An analysis of challenges to ASIC's s 920A banning orders against financial services providers in the AAT and the courts

Bowley, RN

An analysis of challenges to ASIC's s 920A banning orders against financial services providers in the AAT and the courts

Bowley, RN

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Publisher:: Thomson Reuters
Publication Type:: Journal Article
Citation:: Company and Securities Law Journal, 2018, 36 (4), pp. 307 - 341
Issue Date:: 2018-10-19

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Field	Value	Language
dc.contributor.author	Bowley, RN https://orcid.org/0000-0002-6626-3714	en_US
dc.date.available	2018-04-30	en_US
dc.date.issued	2018-10-19	en_US
dc.identifier.citation	Company and Securities Law Journal, 2018, 36 (4), pp. 307 - 341	en_US
dc.identifier.issn	0729-2775	en_US
dc.identifier.uri	http://hdl.handle.net/10453/128120
dc.description.abstract	Section 920A of the Corporations Act 2001 (Cth) provides ASIC with a flexible power to ban individuals from the Australian financial services industry on a number of grounds. The objective of this power is to protect consumers through upholding compliance with the law and adherence to professional standards. Banned individuals may apply to the Administrative Appeals Tribunal (AAT) to review the merits of such decisions, and on limited points of law such cases may be further appealed to the Federal Court of Australia (FCA). This article analyses the practice of the AAT and the FCA in determining challenges to s 920A banning orders. The 50 AAT cases examined in the article provide interesting examples of misconduct by financial advisers, stockbrokers and traders, insurance brokers and operators of investment schemes. The article shows that whilst the AAT has shown a flexible approach in considering the circumstances of each banning (setting aside four bans and varying the length of 15 bans), it has nevertheless exhibited a firm approach in the other 31 cases in affirming bans following serious misconduct. The article concludes by suggesting some minor reforms to further enhance the range of protective enforcement tools available to ASIC.	en_US
dc.publisher	Thomson Reuters	en_US
dc.relation.ispartof	Company and Securities Law Journal	en_US
dc.title	An analysis of challenges to ASIC's s 920A banning orders against financial services providers in the AAT and the courts	en_US
dc.type	Journal Article
utslib.citation.volume	4	en_US
utslib.citation.volume	36	en_US
utslib.location.activity	Australia	en_US
utslib.for	1801 Law	en_US
utslib.for	1501 Accounting, Auditing and Accountability	en_US
pubs.embargo.period	Not known	en_US
pubs.organisational-group	/University of Technology Sydney
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
utslib.copyright.status	open_access
pubs.consider-herdc	true	en_US
pubs.issue	4	en_US
pubs.publication-status	Published	en_US
pubs.volume	36	en_US

Abstract:

Section 920A of the Corporations Act 2001 (Cth) provides ASIC with a flexible power to ban individuals from the Australian financial services industry on a number of grounds. The objective of this power is to protect consumers through upholding compliance with the law and adherence to professional standards. Banned individuals may apply to the Administrative Appeals Tribunal (AAT) to review the merits of such decisions, and on limited points of law such cases may be further appealed to the Federal Court of Australia (FCA). This article analyses the practice of the AAT and the FCA in determining challenges to s 920A banning orders. The 50 AAT cases examined in the article provide interesting examples of misconduct by financial advisers, stockbrokers and traders, insurance brokers and operators of investment schemes. The article shows that whilst the AAT has shown a flexible approach in considering the circumstances of each banning (setting aside four bans and varying the length of 15 bans), it has nevertheless exhibited a firm approach in the other 31 cases in affirming bans following serious misconduct. The article concludes by suggesting some minor reforms to further enhance the range of protective enforcement tools available to ASIC.

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http://hdl.handle.net/10453/128120