A discipline committee has cancelled the registration of a liquidator but declined to publish its reasons for doing so.
ASIC has advised by media release the cancellation of the registration of a liquidator, Cameron Lindsay Duncan, following a decision of a disciplinary committee on 28 February 2023. 23-065MR Liquidator disciplinary committee cancels registration of Cameron Lindsay Duncan | ASIC
ASIC says its referral to the Committee alleged Mr Duncan no longer had the qualifications, experience, knowledge and abilities prescribed under the Corporations Act and that he is not a resident in Australia or another prescribed country. These are two relevant criteria under IPSC section 40-55. The Committee’s decision was based on the first of those allegations. ASIC has given effect to that decision.
The Committee determined that its report on Mr Duncan should not be published by ASIC. ASIC says it will not comment further on the reasons for the Committee’s decision.
Disciplinary hearings are private along with the details of their timing and location, and their membership. The committee must make at least one decision, from a number of statutory options, ranging from a confirmation of the practitioner’s registration through to termination of their registration: s 40-55. One option is that the committee can decide that specified information about its decision and its reasons should be published by ASIC: s 40-55(1)(h).
Hence such committees have an option to decide to not publish their reasons. The last such decision not to publish, in 2020, was an unusual one, but more understandably arose from a decision not to cancel a registration: see Australian insolvency practitioner disciplinary decisions – short but to what point? – Murrays Legal.
I cite Attorney-General v Kehoe, [2000] QCA 222, in relation to lawyers, that the law generally encourages reasons for decision in disciplinary matters being made public, so that “interested members of the public have the opportunity to come to know of the [committee’s] justification for any decision it may make, and thereby satisfy themselves that the disciplinary process is being carried through properly”. It also serves as instructive to others as to the nature of the conduct that was the subject of sanction.
But there will be occasions when the decision involves, for example, personal information about the practitioner or confidential information about a third party, such that the details are not published. However it would be possible for a committee to at least give broad reasons why its decision is not made public – “specified information” – to provide some context in which such a restriction was imposed. Lack of published reasons may only create undue speculation.
An application to the Administrative Appeals Tribunal is available to any practitioner who is subject to an adverse finding of a disciplinary committee: s 1317B, Corporations Act.
