FEDERAL COURT OF AUSTRALIA

Schlaepfer v Australian Securities and Investments Commission [2017] FCA 1122

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicants pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    The Australian Securities and Investments Commission (ASIC) is conducting an investigation into suspected market manipulation, false trading or market rigging arising from trading in various securities on Australian markets by Merlito Securities Company Limited as agent for Select Vantage Inc. Select Vantage was originally incorporated under the laws of Anguilla, but subsequently transferred its domicile to the Cayman Islands. Its President and Chief Executive Officer, Mr Daniel Schlaepfer, is a citizen of Canada and a resident of Toronto, Ontario. In October 2016, ASIC requested the Cayman Islands Monetary Authority (CIMA) to provide it with assistance. CIMA subsequently issued a direction to Select Vantage which required it to provide certain specified information or documentation. Select Vantage and Mr Schlaepfer sought judicial review of ASIC’s conduct in making the request to CIMA. For its part, ASIC filed a notice of objection to competency.

2    In short terms, the review application and objection to competency raised three substantive issues. The first issue is whether the Court has jurisdiction to review ASIC’s conduct in making the request. Was ASIC’s conduct engaged in for the purpose of making a decision under an enactment within s 6(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act)? Does the matter arise under a law made by the Commonwealth Parliament for the purposes of s 39B(1A)(c) of the Judiciary Act 1903 (Cth)?

3    If the Court has jurisdiction, the second issue is whether ASIC’s conduct involved an improper exercise of power because it either intended to deprive, or had the effect of depriving, Mr Schlaepfer of his “privilege or immunity against giving testimonial evidence that might later be used against him in criminal or civil penalty proceedings”.

4    The third issue is whether a breach of the rules of natural justice has occurred, or is likely to occur, as a result of ASIC’s conduct because it allegedly involved procuring Mr Schlaepfer to be compelled to give testimonial evidence that might later be used against him.

Factual background

5    The facts were not relevantly in dispute.

6    Select Vantage is a member of a group of companies known as the Vantage Group. The Vantage Group is or was engaged in the business of electronic day-trading of securities on stock exchanges and other organised markets around the world. As has already been noted, Select Vantage is domiciled in the Cayman Islands. Its President and Chief Executive Officer is Mr Schlaepfer, who is a Canadian citizen resident in Toronto. Other companies in the Vantage Group provide services to Select Vantage to assist it in the conduct of its business. One of those companies is or was Elite Vantage Placement Ltd, a company domiciled in Anguilla. Elite Vantage employs individual traders who use the Vantage Group’s proprietary trading systems to trade on capital markets throughout the world. The traders employed by Elite Vantage place trades on behalf of Merlito Securities, a company incorporated under Hungarian law and wholly owned by Mr Schlaepfer. The trades involve the use of the capital of Select Vantage.

7    In October and November 2014, Macquarie Securities (Australia) Limited placed trades on the Australian Stock Exchange and the Chi-X market on behalf of Merlito Securities. Those trades came to the attention of ASIC. In early 2015, Mr Schlaepfer and representatives and advisers of Select Vantage engaged in various discussions and communications with ASIC. On 5 March 2015, ASIC advised the solicitors for Mr Schlaepfer and Select Vantage that the “matter” had been accepted for “formal investigation by ASIC’s Markets Enforcement Team”.

8    Mr Schlaepfer and his solicitors continued to engage with ASIC throughout 2015. In February 2016, Mr Schlaepfer voluntarily met with ASIC officers in Sydney and answered questions concerning the relevant trading. In early June 2016, ASIC advised that there were “no further issues” that ASIC sought to address with Mr Schlaepfer at that time. Despite that advice, Mr Schlaepfer’s solicitors wrote to ASIC requesting a face-to-face meeting in late June 2016. That offer was declined by ASIC. Following further correspondence, on 5 September 2016 ASIC advised Mr Schlaepfer’s solicitors that “ASIC’s investigation into Select Vantage’s trading remains ongoing” and that “[i]n light of this at this stage any further discussions of the matters raised in your letter is unlikely to be of any benefit to ASIC or your clients”.

9    In mid-September 2016, the tenor of the communications between ASIC and Mr Schlaepfer’s solicitors changed somewhat. On 12 September 2016, ASIC foreshadowed to Mr Schlaepfer’s solicitors that it intended to serve a notice on Select Vantage which required it to give ASIC “reasonable assistance” in connection with the investigation pursuant to s 19(2) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). The assistance that was to be sought from Select Vantage was:

The names, addresses and contact details (including telephone numbers and email addresses) of each trader employed by Select Vantage Inc. and who entered orders through Macquarie Securities (Australia) Limited onto the markets operated by ASX Limited and/or Chi-X Australia Pty Ltd during the period 6 October 2014 to 21 November 2014.

10    ASIC asked Select Vantage’s solicitors whether they had instructions to accept service of the proposed notice. In response, Select Vantage’s solicitors raised two “broad concerns” about the request. The first concern was that it was not clear to them what forensic purpose would be served by providing the information. The second was that it was not clear to them what use ASIC would make of the information. It was pointed out in that regard that Select Vantage had privacy obligations towards its traders.

11    ASIC’s response was in the following terms:

ASIC is undertaking an investigation into suspected contraventions of sections 1041A, 1041B and 1041C of the Corporations Act 2001 (Cth) in relation to trading in various securities on the ASX Limited and Chi-X Australia Pty Ltd markets by Merlito Securities Company Limited (Merlito) as agent for Select Vantage Inc. (Select Vantage) between 20 August 2014 and 21 November 2014.

Given this, ASIC does not consider it appropriate to provide the details you seek in relation to the purpose and use of the requested information.

ASIC notes your client’s provision of voluntary information on previous occasions. Would your client be willing to provide the information, as outlined in my previous email, to ASIC on a voluntary basis?

Alternatively, can you please confirm whether you have instructions to accept service of the proposed s 19(2) notice.

12    Further correspondence ensued between Select Vantage’s solicitors and ASIC. Mr Schlaepfer’s solicitors indicated that, absent a response to the concerns they had raised, “our clients cannot reasonably be expected to provide the information sought on a voluntary basis”. They also confirmed that they did not have instructions to accept service of the proposed s 19(2) notice.

13    ASIC did endeavour to assuage the concerns raised by Select Vantage’s solicitors. It pointed out in a letter to the solicitors that s 127 of the ASIC Act required it to take all reasonable measures to protect personal information given to it in confidence from unauthorised use or disclosure. It also provided the following further information in relation to its forensic purpose in seeking the information:

It is not ASIC's practice to comment on its internal workings regarding the specifics of any investigation, including specific reasons for requesting books and/or information. I also understand, from your letter and email, that Select Vantage remains willing to provide reasonable assistance to ASIC on a voluntary basis. In this instance therefore, ASIC is willing to advise that its' analysis of the trading during October 2014, including the repeated achievement, in aggregate but not by individual Select Vantage traders, of net zero positions at the end of most Trading Days, indicates that certain of the Select Vantage traders were not operating independently of one another. In conducting its analysis, ASIC took into account the operation of Select Vantage's internaliser, which appears not to have explained the net zero position in all circumstances.

14    The information provided by ASIC, however, apparently did not assuage Select Vantage’s concerns. The response of Select Vantage’s solicitors was to put an alternative proposal to ASIC that involved Select Vantage itself conducting an investigation or analysis of the relevant trades and providing the results of that investigation or analysis to ASIC. It was implicit in the response that Select Vantage would not otherwise provide the information requested by ASIC.

15    ASIC’s response, in turn, was to reject the proposal and advise that it would be contacting CIMA to request that CIMA obtain the required information from Select Vantage. That proposed course did not meet with Select Vantage’s approval. Indeed it provoked a rather hostile response. Select Vantage’s solicitors wrote to ASIC and asserted, amongst other things, that ASIC’s request went beyond a request for “reasonable” assistance; that the request to CIMA was unlikely to be productive because Select Vantage did not itself employ traders, and accordingly the request was likely to be met with a nil response; that there were various reasons why CIMA would not be able to comply with the request; and that Mr Schlaepfer and Select Vantage reserved the right to make submissions in opposition to any request from ASIC that CIMA compel production of any information.

16    On 7 March 2017, CIMA issued a written direction to Select Vantage. The direction recorded that it was made under s 34(9) of the Monetary Authority Law (2016 Revision), a law of the Cayman Islands. It noted that s 34(17) of the Monetary Authority Law provided that a person who failed to comply with a requirement of CIMA under s 34(9), or who wilfully obstructed any inquiry by CIMA, was guilty of an offence. The direction provided that Select Vantage was required within 10 days of service to produce such documents as were within its possession or control, or provide such information, as was listed in the schedule. The schedule was in the following terms:

SCHEDULE

In regards to SELECT VANTAGE INC. please provide the following:

In relation to each of the traders who placed orders on the Merlito Securities Company Limited account, which had '6ZW' as its unique client cross reference, held with Macquarie Securities Australia Limited and which were entered onto the markets operated by ASX Limited and/or Chi-X Australia Pty Ltd during the period 6 October 2014 to 21 November 2014 ("the Relevant Period"), please provide the following information and/or documentation:

1.    The name of each trader;

2.    The country in which each trader was physically located whilst trading during the Relevant Period;

3.    The most recently known telephone numbers of each trader;

4.    The most recently known email addresses of each trader; and

5.    The trader identifier or trader ID of each trader which was available to, or used by, Macquarie Securities Australia Limited to identify trading by that individual trader.

17    It would appear that the CIMA direction was served on Select Vantage on 9 March 2017. It prompted a flurry of further correspondence, this time between a Cayman Islands firm, retained by Select Vantage, and CIMA. It is unnecessary to detail the content of that correspondence. Suffice it to say that the correspondence culminated in a claim or threat that Select Vantage would commence judicial review proceedings in the Cayman Islands against CIMA. CIMA’s response was to obtain an ex parte order from the Grand Court of the Cayman Islands that Select Vantage comply with the direction and produce the documents and information listed in the schedule.

Grounds of review

18    Mr Schlaepfer and Select Vantage initially framed their case as being an application under ss 5(1) and 6(1) of the ADJR Act and s 39B(1A) of the Judiciary Act for:

1.    review of the decision of the Respondent to make a request (the Request) to the Cayman Islands Monetary Authority (CIMA) pursuant to section 50(3) of the Monetary Authority Law (2016 Revision) of the Cayman Islands (CIMA Law) that CIMA exercise its powers under section 34(9) of the CIMA Law to direct the Second Applicant to produce certain specified documents, and provide certain specified information, to CIMA (the Direction); or

2.    if the conduct of the Respondent described in the immediately preceding paragraph does not amount to a decision to which the ADJR Act applies, review of the conduct of the Respondent in making the Request (being conduct that is preparatory to the Respondent’s making of, among other decisions, a decision in respect of the disposition of the Respondent’s ongoing investigation into the affairs of the Applicants).

19    At the hearing, however, senior counsel for Mr Schlaepfer and Select Vantage acknowledged that there was force in ASIC’s contention that the decision to make the request to CIMA was not “made under an enactment” and confirmed that Mr Schlaepfer and Select Vantage did not press their case under s 5 of the ADJR Act. Their case was limited to challenging ASIC’s conduct in making the request, the contention being that that conduct was preparatory to the disposition of ASIC’s investigation.

20    The grounds of the application were framed in the following terms in the amended originating application (ignoring underlining and strike-though):

1.    ASIC’s decision to make the Request of CIMA was an improper exercise of the powers conferred on ASIC by the ASIC Act insofar as ASIC either:

a.    intended to deprive [Mr Schlaepfer] of his privilege or immunity against giving testimonial evidence that might later be used against him in criminal or civil penalty proceedings; or

b.    failed to take into account a relevant consideration, namely that the likely result of the making of the Request would be to deprive [Mr Schlaepfer] of that privilege or immunity: ADJR Act section 5(1)(e).

2.    Additionally, or in the alternative, a breach of the rules of natural justice has occurred, is occurring, or is likely to occur as a result of ASIC’s conduct in procuring [Mr Schlaepfer] to be compelled to give testimonial evidence that might later be used against him in criminal or civil penalty proceedings: section 6(1)(a) of the ADJR Act and the general law.

21    At the hearing, however, senior counsel for Mr Schlaepfer and Select Vantage confirmed that the first of these two grounds should be read as if it referred to ASIC’s conduct in making the request, and that the reference to s 5(1)(e) of the ADJR Act should be read as if it were a reference to s 6(1)(e) of the ADJR Act.

PUBLIC INTEREST IMMUNITY

22    Mr Schlaepfer and Select Vantage sought the production of ASIC’s request to CIMA, as well as correspondence between ASIC and CIMA in relation to the request. ASIC claimed that it should not be compelled to produce those documents because they were the subject of a claim of public interest immunity. The basis of that claim, in short terms, was that both ASIC and CIMA were signatories to the International Organisation of Securities Commissions’ Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information. Under the terms of the Memorandum of Understanding, ASIC was obliged to keep confidential all requests and other matters arising under the Memorandum of Understanding, including consultations between regulatory counterparts. It was also required to use its best endeavours to resist legally enforceable demands in respect of such information, including by asserting appropriate legal exemptions or privileges as may be available.

23    A senior officer of ASIC deposed to the fact that if, despite the terms of the Memorandum of Understanding, ASIC was required to disclose the documents sought by Mr Schlaepfer and Select Vantage, ASIC would be adversely impacted. The adverse impacts included that ASIC’s international counterparts would be less open and frank in future discussions, and would see Australia as a jurisdiction that does not protect confidential information covered by the Memorandum of Understanding. ASIC’s overseas counterparts would also be less willing to expeditiously action a request, would be less inclined to take more onerous steps to obtain relevant information, such as the use of coercive powers, would be disinclined to share particularly sensitive information and would be less inclined to consult with ASIC to discuss international cooperation requests.

24    While senior counsel for Mr Schlaepfer and Select Vantage did not concede ASIC’s public interest immunity claim, he did not advance any oral submissions in opposition to it. He simply contended that the Court should inspect the documents.

25    The public interest immunity claim was upheld at the hearing. The relevant documents were not inspected. The claim was upheld for the following reasons.

26    The general principles to apply where a claim of public interest immunity is made are well established. In Alister v The Queen (1984) 154 CLR 404, Gibbs CJ referred to Sankey v Whitlam (1978) 142 CLR 1 and said (at 412):

Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process — the balancing exercise — can only be taken when it appears that both aspects of the public interest do require consideration — i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.

27    The harm that ASIC contended would be done by the production of the relevant documents has already been referred to. The public interest in not putting at risk free cooperation and exchange between regulatory or enforcement agencies, such as ASIC and its overseas counterparts, by requiring the disclosure of confidential documents contrary to the understandings or agreements between the agencies, is obvious and well-recognised: see for example Nestle Australia Ltd v Commissioner of Taxation (1986) 11 FCR 453 at 460-461; affirmed on appeal Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257; R v Pratten (No 18) [2015] NSWSC 902 at [20]-[24].

28    Senior counsel for Mr Schlaepfer and Select Vantage did not contend that the public interest in maintaining the confidentiality of the documents identified by ASIC was not a valid consideration. Nor did he identify how the administration of justice would be frustrated or impaired if the documents were withheld. He did not identify a legitimate forensic purpose for obtaining access to the documents, beyond what might fairly be characterised as “fishing”. He did not articulate, with any degree of precision, how any of the documents would advance the two pleaded grounds of challenge to ASIC’s conduct.

29    In those circumstances, it was unnecessary for the Court to inspect the documents. No legitimate forensic purpose in obtaining access to the documents was demonstrated. To the extent that it was necessary to engage in the balancing exercise at all, the balance well and truly favoured maintaining the confidentiality of the documents. The public interest immunity claim was accordingly upheld.

COMPETENCY AND JURISDICTION

30    ASIC filed a notice of objection to competency. It contended that the Court did not have jurisdiction to entertain Mr Schlaepfer and Select Vantage’s claim under either s 5 or s 6 of the ADJR Act or s 39B(1A)(c) of the Judiciary Act.

31    As already indicated, Mr Schlaepfer and Select Vantage abandoned their claim under s 5(1) of the ADJR Act. They effectively conceded that ASIC’s decision to make the request to CIMA was not a decision to which the ADJR Act applied. That concession would appear to have been properly made. The question, then, is whether the Court has jurisdiction to review ASIC’s conduct under either s 6(1) of the ADJR Act, or s 39B(1A) of the Judiciary Act.

Jurisdiction under s 6(1) of the ADJR Act

32    Despite the abandonment of the claim under s 5(1) of the ADJR Act, it is necessary to say something briefly about the jurisdictional requirement that the relevant decision be a decision to which the ADJR Act applies. That is because that requirement is also relevant in determining whether there is jurisdiction to challenge conduct engaged in for the purpose of making a decision under s 6 of the ADJR Act.

33    A “decision to which this Act applies” is defined in s 3 of the ADJR Act as meaning a decision of an administrative character made, proposed to be made, or required to be made, relevantly, under an enactment. An “enactment” includes, relevantly (and with certain exceptions not presently relevant) an Act.

34    A decision will only be made under an Act if it is a decision for which provision is made by or under the Act: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 (per Mason CJ, with whom Brennan and Deane JJ agreed in this respect). It is not necessary, however, that the relevant statute expressly authorises, permits or requires the decision. In some cases a decision may be impliedly authorised, permitted or required: Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302-303; Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 271-272 (Black CJ), 278 (Spender J). The fact that a decision is within power and not ultra vires the statute, however, does not necessarily mean that the decision was made under that statute: Hutchins at 278. Where the decision was only authorised by the statute in very general terms, it may be difficult to conclude that the statute made provision for the decision and that the decision was accordingly made under the statute. In Hutchins, Black CJ put the issue in the following terms (at 272):

If a decision is neither expressly or impliedly required by an enactment and, although authorised, is authorised by an enactment only in a very general way, it is unlikely to have the character of a decision for which provision is made under an enactment. The connection between the text of the enactment and the decision is likely to be too remote for the decision to have the requisite character.

35    That is perhaps one of the reasons why Mr Schlaepfer and Select Vantage did not pursue the challenge under s 5(1) of the ADJR Act to ASIC’s decision to make the request to CIMA. While ASIC’s decision to make the request was authorised in a very general sense by the ASIC Act, for example by ASIC’s general powers of investigation under s 13 of the ASIC Act, it is difficult to see how it could be concluded that the ASIC Act made provision for the making of that decision. The connection between the text of the ASIC Act and ASIC’s decision to make the request was too remote for the decision to have the requisite character of a decision made under the ASIC Act. This case was in many respects similar to Salerno v National Crime Authority (1997) 75 FCR 133, where it was held that a decision by the National Crime Authority to authorise officers to enter premises under a search warrant was not a decision under an enactment, even though it was authorised by a general investigation power in the National Crime Authority Act 1984 (Cth).

36    There are two other criteria that a decision must satisfy before it can be concluded that it is a decision to which the ADJR Act applies. The first is that the decision must generally be final or operative and determinative. In Bond, Mason CJ said (at 337):

… a reviewable “decision” is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact calling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

37    The second relevant criterion, which in some respects is related to the requirement that the decision be “operative and determinative”, is that the decision must in some way confer, alter or otherwise affect legal rights or obligations: Griffiths University v Tang (2005) 221 CLR 99 at 130-131 [89]. It is not necessary for the decision to affect or alter existing rights. Nor is it necessary that the legal rights owe their existence to the enactment in question. It is sufficient that the rights or obligations that are altered or affected by the decision are derived from the general law.

38    ASIC contended that its decision to make the request to CIMA was not operative or determinative and did not alter or affect the legal rights or obligations of Mr Schlaepfer or Select Vantage. Given the concession that the decision was not made under an enactment, it is unnecessary to express a concluded view on that issue. Suffice it to say that there appeared to be considerable merit in ASIC’s contention in that regard.

39    In relation to s 6 of the ADJR Act, conduct in the abstract is not reviewable under the ADJR Act: Collie v Behan (1997) 48 ALD 583 at 585. Conduct can only be reviewed under s 6 of the ADJR Act if it was engaged in “for the purposes of making a decision to which this Act applies”. If the relevant decision to which the conduct related is not itself a reviewable decision in that respect, the conduct that preceded the decision is also not reviewable. Thus, in Collie v Behan, it was held that the Court did not have jurisdiction to review conduct leading to the making of a decision to issue a notice to show cause, in circumstances where that decision was not a decision to which the ADJR Act applied.

40    Section 3(5) of the ADJR Act provides that a reference to conduct engaged in for the purpose of making a decision includes a reference to the “doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation”.

41    The relevant conduct must generally be concerned with the procedure adopted by the decision-maker leading up to the relevant decision: Aboriginal Land Council (NSW) v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 380-381; Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230 at [92]-[93]. The conduct must be engaged in as part of the decision-making process. Whereas the complaint in relation to a decision is that the decision was erroneous, the complaint in relation to conduct is that the process of decision-making was flawed: Bond at 342.

42    The conduct that Mr Schlaepfer and Select Vantage sought to challenge was ASIC’s conduct in making the request to CIMA. What, however, was the decision to which that conduct was said to relevantly relate? As already indicated, the relevant decision was not the decision to make the request to CIMA, as it was conceded that that decision was not a decision to which the ADJR Act applied. Rather, Mr Schlaepfer and Select Vantage contended that ASIC’s conduct in issuing the request to CIMA was conduct which was part of the procedure, or part of the decision-making process, that would ultimately lead to ASIC making a decision under either ss 16, 17, 49 or 50 of the ASIC Act. Those sections of the ASIC Act relate, in general terms, to the outcome of an investigation.

43    Sections 16 and 17 provide for the making of reports. Section 16 of the ASIC Act provides that where, in the course of an investigation, ASIC forms certain opinions, including the opinion that a serious contravention of a law of the Commonwealth, or a State or Territory, has been committed, it must prepare an interim report which sets out certain specified matters. Section 17 provides that at the end of an investigation, ASIC may prepare a report about the investigation which sets out, amongst other things, ASIC’s findings about the matters investigated and the evidence on which those findings are based.

44    Sections 49 and 50 concern the commencement of criminal or civil proceedings. Section 49 of the ASIC Act provides that where, as a result of an investigation, it appears to ASIC that a person may have committed an offence against the corporations legislation and ought to be prosecuted, ASIC may cause a prosecution of the person for the offence to be begun and carried on. Section 50 of the ASIC Act provides that where, as a result of an investigation, it appears to ASIC to be in the public interest for a person to begin and carry on a proceeding for the recovery of damages for fraud, negligence or other misconduct, ASIC may cause such a proceeding to be begun and carried on in the person’s name.

45    Two questions arise in determining whether ASIC’s conduct in making the request to CIMA was conduct reviewable under s 6(1) of the ADJR Act as having been engaged in for the purposes of making a decision under ss 16, 17, 49 or 50 of the ASIC Act. The first question is whether decisions under those sections are decisions to which the ADJR Act applies. The second is whether the relevant conduct comprised or constituted a procedure which ASIC engaged in for the purpose of making a decision under any of those sections.

46    The parties did not directly engage with the first of those questions in their submissions. The submissions advanced on behalf of Mr Schlaepfer and Select Vantage simply asserted that any decisions made by ASIC under ss 16, 17 and 50 of the ASIC Act would be “decisions under an enactment for the purposes of the ADJR Act”. The submissions were silent on s 49. No authorities were cited in support of the assertion concerning ss 16, 17 and 50. Nor was any reasoning employed. ASIC, on the other hand, did not contend, at least directly, that a decision under any of those sections would not be a decision to which the ADJR Act applied. Instead, ASIC’s submissions focussed on there being no evidence that ASIC had embarked on any of the processes in ss 16, 17 or 50.

47    Unfortunately the position in relation to the first question is not entirely straightforward.

48    In relation to ss 16 and 17, it is at least questionable whether a decision by ASIC to issue an interim report under s 16 or a final report under s 17 would be a decision under an enactment. That is because it is at least doubtful that a decision to issue a report under ss 16 or 17 would confer, alter or affect the legal rights or obligations of the person the subject of the report, or indeed anyone else. A report under either s 16 or s 17 does no more than set out ASIC’s findings. It is hard to see how that would affect anyone’s rights or obligations. That said, it has been held, albeit not in the context of the ADJR Act, that the fact that a report may adversely affect a person’s business or commercial reputation may be sufficient to permit judicial review of the report, at least on the basis of denial of procedural fairness: Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. A report under s 16 or s 17, however, is only given to the Minister, or in some circumstances to a relevant Commonwealth agency. It is hard to see in those circumstances how the report would affect a person’s business or commercial reputation.

49    In relation to a decision by ASIC to cause a prosecution to be commenced and carried on under s 49 of the ASIC Act, it has been held that a decision to prosecute made under an enactment is reviewable under the ADJR Act: Wouters v Deputy Commissioner of Taxation (NSW) (1988) 20 FCR 342 at 353; Newby v Moodie (1988) 15 ALD 584; Stergis v Federal Commissioner of Taxation (1989) 86 ALR 174; Elliott v Seymour [1993] HCA 70; 119 ALR 1 at 4; Gillis v Commonwealth Director of Public Prosecutions (1993) 43 FCR 458. All but the last two of those cases, however, were decided before Bond. All of the cases were decided before Tang. The reasoning in Bond and Tang tends to cast some doubt on the correctness of those decisions. It is not, for example, immediately apparent how a decision to prosecute alters or affects the legal rights or obligations of the person charged. Rather, the defendant’s rights and obligations are determined in the ensuing prosecution proceedings.

50    Much the same can be said concerning a decision by ASIC under s 50 of the ASIC Act. In Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 it appears to have been accepted that a decision under s 50 of the Australian Securities Commission Act 1989 (Cth), which is the analogue of s 50 of the ASIC Act, was reviewable under the ADJR Act. That case, however, was decided before Tang. It is also difficult to reconcile with later cases that appear to indicate that a decision by a regulator to commence civil proceedings is not a decision under an enactment for the purposes of the ADJR Act. In Rawson Finances Pty Ltd v Commissioner of Taxation (2010) 189 FCR 189, for example, Yates J reviewed the authorities in relation to whether a decision by the Commissioner of Taxation to sue to recover a tax liability was a reviewable decision under the ADJR Act. His Honour concluded that such a decision did not itself confer, alter or otherwise affect rights, and therefore lacked an essential characteristic of a reviewable decision for the purposes of the ADJR Act.

51    It is in all the circumstances both undesirable and unnecessary to reach a concluded view on whether decisions by ASIC under ss 16, 17, 49 and 50 of the ASIC Act are decisions to which the ADJR Act applies. It is undesirable because ASIC did not contend that decisions under those sections were not decisions to which the ADJR Act applied. The parties effectively made no submissions on that point, beyond the applicants’ cursory assertion referred to earlier. It is unnecessary because it is tolerably clear, in any event, that the conduct of ASIC that is the subject of challenge in this proceeding was not engaged in for the purpose of making a decision under any of those sections; or at least it has not been shown that the conduct was engaged in for that purpose.

52    As has already been noted, conduct is only reviewable under s 6(1) of the ADJR Act if it comprised or constituted part of the procedure which the decision-maker has engaged in, or is engaging in, for the purposes of making the relevant decision. Plainly there must be some degree of proximity and nexus between the alleged procedural conduct and the decision to which it is said to relate. In this matter, however, it has not been shown that there was or is any proximity or nexus between the challenged conduct and any decision made or proposed or intended to be made by ASIC under ss 16, 17, 49 or 50 of the ASIC Act. There is no evidence that ASIC is in the process of making any such decision. Indeed, there is no evidence to suggest that ASIC will ever make a decision under any of those sections. It is to be noted, in that regard, that ASIC can only issue an interim report under s 16, or commence a criminal prosecution under s 49, or civil proceedings under s 50, if it forms particular opinions. There is no evidence to suggest that ASIC has or ever will form any of those opinions. The decisions that ASIC may make under ss 17, 49 and 50 are also discretionary. There is no indication one way or another that ASIC will exercise its discretion in relation to any of the sections.

53    The highest that Mr Schlaepfer and Select Vantage could put their case was that ASIC is conducting an investigation and that at some stage it will need to consider whether to make a decision under one or other of the relevant sections. It does not follow, however, that ASIC will necessarily make any such decision or decisions. Still less does it follow that ASIC has embarked on the decision-making process in relation to one or other of those sections and that the conduct the subject of challenge in this proceeding is part of that procedure or process. There is simply no basis upon which to conclude that ASIC’s decision to make the request of CIMA related or relates to the procedure which ASIC has or will engage in for the purpose of making a decision under any of ss 16, 17, 49 or 50 of the ASIC Act. There is thus no basis for concluding that the relevant conduct was engaged in for the purpose of making a decision under any of those sections.

54    Mr Schlaepfer and Select Vantage relied on s 3(5) of the ADJR Act which, as already noted, provides that conduct engaged in for the purpose of making a decision includes doing any act preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation. The short answer to that submission is that ASIC’s act in making the request of CIMA could not fairly or reasonably be characterised as being preparatory to the making of a decision under s 16, 17, 49 or 50 of the ASIC Act. Nor could it be characterised as the “taking of evidence”, or the holding of an inquiry or investigation. At its highest, it constituted or comprised the doing of an act for the purpose of obtaining information for an investigation. The outcome, or potential outcome of that investigation, and the decision, if any, that will be made as a result of it, is presently unknown.

55    If the argument advanced by Mr Schlaepfer and Select Vantage was correct, everything done by ASIC in the course of every investigation would be reviewable as conduct under s 6(1) of the ADJR Act. That plainly cannot be the case. In Bond, Mason CJ referred to the competing policy considerations that had to be considered in construing the concept of a “decision” in the context of the ADJR Act. His Honour noted (at 336-337) that if the ambit of the concept of “decision” was extended, there was a “greater risk that the efficient administration of government will be impaired” and that “to interpret ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the process of administrative decision-making and set at risk the efficiency of the administrative process”. In the same vein, the Full Court in Salerno said (at 143):

If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the court. The potential for massive disruption of the organisation’s activities that would be the consequence of such a conclusion is manifest.

56    The same sorts of considerations should inform the approach to s 6(1) of the ADJR Act, including the requirement that to be reviewable the conduct must be engaged in for the purpose of making a decision. If a statute provides that various decisions may be made after, or as a result of, a particular administrative process, it does not necessarily follow that every act done in the course of that administrative process is reviewable as conduct engaged in for the purpose of making one of the possible decisions that might ultimately be made. Such a broad interpretation of the concept of engaging in conduct for the purpose of making a decision would have the same potential for “massive disruption” as referred to in Salerno.

57    An applicant who wishes to challenge conduct under s 6(1) of the ADJR Act must show that the conduct was engaged in as part of the procedure for the making of a specific decision that is in contemplation or in the process of being made. There must be an identified nexus between the procedural conduct and the decision, and the conduct must be shown to be reasonably proximate to the making of the decision or the proposed making of the decision. None of those matters have been demonstrated by Mr Schlaepfer and Select Vantage in respect of the conduct in question in this matter. They have not shown that the challenged conduct by ASIC was engaged in for the purpose of making any specific decision by ASIC.

58    It follows that ASIC has made good its objection to the competency of the proceeding insofar as it invokes s 6(1) of the ADJR Act. The Court does not have jurisdiction to review the challenged conduct pursuant to s 6(1).

Jurisdiction under s 39B(1A) of the Judiciary Act

59    Section 39B(1A)(c) provides as follows:

39B Original jurisdiction of Federal Court of Australia

Scope of Original Jurisdiction

…

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

…

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

60    The word “matter” as used in s 39B(1A) has the same meaning it has in ss 75, 76 and 77 of the Constitution: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [50]-[51]; Commonwealth v Lyon (2003) 133 FCR 265 at [24]. The requirement that there be a “matter” means that an applicant must identify an “immediate right, duty or liability to be established by the Court”: Tang at [90]. More significantly, the requirement that the matter “arise under any laws made by the Parliament” requires an applicant to establish that the relevant right, duty or liability either owes its existence to a law made by the Commonwealth Parliament, or depends upon such a law for its enforcement: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581. The notion of a matter arising under any laws made by the Parliament is wider than that of a decision made under an enactment: White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [111].

61    Mr Schlaepfer and Select Vantage identified three rights and duties that they contended were in issue in this proceeding and arose under a law of the Commonwealth. Those rights were: first, the right of Mr Schlaepfer to avail himself of “use immunity” created by s 68(3) of the ASIC Act in respect of giving information to ASIC that might tend to incriminate him; second, the right of both Mr Schlaepfer and Select Vantage not to be compelled to give assistance that is more than reasonable assistance; and third, the corresponding duties on the part of ASIC not to act contrary to those rights of Mr Schlaepfer and Select Vantage. The reference to reasonable assistance appears to be a reference to s 19(2) of the ASIC Act.

62    The difficulty for Mr Schlaepfer and Select Vantage is that, while their contentions and submissions refer to and rely on ss 19 and 68 of the ASIC Act, careful attention to the nature of their application and the relief sought reveals that the relevant “matter” does not arise under either of those section of the ASIC Act, or indeed any law of the Commonwealth. That is so for a number of reasons.

63    First, ASIC’s request to CIMA was not made under s 19 of the ASIC Act. If anything it was made pursuant to ASIC’s general investigation power in s 13 of the ASIC Act and under the terms of the Memorandum of Understanding. It was acted on by CIMA pursuant to s 50(3) of the Monetary Authority Law. Mr Schlaepfer and Select Vantage did not contend that the making of the request was outside ASIC’s general investigation power or that any right, duty or liability in issue in this proceeding arose under s 13 of the ASIC Act.

64    Second, the terms of s 68 of the ASIC Act were not relevantly engaged by ASIC’s request to CIMA or any right, duty or liability that arose from it. The direction issued by CIMA following ASIC’s request does not require Mr Schlaepfer to do anything. Rather, it directs Select Vantage to provide certain specified information or documentation. It certainly does not direct Mr Schlaepfer to make a statement to ASIC, or sign a record: those being the only things that could relevantly be the subject of a claim by Mr Schlaepfer under s 68(2) of the ASIC Act. There is therefore no basis whatsoever for the contention that Mr Schlaepfer somehow had, but was denied the right to, the “use immunity” created by s 68(3) of the ASIC Act.

65    Third, to the extent that there is a right not to be compelled to give assistance that is more than reasonable assistance, in this matter that right does not arise under a law of the Commonwealth. To the extent that Select Vantage is required to do anything, that requirement arises under a law of the Cayman Islands. As already noted, ASIC’s request to CIMA was not made under s 19 of the ASIC Act. Nor was CIMA’s direction. Even if there was any merit in the contention that the assistance that Select Vantage was required to give was unreasonable, the right to avoid that requirement does not arise under a law of the Commonwealth, or depend upon a law of the Commonwealth for its enforcement.

66    Fourth, Mr Schlaepfer and Select Vantage have not identified the source of the supposed duty on the part of ASIC not to act contrary to their alleged rights to claim use immunity or relief against being required to give unreasonable assistance. For the reasons already given, any such duty does not arise under either s 19 or s 68 of the ASIC Act because neither of those sections is engaged. Nor does any such duty depend upon a law of the Commonwealth for its enforcement.

67    Fifth, Mr Schlaepfer and Select Vantage did not contend that the rights or duties that they identified, or any other right, duty or liability in issue in this proceeding, arose under ss 16, 17, 49 or 50 of the ASIC Act. For the reasons already given in the context of the competency of the claim under the ADJR Act, none of those sections are engaged in this proceeding.

68    It follows that the Court does not have jurisdiction to entertain this matter under s 39B(1A)(c) of the Judiciary Act.

69    The originating application filed by Mr Schlaepfer and Select Vantage is accordingly incompetent and must be dismissed.

Merits of the grounds of review

70    Since the grounds of review were fully argued, it may be of some benefit to make some brief observations concerning the merits of the grounds and arguments advanced by Mr Schlaepfer and Select Vantage in challenging ASIC’s decision or conduct in relation to the request to CIMA: cf. Carter v Minister for Aboriginal Affairs [2005] FCA 667 at [38]; Garrett v Australian Trade Commission [2014] FCA 575 at [20].

71    In short, the grounds of review are entirely unmeritorious.

Ground 1 – improper exercise of power

72    The fundamental premise that underlies the contention that ASIC’s request to CIMA was an improper exercise of power is that the request had the purpose or effect of depriving Mr Schlaepfer of “his privilege or immunity against giving testimonial evidence that might later be used against him in criminal or civil penalty proceedings”. There is no basis for concluding that the request had that purpose or effect. That is so for a number of reasons.

73    First, the effect and apparent purpose of the request was to have CIMA direct Select Vantage to provide certain specified information or documentation. Mr Schlaepfer was not required to do anything. There was no occasion for him to claim privilege or immunity.

74    Mr Schlaepfer and Select Vantage contended that the “practical effect” of the direction issued by CIMA was that Mr Schlaepfer would be required to procure a document to be created and produced in answer to the direction, and that the document would amount to “an effective representation and warranty” by Mr Schlaepfer that the information in the document was true and correct. That appears to be the basis for the contention that Mr Schlaepfer has been required to give “testimonial evidence”.

75    There is no basis for any such finding.

76    The CIMA direction directed Select Vantage to provide information or documentation. It said nothing about creating documentation. If documentation falling within the terms of the schedule to the direction did not exist, it would be open to Select Vantage to respond to the direction by stating that no such documentation existed. In relation to the provision of information, nothing in the direction required that the information be given in writing. If Select Vantage chose to provide the information in writing, for practical reasons or otherwise, that would be a matter for it. It was not required to do so.

77    In any event, there was no evidence to suggest that, for practical reasons or otherwise, Mr Schlaepfer was required to provide the documentation or information, let alone provide a representation or warranty as to the accuracy of the information provided. It is unclear, for example, why other officers, employees or agents of Select Vantage could not respond to the notice. If Mr Schlaepfer was concerned that the notice required him to create and verify the accuracy of a document (cf. [60] of Mr Schlaepfer’s affidavit), there was no proper basis for that concern.

78    Second, even if Mr Schlaepfer was required to do something in answer to CIMA’s direction, he would be required to do that in the Cayman Islands. The question whether he had the right to claim privilege against self-incrimination in response to the CIMA direction would be determined as a matter of the law in the Cayman Islands.

79    Third, to the extent that Mr Schlaepfer and Select Vantage relied on s 68 of the ASIC Act, even if the question of privilege or immunity was to be tested against the “use immunity” able to be claimed under s 68, the terms of that section could not on any view be engaged by the CIMA direction. Section 68(2) provides that a person may make a privilege claim if the person is required to make an oral statement or sign a record. The CIMA notice does not require Mr Schlaepfer or anyone else to make an oral statement or sign a record. Even if, hypothetically speaking, a direction to the same effect of the CIMA direction was issued by ASIC pursuant to s 19 of the ASIC Act, the terms of s 68(2) could not have been engaged by any response to the direction. It should also be noted, in that context, that there was no question of Select Vantage being able to claim any privilege under s 68. The terms of s 68(2) make it clear that a claim of privilege cannot be made by a body corporate.

80    It should also be noted in this context that Mr Schlaepfer and Select Vantage contended that it would not have been open to ASIC to issue a notice or direction to Select Vantage in the same terms of the CIMA direction. It was submitted, in that regard, that ASIC cannot give a notice under s 19 of the ASIC Act to a corporation. It was also submitted that a notice under s 19 which required a person to create a document would be unreasonable. Neither of those submissions has any merit.

81    Section 19 of the ASIC Act empowers ASIC to give notice to a “person”. An expression used to denote a person generally, such as “person”, includes a body corporate as well as an individual unless the contrary intention appears: s 22(1)(a) of the Acts Interpretation Act 1901 (Cth) (as in force on 1 January 2005); ASIC Act s 5A(2). There is no contrary intention in s 19 of the ASIC Act. While a notice under s 19(2)(b) requiring a person to answer questions on oath obviously cannot be given to a corporation, ss 19(2)(a) and (b) are to be read disjunctively: Smith v Papamihail (1998) 88 FCR 80 at 87-88; Australian Securities Commission v Kutzner (1997) 25 ACSR 723 at 731.

82    As for the contention that a s 19 notice cannot compel a person to create a document, as already noted the terms of the CIMA notice did not compel the creation of a document. In any event, the requirement of “reasonable assistance” in s 19(2)(a) is in sufficiently broad terms as to encompass a requirement that a person reduce information to an appropriate written form when, for example, it is otherwise stored on a computer: Kutzner at 731. It is not a large step to suggest that information may be required to be produced in writing in other circumstances, though the reasonableness of any such request would need to be considered on a case by case basis.

83    Fourth, having regard to all the circumstances just referred to, it cannot be inferred that in making the request to CIMA, ASIC somehow intended to circumvent or abrogate any right that Mr Schlaepfer may have had to claim privilege against self-incrimination, or any right he may hypothetically have had to make a claim of privilege under s 68(2) of the ASIC Act. Amongst other things, had that been intended, it might reasonably be expected that ASIC would have requested CIMA to issue a direction that required Mr Schlaepfer to make an oral statement or sign a record.

84    The contention that ASIC’s decision or conduct relating to the request to CIMA was an improper exercise of power accordingly has no merit. The premise underlying the contention – that ASIC intended to deprive Mr Schlaepfer of his privilege or immunity against giving testimonial evidence that might later be used against him – is a false premise that is unsupported by the facts and evidence. Equally, the contention that ASIC failed to take into account a relevant consideration – the fact that the likely result of the making of the request would be to deprive Mr Schlaepfer of that privilege or immunity – also has no merit. The premise underlying that contention – that the likely result of making the request would be to deprive Mr Schlaepfer of that privilege or immunity – is a false premise unsupported by the facts and evidence.

Ground 2 – breach of the rules of natural justice

85    Mr Schlaepfer and Select Vantage contended that in making the request to CIMA, ASIC breached the rules of natural justice. The breach was said to arise from the fact that the request made to CIMA “amounts in effect to an unauthorised abrogation of the privilege against self-incrimination” and denied Mr Schlaepfer the benefit of that privilege. The contention that the request to CIMA abrogated the privilege against self-incrimination or somehow denied Mr Schlaepfer the benefit of that privilege has no merit and is rejected for the reasons already given. It follows that there is no basis for the contention that ASIC breached the rules of natural justice.

86    It should perhaps be noted that Mr Schlaepfer and Select Vantage did not contend that ASIC denied them procedural fairness by not giving them the opportunity to make submissions as to why it should not make the request to CIMA. That was because, as events transpired, Mr Schlaepfer and Select Vantage were given the opportunity to, and did, make submissions to ASIC about the request. In any event, it is to say the very least doubtful that ASIC was obliged to give them that opportunity. ASIC is not obliged to afford procedural fairness in the exercise of many of its powers, particularly its investigatory powers: see for example Ryan v Australian Securities and Investments Commission (2007) 158 FCR 301 and Saraceni v Australian Securities and Investments Commission (2013) 211 FCR 298 (the power to authorise a person as an “authorised applicant” to make an application for the issue of an examination summons under ss 596A or 596B of the Corporations Act 2001 (Cth)); Minosea v Australian Securities Commission (1994) 14 ACSR 642; 35 ALD 493 (the issue of a notice to produce books under the former Australian Securities Commission Act 1989 (Cth)); see also analogously May v Commissioner of Taxation (1999) 92 FCR 152.

87    Finally, at the hearing, senior counsel for Mr Schlaepfer and Select Vantage put the natural justice argument somewhat differently. He submitted that there was a denial of procedural fairness because Mr Schlaepfer and Select Vantage will not be afforded procedural fairness at the “second stage” because ASIC would be able to make use of a document “absent the immunity”. The “second stage” was said to be the stage at which ASIC considered making a decision under ss 16, 17, 49 or 50 of the ASIC Act. The document that ASIC would use at that stage was said to be a document that was produced in answer to the CIMA direction.

88    That submission is entirely without merit. First, for the reasons already given, the premise that the purpose or effect of the CIMA direction was to deny or circumvent a right that Mr Schlaepfer would otherwise have had to claim privilege against self-incrimination, or privilege under s 68 of the ASIC Act, is without foundation and erroneous. Second, the submission is in any event entirely speculative and premature. There is no evidence that any document has been produced to CIMA in answer to the direction, let alone that ASIC has obtained such a document and intends to use it in some way. If, as events transpire, such a document is produced and obtained by ASIC, and ASIC does intend to make use of the document in making a decision under ss 16, 17, 49 or 50, Mr Schlaepfer may be able to object to ASIC using the document. He could, perhaps, seek to challenge ASIC’s use, or threatened use, of the document at that stage. That stage, however, has not been reached and may never be reached.

Disposition

89    For the reasons that have been given, the application filed by Mr Schlaepfer and Select Vantage is incompetent and must be dismissed with costs.

Associate:

Dated:    21 September 2017