Isx vs AFR, page-196

Personally, I think the argument that the ASX can do what they like because they have absolute discretion is the weak link in their case.

They derive their powers from an act of parliament and are therefore governed by the principle of procedural fairness.

I shared this view back in December but will post it again for the sake of the current discussion.

Procedural fairness holds that administrative bodies should, in exercising their powers, act without bias, make decisions that are rational and supported by the facts and give the affected party the opportunity to be heard before the decision is made. The weight of the obligation will be measured in the content and context of the particular case. If the matter being decided is relatively inconsequential to the affected party the fairness requirement can reflect that. But, if a decision will remove a right that you currently enjoy (e.g. trading on the ASX) and the removal will have a significant negative effect the fairness standard is much higher.

Procedural fairness has two requirements; a fair hearing rule and a rule against bias.A fair hearing is the opportunity to be heard before a decision is made. Your right to be heard is proportional to the consequences of the decision. The bias rule means the decision maker must be free of bias. This includes ensuring that from an onlookers perspective there is no reasonable perception of bias.

Of particular interest given the circumstances surrounding this case is the requirement to inform the company of the main points of any allegations or negative comment that is impacting on the decision and give them the opportunity to respond. The content of the 2 hour telephone call could be decisive on this point.

Nor should a decision that will negatively impact on someone be based on suspicion, gossip or rumour. The credibility of the information should be tested by disclosing it to the party in advance of the decision and give them the opportunity to respond. It is interesting that the ASX defence appears to acknowledge the influence of media articles and stock forum discussion.

I’m no lawyer but I think the ASX are badly exposed.