Denial of Natural Justice by Former Chairman

Complaints were lodged with the former Chairman of ASIC, Tony D’Aloisio, concerning a major fraud related to the superannuation fund associated with Australia’s Largest Maker and Distributor of Wines.

However the former Chairman had a conflicts of interests as confirmed by Fairfax Media reporter Michael West in the following expose’ here.

It is a fundamental principle of “natural justice” that a “decision-maker“, whether a judge or a public official, should not adjudicate on a matter where the “decision-maker” has a conflict of interests which would give rise to either actual bias or a reasonable apprehension of bias. This principle is also referred to as “procedural fairness“.

This legal principle is given statutory force pursuant to Section 124 of the ASIC Act 2001.

If a Commissioner of ASIC, including the Chairman is to take part, or is taking part, in determining a matter before ASIC then pursuant to subsection 124(5) of the ASIC Act 2001.

“If the member is the Chairman, he or she must cause his or her interest to be disclosed to the persons┬áconcerned in the matter”.

It is a “sacking offence” pursuant to Section 111 of the ASIC Act 2001 for the Chairman or other Commissioner to contravene Section 124 of the ASIC Act 2001.

  ASIC 31 March 2011 Chairman  

A famous case related to upholding the principle of natural justice was a case where the House of Lords overturned one of its own rulings when it was discovered that Lord Hoffman had a non-pecuniary association with Amnesty International, who had become a party to proceedings before Lord Hoffman and other Lord Justices in the House of Lords. {R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No 2) [1999] UKHL 52}

Legal proceedings were commenced against the former Chairman, however by the time the trial commenced, the former Chairman’s term in office had expired.

Notice of Apperance

Abuse of Public Office

An Australian Public Servant was recently sent to prison for the offence of abuse of public office. Details of the case can be found here.

The following letter raises important issues that arise from this case.

A Tale of Two Public Servants

Section 142.2 of the Criminal Code

142.2 Abuse of public office

(1) A Commonwealth public official is guilty of an offence if:

(a) the official:

  • (i) exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or
  • (ii) engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or
  • (iii) uses any information that the official has obtained in the official’s capacity as a Commonwealth public official;
  • and

    (b) the official does so with the intention of:

  • (i) dishonestly obtaining a benefit for himself or herself or for another person; or
  • (ii) dishonestly causing a detriment to another person.
  • Penalty: Imprisonment for 5 years.

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    This tab updated on 16 March 2015