RECORDING Without Fear or Favour: Responses to the ALRC Report on Judicial Impartiality

Once available the recording of the Australian Law Reform Commission webinar, Without Fear or Favour: Responses to the ALRC Report on Judicial Impartiality, will be posted here.

View the Government’s Response >>

 

Chair:

  • The Hon Justice SC Derrington AM, President, ALRC and Judge, Federal Court of Australia

Keynote Speaker:

  • The Hon Mark Dreyfus KC MP, Attorney-General of Australia

Panel Moderator:

  • Sarah Fulton, Principal Legal Officer (A/g), ALRC

Panellists:

  • The Hon Robert French AC, former Chief Justice of Australia, High Court of Australia
  • Professor Gabrielle Appleby, Director, The Judiciary Project, Gilbert + Tobin Centre of Public Law, University of New South Wales
  • Mr Anthony McAvoy SC, Barrister, Frederick Jordan Chambers

The University of Wollongong is offering a PhD Scholarship to an outstanding candidate to undertake a thesis addressing the work to date, and findings of, the current Australian Law Reform Commission Inquiry into a Review of the Legislative Framework for Corporations and Financial Services Regulation.

Applications close 30 September 2022.

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Recommendations in Interim Report A

Yesterday the Government released the first exposure draft legislation in response to Interim Report A of the ALRC’s review of corporations and financial services legislation. The draft legislation implements aspects of several Recommendations from the Interim Report, and entirely implements Recommendation 13. Overall, adoption of this legislation will reduce the identified complexity of financial services regulation in relation to definitions and benefit both consumers and the industry.

Interim Report A provided the foundation for the review of corporations and financial services legislation — analysing the regulatory ecosystem, key concepts underpinning financial services regulation, and the use of definitions. The Interim Report contained 13 Recommendations for reform which related to relatively technical matters. For example, the draft legislation would repeal a number of definitions that the ALRC concluded are unnecessary, inappropriate, or contain errors. It would increase consistency in the headings of definitional provisions. The draft legislation also contains new definitions of ‘participant’, which was described in Interim Report A as ‘one of the most complexly constructed definitions in the Corporations Act’.

Stakeholders are invited to comment on the draft legislation and explanatory material.

View the exposure draft legislation – Improving Corporations and Financial Services Law

Tackling other sources of complexity

The Government has also released exposure draft legislation that would address other sources of complexity identified in the ALRC’s review. In Interim Report A and ‘Complexity and Legislative Design’ (FSL2), the ALRC identified notional amendments and proliferating legislative instruments as sources of legislative complexity. The hundreds of regulations and ASIC instruments that notionally amend corporations and financial services legislation make the law deeply inaccessible.

The exposure draft legislation would repeal seven ASIC legislative instruments that contain notional amendments, and would substantially repeal one other ASIC legislative instrument. These instruments would be replaced by textual amendments to the Acts they notionally amend. These amendments would reduce the complexity that notional amendments currently bring to corporations and financial services legislation.

In Interim Report B, the ALRC will be consulting on a proposed legislative model that seeks to address the causes of notional amendments and proliferating legislative instruments.

View the exposure draft legislation – Rationalisation of Ending ASIC Instrument Measures

Download Financial Services Legislation: Interim Report A (ALRC Report 137)

Download Complexity and Legislative Design (FSL2)

What insights can the ALRC draw from the UK perspective to simplify financial services legislation?

Dr Andrew Godwin, ALRC Special Counsel, speaks with Mr Mark Steward, Director of Enforcement and Market Oversight for the Financial Conduct Authority (FCA) in the UK to discuss the complex landscape of financial services regulation.

Mark, a member of the ALRC Advisory Committee for the Financial Services Legislation Inquiry, shares his insights from both an international and comparative perspective, along with his experiences from the work undertaken at the FCA.

The conversation traverses Mark’s past career and his current role before exploring the UK framework of principles, rules and guidance for regulatory guidance.

Mark provides valuable observations relevant to the Inquiry, adding to the diverse resources available to the ALRC via our expert Advisory Committee members.

Download transcript of interview with Mark Steward

WEBINAR RECORDING NOW ONLINE

What we’ve heard and where to next  

Delve into the praise and critique of the ALRC’s proposals and questions raised in Interim Report A of the Financial Services Legislation Inquiry in this recorded webinar held on Friday 17 June 2022. Watch the recording to understand what we’ve heard so far, and how this feedback will shape the ALRC’s approach to the simplification of financial services and corporations legislation.

Chair: Matt Corrigan, General Counsel, Australian Law Reform Commission
Panel:

  • Professor Elise Bant, University of Western Australia Law School and Advisory Committee Member, ALRC Financial Services Legislation Inquiry
  • Dr William Isdale, Senior Legal Officer, Australian Law Reform Commission
  • Phoebe Tapley, Senior Legal Officer, Australian Law Reform Commission
VIEW WEBINAR RECORDING

RECENT PUBLICATION 

Risk and Reform in Australian Financial Services Law

Nicholas Simoes da Silva and Dr William Isdale, ALRC Senior Legal Officers, were published in the latest issue of the Australian Law Journal. The article is based on the ALRC’s longer Background Paper: Risk and Reform in Australian Financial Services Law (FSL5).

 

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RECENT PRESENTATION

Society of Corporate Law Academics

ALRC Special Counsel Dr Andrew Godwin and General Counsel Matt Corrigan joined Professors Elise Bant and Penny Crofts to discuss corporate and financial services law reform at the conference of the Society of Corporate Law Academics held at the Sunshine Coast on Tuesday 5 July 2022.


Going Data Way

The ALRC continues to collect, collate and analyse data in relation to corporations and financial services legislation in Australia. Data sets on the history of the Corporations Act and related Acts are available for download in editable Excel format.

View data on the growing number of definitions and obligations in the Corporations Act.

VIEW DATA ANALYSIS

ALRC PUBLICATIONS

DOWNLOAD INTERIM REPORT A

DOWNLOAD INTERIM REPORT A SUMMARY

VIEW CONSULTATION DOCUMENTS

WEBINAR RECORDINGS 

WHAT GOES WHERE? WEBINAR

REDUCING COMPLEXITY: WHY? WHERE? HOW? WEBINAR

(RE)VIEWING TWIN PEAKS IN AUSTRALIA AND ABROAD WEBINAR

REGULATING DIGITAL AND CRYPTO-FINANCE WEBINAR

PODCASTS

LISTEN TO THE CORPORATE COUNSEL SHOW

LISTEN TO BLS REPORT PODCAST

Delve into the praise and critique of the ALRC’s proposals and questions raised in Interim Report A of the Financial Services Legislation Inquiry in this recorded webinar held on Friday 17 June 2022. Watch the recording to understand what we’ve heard so far, and how this feedback will shape the ALRC’s approach to the simplification of financial services and corporations legislation.

Keynote speaker, Professor Elise Bant from the University of Western Australia, examined the primary themes from the Interim Report, providing her expert insights along with a broader context for the developments and debates in financial services laws.

Analysis of the 56 stakeholder submissions received was presented by ALRC Senior Legal Officers Dr William Isdale and Phoebe Tapley. Submissions were largely supportive of the preliminary reform ideas outlined in Interim Report A. However, stakeholders also highlighted a range of key issues for the ALRC to consider in further developing these proposals.

The panel discussion, chaired by ALRC General Counsel Matt Corrigan, answered questions submitted by the audience, including in relation to:

  • the extent to which it is possible to amend the definitions of key terms like ‘financial product’ without changing the policy of financial services regulation;
  • whether it should be possible to ‘notionally amend’ the text of the Corporations Act 2001 (Cth) in emergency or urgent cases; and
  • the role of examples in legislation or regulatory guidance in helping to clarify the law.

Chair: Matt Corrigan, General Counsel, Australian Law Reform Commission

Panel:

  • Professor Elise Bant, University of Western Australia Law School and Advisory Committee Member, ALRC Financial Services Legislation Inquiry
  • Dr William Isdale, Senior Legal Officer, Australian Law Reform Commission
  • Phoebe Tapley, Senior Legal Officer, Australian Law Reform Commission

View the ALRC presentation slides.

Further analysis of the submissions can be viewed in the ALRC Background Paper: Reflecting on Reforms – Submissions to Interim Report A (FSL6).

Stakeholder submissions can be downloaded from the ALRC website.

Download the webinar transcript.

 

Australian Law Journal Article by Nicholas Simoes da Silva and Dr William Isdale.

This article is based on the ALRC’s longer Background Paper: Risk and Reform in Australian Financial Services Law (FSL5)

Abstract

This article considers the role that differing understandings of, and approaches to, risk have played in the development of Australian financial services law. In particular, it is argued that there has been a change in the regulatory approach to risk being assumed by Australian consumers, involving greater regulatory intervention in managing and reducing risk. It is argued that legislation concerning prudential and systemic risk regulation has proved to be much more accommodating of such change than has the cornerstone Act of financial services law: the Corporations Act 2001 (Cth). The article offers lessons that can inform potential law reform – in particular, by highlighting the importance of a clear legislative hierarchy.

Nicholas Simoes da Silva and Dr William Isdale, ‘Risk and Reform in Australian Financial Services Law’ (2022) 96 Australian Law Journal 408.

WEBINAR RECORDING NOW ONLINE

What goes where? A comparative discussion of the legislative puzzle

On Tuesday 24 May 2022, the Australian Law Reform Commission hosted a webinar featuring a panel of international experts to compare and discuss the approach of regulatory design in different jurisdictions.

Panel:

  • The Hon Justice Colvin, Part-time Commissioner, Australian Law Reform Commission and Judge, Federal Court of Australia 
  • Professor Julia Black CBE, Strategic Director of Innovation and Professor of Law, London School of Economics and Political Science
  • Ross Carter, Parliamentary Counsel, New Zealand Parliamentary Counsel Office
  • Professor Hans Tjio, CJ Koh Professor and Director, EW Barker Centre for Law & Business, National University of Singapore
  • Professor Wai Yee Wan, Associate Dean (Research and Internationalisation) and Professor, School of Law, City University of Hong Kong
VIEW WEBINAR RECORDING

REMINDER TO REGISTER

What we’ve heard and where to next

Feedback on Interim Report A of the Financial Services Legislation Inquiry.

Friday 17 June 2022 at 1.00pm AEST | 11.00am AWST (90 minutes duration)
Online or in-person at the Federal Court of Australia in Perth

Join us for a discussion of what we’ve heard and how the feedback received will shape the ALRC’s approach to the simplification of financial services and corporations laws.

REGISTER TO ATTEND

President and Commissioner awarded the Order of Australia

The ALRC congratulates the Honourable Justices Sarah Derrington and John Middleton on their appointment to the Order of Australia, recognised in the 2022 Queen’s Birthday Honours list.

On behalf of the entire team at the ALRC, General Counsel, Mr Matt Corrigan warmly congratulates Justices Derrington and Middleton:
“It is an honour to work with a leadership team that continues to excel in legal scholarship, while also providing exemplary stewardship for the ALRC as it strives to improve Australia’s laws.”

 

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ALRC talks with practitioners at the 2022 LCA’s Corporations Law Workshop

How to simplify the Corporations Act and financial services laws was the focus of the ALRC’s presentation to the  Law Council of Australia’s 2022 Corporations Law. The workshop was held in Katoomba, NSW on the 3-5 June 2022.

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Seize the data!

The ALRC continues to collect, collate and analyse data in relation to corporations and financial services legislation in Australia. Data sets on the history of the Corporations Act and related Acts are available for download in editable excel format.

View data on the growing number of definitions and obligations in the Corporations Act.

VIEW DATA ANALYSIS

Quality of Advice Review – impact on the ALRC’s Financial Services Legislation Inquiry

The ALRC looks forward to the final report of the Quality of Advice Review, and will have regard to its outcomes and recommendations in making any recommendations of its own in relation to financial advice law.

READ MORE


LATEST ARTICLE

Crypto assets and the challenges for regulatory design

ALRC Special Counsel Dr Andrew Godwin has been published in the latest issue of TechREG Chronicle. The article discusses the challenges for regulatory design in the area of crypto assets.

READ MORE

ALRC PUBLICATIONS

DOWNLOAD INTERIM REPORT A

DOWNLOAD INTERIM REPORT A SUMMARY

VIEW CONSULTATION DOCUMENTS

PODCASTS

LISTEN TO THE CORPORATE COUNSEL SHOW

LISTEN TO BLS REPORT PODCAST

WEBINAR RECORDINGS 

REDUCING COMPLEXITY: WHY? WHERE? HOW? WEBINAR

(RE)VIEWING TWIN PEAKS IN AUSTRALIA AND ABROAD WEBINAR

REGULATING DIGITAL AND CRYPTO-FINANCE WEBINAR

How to simplify the Corporations Act and financial services laws was the focus of the ALRC’s presentation to the  Law Council of Australia’s 2022 Corporations Law. The workshop was held in Katoomba, NSW on the 3-5 June 2022.

The ALRC provided insights into preparations for its next interim report due in September 2022 (Interim Report B). The benefits of better use of the legislative hierarchy to build a model for corporations and financial services laws that is simpler, more navigable and clearer as to the fundamental commercial behaviours expected, was key discussion of the presentation. The ALRC also provided an overview of stakeholder feedback received for Interim Report A.

The presentation covered some of the ALRC’s problem analysis for Interim Report B, including the use of more than 1,200 notional amendments and the proliferation of over 950 powers to make delegated legislation. The ALRC suggested to attendees that the objective of an adaptable and flexible corporations and financial services law can be achieved through better law design that also improves the findability and comprehensibility of the law. The presentation also focused on how offences and penalties can be designed under a new legislative hierarchy. Attendees provided a range of valuable comments and questions, particularly in relation to the design of offences and penalties.

Dr Andrew Godwin, ALRC Special Counsel, also presented to the Workshop on decentralised autonomous organisations (DAOs) and crypto-assets such as cryptocurrencies and non-fungible tokens (NFTs). Dr Godwin reflected on the potential role for regulation and better law design in adapting to the emergence of new products, services, and corporate structures. Dr Godwin also received a range of interesting comments and questions from attendees. The issue of whether and how to regulate new products and services was a persistent theme of the Workshop.

The event included senior representatives of regulators, the judiciary, academics, and leading corporate lawyers and counsel. ALRC attendees included the ALRC’s President, Justice S C Derrington, as well as Matt Corrigan, General Counsel, and Dr Andrew Godwin, Special Counsel. Senior Legal Officers Sarah Fulton and Nicholas Simoes da Silva also attended.

Interim Report B of the ALRC Review of Corporations and Financial Services Law is due to the Attorney-General by 30 September 2022. Subscribe to the ALRC newsletter to stay up to date with the Review.

Download the ALRC presentation slides

Download Dr Godwin’s presentation slides

On Tuesday 24 May 2022, the Australian Law Reform Commission hosted a webinar featuring a panel of international experts to compare and discuss the approach of regulatory design in different jurisdictions. In particular, the panel discussed the question of what should go in primary legislation and what should go in delegated legislation.

The Hon Justice Colvin, part-time Commissioner of the ALRC and Federal Court judge, welcomed the international audience and introduced the distinguished panel:

  • Professor Julia Black CBE, Strategic Director of Innovation and Professor of Law, London School of Economics and Political Science
  • Ross Carter, Parliamentary Counsel, New Zealand Parliamentary Counsel Office
  • Professor Hans Tjio, CJ Koh Professor and Director, EW Barker Centre for Law & Business, National University of Singapore
  • Professor Wai Yee Wan, Associate Dean (Research and Internationalisation) and Professor, School of Law, City University of Hong Kong

The speakers shared their knowledge and experience in relation to the following questions:

  • How should the statutory and regulatory framework be designed to support complex areas such as financial services?
  • Where should the law be located to achieve coherence and navigability?
  • If the law needs detail to function, whose job should it be to provide it?

Download presentation slides:

Download the transcript.