Federal Court of Australia XY v Companies Auditors Disciplinary Board [2022] FCA 1583 File number: VID 240 of 2022 Judgment of: BEACH J Date of judgment: 22 December 2022 Catchwords: CORPORATIONS – auditors – disciplinary proceeding against auditor – s 1292 of the Corporations Act 2001 (Cth) – role and function of the Companies Auditors Disciplinary Board – ss 213, 216 to 219 of the Australian Securities and Investments Commission Act 2001 (Cth) – stay of disciplinary proceeding – refusal of stay – judicial review of decision not to stay – invocation of jurisdiction under s 39B of the Judiciary Act 1903 (Cth) – invocation of jurisdiction under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – administrative law – over-lapping criminal prosecution – substantially same subject matter – prejudice to auditor in disciplinary proceeding not being stayed – prejudice to public interest in disciplinary proceeding being stayed – relevance of undertaking given by auditor not to practise in the interim – orders sought quashing decision – declarations and injunction – judicial review of ancillary decision refusing extension of time under s 79(3) of the ASIC Act – ancillary orders Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 6, 15, 16 Australian Securities and Investments Commission Act 2001 (Cth) ss 1, 11, 19, 21, 49, 63, 68, 79, 127, 213, 216, 217, 218, 219 Companies Act 1981 (Cth) s 27 Corporations Act 2001 (Cth) ss 9, 307, 1274(2)(a)(iii), 1285, 1292, 1294, 1294A, 1311(1), 1315, 1337A(2)(b), 1337B, 1349(4)(g) Federal Court of Australia Act 1976 (Cth) ss 19(1), 21, 22, 23 Judiciary Act 1903 (Cth) s 39B Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Securities and Investments Commission v Craigside Company Ltd (2013) 93 ACSR 176 Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 Crespin v Francis [2016] VSC 277 Edelsten v Richmond (1987) 11 NSWLR 51 FUD18 v Minister for Home Affairs (2021) 285 FCR 505 Goodman v Australian Securities and Investments Commission (2004) 50 ACSR 1 Griffith University v Tang (2005) 221 CLR 99 Hamilton v Oades (1989) 166 CLR 486 Impiombato v BHP Group Ltd (2020) 143 ACSR 301 Lee v NSW Crime Commission (2013) 251 CLR 196 Lucciano v The Queen (2021) 287 A Crim R 529 McMahon v Gould (1982) 7 ACLR 202 ML v Australian Securities and Investments Commission (2013) 276 FLR 14 Onley v Commissioner of the Australian Federal Police (2019) 345 FLR 241 Panganiban v Australian Securities and Investments Commission (2016) 338 ALR 119 R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459 Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 X7 v Australian Crime Commission (2013) 248 CLR 92 Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 213 Date of last submissions: 18 August 2022 Date of hearing: 23 June 2022 Counsel for the Applicant: Dr O Bigos KC with Ms CE Klemis Solicitor for the Applicant: Maddocks Solicitor for the First and Second Respondents: Clayton Utz Counsel for the Third Respondent: Ms R Seiden SC with Dr L Hilly Solicitor for the Third Respondent: Australian Government Solicitor ORDERS VID 240 of 2022 BETWEEN: XY (A PSEUDONYM) Applicant AND: COMPANIES AUDITORS DISCIPLINARY BOARD First Respondent CHAIRPERSON OF THE COMPANIES AUDITORS DISCIPLINARY BOARD Second Respondent AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Third Respondent order made by: BEACH J DATE OF ORDER: 22 DECEMBER 2022 THE COURT ORDERS THAT: 1. The parties file and serve minutes of proposed orders to give effect to these reasons on a date to be agreed or failing agreement on a date to be determined by the Court. 2. Costs reserved. 3. Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BEACH J: 1 The applicant principally seeks judicial review of the decision by the first respondent, the Companies Auditors Disciplinary Board, constituted by a panel consisting inter-alia of its chairperson, the second respondent, made on 5 May 2022 to refuse a stay of the disciplinary proceeding brought by the Australian Securities and Investments Commission against the applicant until the final determination of his criminal prosecution by the Commonwealth Director of Public Prosecutions (CDPP) which concerns the same subject matter as the disciplinary proceeding. 2 The applicant also challenges the ancillary decision of the Board to refuse an extension of time for the applicant to give notice to ASIC under s 79(3) of the Australian Securities and Investments Commission Act 2001 (Cth) in relation to the admission of statements made at his s 19 examination. 3 Now in making the principal decision, the applicant says that the Board made various errors. 4 First, it is said that the Board misconstrued and misapplied the statutory regime including s 1292(11) of the Corporations Act 2001 (Cth). 5 Second, it is said that the Board failed to give primacy to the criminal process in refusing the stay application. 6 Third, it is said that the Board failed to find that the applicant would suffer significant relevant prejudice in relation to the criminal prosecution if the disciplinary proceeding were to continue and to properly balance that prejudice. 7 Fourth, it is said that the Board wrongly found prejudice to the public interest if the stay was to have been granted, in circumstances where any such prejudice would have been averted by the applicant's undertaking not to practise as an auditor pending the resolution of the disciplinary proceeding. 8 Now the applicant wishes to defend the disciplinary proceeding but he says that he faces the risk that to do so would assist the prosecution in its criminal proceedings against him. It is said that this real personal prejudice outweighs any prejudice to the public interest if the stay was granted, which latter prejudice in any event would be averted by the applicant's undertaking. 9 The applicant seeks orders quashing the principal decision and enjoining the Board from continuing with the disciplinary proceeding. In essence, the applicant seeks a stay of the disciplinary proceeding until after the determination of the criminal proceedings. 10 ASIC opposes the relief sought by the applicant. 11 In summary, in my view the applicant has made good his grounds of challenge. The Board ought to have stayed its proceeding pending the hearing and determination of what were then imminent criminal proceedings and are now a reality. 12 Now I should note two contextual matters that should be borne in mind at the outset. 13 First, it is ASIC which first conducted an investigation involving a coercive exercise of its statutory powers against the applicant, then caused proceedings to be brought before the Board, and then later referred the matter to the CDPP and provided to the CDPP ASIC's work product no doubt in contemplation that the CDPP might bring charges against the applicant. Of course, ASIC is entitled to so proceed and to do so in the public interest. But I am not faced with the usual case of say a civil case brought by a private party against a person where the allegations overlap with criminal proceedings against the same person. So the context here concerns a different balancing exercise. 14 Second, it is also not unimportant to note that s 1292(11) permits of various possibilities. One possibility, which is the present case, is that the Board proceeding and the criminal proceedings are against one and the same person. Another possibility is that the Board proceeding is against one person, but the other proceedings are against his employer or firm or another third party. The conduct may be common to both proceedings but s 1292(11) does not require identity of parties. All else being equal, it may be said that the first possibility more favours a stay, relatively speaking, as compared with the second possibility. 15 Let me now turn to the detail and first briefly address some jurisdictional questions. Some jurisdictional questions 16 Now the applicant says that each decision is amenable to judicial review under both s 39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). 17 The ADJR Act jurisdiction is said to be invoked under s 5 because each decision constitutes a decision to which the ADJR Act applies. Alternatively, it is sought to be invoked under s 6 because each decision constitutes relevant conduct for the purpose of making a decision. 18 Invoking either or both heads of jurisdiction, it is said that the Court has power to stay the disciplinary proceeding pending the final determination of the criminal proceedings against the applicant; see ss 15 and 16 of the ADJR Act and s 23 of the Federal Court of Australia Act 1976 (Cth). 19 Now in my view both decisions are capable of review pursuant to the ADJR Act as "conduct for the purpose of making a decision" sufficient to attract the operation of s 6 of the ADJR Act, but I agree with ASIC that neither is a "decision" so defined by s 3(1) and for the purpose of s 5 of the ADJR Act. Such decisions lack the requisite quality of finality; see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 and 338 per Mason CJ; Goodman v Australian Securities and Investments Commission (2004) 50 ACSR 1 at [19] per Branson J. 20 A decision of the Board under s 1292 of the Corporations Act to cancel or suspend the registration of a person as an auditor of course will satisfy the criteria recognised in Griffith University v Tang (2005) 221 CLR 99 at [89] per Gummow, Callinan and Heydon JJ as a decision that will at least alter or otherwise affect legal rights and obligations of a person to operate as a registered auditor. But clearly the Board is not yet at that stage. In my view, the two decisions in question are only reviewable under s 6 of the ADJR Act. 21 Now the Judiciary Act jurisdiction is sought to be invoked because there is a "matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth", the relevant officer here being the chairperson of the Board. Moreover, the applicant seeks injunctive relief as well as declaratory relief. 22 But I do not accept that the decisions are subject to judicial review by this Court pursuant to s 39B of the Judiciary Act. Such jurisdiction is excluded by s 1337A(2)(b) of the Corporations Act; see Panganiban v Australian Securities and Investments Commission (2016) 338 ALR 119 at [32] per Bromwich J. But in any event, s 1337B(1) confers plenary jurisdiction on this Court with respect to civil matters arising under the Corporations Act and the ASIC Act. This is sufficient to enliven the Court's original jurisdiction under ss 19(1), 21 and 23 of the FCA Act. I need not linger further on matters of jurisdiction. 23 Let me address one other preliminary matter. The applicant also sought judicial review of the decision not to adjourn the disciplinary proceeding pending the hearing and determination of the present application before me. But in the events that have occurred it is unnecessary to deal with this ground given that I have ordered the stay of that proceeding for the moment. So even if the relevant ground had been made out, no substantive relief would flow in any event from the failure to grant an adjournment. 24 Let me turn then to the main areas of challenge and for this purpose set the scene. Factual background 25 The applicant audited the accounts of an ASX-listed company for the year ended 30 June 2018. In 2019 the applicant was examined under s 19 of the ASIC Act in relation to an investigation into suspected contraventions by the company of its continuous disclosure obligations. 26 In November 2020, ASIC commenced a disciplinary proceeding against the applicant in the Board under s 1292(1)(d) of the Corporations Act. The Board is a statutory disciplinary body established under Part 11 of the ASIC Act, which may cancel or suspend the registration of an auditor if it is satisfied that the auditor has failed to perform his duties. 27 ASIC, as the moving party in the disciplinary proceeding before the Board, seeks the cancellation or three years suspension of the applicant's registration. It says that he failed to carry out or perform his duties in respect of the relevant audit for the 2018 financial year. I should say though that ASIC makes no allegation of dishonesty. 28 Now whilst the disciplinary proceeding before the Board was progressing, in June 2021 ASIC invited the applicant to attend a formal interview for the purpose of responding to allegations of suspected contraventions of s 307A of the Corporations Act, which imposes strict criminal liability on auditors for failing to conduct an audit in accordance with the auditing standards. Further, at around that time, ASIC referred a brief to the CDPP in relation to the applicant. 29 In August 2021, the applicant applied to the Board for a temporary stay of the disciplinary proceeding pending the conclusion of any criminal prosecution against him. 30 On 25 October 2021, the chairperson dismissed that application and provided written reasons (first stay reasons). The chairperson stated that there was no plausible apprehension of injustice occurring in circumstances where the commencement of criminal proceedings was not then a foregone conclusion. It was noted that "[s]hould that in future occur and there are at that time circumstances that the Respondent apprehends would cause injustice should the [Board] proceedings continue, it would be open for the respondent to re-apply to the Board for a stay of these proceedings to be considered" (at [48(f)]). 31 In November 2021, the disciplinary proceeding was listed for a hearing commencing 16 May 2022. 32 Thereafter, the applicant sought to ascertain from ASIC and the CDPP as to whether, and if so when, criminal charges would be laid. 33 On 14 April 2022 the CDPP confirmed that it was in the process of issuing charges which would be served on the applicant. It was well understood at this time that any proposed charges would concern the same subject-matter as the disciplinary proceeding, being the applicant's alleged failure to ensure that the audit of the relevant company for the 2018 financial year was conducted in accordance with the auditing standards. 34 The CDPP subsequently informed the applicant that criminal proceedings against him would be made returnable in the Magistrates Court in July 2022, and that accordingly the relevant charges would be served in about June 2022. 35 The applicant then applied again to the Board for a stay of the disciplinary proceeding pending the conclusion of the criminal prosecution. 36 On 5 May 2022 the further stay application was heard by the Board. At the conclusion of the hearing the chairperson dismissed the application. On 10 May 2022 she provided written reasons (second stay reasons). The second stay reasons incorporated the first stay reasons. 37 On 9 May 2022, an originating application for judicial review dated 6 May 2022 was filed by the applicant in this Court inter-alia challenging the principal decision and the ancillary decision. 38 On 12 May 2022 I made orders that the disciplinary proceeding be stayed by consent of the applicant and ASIC, and with the imprimatur of the Board, until further order of this Court. Moreover, on that day the applicant, by his counsel, gave an undertaking to the Court in the following terms: …the applicant will not perform the duties of a registered company auditor until the determination of Companies Auditors Disciplinary Board (CADB) proceeding 17VIC/20 (the Disciplinary Proceedings) or further order of the CADB or this Court. 39 Further, pursuant to an agreement between the applicant and ASIC, on 18 May 2022 the Register of Auditors maintained by ASIC pursuant to s 1285 of the Corporations Act was amended to include the following notation of the record pertaining to the applicant's registration: [The applicant] has undertaken not to perform the duties of a registered company auditor until the determination of the Company Auditors Disciplinary Board proceeding 17VIC/20 or further order of the CADB. 40 Let me now turn to the applicable legislative scheme. Legislative scheme and functions of the Board 41 As ASIC points out, there is an integrated legislative scheme including Part 9.2 of Chapter 9 of the Corporations Act dealing with the registration of company auditors, and the ASIC Act which concerns both the establishment of the Board (s 1(1)(d)), the broader regulatory duties, powers and functions of ASIC in the regulation of financial system, and the functions and powers of the Board. 42 Both ASIC's and the Board's functions are directed to ensuring integrity in financial systems. In performing its functions and exercising its powers, ASIC must strive to (s 1(2)): (a) maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and (b) promote the confident and informed participation of investors and consumers in the financial system; and … (d) administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and … (g) take whatever action it can take, and is necessary, in order to enforce and give effect to the laws of the Commonwealth that confer functions and powers on it. 43 The ASIC Act is to be interpreted in accordance with those objectives (s 1(3)). 44 Now the Board is established by Part 11 of the ASIC Act. Division 1 of Part 11 provides for the constitution of the Board, including a chairperson, deputy chairperson and members. A panel may be convened to hold a disciplinary hearing. ASIC plays a specific role as an applicant to Board proceedings. ASIC is authorised to initiate proceedings before the Board in relation to the conduct of an auditor (s 1292(1) of the Corporations Act). 45 I should also note another matter. ASIC has broad examination powers under Part 3 of Division 2 of the ASIC Act. By reason of these powers: (a) ASIC is authorised to examine persons and may require a person examined to take an oath or make an affirmation (ss 19 and 21); (b) an examinee is required to answer questions put by ASIC even though the answer might tend to incriminate him (ss 63(1), (5) and 68(1)); (c) a relevant statement made in a compulsory examination of the auditor whose conduct is the subject of the proceedings is admissible in a Board proceeding, subject to legal professional privilege (s 76(1)); (d) ASIC may provide a transcript of a s 19 compulsory examination and any other relevant material to the CDPP. 46 I should note for completeness that the exclusion in s 68(3) relating to "a proceeding for the imposition of a penalty" does not apply to proceedings before the Board under s 1292 of the Corporations Act (see s 1349(4)(g)). 47 Now s 1294(1) of the Corporations Act provides that the Board must not cancel or suspend the registration of a person as an auditor "unless the Board has given the person an opportunity to appear at a hearing by the Board and to make submissions to, and adduce evidence before, the Board in relation to the matter." Further, by s 1294(2), the Board must give a corresponding opportunity to ASIC. 48 Now importantly for the disposition of the present judicial review application, s 1292(11) provides: The Board may exercise any of its powers under this Division in relation to a person as a result of conduct engaged in by the person whether or not that conduct constituted or might have constituted an offence, and whether or not any proceedings have been brought or are to be brought in relation to that conduct. 49 I will return to discuss the text of this provision and its implications later. 50 Division 2 of Part 11 of the ASIC Act deals with hearings by a panel of the Board convened for that purpose. For convenience, I will continue to refer to the Board. They must be conducted with as little formality and technicality, but with as much expedition, as the requirements of the Corporations Act and the ASIC Act and a proper consideration of the matters before the Board permit; see s 218(1)(a). The Board is not bound by the rules of evidence at a hearing (s 218(1)(b)), but must observe the rules of natural justice (s 218(2)). 51 Hearings must take place in private, unless a person other than ASIC who is entitled to be given an opportunity to appear at the hearing requests that it takes place in public. The Board must take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence or in connection with the performance of its functions or the exercise of its powers, including information given to the Board for the purpose of a hearing. Further, a member of the public is prevented from using ASIC's register to inspect a decision of the Board to refuse to exercise its powers under s 1292 of the Corporations Act (s 1274(2)(a)(iii)). 52 Now the chairperson or a member of the relevant panel constituting the Board may issue a summons to require another person to attend and give evidence at a hearing of the matter and to produce a document to it (s 217(1)). But whilst the person who may be the subject of a proposed cancellation or suspension order is entitled to an opportunity to appear at a hearing (s 1294(1)), that person cannot be compelled to appear or participate in any hearing. 53 Now a person who is entitled to be given an opportunity to appear at a hearing and who does not wish to appear at the hearing must be given notice of the hearing (s 216(8)), and may, before the day of the hearing, lodge with the Board in writing any submissions that they wish to be taken into account in relation to the matter, which must be taken into account (s 216(9) and (10)(b)). 54 Accordingly, the power to summons a witness is properly understood as a compulsion that extends only to a witness who is not a person who is entitled to be given an opportunity to appear. 55 However, once a person gives evidence in a proceeding, including the person who may be the subject of the proposed cancellation or suspension order, the chairperson may require them to answer questions under oath even though the answer may tend to incriminate them (ss 68(1), 217(2), 219(2)(b) and 219(2A)). 56 Now the ASIC Act directly contemplates the effect that the exercise of any compulsory powers, including under s 19 or as part of the Board proceedings, might have on the common law privilege against self-incrimination. It provides a limited use immunity for that evidence. A person who claims privilege before answering a question under compulsion, either in an ASIC examination or in Board proceedings, is provided with a limited statutory immunity against use of the statement in criminal proceedings (s 68). Now there is a direct use immunity in the sense that evidence is not admissible, but there is no immunity from indirect use of the material. 57 Let me elaborate further in terms of proceedings before the Board. 58 A person appearing as a witness at a hearing conducted by the Board "must not…refuse or fail to answer a question that he or she is required to answer by the Panel Chairperson" unless that person has a "reasonable excuse" (s 219(2) and (2A)). 59 It is not a "reasonable excuse" for a person to "refuse or fail...to give information…in accordance with a requirement made of the person, that the information…might tend to incriminate the person or make the person liable to a penalty" (s 68(1)). 60 Now ss 68(2) and (3) have the effect that a statement made by a person pursuant to a requirement made of that person under Division 2 of Part 11, which includes before a hearing of the Board, is not admissible as evidence in a criminal proceeding except in respect of the falsity of the statement if, before the statement is made, privilege is asserted on the grounds that the statement might in fact incriminate or tend to incriminate him. 61 Let me now return to s 1292(11) of the Corporations Act and say something about its legislative history. The predecessor to s 1292(11) was originally enacted in all but identical terms in s 27(14) of the Companies Act 1981 (Cth). The only differences are that the word "section" was used in the original provision whereas the word "Division" is used in s 1292(11), and the words "might constitute" were used in the original provision whereas the words "might have constituted" are used in s 1292(11). 62 So, s 27(14) of the Companies Act 1981 (Cth) provided: The Board may exercise any of its powers under this section in relation to a person as a result of conduct engaged in by that person whether or not that conduct constituted or might constitute an offence, and whether or not any proceedings have been brought or are to be brought in relation to that conduct. 63 And a related provision, s 27(25), provided: Evidence of any statement made by a person at a hearing held for the purposes of this section in relation to that person shall not be admitted in evidence in criminal proceedings against that person other than proceedings in respect of the falsity of the statement. 64 Now the explanatory memorandum to the Companies Bill 1981 (Cth) relevantly provided (at [123]): The Board will be able to exercise any of its powers under this provision whether or not the conduct engaged in by the person might constitute an offence and whether or not any proceedings have been brought or are pending (CB s—cl. 27(14)). A statement made by a person in a hearing held by the Board will not be admitted in evidence in criminal proceedings against the person, except in respect of the falsity of the statement (CB s— cl. 27(25)). 65 But as is apparent, no policy reason was given for the inclusion of s 27(25). 66 Now ASIC says that the fact that ss 27(14) and 27(25) were referred to in the same paragraph suggests that the latter was intended to condition the power in the former, so as to safeguard against prejudice in criminal proceedings that may otherwise arise. ASIC says that it also makes apparent that when first implementing the disciplinary regime for auditors, the legislature recognised that disciplinary proceedings may involve conduct that also forms the basis for a criminal prosecution, and responded by specifically authorising the Board to conduct a hearing of the disciplinary matter whilst a criminal matter was in contemplation or pending. 67 In 1983, the Companies Act 1981 (Cth) was amended by the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 (Cth) as part of a process directed at achieving uniformity throughout Australia of the relevant disciplinary powers regulating company auditors (Explanatory Memorandum to the associated Bill at [125]). The amending Act repealed s 27 and inserted a new Subdivision B of Part II which contained comprehensive provisions for the conduct of hearings of the Board. Section 27(14) was repealed and enacted as s 30D(9). Section 27(25) was repealed. Section 30H(5) was introduced to the effect that a witness in a hearing of the Board was not entitled to refuse to answer a question on the ground that an answer might tend to incriminate him. But where the witness claimed before answering that the answer might tend to incriminate him, the answer was not admissible in evidence against him in separate criminal proceedings. 68 The provisions governing hearings of the Board are now mostly contained in Division 2 of Part 11 of the ASIC Act. The reasons of the Board 69 In summary, the chairperson gave the following reasons for the decision to refuse the stay made on 5 May 2022; as I have indicated, the second stay reasons incorporated the first stay reasons. 70 First, it was said that the effect of the relevant statutory scheme contemplates that a hearing before the Board may proceed even when there is a concurrent criminal proceeding on foot or pending. The scheme substitutes statutory protections for the common law right to silence and the privilege against self-incrimination. Those protections include the limited use immunity in ss 68(2) and (3) and the right of a respondent before the Board to choose not to bring any evidence before or make submissions to the Board before a hearing takes place. 71 Second, it was said that the effect of s 1292(11) is that the respondent does not have the right to a stay of proceedings merely by the fact of concurrent criminal proceedings. Rather, there must be circumstances beyond the effect of the statutory scheme on the respondent to justify the Board deviating from its usual business of hearing disciplinary matters that come before it in the usual course. 72 Third, it was said that the prejudice to which the applicant before me points reflects the balance that the legislature considered appropriate between the public interest and the private interest. 73 Fourth, it was said that the undertaking proposed by the applicant was not a substitute for finalising the proceeding by hearing and determining the matter in terms of the prejudice to the public interest. The public interest is served by having matters before the Board dealt with expeditiously, particularly in cases where there has been a referral to the CDPP underscoring the seriousness of the allegations, in order to protect the public and ensure adherence to professional standards in the auditing profession. This in turn is important to the proper functioning of the corporate sector, the financial system and capital markets in Australia. 74 On the basis of this reasoning the chairperson refused to exercise her discretion to stay the proceeding. 75 Now ASIC says that these conclusions were open to the chairperson and are not vitiated by error. 76 ASIC says that the power of the chairperson to stay proceedings is discretionary and in part arises under s 1294A. Moreover, ASIC says that where the legislation does not specify what is and what is not to be taken into account, the limits of discretion and what may or may not be taken into account are to be inferred from the subject matter, scope and purpose of the legislation in question. 77 Now the principles relevant to undertaking the task of statutory construction are hardly controversial. Neither prettified prose nor excessive intellectualisation is necessary to embellish the obvious. The task begins with a consideration of the text itself. The words used in the statute must be construed in accordance with their ordinary and natural meaning, with regard to the context in which those words appear and their purpose. Moreover, one must strive to give meaning to every word of the provision under consideration. 78 Accepting these principles, ASIC says that the proper construction of s 1292(11) in context supports the chairperson's conclusions and underlying reasoning. 79 Now ASIC appeared to accept, as it must, that the chairperson's refusal to stay the proceedings in circumstances where criminal proceedings are imminent creates a potential prejudice for the applicant as it may cut across his fundamental rights as an accused. These fundamental rights include the common law right against self-incrimination and the right to silence at trial. I do not need to chart the boundaries or content of the accusatorial principle and its companion rule. 80 Further, ASIC had to accept the principle of legality that a statutory intention to abrogate or restrict fundamental freedoms or to depart from the general system of law must be manifest from the statute and expressed with clarity. So if perspicuously expressed statutory words have been used, such words to be strictly construed, those fundamental rights may be abrogated (Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [101] per Kiefel CJ, Bell and Nettle JJ). 81 So, in Hamilton v Oades (1989) 166 CLR 486 what was addressed was the construction of s 541 of the Companies (New South Wales) Code pertaining to the powers of examination, which provided (s 541(12)) that a person: … is not excused from answering a question put to him at an examination… on the ground that the answer might tend to incriminate him but where the person claims, before answering the question, that the answer might tend to incriminate him, the answer is not admissible in evidence in criminal proceedings. 82 It was held that s 541 manifested a clear intention to abrogate the common law privilege against self-incrimination, with Mason CJ stating (at 494) that: …it is well established that Parliament is able to "interfere" with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked… 83 Further, in Lee v NSW Crime Commission (2013) 251 CLR 196, which I note was principally a power case rather than an exercise of discretion case, it was held that provisions of the Criminal Assets Recovery Act 1990 (NSW) had the effect of altering common law rights that would otherwise have applied. Crennan J observed (at [144]): … the relevant provisions of the CAR Act clearly and unambiguously show that the privilege against self-incrimination is abrogated, irrespective of whether or not an examinee has been charged with a criminal offence, and that the legislature has directed its attention to the effect of that abrogation upon an examinee facing pending criminal proceedings. Accordingly, the legislative scheme for compulsory examination in the CAR Act may operate in respect of persons charged with an offence, notwithstanding overlap between the subject matter of the compulsory examination and the subject matter of the pending criminal proceedings. 84 Of course there is no limitation of the types of matters in which common law rights can be abrogated, and any attempt to define a class of cases by either subject matter or forum that is immune from abrogation by legislative intention is inapposite. 85 Now there are various examples of specific statutory provisions that have clearly directed or countenanced the continuation of administrative or curial processes which abrogated common law rights, despite the fact that charges may have or had been laid in relation to facts that were the subject of those processes; see Onley v Commissioner of the Australian Federal Police (2019) 345 FLR 241; Lee v NSW Crime Commission; R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459. 86 Contrastingly, there are examples where the statute was not so clear. Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 is an example of such legislation, although this was later amended and considered again in Onley v Commissioner. 87 Now none of what I have just said is or could be controversial. 88 But in the present context, ASIC says that the statutory regime including s 1292(11) clearly evinces an intention to vary the rights of a person whose conduct is the subject of Board proceedings and also potentially or actually the subject of criminal proceedings. 89 ASIC says that what stands s 1292(11) apart from cases such as Zhao and X7 v Australian Crime Commission (2013) 248 CLR 92 and stands it with cases such as R v IBAC, Lee v NSW Crime Commission and Onley v Commissioner is the express statutory reference to the same "conduct" of the person being the subject of the disciplinary proceedings as the "conduct" which constituted or might constitute an offence in respect of which criminal proceedings have or are to be brought; see R v IBAC at [11] to [28], Lee v NSW Crime Commission at [283] to [290] and Onley v Commissioner at [8] to [38] for the text of the relevant statutory provisions. 90 Indeed, ASIC also goes so far as to say that the purpose of the power supports abrogation. It says that the disciplinary powers provided to the Board by s 1292 support the public purpose of ensuring adherence to high standards in the auditing profession, which is important to the proper functioning of the corporate sector, the financial system and the capital markets in Australia. It says that the text of s 1292(11) reflects clearly the recognition by the legislature that implementing a statutory disciplinary process for auditors might coincide with a prosecution for the same conduct. ASIC says that the legislature responded to that likelihood by implementing a regime which expressly authorised the continuation of the disciplinary process in those circumstances, and provided specific statutory protections in lieu of and to address the concomitant effect on common law rights. 91 ASIC says that so much is clear from the text of s 1292(11) which reflects the balance that the legislature considered appropriate between, on the one hand, the public interest in protecting the financial system and the public against potential harm caused by the conduct of a company auditor and, on the other hand, the private interest of an auditor whose conduct is the subject of Board proceedings and is also potentially or actually the subject of criminal proceedings. 92 ASIC concentrates heavily on the words "whether or not that conduct constituted or might have constituted an offence, and whether or not any proceedings have been brought or are to be brought in relation to that conduct", and says that it was specifically contemplated that Board proceedings may continue concurrently with criminal proceedings, notwithstanding the impact that the former may have upon the rights of an accused as to the latter. 93 Indeed, ASIC goes so far as to say that the legislative scheme entirely abrogates accusatorial rights. It says that the statutory scheme expressly authorises the Board to continue with the performance of its statutory duty under s 1292, despite the effect on common law rights which might otherwise have required the proceedings to be stayed. And it is said that the statutory scheme does so in circumstances where common law rights have been substituted by specific statutory protections. 94 So, in circumstances where a person chooses to give evidence before the Board and is then compelled by the chairperson to answer a question, that person, if they assert privilege as provided for in s 68(2), will have the benefit of the limited use immunity provided by s 68(3) over that evidence. So, the privilege is abrogated with respect to any questions asked of the person and required by the chairperson to answer, if they choose to give evidence (ss 219(2)(b) and (2A)). On the other hand, evidence that a person may choose voluntarily to adduce before the Board is not subject to the limited use immunity provided by s 68(3), as it is not evidence that the person is compelled to give. 95 Further, the effect of s 1349(4)(g) of the Corporations Act is that s 68(3) does not apply to proceedings before the Board. So even where privilege is claimed in a s 19 examination, the limited use immunity provided by s 68 will not prevent that material from being admitted in evidence before the Board. Moreover, a transcript of that examination may also be given to the CDPP. 96 Further, ASIC says that given the broad nature of the s 19 examination power, in which any question relevant to the investigation may be asked of the applicant, little room is left for what relevant evidence the applicant may voluntarily choose to adduce, which could not already have been obtained by ASIC and used in the proceedings. So, questions at the examination may include the full breadth of possible or potential evidence including defences. So, there is no reason to construe the abrogation of rights by reference to material that was in fact obtained from the applicant in this particular case. It is not to the point that the particular witness was or was not asked a particular question at the examination. The issue is that that person could be compelled to give answers during the examination that cover the field of the Board proceedings. ASIC says that the statutory regime must be construed by reference to its theoretical scope and not as to what occurred in this particular case. 97 Now the Board may not compel the applicant to give evidence at the hearing of the disciplinary proceeding. But ASIC says that non-participation by the applicant in Board proceedings is contemplated and accommodated by the statutory scheme. The fact that there is no question that could not be put to the applicant in a compulsory examination under s 19, and then tendered in the proceeding, makes the non-participation of an applicant at that stage of no consequence to the extent to which their rights have already been abrogated. In this way there is no preservation of the applicant's fundamental rights by the legislative scheme. The legislature has intentionally addressed the consequence of that in s 68(3) by affording a limited use immunity even though such an immunity does not extend to voluntarily adduced evidence. 98 Further, ASIC says that the fact that the Board is specifically authorised to continue with a hearing whether or not any criminal proceeding has been brought or are to be brought in relation to the same conduct, apprehends a construction of abrogation of the common law rights in the same way that similar terms were held to have abrogated common law rights in R v IBAC. 99 Further, ASIC says that a construction which permits only a narrow abrogation and thus a construction that the discretion to stay should be exercised to preserve what has not been conceded to have been abrogated, gives no sensible work to do for the words "whether or not that conduct constituted or might have constituted an offence, and whether or not any proceedings have been brought or are to be brought in relation to that conduct". ASIC says that if there is a portion of the accusatorial rights that are preserved, then that would be the position in every case where the same person is the subject of the disciplinary proceedings and pending or likely criminal proceedings in respect of the same conduct. Accordingly, on that basis the stay would be granted in every case. ASIC accordingly says that there is no such narrow abrogation. 100 ASIC boldly says that the statutory regime effectively abrogated all of the applicant's common law accusatorial rights. Therefore, so ASIC says, the chairperson made no error in construing the statutory scheme when concluding that this was the case. 101 But I agree with the applicant that there is only a narrow abrogation of the fundamental rights of an accused. 102 First, ASIC has the examination powers suggested, but these are spent before ASIC commences a proceeding and have been spent here. 103 Second, the transcripts resulting from ASIC examinations are admissible in Board proceedings, and to that extent there is an abrogation of the privilege against self-incrimination under s 68(1) as to their contents. Further, there is also an abrogation of privilege to a limited extent under s 219 in respect of witnesses summonsed by the Board to appear to give evidence under s 217. But the abrogation of privilege is only to the limited extent set out in ss 68(1) and 219. The ASIC Act goes no further. 104 Third and putting to one side the s 19 transcripts which can be tendered, where the examinee is the relevant auditor the abrogation of privilege operates only to the extent that the auditor elects to give evidence in the Board proceeding. Section 219 does not apply because the auditor cannot be summonsed. And putting to one side the transcripts question, s 68 applies only where the auditor chooses to give evidence. It is not in doubt that the auditor cannot be compelled to appear or to participate in any hearing. 105 Fourth, I do not accept ASIC's assertion that given the breadth of the s 19 examination power, little room is left for what relevant evidence the auditor may voluntarily choose to adduce. There may well be evidence that an auditor may voluntarily choose to adduce at a Board proceeding that goes beyond the topics on which the auditor was examined under s 19. Indeed in the present case the applicant was examined by ASIC, not about any non-compliance by the applicant with auditing standards, but rather about whether the audited company contravened continuous disclosure laws. Now of course ASIC had the power to conduct an examination of the applicant which covered the field of the matters now alleged in the Board proceeding. But it failed to do so. Moreover, its power to compulsorily examine is now spent. 106 Fifth, any abrogation of rights is not to be addressed by answering a hypothetical question as ASIC poses it of whether there is "no question that could not be put to the applicant in a compulsory examination under s 19 and then tendered in the proceeding". The mere possibility of being compelled to answer questions in a s 19 examination is not what abrogates the privilege. Rather, as the applicant puts it, s 68 abrogates privilege only in the information that was actually given during the examination. 107 I agree with the applicant that the combined force of ss 19 and 68 is that the privilege against self-incrimination and the associated right to silence have been abrogated in respect of one category of information, namely, the actual product of a compulsory examination. And it is only in respect of this category of information that the abrogation has occurred. So, there has only been a narrow abrogation. 108 Let me turn more directly to s 1292(11) which although it addresses the overlap between the disciplinary proceeding and criminal proceedings, clearly does not direct the Board to refuse a stay. 109 From its plain text, s 1292(11) leaves open the question of a stay for the Board to decide in the exercise of its discretion and in balancing the interests of justice. Of course, this construction does not mean that a stay should be granted in every case. The decision whether to stay the Board proceeding would depend on where the interests of justice lay in the circumstances of the particular case. It is not to be decided by abstract themes or generalised notions of what is in the public interest, a much used and abused term. 110 Clearly, the legislative scheme does not expressly authorise the Board to ride rough-shod over all common law rights of an accused. The statutory scheme does not expressly require the Board to continue to hear a proceeding despite the effect on common law rights which might otherwise have required the proceeding to be stayed. 111 Further, ASIC gains little comfort from the authorities that it has cited. The cases on which ASIC principally relies are ones where the legislature's abrogation of the fundamental common law rights of an accused is much more extensive, as Dr Oren Bigos KC for the applicant pointed out. 112 Now Ms Rashelle Seiden SC for ASIC asserts that Onley v Commissioner and Lee v NSW Crime Commission considered statutory provisions analogous to those in question in the present case. But in those cases, the legislative schemes expressly limited the power to stay in circumstances where there was an overlapping criminal prosecution. 113 In Onley v Commissioner, s 319 of the Proceeds of Crime Act 2002 (Cth) stated: "The court must not stay the POCA proceedings on any or all of the following grounds" (s319(2)) including "that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings" (s 319(2)(a)) and "even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings" (s 319(3)) (at [38] and [39] per Bathurst CJ). 114 In Lee v NSW Crime Commission, s 63 of the Criminal Assets Recovery Act 1990 (NSW) stated: "The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which the Supreme Court may stay proceedings under this Act that are not criminal proceedings." (at [7] per French CJ). 115 Contrastingly, there is no such legislative direction or expressed intent to refuse a stay in s 1292(11). Indeed, its absence powerfully indicates that ASIC's sweeping absolutism as to abrogation must be rejected. The legislature left it to the Board to consider the circumstances of each individual case. And what s 1292(11) was really saying was that the Board may proceed, not that it must proceed, where there are concurrent criminal proceedings. 116 Further, in R v IBAC, s 70 of the IBAC Act expressly authorised IBAC to commence or to continue to investigate a matter despite the fact that criminal proceedings were on foot or were to be commenced in any court that related to the matter the subject of the investigation, in circumstances where IBAC had the express power to summons the examinee, namely, the relevant accused to attend a compulsory examination and s 144 abrogated the examinee's right to claim privilege against self-incrimination in respect of answers that the examinee was compelled to provide. 117 In contrast, the focus of s 1292(11) is not on the commencement or continuation of disciplinary proceedings, but rather the more general exercise of any powers under Part 9.2 Division 3 of the Corporations Act, which relevantly includes a power to stay proceedings. Further, even if the disciplinary proceedings are continued, there is no corresponding power conferred on the Board to summons an auditor to attend and give evidence before the Board. 118 Moreover, the tasks of the court or commission in Onley v Commissioner, Lee v NSW Crime Commission and R v IBAC were different to the tasks in which the Board is required to engage. In each of those cases, the court or commission was specifically tasked with making findings about criminal activity, and the legislature invested those bodies with powers to continue with their processes regardless of any criminal prosecution because those bodies played a role in the criminal justice system. Here, the Board, whose disciplinary proceedings are civil, sits outside the criminal justice system. Contrastingly, those authorities concerned statutory investigative or inquisitorial processes (eg Royal Commissions, inquiries, and liquidators examinations), the purpose of which was to investigate whether wrongdoing had occurred, and in some cases, to make recommendations. The function of the Board is quite different. It is to make a determination whether to cancel or suspend an auditor's registration. 119 Further, and I will elaborate on this later, the primacy of the criminal justice system must be considered in applying the McMahon v Gould (1982) 7 ACLR 202 guidelines propounded by Wootten J. And there are no express provisions in the corporations legislation that would contradict the primacy of the criminal justice system. 120 Further, in contrast to the legislative schemes in Onley v Commissioner and Lee v NSW Crime Commission, the corporations legislation provisions do not confer on the Board a power to compel the subject of the disciplinary proceedings to give evidence, and contain no limitation on the power to stay in circumstances where there was an overlapping criminal prosecution. Section 1292(11) does not direct the Board one way or the other as to whether to stay a proceeding pending a criminal prosecution. The matter is left to the exercise of the Board's discretion to draw the appropriate balance. Specific errors 121 In my view there were four problematic aspects of the Board's reasoning given by the chairperson that led to error in making the decision not to stay the Board's proceeding. 122 First and as I have already touched on, the Board misconstrued and misapplied the statutory regime including s 1292(11). 123 Second, the Board failed to give primacy to the criminal process and the proper administration of justice in that context. 124 Third, the Board failed to properly deal with the question of prejudice in relation to the criminal prosecution if the disciplinary proceeding were to continue. 125 Fourth, the Board made a finding of prejudice to the public interest in circumstances where any such prejudice would be averted by the undertaking offered by the applicant. 126 Let me deal with each of these errors in turn and their correct characterisation in terms of judicial review grounds. A distorted take on the statutory regime 127 As I have said, properly construed, s 1292(11) relevantly confers on the Board a discretion to continue with a disciplinary proceeding or to stay it in circumstances where there is an overlapping criminal prosecution. Quite clearly, s 1292(11) neither requires the Board to approach the issue from a particular perspective nor does it require the continuation of a disciplinary proceeding as the default position. 128 The general principles including the McMahon v Gould guidelines which apply to the exercise of the discretion to stay a civil or administrative proceeding pending a criminal prosecution apply here. A stay of a civil proceeding may be warranted in the interests of justice if it is apparent that the accused is at risk of prejudice in the conduct of their defence in the criminal trial. The risk of prejudice must be real. 129 Moreover, it is unnecessary for the applicant to state the specific matters of prejudice before a stay could be contemplated. Otherwise that would make the risk of prejudice a reality by requiring him to reveal information about his defence. Of course, as the applicant points out, this is a situation which an order for a stay seeks to avoid. 130 As I have said, the legislative scheme here being the Corporations Act and the ASIC Act does not generally abrogate the fundamental rights of the applicant as an accused. True it is that there is some limited statutory abrogation of the privilege against self-incrimination under s 68 of the ASIC Act, but it is only in respect of the specific information which had been compulsorily obtained from the applicant in the course of his s 19 examination. Apart from that narrow abrogation, the applicant's fundamental rights are preserved by the legislative scheme. 131 In any event and as the applicant points out, true compulsion is not a necessary ingredient for the application of the accusatorial principle. Even though there may be no legal compulsion to do or say anything to defend the disciplinary proceeding, where the applicant cannot realistically defend such proceedings without telegraphing his likely defence of the criminal proceedings, a stay may be necessary to avoid the high potential for the privilege against self-incrimination to be removed and the right to silence lost. This of course may occur even where the applicant is not legally but effectively compelled to defend the proceeding and the hearing is confidential. 132 In this case, in the absence of a stay, I accept that the applicant would suffer significant prejudice given the criminal charges. He wishes to defend the disciplinary proceeding to protect his livelihood and reputation, but to do so would assist the prosecution in its criminal proceeding against him. This is the antithesis of the accusatorial system of justice. It would fundamentally alter his position as an accused and would render the criminal trial unfair. The applicant would be placed in the invidious position where he had to decide whether to prejudice his criminal trial or his defence of the disciplinary proceeding. Of course it is trite to say in one sense, as ASIC does, that the applicant is free to make such forensic decisions as he sees fit, but by the practical requirements of the disciplinary proceeding, the applicant's legitimate interests in defending the criminal prosecution may be significantly compromised. A similar argument raised by ASIC in a different context was rightly dispatched by Jagot J in Australian Securities and Investments Commission v Craigside Company Ltd (2013) 93 ACSR 176 at [22]. 133 Now let me at this point turn to the reasoning of the chairperson who construed the legislative scheme as abrogating the fundamental rights of an accused and replacing them with the "limited use immunity" conferred by s 68(3). 134 In the second stay reasons, the chairperson stated (at [37]): …when viewed in its proper context, which is to take into account the operation of the Statutory Scheme, the [Applicant], who has the onus of showing why a stay of these proceedings is warranted, has not done so. The prejudice to which he points is a consequence of the Statutory Scheme which has displaced the common law rights to which he refers. The fact [the Applicant] must make a choice as to whether or not to actively participate in the CADB proceedings is a natural consequence of what flows from Parliament's intention expressed in s 1292(11) that proceedings before the Board may be maintained in the face of potential or actual criminal proceedings and is the proper context for weighing (i) and (j) of the McMahon Guidelines in this matter. 135 In my view the chairperson wrongly decided that in exercising the discretion under s 1292(11) the applicant's common law rights had been entirely abrogated by the enactment of the statutory scheme and replaced by the limited use immunity. As a consequence, she wrongly decided that the prejudice to which the applicant pointed was a natural consequence of that abrogation. And she wrongly decided that the fact that the applicant must make a choice as to whether to actively participate in the disciplinary proceeding was a natural consequence of what flows from the legislature's intention embodied in s 1292(11) that proceedings before the Board may be maintained in the face of potential or actual criminal proceedings. 136 As I have said, the applicant's fundamental rights have not been entirely abrogated and therefore the prejudice identified by the applicant cannot be a product of such abrogation. Further, nothing in the statutory scheme implies that every person must proceed to make their choice, regardless of the risk of prejudice to their defence in the criminal trial. Rather, the legislative intention as expressed in s 1292(11) is that whether the disciplinary proceeding continues is a matter of discretion for the Board to consider. 137 In my view, as a consequence of the chairperson misconstruing and misapplying the legislative scheme, the Board improperly exercised its power by taking into account irrelevant considerations. 138 The Board erroneously considered that the statutory scheme entirely abrogated the applicant's fundamental rights as an accused. 139 Further, the Board erroneously considered that the prejudice to which the applicant pointed was a natural consequence of the legislature's alteration to the common law immunities and its intention that proceedings before the Board may be maintained in the face of potential criminal proceedings. 140 Further, the Board erroneously considered that the applicant had to make a choice as to whether to actively participate in the disciplinary proceeding and that this was a natural consequence of what flowed from the intention expressed in s 1292(11) that proceedings before the Board may be maintained in the face of potential or actual criminal proceedings. 141 Further, as a consequence of the chairperson misconstruing and misapplying the legislative scheme, the Board improperly exercised its power by failing to take into account relevant considerations, being that the applicant's fundamental rights as an accused were not entirely abrogated by the statutory scheme, and that the applicant would suffer real prejudice in relation to the criminal prosecution if the disciplinary proceeding were to continue in the face of the criminal prosecution. Let me turn to the next problem manifested in the chairperson's reasons. Ignoring or diminishing the primacy of criminal proceedings 142 When balancing competing interests such as the public interest against the applicant's interest or vice versa, greater weight must be afforded to the primacy of criminal proceedings in the justice system; see Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 at [59] per Dowsett, Tracey and Bromberg JJ. 143 In Crespin v Francis [2016] VSC 277, J Forrest J crisply observed (at [23]) that the McMahon v Gould guidelines are subject to one important qualification that they "arguably failed to accord sufficient primacy to the accused's right to a manifestly fair criminal trial". 144 And following on, it was observed in Lucciano v The Queen (2021) 287 A Crim R 529 by McLeish, Niall and T Forrest JJA (at [24]) that: …The prospect that civil proceedings may need to be stayed to avoid prejudice to criminal proceedings is not novel. If the issues and the circumstances relevant to both proceedings are substantially identical, it will be readily apparent that there is a risk of prejudice in the defence of the criminal trial. In effect, the civil proceeding would operate as a "dress rehearsal" or "test run" for the criminal trial. 145 Now I accept that given the absence of any constitutional entrenchment of the relevant rights, primacy is of course to be determined by the enabling legislation. So much was emphasised by Gageler J in R v IBAC (at [76]): Legislation is sometimes harsh. It is rarely incoherent. It should not be reduced to incoherence by judicial construction. An interpretative technique which involves examining a complex and prescriptive legislative scheme designed to comply with identified substantive human rights norms in order to determine whether, and if so to what extent, that legislative scheme might butt up against a free-standing common law principle is inherently problematic. The technique is even more problematic if the common law principle lacks precise definition yet demands legislative perspicacity and acuity if it is not to create of its own force an exception to the scheme that is spelt out in the statutory language. 146 But primacy has not been displaced in the present statutory context. 147 Further, even in cases where the legislature limited the power to stay a civil or administrative proceeding pending a criminal prosecution, in X7 and Zhao the High Court determined that a stay was appropriate. A fortiori in the present case, where s 1292(11) does not direct the Board one way or the other on how to exercise the power to stay any disciplinary proceeding. 148 Further, Edelsten v Richmond (1987) 11 NSWLR 51 and ML v Australian Securities and Investments Commission (2013) 276 FLR 14, on which the chairperson heavily relied, were distinguishable. 149 In Edelsten v Richmond the complaint was of sufficient seriousness to warrant the Medical Tribunal proceeding in circumstances where it alleged Dr Edelsten had a conversation with a person he believed to be a stand-over man and murderer with a view to obtaining his assistance to intimidate a former patient with threats or violence. 150 Similarly, in ML v ASIC, where there was only the prospect of criminal charges, the disciplinary proceeding involved specific allegations against a liquidator of fraudulently causing payments to be made to his own benefit. 151 Contrastingly, ASIC does not allege that the applicant is not a fit and proper person and makes no allegations of dishonesty. 152 Moreover and contrary to the chairperson's reasons, Edelsten v Richmond does not support the proposition that for the applicant to establish grounds for a stay, some prejudice must be pointed to that is different from Parliament's alteration to the common law immunities, as that alteration reflects the balance that Parliament considered appropriate between public and private interests. Hope JA (at 61) recognised that the discretion given to the Tribunal involved "a balancing of the public interest in the investigation of the complaint with the public interest in the observance of the right to silence". 153 In my view, the chairperson erred in failing to balance the interests of justice by failing to give primacy to the criminal process. She simply concluded that the statutory scheme took account of the prospect of criminal proceedings and provided for it. 154 She wrongly disregarded the prejudice that the applicant would suffer in the absence of a stay. In her view, the prejudice to which the applicant pointed was a consequence of the statutory scheme which displaced his common law rights as an accused. But this was all based on a false premise. 155 In my view the Board failed to accord sufficient primacy to the applicant's fundamental rights as an accused. Let me turn to the next dimension to the problem. The wrong lens to address the applicant's prejudice 156 ASIC says that in order to demonstrate relevant prejudice of the kind necessary to satisfy the guidelines in McMahon v Gould, the applicant needed to demonstrate some specific prejudice that would not be present in every case where there may be criminal proceedings in respect of the same conduct, that would justify deferring the Board from fulfilling its statutory function by reason of the stay. It is said that something more than the prejudice which arises as a natural consequence of the statutory scheme must be found. 157 ASIC says that the applicant has only pointed to general prejudice of a kind which flows from the circumstances where the person the subject of the Board's proceedings is the same person the subject of criminal charges over the same conduct. 158 It is said that the fact that this kind of generalised prejudice, although it may be direct, will arise is implicit in the legislative scheme from the words of s 1292(11). 159 ASIC says that in exercising her discretion, it was open to the chairperson to include as a basis for refusing the stay that the circumstances relied upon by the applicant would arise whether prejudicial or not as the ordinary and natural consequence of the fact that the Board's proceedings may continue despite criminal proceedings over the same conduct. Further, ASIC says that it was open to her to hold that no other reason for granting the stay that went beyond what was the ordinary and natural consequences of the concurrent proceedings arose. 160 Now the applicant identified his prejudice as putting him in an invidious position where he had to choose between, on the one hand, compromising any remaining vestiges of self-incrimination privilege or right to silence by choosing to positively participate in the Board proceedings, noting that if he chose to give evidence he would put himself in a position where he may be compelled to answer questions from the chairperson (s 219(2)(b)) or, on the other hand, suffering prejudice by refusing to give evidence or otherwise participate and thus not defend the Board proceeding. 161 But ASIC says that it was open to the Board to hold that this prejudice was not sufficient to warrant a stay as it is expressly contemplated by s 1292(11) in permitting the Board to exercise its powers whether or not criminal proceedings have been brought or are to be brought. ASIC says that it is a natural consequence of the legislative scheme. And the Board may continue regardless of that consequence. Further, ASIC says that if that was not the case, then following from the applicant's construction, there ought to be a stay every time the same conduct of the person is the subject of the disciplinary proceeding and the criminal proceedings. It is asserted that this would turn s 1292(11) on its head, in the sense that notwithstanding being expressly permitted to continue in those circumstances, the Board on that view should not continue. 162 I do not buy any of this. 163 Now as I have indicated, in the absence of a stay the applicant would suffer real prejudice in relation to the criminal prosecution against him, as he would be placed in the invidious position where he had to decide whether to prejudice his criminal trial or his defence of the disciplinary proceeding. Moreover, it was unnecessary for the applicant to state the specific matters of prejudice before a stay could be contemplated. 164 Now ASIC says that the chairperson made no error in her conclusion that the applicant suffered no relevant prejudice. Any prejudice occasioned flowed as a natural consequence of the concurrency of the disciplinary proceeding and the then anticipated criminal proceedings, as contemplated by the legislative scheme. Accordingly, this prejudice did not warrant a stay. And the applicant has not demonstrated any additional prejudice. 165 But contrary to both ASIC's submissions and the chairperson's reasons, whether a risk of prejudice would exist in other cases, and if so in which cases, is not to the point. The issue is the risk of prejudice to the particular accused, namely, the applicant. 166 The applicant demonstrated a sufficient risk of prejudice in relation to the prosecution against him. He stated his desire to defend the disciplinary proceeding, and his concern that steps taken in that proceeding would assist the prosecution. He did not need to state with any more specificity the matters of prejudice before a stay could be contemplated. To require the applicant to do so "would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid" (Zhao at [43]); see also Impiombato v BHP Group Ltd (2020) 143 ACSR 301 at [128] per Moshinsky J and more generally his fine exposition of the relevant principles at [122] to [136] albeit in a different competitive setting. 167 The chairperson erred by failing to take into account the risk of prejudice to the applicant and finding that it was merely a natural consequence of the legislative scheme and so should be devalued if not dismissed. A misfocused consideration of the public interest 168 In my view, the chairperson erred by failing to take into account how the applicant's undertaking adequately served the public interest objective of ensuring integrity in the financial system. 169 The applicant offered an undertaking not to perform the duties of an auditor until the conclusion of the disciplinary proceeding or until further order of the Board, and for that undertaking to be recorded on the public register. That being so, there was no meaningful prejudice to the public interest if the stay was granted. The public interest objective of ensuring integrity in the financial system was still preserved. 170 Further, the undertaking effectively gave ASIC the relief it sought in the disciplinary proceeding for the moment, and therefore ASIC would have met its obligation to "take whatever action it can take, and is necessary, in order to enforce and give effect to the laws of the Commonwealth" (s 1(2)(g) of the ASIC Act). Indeed, it is questionable whether ASIC's refusal of the undertaking in the disciplinary proceeding was itself inconsistent with its obligation to take only such action as "is necessary". 171 Moreover, the chairperson failed to take into account the significant public interest in the proper administration of justice in criminal proceedings. As was said in CFMEU at [57], there is a public interest in the fair and efficient disposition of criminal proceedings and generally the proper administration of justice. This explains why a criminal proceeding should usually be given precedence by being heard and determined first. 172 So, not only does the applicant's private interest favour a stay over the public interest identified by the chairperson, but there is also a competing public interest which clearly outweighs that identified by the chairperson. 173 Now of course expediency is central to the efficient regulation of the financial system. And it is true that s 218(1)(a) of the ASIC Act provides that at a hearing of the Board "the proceedings must be conducted with as little formality and technicality, and with as much expedition", as the requirements of the corporations legislation and a proper consideration of the matter permits. But such words appear in many enactments. I do not see how such general words meaningfully shift the balance under the McMahon v Gould guidelines against a stay. 174 Now ASIC says that the chairperson did take into consideration the protection to the public interest afforded by the undertaking proffered by the applicant when it was said that the applicant (first stay reasons at [48(h)]): … has also offered to undertake to refrain from performing audit duties pending the outcome of any criminal prosecution which it was submitted addresses the Board's objective of protecting the public to the extent that may be necessary. I accept that there are relevant matters to be weighed in my decision in terms of the McMahon Guidelines. 175 And ASIC asserts that the comment, which was that "as ASIC did not agree to this course my view is that this development did not alter the context within which I should consider the relevance of the undertaking in terms of weighing the factors relevant to the exercise of discretion" (second stay reasons at [39]), did not mean that the chairperson failed to take into consideration the undertaking and its impact on the public interest. 176 Moreover, ASIC says that the applicant's submission that an undertaking would eliminate any prejudice to the public interest is unduly reductionist as to what constitutes the relevant public interest in these proceedings. It says that even if there was an undertaking to ASIC at the time of the Board proceeding, the harm to the public interest extends beyond merely the potential harm that the applicant may pose to the public. 177 ASIC says that the powers of the Board are part of a wider system of ensuring integrity in the financial system. So, an undertaking preventing the applicant from performing duties as an auditor is no substitute for the Board undertaking its statutory functions to finalise proceedings. If the Board ultimately determines that there is no warrant for action against the auditor, it is not then in the public interest for the auditor to be prevented from performing those functions. It says that a lengthy stay undercuts that principle. Equally, if there is a basis for action, then the taking of that action should not be delayed by reason only of anticipated criminal proceedings. 178 ASIC pleads again that expediency is central to the efficient regulation of the financial system. And the importance of this is borne out by the s 1(2)(g) object. Moreover, ASIC says that given that the only prejudice demonstrated by the applicant was not material by reason of the statutory scheme to the exercise of the Board's discretion, the delay that would be occasioned by the stay left the balance of prejudice weighing more heavily on the public interest rather than the applicant. 179 In any event, ASIC falls back on the position that the weighing of prejudice was a matter for the chairperson in the exercise of her discretion. If there was no error in the chairperson's construction of the law insofar as the conclusion that prejudice occasioned by anticipated criminal proceedings was not material prejudice, then the exercise of this discretion should not be disturbed. 180 In my view there is little to commend ASIC's position or its defence of the chairperson's reasoning. Indeed, it is artificial in light of how dismissively the chairperson dealt with the undertaking proposed. 181 In determining whether to grant a stay, the McMahon v Gould guidelines required a balancing of the risk of prejudice to the applicant if there was no stay against the prejudice to the public interest that a stay of the disciplinary proceeding would occasion. And the only prejudice occasioned by a stay that ASIC pointed to was the prejudice to the public interest in having the disciplinary proceeding not determined expeditiously. 182 Now as I have said, the applicant offered to give an undertaking not to perform the duties of an auditor until the determination of the disciplinary proceeding, and for that undertaking to be noted on the register of auditors kept by ASIC under s 1285(1) of the Corporations Act. 183 The effect of this proposed undertaking was that the public interest would be protected, as the undertaking effectively achieved the outcome sought by ASIC in the disciplinary proceeding, being for the applicant no longer to perform audit work until all relevant proceedings were disposed of. The applicant has since given such an undertaking to the Court. 184 In my view, the chairperson's reasons disclose that she failed to properly take into consideration the protection to the public interest afforded by the undertaking proffered by the applicant. 185 As I have said, the chairperson noted that "as ASIC did not agree to this course my view is that this development did not alter the context within which I should consider the relevance of the undertaking in terms of weighing the factors relevant to the exercise of discretion". But the chairperson failed to recognise that, as Dr Bigos KC put it, the undertaking decisively tipped the discretion in favour of a stay because there was no competing meaningful prejudice to the public interest. 186 So, the chairperson's finding of prejudice to the public interest in circumstances where the applicant had offered the undertaking gave rise to several errors. 187 First, the chairperson improperly exercised her power by taking into account, as an irrelevant consideration, the prejudice to the public interest in circumstances where there was no such meaningful prejudice given the applicant's undertaking. 188 Second, the chairperson improperly exercised her power by failing to properly take into account a relevant consideration, being the applicant's undertaking which eliminated any prejudice to the public interest. Now although the chairperson referred to the undertaking, she did not properly take it into account but simply endorsed ASIC's rejection of it. 189 I agree with the applicant that the Board's decision was infected by one or more errors in disregarding the effect of the undertaking in eliminating any meaningful prejudice to the public interest. 190 Let me now turn to the developments which occurred after the hearing before me. The criminal charges 191 On 23 June 2022, this proceeding was adjourned part heard until such time as the criminal proceedings were instituted so that a copy of the charges could be provided to the Court, and the parties afforded the opportunity to provide submissions in respect of the charges. 192 On 18 July 2022, charges were served on the applicant, together with a summary of facts dated 2 May 2022. The charges were returnable before the Melbourne Magistrates' Court on 1 September 2022. 193 The charges under ss 307A(2) and 1311(1) of the Corporations Act concern the same subject-matter as the disciplinary proceeding, namely, the applicant's alleged failure to ensure that the audit of the relevant company for the 2018 financial year was conducted in accordance with the auditing standards. I have been provided with material that makes out the point that there is a very substantial overlap between the two proceedings as regards the alleged conduct and the auditing standards that are alleged to have been contravened. Further, the summary of facts confirms that the expert reports of the independent expert which ASIC has filed in the disciplinary proceeding are also to be relied on by the CDPP in the criminal proceedings. 194 Of course, such an overlap is the natural consequence of the interaction between the offences provided for by ss 307A(2) and 1311(1) and the disciplinary proceeding. Sections 307A(2) and 1311(1) make it an offence for a lead auditor to fail to ensure that a review is conducted in accordance with auditing standards. This is directed towards the same conduct that is the subject of the allegation before the Board, being that the applicant failed within the meaning of s 1292(1)(d) to carry out or perform adequately and properly the duties of an auditor. 195 In my view the overlap between the disciplinary proceeding and the criminal proceedings reinforces my conclusion that the disciplinary proceeding ought be stayed. 196 As I have indicated, the applicant wishes to defend the disciplinary proceeding to protect his livelihood and reputation. His defence will be substantially the same as the defence to the criminal proceedings, which have now been brought against him. But by taking steps in properly defending the disciplinary proceeding, including by revealing his defence, adducing lay and expert evidence, cross-examining ASIC's lay and expert witnesses and taking objections to evidence and to the tender of s 19 examinations, the applicant would in my view inevitably assist the prosecution in its criminal proceedings against him. The prejudice is both relevant and real. 197 Further, the charges are also relevant to the relief sought by the applicant. 198 The issuing of charges provides a basis for the applicant to bring a fresh stay application before the Board in the disciplinary proceeding. But having regard to the chairperson's previous two sets of reasons, it seems very likely that the chairperson again would refuse any further stay application, and the matter would end up again before me on a further judicial review application. 199 The applicant says that in the circumstances, because the legally inevitable outcome is that the disciplinary proceeding should be stayed until the criminal proceedings have been heard and determined, rather than remit the matter I should order that the Board grant a stay. Such a remedy is available under s 16(1)(d) or s 16(2)(b) of the ADJR Act depending on whether the stay decision is characterised as a "decision" or "conduct" respectively; see also s 23 of the FCA Act. 200 Alternatively in form, it is said that I should enjoin the Board from hearing and determining the disciplinary proceeding until after the criminal proceedings have been resolved. 201 But ASIC says that I should remit the matter to the Board. It says that the applicant fails to take into account that by the time of any remittal or fresh stay application the chairperson will have the benefit of my guidance. 202 Further, ASIC prays in aid what was said in FUD18 v Minister for Home Affairs (2021) 285 FCR 505 at [122] per Lee and Wheelahan JJ for the purposes of establishing that where anticipatory or pre-emptive relief is sought there must be a strong probability of the relevant ground or error being made out. 203 I will not resolve these matters now. Given that the appropriate form of relief may depend upon the nature of the errors that I have identified, I will give the parties an opportunity to make further submissions about the appropriate form of relief that should follow. But on any view, at the least I propose to declare as invalid and to quash the present decision. Notice under section 79 of the ASIC Act 204 Let me now deal with the ancillary decision that was also the subject of challenge. 205 On 24 March 2022 ASIC gave the applicant a notice under s 79(1) that ASIC would apply to have admitted in evidence before the Board specified statements made at several s 19 examinations. That triggered under s 79(3) a 14 days period for the applicant to give a notice setting out objections to specified statements being admitted in evidence. Section 79(4) states that the 14 days period "may be extended by the court or tribunal or by agreement between the parties concerned". 206 On 19 April 2022 ASIC agreed to an extension of the 14 days period until the day after the Board's determination of the stay application. But the applicant's application to the Board for a further extension, pending the determination of a challenge to the refusal of the stay, was refused by the chairperson. 207 In my view the refusal to grant a further extension is reviewable as conduct leading to a decision. 208 First, the chairperson improperly exercised her power by failing to take into account relevant considerations, namely, the applicant's proposed challenge to the stay decision, and the applicant's prejudice in taking steps in the disciplinary proceeding including in responding to the s 79 notice. 209 Second, the refusal to extend time was unreasonable having regard to the fact that the extension was sought only until the determination of the challenge to the stay decision. And in that regard, if the challenge to the stay decision were successful then there would be no hearing of the disciplinary proceeding until after the criminal prosecution and therefore there would be no prejudice to ASIC in extending the applicant's time to respond to the s 79 notice. But if the challenge to the stay were unsuccessful then the extension would end of its own accord. 210 Third, the refusal to extend time was infected by one or more errors of law in misconstruing and misapplying the legislative scheme which led the chairperson to disregard the applicant's prejudice in taking steps in the disciplinary proceeding. 211 Now for completeness, I should say that I have considered ASIC's submissions defending this ancillary decision, but most of them proceed on a flawed foundation given my difficulties with the principal decision concerning the refusal of the stay. Conclusion 212 In my view, the applicant has successfully impugned the validity of both the primary decision and the ancillary decision of the Board. 213 I will hear further from the parties as to the appropriate form of relief to be granted to accord with my reasons. I certify that the preceding two hundred and thirteen (213) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate: Dated: 22 December 2022