Case: Allied Asia Holdings (Aust) Pty Ltd v Australian Securities &amp; Investments Commission [2002] FCA 566
Outcome: referred to
The question is whether the power to make an order ' staying or otherwise affecting the operation or implementation ' of the Board's decision extends to an order prohibiting compliance with s 1296(1) of the Corporations Act . The Tribunal concluded that it had no such power because of observations made by Heerey J in Allied Asia Holdings (Aust) Pty Ltd v Australian Securities &amp; Investments Commission [2002] FCA 566. There, ASIC made a decision under s 21(2)(c) of the Insurance (Agents &amp; Brokers) Act 1984 (Cth) ('the Insurance Brokers Act') to refuse to renew a company's registration as a general insurance broker. On the same day, ASIC notified that company that it intended to publish a press release recording that facts and the findings made in the course of making the decision. The company sought to restrain ASIC from publishing the press release until the decision to refuse renewal had been reviewed by the Tribunal. At that stage, there had been no application to the Tribunal for review. A fortiori, there had been no application to the Tribunal for exercise of the powers conferred by s 41. 8 Heerey J also observed, however, that there was a statutory obligation imposed on ASIC by s 21(5) of the Insurance Brokers Act, which provides that, if ASIC refuses to renew the registration of a company under that Act, ASIC must publish notice of the refusal in the Gazette . His Honour considered that it was pointless to issue an injunction if the same result would follow by the publication of notice of refusal in the Gazette . His Honour then made the following observation: 'Section 21(5) appears to me to be in quite clearly mandatory terms, and I do not see how it could be affected by the grant by the [Tribunal] of any stay, which, after all, could only affect the operation or implementation of the decision to refuse, not the fact that that decision has been made.' 9 Thus, his Honour drew a distinction, which ASIC supports in the present proceeding, between a decision, on the one hand, and the operation or implementation of the decision, on the other hand. The power conferred by s 41(2) of the AAT Act is to stay or affect the operation or implementation of a decision. It is not, in its terms, a power to suspend or stay the decision itself. 10 ASIC submitted that the operation of a decision is the way in which the decision works and that the implementation of a decision is the carrying out or putting into effect of the decision. Thus, ASIC contended, the making of orders that the registration of a liquidator be suspended would be an implementation of the decision to suspend the registration as that liquidator. Under s 1286(1)(a)(v) of the Corporations Act , ASIC must cause to be entered in the Register of Liquidators, in relation to any person who is registered as a liquidator, particulars of any suspension of the registration of that person as a liquidator. ASIC pointed to such an entry as another example of an implementation of a decision to suspend. Compliance with s 1296(1) , it says, however, is not implementation of the decision; nor, said ACIC, is it the operation of the decision. 11 Clearly, the implementation of a decision is distinct from the decision itself; so is the operation of a decision. However, some meaning must be given to the word ' operation ' when it appears in s 41(2) that is different from the meaning to given to ' implementation '. As a matter of ordinary English, ' operation ' includes the exertion of force or influence, a working or activity, a manner of working, or the way in which a thing works (see Shorter Oxford English Dictionary , 5 th ed, Oxford University Press, Oxford, 2002). It also means the state of being operative, or the act, process or manner of operating (see Macquarie Dictionary , 4 th Ed., The Macquarie Library Pty Ltd, 2005). On the other hand, ' implementation ' involves completion or execution, fulfilment or putting into effect (see Shorter Oxford English Dictionary ). 12 If the decision of the Board to make orders had not been made, there would be no obligation arising under s 1296(1) to lodge notice of the decision with ASIC or to publish a notice in the Gazette setting out the decision. Further, if the decision were set aside, one consequence would be that, for many purposes, it would be as if the decision had not been made and did not have any effect. If that happened before compliance with s 1296 , there could be no obligation to lodge a copy of a notice with ASIC or to publish a notice. Such an obligation could exist only for so long as the decision continued to have effect.