Breaking down the ALRC 12 Days of Christmas

As an end-of-year celebration of the research, analysis and reports completed in 2021, the ALRC team, led by the Hon Justice SC Derrington, have created a festive inquiry-related version of the 12 Days of Christmas. The Inquiry that lasts for three years is the ongoing Review of the Legislative Framework for Corporations and Financial Services Regulation. That Inquiry covers three separate topics: (A) the use of definitions, (B) regulatory design and hierarchy of laws, and (C) the structure of Chapter 7 of the Corporations Act. Unpicking the complexity of existing legislation is no small task, and Interim Report A (including the Summary Report) comes in at just over seven hundred pages.

The Inquiry has had the benefit of many stakeholders’ input and feedback. Here we acknowledge the twelve expert readers: the Hon Justice Ashley Black, Associate Professor Vivienne Brand, Associate Professor Catrina Denvir, Professor Pamela Hanrahan, Mr Michael Hodge QC, Mr Joseph Longo, Professor Jeannie Paterson, Professor Gail Pearson, Mr James Renwick CSC SC, Laureate Professor Emeritus Cheryl Saunders AO, Professor Rosemary Teele Langford, and Mr Laurence White. Thanks also to the eleven advisory committee members: Professor Elise Bant, Mr Alan Cameron AO, Sir Ross Cranston QC, Ms Shannon Finch, Dr Andrew Godwin, The Hon Kenneth Hayne AC QC, Mr James Kelly, Ms Bronwyn Livermore, Mr Mark Steward, the Hon Justice Julie Ward, and Mr Simon Writer. The expertise of two part-time Commissioners, the Hon Justice JE Middleton and the Hon Justice CG Colvin, has been invaluable.

A key focus of the Inquiry has been the voluminous and prescriptive nature of the legislation. There are of course many more than ten financial products and nine licence exemptions. Similarly, there are many parallel disclosure regimes, including multiple versions of Product Disclosure Statements (eight PDSs). The Financial Services Royal Commission suggested most of the law in this area could ultimately be boiled down to six norms of conduct. Many words are given multiple different meanings in Commonwealth statutes; for example, arguably there are about five meanings of “fair”. While the scope of the Inquiry is broad, the main focus has been on four ghastly statutes: the Corporations Act, the ASIC Act, the Competition and Consumer Act, and the National Consumer Credit Protection Act.