The national Attorney-General issued terms of reference for two Australian Law Reform Commission (ALRC) inquiries: one on judicial impartiality and one on the legislative framework for corporations and financial services regulation.
The Judicial Impartiality review deals with the laws relating to impartiality and bias as they apply to the federal judiciary. The ALRC is to consider:
- actual or apprehended bias relating to judicial decision-making;
- clarity to decision-makers, the legal profession and the community about how to manage potential conflicts and perceptions of partiality; and
- mechanisms for raising allegations of actual or apprehended bias.
The review of the Legislative Framework for Corporations and Financial Services Regulation concerns 'the potential simplification of laws that regulate financial services in Australia', following up the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (aka Hayne Royal Commission, noted elsewhere on this blog).
Three sub-topics are to be the subject of an interim report by the ALRC, prior to release of the consolidated Final Report:
- the appropriate use of definitions in corporations and financial services legislation;
- the regulatory design and the hierarchy of primary law provisions, regulations, class orders, and standards; and
- potential reframing or restructuring of Chapter 7 of the Corporations Act.
whether, and if so what, changes to the Corporations Act 2001 (Cth) and the Corporations Regulations 2001 (Cth) could be made to simplify and rationalise the law, in particular in relation to the matters listed below.
A. The use of definitions in corporations and financial services legislation, including:
- the circumstances in which it is appropriate for concepts to be defined, consistent with promoting robust regulatory boundaries, understanding and general compliance with the law;
- the appropriate design of legislative definitions; and the consistent use of terminology to reflect the same or similar concepts.
B. The coherence of the regulatory design and hierarchy of laws, covering primary law provisions, regulations, class orders, and standards, to examine:
- how legislative complexity can be appropriately managed over time;
- how best to maintain regulatory flexibility to clarify technical detail and address atypical or unforeseen circumstances and unintended consequences of regulatory arrangements; and
- how delegated powers should be expressed in legislation, consistent with maintaining an appropriate delegation of legislative authority.
C. How the provisions contained in Chapter 7 of the Corporations Act 2001 (Cth) and the Corporations Regulations 2001 (Cth) could be reframed or restructured so that the legislative framework for financial services licensing and regulation:
- is clearer, coherent and effective;
- ensures that the intent of the law is met;
- gives effect to the fundamental norms of behaviour being pursued; and
- provides an effective framework for conveying how the law applies to consumers and regulated entities and sectors.
In undertaking that review the ALRC is to identify and have regard to existing reports and inquiries, and any associated Government responses, including:
- the 2019 Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry;
- the 2017 Report of the Treasury’s ASIC Enforcement Review Taskforce;
- the 2015 Final Report of the Australian Government Competition Policy Review;
- the 2014 Final Report of the Financial System Inquiry;
- the 2014 Final Report of the Productivity Commission, Access to Justice Arrangements; and
- any other inquiries or reviews that it considers
