction is evidence of dishonest conduct.” I would not accept the submission that the AAT’s focus was on the conduct underlying the conviction, to the exclusion of the conviction. Rather, the AAT had regard to the fact of the conviction itself. It is true that it had regard to it as evidencing some underlying obliquity, but that will invariably be the case. A conviction is relevant to the question of fitness and propriety precisely because it relates to some particular criminal wrongdoing. I doubt that it is possible to divorce a conviction from underlying wrongdoing—as ASIC’s submission contemplated—but in any event the AAT did not attempt to do so. I reject the submission on the facts. I need not consider this issue further.
Ground 3: [39] of the AAT’s reasons
79 Ground 3 of Mr Frugtniet’s ANOA was as follows:
Whether the Tribunal erred in the interpretation and construction it placed on the National Consumer Credit Protection Act 2010 (the Credit Act) that a breach by Tarson Pty Ltd of a condition on its licence was an example of dishonest conduct of the applicant for which the applicant had not accepted responsibility, including the fact that there was no evidence that the applicant breached any condition or that he engaged in dishonest conduct (Tribunal Decision at [39]).
80 At [39] of the AAT’s reasons, it said the following:
In respect of the matter involving Tarson Pty Ltd the Tribunal does not accept Mr Frugtniet’s assertion that as he did not breach the terms of its licence it was the company, not him, that was at fault. Mr Frugtniet conceded in evidence that it was his own behaviour that caused the breach, and this is an example of dishonest conduct for which Mr Frugtniet has not accepted responsibility.
81 This is referable to what the Tribunal earlier said, at [10]:
On 15 November 1995 the Administrative Appeals Tribunal of Victoria found that Mr Frugtniet had been involved in the conduct of Tarson Pty Ltd, a travel agency of which his former wife was a director. This was in breach of a special condition imposed on the agency excluding Mr Frugtniet from any involvement in the business. Mr Frugtniet stated that the company breached the licence condition and he was not party to the proceedings, so the issue was not relevant to the decision under review.
82 Mr Frugtniet agreed with the following summation of his submission:
HIS HONOUR: Okay. So your point is that conduct should not have been taken into account in circumstances where you had no means of appealing - - -
MR FRUGTNIET: Of doing anything.
HIS HONOUR: - - - any finding that your conduct was inappropriate. All right. I understand the point.
MR FRUGTNIET: That’s rephrased. Absolutely. I couldn’t have articulated that better, but that’s precisely what I’m really saying.
83 In written submissions, Mr Frugtniet advanced these three arguments:
It would be unfair to take account of a matter that is not within the jurisdiction of credit activities, in which the applicant was not party to those the proceedings [sic], and could not review any such decision irrespective of what may or may not have been said and to place reliance on same would essentially deny the applicant of procedural fairness.
84 There is significant ambiguity as to the content of Mr Frugtniet’s ground 3. It is important to be precise in setting out what he has alleged. I think that, taking his case at its highest, he makes two arguments: first, that it was prohibited for the AAT to have taken into account the findings made in the matter involving Tarson Pty Ltd (“Tarson findings”), in the sense that they were an irrelevant consideration; second, that it was procedurally unfair for the AAT to have had regard to the Tarson findings. The question, as Mr Frugtniet put it in his ground, is one of construction of the NCCP Act. The second is a question of natural justice or procedural fairness. Both are questions of law (as to the latter, see Ekinci v Civil Aviation Safety Authority (2014) 227 FCR 459 at [93] (Bennett, Nicholas and Griffiths JJ). I will deal with them in reverse order.
85 In Ekinci at [86], the Court endorsed the following statement of principle from [28]–[30] of the Full Court’s decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material — Dixon v. Commonwealth (1981) 61 ALR 173 at 179. However, as Lord Diplock said in F Hoffmann-La Roche and Co. A.G. v. Secretary of State for Trade and Industry (1975) AC 295 at 369:
… the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-7 (French J) and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J).
The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi (supra) at 108-109:
1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).
2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kumar (unreported, Full Court Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.
His Honour observed that those qualifications may be no more than an application of the general requirement of procedural fairness in particular cases. As Gummow J there said (at 359):
… in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant’s interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or material provided by the third party, but what is seen to be the conduct of the applicant in question.
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act 1974 (Cth).
86 It is also useful to set out what was said by the plurality in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [156] (footnotes omitted):
The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making but in terms which have more general and immediate application, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”. To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.
87 It is important to keep in mind that the only relevant issue is whether Mr Frugtniet was denied procedural fairness by the AAT. Whether the proceeding in which the Tarson findings were made was procedurally unfair is not to the point (and in any event he did not argue that they were). Whether there was a procedural unfairness in Mr Frugtniet’s inability to appeal against those findings is not to the point (and in any event he did not argue that there was). The question is only whether it was procedurally unfair for the AAT to have had regard to findings that were made in a proceeding in which Mr Frugtniet had no ability to appeal. The answer is that it was not.
88 Mr Frugtniet was aware that the findings made in the Tarson proceeding were in issue before the AAT. He was aware of the nature and content of the findings made in the Tarson proceeding. He had the opportunity to deal with those findings in the course of the hearing before the AAT. It was open to him, for example, to argue that they should be given no or diminished weight as a consequence of his inability to appeal. He had the ability to put information and submissions to the AAT in support of an outcome consistent with his interests.
89 Taking a broader view, there was no practical injustice in the procedure adopted by the Tribunal. Indeed, it is difficult to see what more it could have done with a view to enabling Mr Frugtniet to address the substance of the Tarson findings as he saw fit. The procedural fairness ground fails. Accordingly, only if the AAT was prohibited, as a matter of the interpretation of s 80(2), from taking the Tarson findings into account was there an error of law in the way that it approached the Tarson findings.
90 The AAT was not required by any of ss 80(2)(a)–(c) to take into account the Tarson findings. It must, therefore, have relied upon s 80(2)(d), which authorises taking into account “any other matter [it] considers relevant.” The question, per Peko-Wallsend, is whether there can be found in the subject matter, scope, and purpose of the statute an implied limitation on the factors to which the AAT might legitimately have had regard, such that it was impermissible to have taken into account findings of the kind here in question. In my view, there cannot be found such an implied limitation.
91 I have set out at [43]–[47] above the context in which the relevance of particular matters to an assessment of an applicant’s fitness and propriety is to be conducted. The Tribunal’s view was that Mr Frugtniet’s involvement in the Tarson Pty Ltd matter demonstrated dishonesty (at [39]). That is a finding of fact which I cannot disturb. And, I have no hesitation in accepting that historical dishonesty is a matter that is relevant to the fitness and propriety of an applicant.
92 Mr Frugtniet’s submission that the scope of relevant matters is confined to credit activities must be rejected. There is no question that a person’s conduct and character in non-credit-related activities might bear upon that person’s fitness and propriety to carry out credit activities, in the sense that it is probative of likely future conduct (c.f. Bond at 380). I refer here again to the rejection of a similar submission by a Full Court in the MUA v FWC case.
93 Further, whether Mr Frugtniet was party to proceedings is immaterial. It could not be right that the AAT would be obliged to disregard a finding, made in a proceeding against a company, that its non-party director was not a witness of truth. There is nothing in the NCCP Act to support a conclusion that matters arising in proceedings can only be taken into account if the applicant was party to those proceedings.
94 For similar reasons I reject that inability to challenge a finding necessarily renders that finding irrelevant. If a judge of a superior court of record made a finding of fact that a person had engaged in fraud, that would clearly be probative of that person’s character, irrespective of whether that person could appeal against the finding. Inability to appeal might, of course, be a basis for the applicant arguing that the finding should be given little or no weight. But that kind of argument is of no assistance to Mr Frugtniet here, because weight of factors is generally a matter for the AAT and in any event Mr Frugtniet’s argument concerned permissibility and not weight.
95 Accordingly, ground 3 fails. However, in my opinion this ground raised a question, or questions, of law. ASIC’s notice of objection to competency fails.
96 Again, it is necessary to say something about the written submissions advanced by Mr Frugtniet in reply, which travel far beyond the ground as expressed in his ANOA. In written submissions, Mr Frugtniet’s focus was on the words of s 37(2)(d). He submitted that the AAT was “bound” to consider “whether the person has ever been banned from engaging in a credit activity under a law of a State or Territory” (emphasis Mr Frugtniet’s). Sure enough the AAT was obliged to consider that matter, but (as I have earlier said) it was not limited to consideration of the matters expressly set out in s 37 and s 80. It was also permitted to have regard to any other matter it considered relevant. And a requirement to have regard to whether the natural person applicant has ever been banned from engaging in credit activities does not bespeak legislative intent to prohibit having regard to whether the natural person applicant has ever been (speaking loosely) involved in a contravention of different licensing scheme by a corporation. This argument, were it contemplated by Mr Frugtniet’s ground 3, would fail.
Ground 4: [40] of the AAT’s reasons
97 Ground 4 is this:
Whether the Tribunal erred in law in its interpretation of the Credit Act by expanding the law in respect of no conviction being recorded but a finding of guilt being more than ten years old was relevant in respect of dishonest conduct relevant to the Credit Act (Tribunal Decision at [40]).
98 At [40] of the AAT’s reasons it said:
Although no conviction was recorded at the Broadmeadows Magistrates’ Court on 24 November 1997 Mr Frugtniet was found guilty of obtaining property by deception, and this is a further example of dishonest conduct that is relevant to the Tribunal’s proceedings.
99 For similar reasons as I gave in relation to ground 2, this ground must fail.
100 A finding of guilt without a recording of a conviction is a “conviction” for the purposes of Pt VIIC of the Crimes Act (s 85ZM(1)(b)). However, it appears to me that ASIC would have been precluded from taking into account the Broadmeadows finding of guilt by operation of ss 85ZV and 85ZW of the Crimes Act. But, as I said above, Toohey stands for the proposition that the AAT is not precluded by Pt VIIC of the Crimes Act from taking into account spent convictions, and I am not persuaded that Toohey is plainly wrong. Nor, as a matter of construction of s 80(2), was it an irrelevant consideration that the AAT was bound to ignore.
101 Again, however, were it necessary to do so, I would reject on the facts ASIC’s submission that the AAT had regard only to the facts underlying the finding of guilt and not the finding of guilt itself. The AAT expressly stated that “Mr Frugtniet was found guilty of obtaining property by deception”, which “is a further example of dishonest conduct that is relevant to the Tribunal’s proceedings.” The AAT plainly had regard to the “conviction” (within the meaning of Pt VIIC of the Crimes Act) even if it also had regard to the facts underlying the “conviction”. It did not attempt to divorce the two.
Ground 5: [41] of the AAT’s reasons
102 Ground 5 is this:
Whether the Tribunal erred in law in taking account of irrelevant considerations namely holding that disclosure of charges had not being made to MARA including matters not available on the evidence (Tribunal Decision at [41]).
103 The AAT’s reasons at [41] were as follows:
The Tribunal takes into account that in March 2000 Mr Frugtniet was acquitted of charges of theft and attempted theft while working for the ANZ Bank. However when he made application to MARA on 26 October 1999 for registration as a migration agent he did not disclose the charges, which were still pending, and despite his assertions that MARA had investigated the matter and had cleared him of any wrongdoing, documents show that on 3 February 2003 MARA decided not to take further action against him, although he was reminded of the requirement to declare any charges other than spent convictions.
104 The following exchange occurred during Mr Frugtniet’s oral submissions:
MR FRUGTNIET: Well, what one really sees is that the evidence in terms of the un-redacted correspondence does not say – in other words, show cause is one thing, but the actual decision arising from MARA does not refer to the fact that there was a failure to disclose. In other words, it was put in terms of that - - -
HIS HONOUR: Well, are you saying that the AAT wrongly found that there was an obligation to disclose to MARA that there were pending charges against you?
MR FRUGTNIET: Well, what I’m saying is – yes, I am saying that because - - -
HIS HONOUR: Well, that’s a factual finding. That’s not an error of law. Unless you can point to some error made in relation to the fact-finding process, it’s not an error of law, is it?
MR FRUGTNIET: Sir, it’s just that the tribunal is embarking upon taking what is said in some other judgment and treating it to some extent – I’m not sure – in a cumulative sense. In fact, one does not even understand, to some extent, even if that were the case and, as they say, MARA decided to take no further action, I will remind of the requirement to declare any charges, which goes without saying, other than spent convictions.
One questions what is the relevance, in terms of a cumulative sense, of taking this into account. I mean, I’m not quite sure, at the end of the day, whether this is some sort of similar-fact-propensity-type situation, for the tribunal to be taking this into account. That is merely all. Now, I understand that there is a difference between taking a factual situation into account, but was it a relevant consideration to take into account as a matter of law rather than there’s a factual scenario and that has been postulated. Where does one draw the line, if you like, but I won’t take that any further, your Honour
105 As expressed, the ground appeared to raise only whether the AAT was wrong in finding that Mr Frugtniet had not disclosed charges to MARA. That would be a question of fact and I well understand why ASIC included this ground in its notice of objection to competency.
106 As advanced, however, I think that Mr Frugtniet’s argument was really that the AAT’s finding that he was obliged to disclose pending charges to MARA was a wrong finding. Possibly he also argued that whether or not he had failed to disclose pending charges to MARA was not relevant to whether he was a fit and proper person to carry on credit activities and that the AAT was prohibited from taking it into account. Both would, I think, raise questions of the interpretation of the NCCP Act and would be questions of law. ASIC made no objection to Mr Frugtniet advancing the argument in the way that he did in the passage quoted above. I will proceed on the basis that the extract above is the substance of his argument, and that it raises a question of law.
107 The difficulty for Mr Frugtniet is that the AAT did not make the finding that he was obliged to disclose the pending charges. The impugned paragraph merely restates the opinion of MARA in respect of any requirement to declare. It otherwise “takes into account” Mr Frugtniet’s non-disclosure in its calculus of fitness and propriety.
108 It appears that on 26 October 1999, in an application for registration as a migration agent, Mr Frugtniet was asked to answer this question:
11. Are you the subject of any criminal charges still pending before a Court, or have you ever been convicted of an offence which is not spent? Refer to Part VIIC Crimes Act 1914 (Cth) for a definition of a spent conviction.
109 Mr Frugtniet answered the question, “No”. However, at that time, six counts of theft and three counts of attempted theft were pending against him. He was acquitted of those charges well after he answered “no” to question 11—in March 2000. It appears from MARA’s letter dated 19 December 2005 that Mr Frugtniet had declared that his answers were complete, correct, and up to date in every detail.
110 MARA ultimately determined not to take any further action in relation to the matter, or various other matters that it raised in its 19 December 2005 letter. Earlier, in a letter dated 19 July 2002, MARA had indicated that it was considering disciplinary action against Mr Frugtniet. On that occasion, too, MARA had determined not to take further action, as it recorded in a letter dated 12 February 2003.
111 MARA’s reasons for not taking action are not exposed in its letter. In his cross-examination before the AAT, Mr Frugtniet appeared to rely upon two matters as indicating that his October 1999 answer was not false: that he had earlier disclosed the criminal charges and was not obliged to disclose them afresh on every occasion that he communicated with MARA; and, that MARA had made a positive finding that he had not made a false declaration (though, later, he stated instead that MARA did not find that he had made a false declaration, which is a very different thing). It is clear that the AAT was not persuaded by either argument that Mr Frugtniet’s October 1999 declaration was otherwise than dishonest. That was a finding of fact.
112 If Mr Frugtniet’s other argument was that the AAT was prohibited from having regard to this nature of matter, that argument would be bound to fail. There is no basis in the NCCP Act for a conclusion that the AAT was obliged to disregard that Mr Frugtniet had given a dishonest answer to MARA in an application for repeat registration as a migration agent, having declared all of his answers to be correct.
113 Ground 5 fails. As drafted in the ANOA, the ground raised a question of fact; as advanced at hearing the ground raised questions of law. On the basis that I permit Mr Frugtniet to advance the ground as he put it at the hearing, I dismiss ASIC’s notice of objection to competency so far as it relates to this ground.
114 Once again Mr Frugtniet’s written submissions in reply travelled far beyond the ground itself. He submitted that “on no account is there evidence to support the finding that false statements were made” and that “allegations are not evidence”. These submissions should be rejected. The AAT had in evidence before it the 1999 application for registration including Mr Frugtniet’s answer to question 11. It had in evidence that Mr Frugtniet was, at the time he answered “no” to the question whether he was “the subject of criminal charges still pending”, the subject of pending charges. It was entitled to make its own finding of fact as to whether Mr Frugtniet’s answer was dishonest. It did not need to rely upon allegations by MARA, nor do I think it did so rely.
115 Mr Frugtniet also submitted that the AAT did not have “jurisdiction to determine whether false statements in respect of matters over ten years ago were made” (at [17]). Later in [17] of his written submissions he appeared to link this back to a no-evidence argument. Inasmuch as Mr Frugtniet intended to argue that there was no evidence to support a finding that Mr Frugtniet had been dishonest in 1999, I reject the argument for reasons given in the previous paragraph. If instead Mr Frugtniet intended to argue that the AAT was statutorily prohibited from having regard to facts occurring more than 10 years ago—i.e., if this was an irrelevant consideration argument—I reject it for reasons I have given elsewhere. Dishonesty in 1999 can certainly be relevant to whether, in 2014 or 2015, a person is fit and proper to engage in credit activities.
Ground 7: [43] of the AAT’s reasons
116 Ground 7 is as follows:
Whether the Tribunal erred and denied natural justice to the applicant in determining that an inability to appeal a decision from the AAT other than on a matter of law, when the applicant had been successful on other grounds including the dismissal of the same matters by the Magistrate and an award of costs against the CDPP amounted to the applicant not accepting an independent decision that comprised adverse findings made by the AAT (Tribunal Decision at [43]).
117 Paragraph [43] of the AAT’s reasons, of which this ground complains, is this:
In respect of the Tribunal’s findings in 2004 that Mr Frugtniet had knowingly made false statements which resulted in a debt owed to the Commonwealth under social security legislation, Mr Frugtniet stated that he would have lodged an appeal but for the fact that his application was successful on other grounds. This is a further example of Mr Frugtniet not accepting an independent decision that reached adverse conclusions about his honesty.
118 In oral submissions I asked Mr Frugtniet how it was that ground 7 figured into the Tribunal’s ultimate conclusions, which (as I have said) I think it expressed at [50]–[52]. While Mr Frugtniet could not point to anywhere where the finding was incorporated, in fairness to him I think that the kind of finding that is made in [43] of the AAT’s reasons was picked up in [50], and particularly in the penultimate sentence.
119 There is some disconnection between Mr Frugtniet’s ground of appeal and the AAT’s finding in [43]. Mr Frugtniet relies upon an alleged denial of natural justice constituted by the AAT having had regard to findings made in a proceeding in respect of which Mr Frugtniet could not appeal that Mr Frugtniet had made false statements (“Social Security findings”). But the AAT’s real focus seemed not to be on the Social Security findings themselves but instead upon Mr Frugtniet’s failure to “accept” an independent decision that “reached adverse conclusions about his honesty.”
120 That, I think, is why ASIC included this ground in its notice of objection to competency. The AAT’s reasoning appears to have been that the significance of Mr Frugtniet’s refusal to accept earlier findings was not diminished by an inability to appeal those findings. Declining to accept that particular conduct was wrongful is probative of the likelihood of the repetition of that conduct. The AAT had a factual basis for holding that the conduct was wrongful—the earlier Tribunal’s reasons. Any assessment the AAT made of the likelihood of repetition would be an assessment of fact, which could not here be challenged. If Mr Frugtniet’s intent was to challenge the AAT’s reasoning in that connection, it would not give rise to a question of law and ASIC’s notice of objection to competency would be upheld.
121 So far as the ground complains of a denial of natural justice, for reasons just given I am not entirely convinced that the AAT had regard to the Social Security finding in the way of which Mr Frugtniet complained. But, if it did, then for the same reasons as I gave in relation to ground 3, the natural justice argument must, in any case, fail. Mr Frugtniet submitted as follows in his written submissions in reply (footnotes omitted):
[19] The Tribunal … failed to take note that the application being partly successful, it could not be appealed on a question of law at the time, was adjudicated as a criminal matter in which it was determined in favour of the applicant and costs awarded against the CDPP, is a matter upon which that same Tribunal Member has heard a different matter and was the subject of an application for apprehended bias brought against that member but who would not recuse himself, and is now the subject of an appeal to the Federal Court, all of which the Applicant stated in his evidence.
[20] This clearly illustrates the Tribunal’s denial of procedural fairness in omitting the most basic of reasons advanced, but seeking to suggest that this was a further example of the Applicant not accepting the independent decision when for the reasons already advanced it could not possibly be said that the decision was independently reached, with the applicant being able to remedy the situation.
122 The first paragraph seems to raise something entirely separate to the complaint raised in the ground. It appears to allege that the AAT erred by failing to have regard to certain facts in connection with the Social Security findings. But no attempt was made to characterise them as mandatory relevant considerations, nor was it put in the ground that the AAT had erred by failing to have regard to clearly-articulated submissions. I would, in any event, reject both arguments. As to the first, perhaps the matters raised by the applicant could have been taken into account by the AAT—it is not necessary for me to reach a conclusion about that—but there is no basis for saying that it was required to take them into account on the basis that they were mandatory considerations. As to the second, Mr Frugtniet did not establish that the matters he relied upon were sufficiently substantial that a failure to specifically deal with them constituted error, nor did he establish that the AAT had not had regard to them.
123 It should also be mentioned that Mr Frugtniet twice sought to impugn the Social Security findings by alleging, in effect, an apprehension of bias by the member who made them. At [19], Mr Frugtniet referred to his application, in a different matter in 2014, that the member recuse himself for apprehended bias. At [20] he said that it “could not possibly be said that the decision was independently reached”. There is no basis for either submission. The 2014 recusal application relied precisely upon the fact that the Senior Member had made the Social Security findings, and therefore that it might be thought he had pre-existing views about Mr Frugtniet’s fitness and propriety (see Frugtniet v Tax Practitioners Board [2015] FCA 1066 at [64] and [65]). That provides no basis for an allegation that bias would have been apprehended in 2004, and it was not suggested that Mr Frugtniet applied, in 2004, for the recusal of the Senior Member on that basis. Mr Frugtniet did not attempt otherwise to substantiate his suggestion that the decision was not “independently reached”. Arguably such a serious submission ought not to have been made so lightly. In any event, I reject the submission.
124 Ground 7 fails. So far as this ground raised whether Mr Frugtniet had been denied natural justice it raised a question of law and ASIC’s notice of objection to competency must be dismissed.
Ground 9: [44] of the AAT’s reasons
125 Ground 9 is as follows:
Whether the Tribunal erred in law of its interpretation of the Credit Act in its finding that the applicant omitted to disclose a finding of guilt to AFG even if a conviction did not occur within the stipulated time period (Tribunal Decision at [44]).
126 Paragraph [44] of the AAT’s reasons is this (emphasis added):
In the agreement between UMS and AFG on 11 July 2005 Mr Frugtniet relied on technicalities including the fact that he had not been convicted of a criminal offence involving fraud in the previous ten years. However this restrictive and narrow approach ignored the duty of full disclosure. It must have been obvious to Mr Frugtniet that AFG would have been particularly interested in previous matters involving dishonesty, including the 1997 finding of guilt, even if actual convictions did not occur within the stipulated time limit. Similarly, when completing the credit licence application on behalf of UMS in November 2010 Mr Frugtniet provided answers that were false or misleading by not revealing all his relevant history. As Pagone J noted in Frugtniet v Board of Examiners [2002] VSC 140 at [11]:
The evidence before me does not establish to my satisfaction that Mr Frugtniet is now a fit and proper person for admission. The way in which details of the perjury charges, the ANZ charges and, more particularly, the UK convictions have come to light in this proceeding have not left me with sufficient confidence in Mr Frugtniet. His obligation was to disclose matters that could inform a judgment about whether he was a fit and proper person for admission to practice. It was not an obligation merely to list convictions or charges, but was an obligation to inform the decision maker of everything that could bear upon the judgment that needed to be made about him and his character. His task was not to select or edit from his life's experiences only some events that might be relevant to the question, but to disclose every matter that might fairly assist in deciding whether Mr Frugtniet was a fit and proper person at the time of admission. Revealing more than might strictly be necessary counts in favour of an applicant; especially where the disclosure still carries embarrassment or discomfort. Revealing less than may be necessary distorts the proper assessment of Mr Frugtniet and may itself show an inappropriate desire to distort by selection and screening of relevant facts.
127 As I said above, in July 2005, UMS entered into an agreement with AFG pursuant to which UMS would receive commissions for referring customers to AFG (“Deed”). Mr Frugtniet alleged in submissions that the AAT concluded that he had a legal obligation to disclose, inter alia, his 1997 finding of guilt. Mr Frugtniet submitted as follows in his submissions in reply:
The applicant contends in respect of seeking accreditation with AFG within the sphere of Commonwealth jurisdiction where a question asked is whether a conviction has occurred in the last ten years, to which the Applicant has answered no, on a form is somehow a narrow and restrictive approach, and the applicant is to have made full disclosure taking account of the fact that AFG would have been interested beggar’s [sic] belief in relation to Commonwealth legislation and imports words into the statute and into private contracts not else where [sic] found resulting the facts found as being within the parameters of either private enterprise or Commonwealth entities so that police certificates are issued for the respective occupations and in this case provided showing no adverse outcome and that somehow blame should be attributed to the Applicant.
128 With respect, this submission is somewhat difficult to follow. I think that I am right in saying that Mr Frugtniet’s complaint is that the AAT had concluded he had a legal obligation of full disclosure, that there was in truth no such legal obligation, and therefore that the AAT had proceeded on an error of law.
129 The argument as I have just set it out is not consistent with the drafting of the ground in Mr Frugtniet’s ANOA. There, his complaint appeared to be the same as that raised in ground 2 and ground 4, namely that there was some error in having regard to a conviction-related matter that was more than ten years old. But that argument would certainly fail. The AAT was not considering a conviction at [44]; it was considering (broadly speaking) whether an answer given by Mr Frugtniet in a declaration to AFG was dishonest. I cannot see that Part VIIC of the Crimes Act has any work to do in that connection.
130 As there was no objection by ASIC, I will treat the ground as effectively raising the question whether the AAT erred in law in stating that Mr Frugtniet “ignored the duty of full disclosure”. For reasons that follow, in my judgment the AAT did not err.
131 Item 3.2 of an Annexure to the Deed contained a table headed with this phrase: “Have you or any entity that you may have been associated with as a Director or Principal in relation to the last 10 yrs:”, following which there appeared a series of questions in the table next to which one could answer “yes” or “no” by marking a box. Some of the questions, all of which Mr Frugtniet answered “no”, were as follows:
Been convicted of an offence involving a criminal charged relating to fraud, dishonesty or deceptive conduct, or is any charge pending?
…
Been refused membership of a statutory professional body or other body in respect of your professional capacity?
Been subject to disciplinary proceedings or been expelled by a statutory body, professional or other body in respect of your professional capacity?
132 In ASIC’s statement of facts, contentions, and issues (“SOFCI”), having set out the answers that Mr Frugtniet had given in the AFG declaration (at [3.22]), it addressed similar allegedly-false declarations in an application for an Australian credit licence (at [3.37]-[3.38]). That is the application to which the AAT was referring in saying, “when completing the credit licence application on behalf of UMS in November 2010 Mr Frugtniet provided answers that were false or misleading by not revealing all his relevant history”. ASIC submitted to the AAT, in the context of the application for the Australian credit licence, “[g]iven, among other things, previous findings made by the Supreme Court about the need for the applicant in future to ensure full and frank disclosure of his past conduct, the applicant knew, or should have well known, that his answers to these questions were false and misleading” (footnotes omitted).
133 Mr Frugtniet was cross-examined in the AAT as to his AFG declaration. In respect of the first question quoted above, Mr Frugtniet had said that the answer “no” was correct because, while he had been found guilty of charges in 1997, a conviction was not recorded. In respect of the second question, Mr Frugtniet said that the answer “no” was correct because, despite his having been refused admittance as a barrister and solicitor, he “didn’t have a professional capacity at that stage.” His evidence was that he did not think AFG would be interested in the subsequent Supreme Court case which dealt with issues going to honesty and integrity. In respect of the third question, Mr Frugtniet said that although MARA had initiated disciplinary action against him in May 2002, “there were no proceedings”, “[he] was not the subject of any proceedings,” and that it was not necessary for him to refer to the MARA complaint because “they’re not proceedings.” It was put to Mr Frugtniet, and he denied, that in each case he had taken an “unduly technical and restrictive approach.”
134 The AAT’s consideration was not limited, as Mr Frugtniet’s ground suggested, to the first question I have set out above. Rather, the AAT’s reasoning was that “Mr Frugtniet relied on technicalities including the fact that he had not been convicted of a criminal offence involving fraud in the previous ten years.” In my view the AAT was referring to each of the three questions to which Mr Frugtniet was taken in cross-examination.
135 One available characterisation of the AAT’s reasons—Mr Frugtniet’s—is that the AAT held that he had a legal obligation of full disclosure to AFG, with which he had not complied, and that his failure to comply with that legal obligation counted against him in the assessment of whether he was a fit and proper person. Another view—ASIC’s—is that the tribunal is saying that, in circumstances where Mr Frugtniet knew of past criticisms of him not making full disclosure, he ought to have provided full disclosure, and that a failure to provide full disclosure counted against him in the fit-and-proper assessment.
136 Before me, ASIC also sought to make good that there was a “duty” of disclosure by reference to other clauses of the Deed, including cll 4.1, 4.4, 4.5, and 4.17, which provide as follows:
4.1 General
During the term of the Agreement, the Member will act honestly and in good faith and comply with and ensure that all of the Member and the Members’ Authorities representatives and Intermediaries comply with:
[(a)–(d) not relevant]
…
4.4 Accurate information
The Member agrees to use its best endeavours to ensure that information provided in relation to Applications is accurate. The Member does not warrant that the information provided is correct, only that the Member will endeavour to correctly collate and convey the information, and not provide any information the Member knows (or should know) is false, misleading, or forged.
The Member acknowledges and agrees that AFG is authorised to make inquiries regarding the Applications to verify the accuracy of any information given by the Member to AFT under this Agreement.
4.5 No misleading or deceptive conduct
The Member agrees not to engage in any misleading or deceptive conduct or make any representation to any Applicant as to the likelihood of the success of an Application.
…
4.17 Notify AFG
The Member agrees to notify AFG within 2 Business Days after:
(a) the Member becomes aware of the commencement of any legal action against the Member or the Member’s Authorised Representatives;
(b) the Member is charged with, or convicted of, a Prohibited Offence;
(c) an allegation is made to the Member that the Member has committed a Prohibited Offence or engaged in misleading or deceptive conduct; or
(d) the Member becomes aware that it has breached any of the terms of this Agreement.
137 Clause 4.2 is also relevant, and provides as follows:
4.2 Supply Member Information, Identification Information and Declaration
(a) Before the Commencement Date, the Member agrees to send to AFG:
…
(iii) the Declaration and Consent
in the form of Annexure A duly completed and signed by the Member.
138 This is the declaration that appears at the bottom of the table in Item 3.2 of the Annexure:
I hereby declare that the information in this declaration is true and correct. I authorize the investigation of all statements made by me with respect to this declaration. I consent to AFG collecting, using and disclosing information relating to me contained or referred to in this declaration, gained as a result of investigations conducted by AFG based on such information or statements. …
139 I set out the competing submissions above at [135]. I think the true position is somewhere in between the two—but closer to ASIC’s submission—as I will now explain.
140 I do not think that the AAT had in mind that Mr Frugtniet was under a legal duty of full disclosure sourced expressly in a contractual term, a section of legislation, or elsewhere. Neither party put to the AAT that there was that nature of obligation. The AAT did not refer to the source of any such obligation. Rather, my view is that what the AAT had in mind was, as ASIC submitted, that Mr Frugtniet had previously been criticised for partial or selective disclosure and warned about the risk of his answers thereby being false or misleading. Here, UMS was obliged by cl 4.2(a)(iii) of the Deed to provide the Declaration and Consent, and it was necessary to declare that the information in that declaration was “true and correct.”
141 Of course, it is possible for a statement to be both literally true and nevertheless misleading or deceptive: see, e.g., CPA Australia Ltd v Dunn (2007) 74 IPR 495 at [28] (Weinberg J). And, as Mr Frugtniet had previously been warned, it is possible to mislead by omission. In that context, what the AAT likely had in mind was no more than that Mr Frugtniet would have engaged in wrongful or reproachable conduct if, by giving partial or selective disclosure, his statements in the declaration were misleading or deceptive or likely to mislead or deceive. That nature of wrongful or reproachable conduct would count against him in an assessment of fitness and propriety. In order to avoid reproach, it was necessary for Mr Frugtniet to complete the declaration in a manner that was sufficiently full and frank that his answers did not have such a misleading tendency. In other words, should he wish to avoid a finding of having engaged in conduct that counted against his claim to be a fit and proper person to engage in credit activities, his “duty”—and, with respect to the AAT, I accept that the word was not especially well chosen—was to have disclosed matters fully rather than partially or selectively.
142 Expressed compactly, the AAT did not find that Mr Frugtniet had a duty of full disclosure in the sense that he was obliged to volunteer information for which he had not been asked. Rather, his “duty” was of a far more limited character: it was to ensure that statements he made were not half-true, and were not technically true but misleading or deceptive by omission or selection. His “duty” was to answer questions sufficiently fully and frankly that his answers were not misleading or deceptive. The AAT did not have in mind that failure to discharge the duty constituted breach of a legal obligation (although it is possible that it would have); rather, the AAT had in mind that failure to discharge the duty would be to fall short of the standard expected of one who sought to establish fitness and propriety to engage in credit activities.
143 Read thus, the AAT’s conclusion was one of fact rather than of law. Ground 9 must fail. However, although it relied upon a faulty premise (namely that the AAT had reached a conclusion of law), Mr Frugtniet’s ground raised a question of law. ASIC’s notice of competency is dismissed.
Ground 10: [47] of the AAT’s reasons
144 Ground 10 is as follows:
Whether the Tribunal erred in law in its construction and application of the Credit Act and denied natural justice to the applicant in its failure to accept that an appeal to the Federal Court from the decision of the AAT in 2014 amounted to a failure to disclose all relevant past conduct was wrong in those proceedings (Tribunal Decision at [47]).
145 The AAT’s reasons provide as follows at [47]:
In respect of the Tribunal’s decision in 2014 to affirm the decision of the Tax Practitioners’ Board to cancel Mr Frugtniet’s registration as a tax agent, the Tribunal notes that in those proceedings Mr Frugtniet did not accept the independent decision that his failure to disclose all relevant past conduct was wrong, despite the earlier comments by Gillard J and Pagone J in the Supreme Court.
146 With respect to Mr Frugtniet, the way he has put ground 10 together does not make a great deal of sense. But the argument was put more clearly in his written submissions, in which the following was put (emphasis added):
The Tribunal took irrelevant factors into consideration predicated on the basis that the applicants [sic] appeal to the Federal Court amounted to the applicant not accepting the independent decision that his failure to disclose all relevant past conduct was wrong … .
147 Natural justice is mentioned in the ground itself but not in the submissions. I am not sure it was pressed. If it was pressed, then for broadly the same reasons as I gave in relation to ground 3, I would reject the submission.
148 Ground 10 is facially similar to ground 3, but on closer inspection the submission is different. In respect of ground 3, Mr Frugtniet argued that findings made by a Tribunal, which Mr Frugtniet was unable to appeal, were irrelevant considerations. I rejected the submission for reasons given at [90]–[94].
149 Here, however, the circumstances were different. The starting point is that the Tribunal in a different matter had affirmed a decision of the Tax Practitioners’ Board terminating Mr Frugtniet’s registration as a tax agent: Frugtniet [2014] AATA 766. For ease of reference, in this heading I will refer to that Tribunal as the “Tax Tribunal” and the present Tribunal as the “ASIC Tribunal”. The Tax Tribunal noted, at [25], that one of the matters relied upon by the Board as grounding the termination of Mr Frugtniet’s registration was that “on the lodgement of his application form for registration as a tax agent in May 2008 Mr Frugtniet did not bring to the attention of the Tax Practitioners Board that in 2002 and in 2005 the Board of Examiners declined to find that he was a fit and proper person for admission to legal practise in Victoria”. This arose out of Mr Frugtniet having answered in the negative the following questions in his application for registration as a tax agent (at [26] of the Tax Tribunal’s reasons):
(a) Have you had membership or registration with a professional body or registration board, (including a Tax Agents’ Board), refused, cancelled or suspended in the last 10 years?;
(b) Have you been disbarred, expelled or struck off from the practice [sic] of your profession, or have you been disciplined by a professional body or registration board (including a Tax Agents’ Board) in the last 10 years?;
(c) Is there any other matter which may affect your eligibility for registration?; and
(d) Is there any other matter of which you are aware, which may have an effect on whether the Board would regard you as a fit and proper person or of good fame integrity and character?.
150 The Board had taken the view that Mr Frugtniet’s answers to these questions amounted to a failure to disclose all relevant past conduct. Mr Frugtniet challenged that proposition in the Tax Tribunal. The Tax Tribunal’s decision went against him: Frugtniet [2014] AATA 766. He appealed. At the time that the ASIC Tribunal made its decision in this matter, the appeal had not yet been heard, but the ASIC Tribunal was aware of its existence (see at [30]).
151 Mr Frugtniet’s submission was that the ASIC Tribunal erred in counting against him the fact that he had appealed against Frugtniet [2014] AATA 766, in the sense that the fact of his appeal “amounted to [his] not accepting the [Tax Tribunal’s] independent decision that his failure to disclose all relevant past conduct was wrong”. If that had been the ASIC Tribunal’s reasoning, I would have had some sympathy for the submission. But that was not the ASIC Tribunal’s reasoning.
152 What the ASIC Tribunal counted against Mr Frugtniet was that—in circumstances where he had earlier been warned of the importance of full disclosure by Gillard J and Pagone J—he had again advanced an argument, which was rejected by the Tax Tribunal, that he had adequately disclosed matters to the Board. Or, to put it in another way, the ASIC Tribunal counted against Mr Frugtniet that, as it appeared from the decision in Frugtniet [2014] AATA 766, he had not learned the lesson that he ought to have learned in consequence of earlier statements of Gillard J and Pagone J. It was not taking into account the fact of Mr Frugtniet’s appeal to the Federal Court; it was taking into account Mr Frugtniet’s continued refusal to accept the inadequacy of his disclosure before the Tax Tribunal despite having been warned numerous times, including in the decision of the Tax Agents’ Board.
153 Then, the question becomes whether the ASIC Tribunal was bound to ignore the decision of the Tax Tribunal where under appeal. I think that it was not. I do not accept that the NCCP Act requires that ASIC, or on review the AAT, disregard decisions or judgments whenever the applicant has appealed. Indeed, s 80(1)(c) provides precisely that a conviction constitutes a basis for a banning order, and provides for no carve-out for appealed (or, for that matter, unappellable) convictions. An appeal might result in a conviction or a decision being overturned, but prior to or pending an appeal it remains a basis for, or relevant to, a banning order. An appeal might reveal that a refusal to accept findings was well-founded, but prior to or pending an appeal it is nevertheless relevant to assessment of a person’s fitness and propriety
154 Ultimately, and after the AAT’s decision in this proceeding, Mr Frugtniet’s appeal against Frugtniet [2014] AATA 766 was successful: Frugtniet v Tax Practitioners Board [2015] FCA 1066. Jessup J upheld a ground of appeal to the effect that the Tax Tribunal member erred at law in failing to recuse himself for apprehended bias. That having occurred underlines what I said above about the unavailability of appeal often diminishing the weight that a Tribunal would give to a finding in an assessment of a person’s fitness and propriety. But Mr Frugtniet did not advance any argument that the AAT had weighted this consideration in such a way as to give rise to legal error, for example in the nature of legal unreasonableness. The challenges that Mr Frugtniet did advance have failed. So, therefore, does ground 10.
155 In his written submissions in reply, Mr Frugtniet mounted an attack on the AAT’s reference to the judgments of Gillard J and Pagone J, in 2002 and 2005 respectively. His submission appeared to be that comments by those judges were not relevant because the State statutory schemes to which their Honours were referring dealt with spent convictions in a manner different to how the Commonwealth statutory scheme deals with spent convictions. This misses the point of the AAT’s reasoning (and, for that matter, the reasoning of Gillard J and Pagone J). The AAT, and their Honours, in criticising the Mr Frugtniet for failing to give full and frank disclosure were not predicating their remarks upon a particular spent convictions scheme. Rather, they were saying nothing more than that giving partial and selective disclosure, rather than full and frank disclosure, and thereby running the risk of having one’s disclosure be misleading or deceptive—especially where one has previously been warned of that risk—is unmeritorious and reflects poorly on Mr Frugtniet.
Grounds 11 and 12: [48] and [51] of the AAT’s reasons
156 Mr Frugtniet advanced these grounds together. They were as follows:
11. Whether the Tribunal erred in law by the construction and application of the Credit Act that the applicant had an obligation to disclose to the respondent that he was the subject of a complaint. Moreover, the statement of the applicant that he had not attracted detrimental attention as a migration agent was incorrect and misleading was not available on the evidence (Tribunal Decision at [48]).
12. Whether the Tribunal erred in law when it failed to take relevant considerations into account that the decision of MARA was provided to the Tribunal as part of the stay applications and review applications relating to the MARA matter in which the present Member was constituted and correspondence was undertaken between the Tribunal, the Member’s Associate and the applicant, including there being no requirement under the Credit Act to disclose the decision to the respondent which was publicly available, and was accessed and downloaded before the commencement of these Tribunal proceedings by its investigator (Tribunal Decision at [49] and [51]).
157 The paragraphs of the AAT’s reasons to which the grounds relate are these (mis-numbering of paragraphs in the original):
48. In respect of the MARA decision of 6 November 2014 to cancel Mr Frugtniet’s registration as a migration agent, the Tribunal does not accept his assertion that he had no obligation to disclose the decision to the respondent before the hearing. When he compiled his Statement of Facts and Contentions dated 20 October 2014 Mr Frugtniet was aware that the matter was before MARA as a result of a complaint against him because a notice was issued to him by MARA on 5 September 2014 informing him of its proceedings. His assertion that he had not attracted detrimental attention as a migration agent was incorrect and misleading, not only because of the complaint that led to the proceedings by MARA but also because of adverse media articles identified by Mr McKinnon.
49. Mr Frugtniet was aware of the decision by MARA to cancel his registration as a migration agent when he prepared his statement to the Tribunal dated 27 November 2014 in reply to the respondent’s Statement of Facts, Issues and Contentions, and the decision by MARA was clearly relevant to the application under review because it was another example of a finding that Mr Frugtniet was not a fit and proper person. Mr Frugtniet should have provided the decision to the respondent and to the Tribunal as soon as he became aware of it.
49. The Tribunal does not accept Mr Frugtniet’s statement in his application for a stay of the implementation of the decision under review that there has not been … a single complaint. The meaning of the word complaint in the Macquarie Dictionary is information in written form giving details of an alleged criminal offence. There is no requirement for proof or substantiation, because a complaint is the process by which an allegation is raised and brought to the attention of the relevant person or authority. Consequently Mr Frugtniet was aware that a person had made allegations against him when he sought a stay of the decision under review, even if the complaint had not been substantiated at the time.
…
51. Mr Frugtniet has been told that he is required to disclose his past conduct in a complete and accurate manner. Despite this, he has shown a complete lack of insight into his past conduct, and has failed to make full and frank disclosure to the Tribunal. His action in failing to disclose to the respondent and to the Tribunal, until the hearing of the application under review, the decision by MARA on 6 November 2014 to cancel his registration as a migration agent shows that he has learnt nothing from previous findings about his character. Similarly his assertion that he has not been the subject of a single complaint about his behaviour as a credit facilitator is wrong and misleading.
158 It was clear from Mr Frugtniet’s oral submissions that the essence of these grounds was that the AAT had concluded that he was under a legal obligation to disclose, prior to hearing, the facts of his interactions with MARA, and that that was in error because there was no such obligation. I accept that it would be an error of law to conclude that there was a legal obligation to disclose a matter if, in fact, there was not such a legal obligation.
159 I am not persuaded that the AAT used the word “obligation” to denote, strictly, a legal obligation, in the sense of identifying a statutory provision that would be contravened in the absence of disclosure by Mr Frugtniet of the facts relating to MARA. Rather, I think that the AAT had in mind something more informal. In effect, my view is that the AAT determined that the manner in which Mr Frugtniet dealt with the disclosure of the MARA decision carried with it the real risk of misleading the AAT and ASIC by omission or by half-truth, and that to have so dealt with disclosure was dishonest and counted against him in the fitness and propriety assessment. By the impugned phrase—“the Tribunal does not accept his assertion that he had no obligation to disclose”—the Tribunal meant, in my opinion, that any such asserted lack of legal obligation did not detract from the wrongfulness of Mr Frugtniet’s conduct. In short, the AAT considered that Mr Frugtniet’s conduct was deceptive; Mr Frugtniet’s submission was that his conduct was defensible at law; the AAT’s rejoinder was that it did not matter whether it was defensible at law, it remained dishonest: it did not accept that any asserted lack of legal obligation was exculpatory. I give more detailed reasons below for arriving at that view.
160 The context in which the AAT referred to an “obligation” is, I think, revealed in Mr Frugtniet’s cross-examination before the AAT. Mr Frugtniet agreed under cross-examination that in September 2014 he was aware that a complaint had been made against him, and that a notice had been issued under s 309 of the Migration Act 1958 (Cth), inviting submissions in respect of consideration by MARA whether to cancel or suspend Mr Frugtniet’s registration as a migration agent. He agreed that he had not mentioned that in his statement of facts, contentions, and issues dated 20 October 2014 (“SOFCI”). Rather, at [25] of his SOFCI, he had said the following:
The applicant appears to have been successful as a migration agent for 16 years without attracting detrimental attention. He remains a fit and proper person for the purpose of providing migration services – this fact should be treated as relevant to the question whether he can be categorized as fit and proper for the purposes of registration as a representative providing credit services.
161 It was put to Mr Frugtniet that, given his history of previous findings of dishonesty or a lack of full and frank disclosure, his SOFCI had been a perfect opportunity to disclose MARA’s s 309 notice. Mr Frugtniet rejected the proposition and said that his SOFCI related to the documents lodged under s 37 of the AAT Act. I interpolate here to note that Mr Frugtniet had earlier submitted, at the commencement of the AAT hearing, that he was not obliged to make a statement of evidence and that ASIC ought to present its case first, leaving him to respond. That submission was rejected by the AAT, and Mr Frugtniet went first.
162 It was put to Mr Frugtniet in cross-examination that he was not limited in his SOFCI to addressing the s 37 documents and that he could have put on more evidence of his own and that he had chosen not to do that for reasons he had given. Mr Frugtniet responded, “Yes, for reasons that I was going to give it here. I was not going to prejudice my case, as I’ve said in my preceding answer, on the authorities that I didn’t have to go first, and that I didn’t have – not for any other reason – that I didn’t have to show my hand. The context being is that I would give this evidence here after, for the very reasons I outlined, that the respondent had actually gone first because of matters I outlined.”
163 It was put to Mr Frugtniet that his case involved showing that he was full and frank in his disclosure, and honest, and that it might have been more judicious to have brought the MARA issue to ASIC’s attention sooner rather than later. Mr Frugtniet rejected the proposition, on the basis of the authorities he had earlier referenced concerning his obligation to put on a statement of evidence. He confirmed he was relying “on a legal position.”
164 On 6 November 2014, Mr Frugtniet’s registration as a Migration Agent was cancelled. On 27 November 2014, Mr Frugtniet lodged his statement in reply of facts, issues and contentions (“Reply SOFCI”). That statement contained no reference to his registration having been cancelled or to any of the findings made in MARA’s decision. In his cross-examination, various questions were put to Mr Frugtniet concerning why he had not raised the MARA issue in his Reply SOFCI, and whether, in his principal SOFCI, he had been wrong to say that he had not attracted adverse attention when he knew that a complaint had been made against him and an investigation commenced. Substantially, he rejected that he should have referred to the MARA decision in his Reply SOFCI, and denied that it was wrong to say that he had not attracted adverse attention.
165 Mr Frugtniet agreed under cross-examination that MARA’s decision was relevant to the matter then before the AAT. He also agreed that he had not mentioned it until his oral evidence and had not brought a copy of it with him to the AAT hearing.
166 The Senior Member asked Mr Frugtniet why he had not updated what he had said at [25] of his SOFCI in light of what subsequently happened, namely that his registration as a migration agent had been cancelled. Mr Frugtniet replied that his November Reply SOFCI was “a reply to the respondents’ statement of facts, issues and contention, as opposed to taking out in a miniscule way any paragraph and saying this is what I’m doing, because it was a reply”. The Senior Member asked the following questions:
… I mean, you gave evidence this morning?---Yes.
And I took you through the statement of facts and contentions myself before Mr Knowles asked you questions?---Yes.
And you didn’t say to me, “Wait a moment, I need to amend paragraph 25”. You didn’t’ say that. I’m just wondering why you didn’t do that?---I wasn’t looking at each and every paragraph, sir. As I gave that evidence I was giving a bit of narrative.
Okay?---Of – in terms, as I said before, sometimes hard to delineate between facts, contentions and issues and evidence, and therefore I was indebted when the Member asked me questions and I kept going back as my - - -
Okay?---As my memory was rekindled into saying exactly what I thought of matters in a factual sense.
167 The way that ASIC advanced its case before the AAT involved a focus upon “full and frank disclosure”. Particularly on the basis of earlier warnings to Mr Frugtniet from, inter alios, Pagone J, ASIC’s proposition was that Mr Frugtniet knew or ought to have known that anything other than fullness and frankness in a disclosure created the risk that the disclosure would be misleading or deceptive. Its proposition was further that Mr Frugtniet had not been full and frank in his disclosures to the AAT (and, for that matter, to ASIC), as was evidenced by [25] of his SOFCI and his failure to mention MARA’s decision in his Reply SOFCI.
168 Conversely, Mr Frugtniet’s case before the AAT was that he was not under an obligation to have made any disclosures to ASIC, and that his approach to disclosing MARA’s decision to the AAT was unobjectionable.
169 The AAT’s reasons, read as a whole, disclose that it accepted ASIC’s submissions. The critical sentence, in my opinion is the first sentence of [51], which states that Mr Frugtniet had been told that he is “required to disclose his past conduct in a complete and accurate manner” (emphasis added). In other words, where a disclosure is made, it is to be made completely and accurately, and not by half-truth or in a way that is misleading. It would be wrong to state half-truths to the AAT or to ASIC, or to mislead them. I do not think any reasonable litigant could disagree with the proposition that to mislead the fact-finder, or one’s opponent, by omission or by stating half-truths would be wrong, and probably dishonest, even if it did not attract legal sanction. In any event, were it necessary to find a legislative expression of that sentiment I think it could be found in the combination of ss 2A and 33 of the AAT Act, which I will set out in reverse order below, so far as is relevant:
33 Procedure of Tribunal
…
(1AB) A party to a proceeding before the Tribunal, and any party representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
…
(b) is fair, just, economical, informal and quick; and
…
(d) promotes public trust and confidence in the decision-making of the Tribunal.
170 It seems to me highly likely that to mislead the AAT and one’s opponent by omission or by half-truth would be inconsistent with a party’s obligation under s 33(1AB) of the AAT Act.
171 Here, Mr Frugtniet had made a positive statement, at [25] of his SOFCI, that he had been successful for 16 years as a migration agent “without attracting detrimental attention.” That was at best a half-truth. It concealed far more than it revealed. It was inconsistent with the “requirement”—or the obligation—to be complete and accurate in making disclosures. So, too, was the failure to correct it in the Reply SOFCI. In saying that it did not “Accept [Mr Frugtniet’s] assertion that he had no obligation to disclose …”, I think the AAT was really saying that it did not accept that any such asserted lack of legal obligation excused the failure by Mr Frugtniet to be complete and accurate in his disclosures.
172 Seen in that way, the AAT was doing no more than saying that Mr Frugtniet’s conduct in relation to disclosing the MARA matters was dishonest, or otherwise than full and frank, and that in either case that counted against him in an assessment of his fitness and propriety. An absence of legal obligation to act differently did not excuse Mr Frugtniet’s conduct. That is a finding of fact with which I cannot interfere.
173 The other aspects of grounds 11 and 12 can be far more quickly dealt with. It is said in the last sentence of ground 11 that it was unavailable on the evidence to find that it was incorrect or misleading for Mr Frugtniet to have said, at [25] of his SOFCI, that he had not been the subject of any detrimental attention. I disagree. The fact of MARA having issued to Mr Frugtniet a s 309 notice in relation to a complaint that had been made against him provided a more-than-adequate basis for the AAT to have made the finding that it made.
174 Ground 12 relied upon establishing that the AAT was required to take into account three matters in making its findings, namely that Mr Frugtniet had previously provided MARA’s decision to the Tribunal (albeit in a different proceeding), that there was no requirement under the NCCP Act to disclose the decision to ASIC, and that ASIC was in any event aware of MARA’s decision. The second of those matters is really a repetition of ground 11, which I have already rejected. And, there is simply no basis in the statute for asserting that these were mandatory considerations. Mr Frugtniet’s real complaint is that the facts were found against him. Ground 12 must fail.
175 Before leaving ground 12, however, I must deal with Mr Frugtniet’s remarkable submission that, because he had provided MARA’s November 2014 decision to the AAT in a different matter—a matter in which, as it happened, the Tribunal was constituted by the same Senior Member—“the Tribunal was apprised” of that decision and therefore that “the Tribunal Member is being disingenuous” in holding that Mr Frugtniet had failed to disclose MARA’s decision to the AAT and to ASIC. To be disingenuous is to be lacking in candour or frankness, insincere, or morally fraudulent. For Mr Frugtniet to have made that submission about the Senior Member shows a stunning lack of self-awareness. It is completely baseless and should never have been put.
176 Lodging a document in one proceeding cannot possibly constitute disclosing that document in every proceeding in the same forum for all time, whether the Tribunal in a particular proceeding is constituted by the same member or not. If a disclosure should properly be made in one proceeding, it does not suffice to disclose it in another proceeding. Mr Frugtniet’s submission appears to suggest that the Senior Member should, when presented with MARA’s decision in the MARA matter, have said unprompted to the parties in the ASIC matter that a document had been lodged in a different matter that appeared to him to have been relevant and so he intended to take it into account in the ASIC matter. Disregarding the question of whether or not that would be permissible, Mr Frugtniet surely could not have expected that the AAT would do so. And, by the time of the hearing, it would have been evident to Mr Frugtniet that the AAT had not given that indication to the parties, so at best for Mr Frugtniet he had provided a document to the AAT without his opponent’s knowledge. That would ordinarily be improper. And it is clear, in any event, that disclosure to the AAT is not the same as disclosure to ASIC, so Mr Frugtniet has no basis whatever for disputing the suggestion that he had failed to disclose MARA’s decision to ASIC.
177 Mr Frugtniet’s complaints were that the AAT had regard to prohibited considerations, and failed to have regard to mandatory considerations. These are questions of law. ASIC’s notice of objection to competency does not succeed in respect of grounds 11 and 12.
Ground 13: [49] and [51] of the AAT’s reasons
178 Ground 13 was as follows:
The Tribunal erred in law when it failed to consider a relevant consideration that a complaint made to the credit ombudsman but withdrawn by the complainant did not fall within the definition contained within the Macquarie Dictionary being information in written form giving details of an alleged criminal offence, including any such complaint being required to be published by the Credit Ombudsman to the applicant could not be undertaken as approval was not given by the complainant, including the fact that the respondent did not put the matter of any such alleged complaint to the applicant before it made its decision which became the subject of review, but raised the matter to counter the applicant’s stay application and statement that there had not been a complaint against the applicant (Tribunal Decision at [49] and [51]).
179 I have already set out above [49] and [51] of the AAT’s reasons.
180 In the first place, this is patently a complaint about a finding of fact. There is simply no basis for suggesting that it is a “relevant consideration” in the Peko-Wallsend sense, to which the AAT was obliged to have regard, that the “complaint” in this case did not fall within the Macquarie Dictionary’s definition of that word. Mr Frugtniet did not attempt to make good the proposition that it was a mandatory consideration. Rather, his oral submissions focussed on establishing that he was correct in having said at a particular time that no complaints had been made against him. This does not raise a question of law and the ground fails on that basis alone.
181 Alternatively, if a question of law is raised by the AAT’s finding that Mr Frugtniet’s statement that he had not been the subject of a complaint was “wrong and misleading”, then I would hold that there is no error in that finding.
182 In his application for review of decision dated 25 July 2014, Mr Frugtniet said as follows concerning his grounds for requesting a stay of ASIC’s banning order:
1. Prospects for success – are good.
2. Public protection paramount, hence, not a single complaint.
…
183 Point 2 is, in terms, an assertion that Mr Frugtniet has not been the subject of a single complaint in respect of his credit activities and that, accordingly, the public protection purpose of the banning order would not be undermined by granting a stay of ASIC’s decision.
184 On 16 July 2013, a representative of the Credit Ombudsman Service Limited emailed Mr Frugtniet saying, inter alia:
We refer to a complaint we received from [AT].
It would seem that the complaint has not been through your Internal Dispute Resolution (“IDR”) procedures.
Our Rules state that a Complainant must first try to resolve their complaint with you before we can consider it.
185 Mr Frugtniet replied on 16 July 2013 saying that AT had raised various issues which he had dealt with, but that:
… if there is any issue that is outstanding which we are to treat as a complaint would you kindly forward the complaint received by your office so that we can accept same as a complaint from [AT] and implement our IDR procedures by providing a written response to the complainants.
186 The Credit Ombudsman replied that it had not been provided with a disclosure statement and so could not release the complaint. Mr Frugtniet responded on 29 July 2013 requesting that the Credit Ombudsman provide a deadline for AT to provide a consent to disclosure “or else the closure of the complaint so that there is no further prejudice to any of the parties.” It appears from Mr Frugtniet’s evidence to the AAT that the complaint was later withdrawn.
187 “Complaint”, as Mr Frugtniet used it, is an ordinary English word. It is not necessary to go to a dictionary to illustrate that the argument Mr Frugtniet later advanced—namely that “complaint” means only a complaint that has been sustained, or one that has been published to him—is untenable. For one, the Credit Ombudsman’s emails refer to receipt of a “complaint”, which had not been through internal dispute resolution procedures. It did not appear to the Credit Ombudsman that it was any less a “complaint” for that failure. Nor did it so appear to Mr Frugtniet at the time of his email dated 29 July 2013, in which he suggested that the “complaint” should be closed.
188 In order to avoid false or misleading statements, Mr Frugtniet should have said that no complaints had been sustained against him, or that no complaints had ever been published to him, or that a complaint had been made but that the complainant had not authorised the disclosure of its substance to Mr Frugtniet. I imagine that the AAT would have given substantially diminished weight—indeed, perhaps no weight—to any complaint to which Mr Frugtniet had not had the opportunity to reply, the content of which he did not know, and which had subsequently been withdrawn. But the issue is not whether the complaint should have carried weight (and if so, how much); the issue was whether it was correct for Mr Frugtniet to have said that there had been not a single complaint. It was not correct, on the proper construction of the word “complaint”. Were it necessary, I would reject ground 13 on this basis as well.
189 In his written submissions in reply, Mr Frugtniet advanced this as a no-evidence ground, submitting that there was no evidence for the finding that Mr Frugtniet “had received a complaint, because the Applicant never received a complaint that was forwarded by the complainant to the company to resolve within the internal processes … .” The emails of July 2013 were sufficient evidence. That argument would fail.
Conclusion
190 Before concluding, I am moved to express a final observation, which might assist in explaining, in a broad sense, why certain of Mr Frugtniet’s grounds did not succeed.
191 Honesty is a notion of broader compass than legality. The two are not coextensive. A person who baldly lies may not have acted in contravention of law. Nevertheless a person in the habit of baldly lying, especially one who sees nothing objectionable in that habit, is unlikely to be fit and proper to engage in activities involving trust and vulnerability. It follows that it is not necessarily an answer to an accusation of dishonesty to plead consistency with law, nor often will technical chicanery or linguistic artfulness improve the plea. It does not suffice for a person who has patently and deliberately misled another to point to the absence of legal obligation to excuse the misleading. I would like to think that it is an aspect of being a fit and proper repository of trust that one does the moral thing whether or not one is legally obliged to do so.
192 The foregoing is illustration and should not be read as containing findings concerning Mr Frugtniet specifically. My purpose is to illuminate the way that the AAT approached this matter. Especially in those paragraphs in which the AAT spoke of a “duty of full disclosure” or an “obligation to disclose”, I think that it did not have in mind that it was necessary to identify some statutory obligation that Mr Frugtniet had breached. It was not necessary for there to be legal wrongdoing in order for Mr Frugtniet’s conduct to be inconsistent with propriety. It sufficed for the AAT to be satisfied, as evidently it was, that Mr Frugtniet’s conduct was normatively inconsistent with fitness and propriety to engage in credit activities, whether or not it also involved breach of law. It was substantially on the basis of satisfaction as to a record of dishonesty—not a record of contravention of statutory obligations—that the AAT reached its decision.
193 As I noted at the outset, ASIC objected to the competency of grounds 3, 5, 7, 9–11, and 13. I uphold the notice in respect of ground 13 and otherwise dismiss it. All surviving grounds having been dismissed, I will dismiss the appeal. No submissions were made as to costs. I am not aware of any reason why costs would not follow the event, but I will give Mr Frugtniet an opportunity to make submissions as to costs. If he does so, ASIC will have the opportunity to reply. If he does not, costs will follow the event.
I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. |
