New ALRC Inquiry: Religious Educational Institutions and Anti-Discrimination Laws

On 4 November 2022 the Australian Law Reform Commission received Terms of Reference from the Attorney-General of Australia, the Hon Mark Dreyfus KC MP, to consider reforms to the way Federal anti-discrimination laws apply to religious educational institutions.

The Government has appointed New South Wales Supreme Court Judge, the Hon Justice Stephen Rothman AM, as a part-time Commissioner for the Inquiry.

The new reference asks the ALRC to consider what reforms should be made, compatible with Australia’s international human rights obligations, to ensure, to the extent practicable, Federal anti-discrimination laws reflect the Government’s policy commitments in this area.

REMINDER TO REGISTER FOR OUR NEXT WEBINAR

Legislation Renovation: What Interim Report B means for you

Re-designing, Renovating and Renewing the Legislative Framework for Corporations and Financial Services

Wednesday 16 November 2022 at 1.00pm AEDT | 12.00pm AEST

Join the ALRC to examine Interim Report B and its proposed legislative model. Hear about the research and novel data analysis underpinning the ALRC’s most recent report into simplifying the legislative framework for corporations and financial services legislation.

Ask questions, as the panel outlines the ALRC’s proposed legislative model for Chapter 7 of the Corporations Act, which could produce a more user-friendly legislative framework for financial services.

Seeking Submissions

The ALRC is seeking submissions from stakeholders and the public in response to the proposals and questions raised in Financial Services Legislation: Interim Report B (ALRC Report 139).

Interim Report B contains proposals for an alternative legislative model that aims to be more coherent and principled, to accommodate change, and to make the law easier to navigate. The ALRC’s proposed legislative model combines existing legislative tools with a more principled approach to legislative design. The ALRC anticipates the reform ideas in Interim Report B would offer considerable benefits to consumers, industry, and regulated entities with a shorter, clearer, and more navigable legal framework that should significantly reduce compliance costs.

Submissions close 30 November 2022.

Government Response to ALRC Judicial Impartiality Recommendations

Watch the Attorney-General deliver the Australian Government’s response to the ALRC’s final report and recommendations in the Judicial Impartiality Inquiry, followed by reflections on different aspects of the report by three members of the Inquiry’s Advisory Committee.

INVITATION

Inaugural Michael Kirby Lecture

This annual lecture celebrates the law reform legacy of the Hon Michael Kirby AC CMG both as the inaugural Chairman of the ALRC and as one of Australia’s leading jurists.

Monday 5 December 2022 at 5.00pm AEST in Melbourne and via live stream

The 2022 keynote address will be delivered by the Attorney-General of Australia, the Hon Mark Dreyfus KC MP.

Want your own copy?

Limited copies of our latest reports are available for purchase.
Place your order now:

• Financial Services Legislation: Interim Report B (ALRC Report 139)
• Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report 138)
• Corporate Criminal Responsibility (ALRC Report 136)

Or email [email protected] to request copies of ALRC past reports.

Religious Exemptions Inquiry Update

7 November 2022

Inquiry Closed

On 3 November 2022 the Attorney-General of Australian, the Hon Mark Dreyfus KC MP, withdrew the terms of reference for the review into the framework of Religious Exemptions in Anti-discrimination Legislation.

Accordingly, this Inquiry is now closed and will not be completed.

New ALRC Inquiry: Religious Educational Institutions and Anti-Discrimination Laws

The Australian Law Reform Commission received Terms of Reference from the Attorney-General of Australia, the Hon Mark Dreyfus KC MP, to consider reforms to the way Federal anti-discrimination laws apply to religious educational institutions on 3 November 2022.

The Government has appointed New South Wales Supreme Court Judge, the Hon Justice Stephen Rothman AM, as a part-time Commissioner for the Inquiry.

The new reference asks the ALRC to consider what reforms should be made, compatible with Australia’s international human rights obligations, to ensure, to the extent practicable, Federal anti-discrimination laws reflect the Government’s policy commitments in this area.

The Australian Law Reform Commission has today received Terms of Reference from the Attorney-General of Australia, the Hon Mark Dreyfus KC MP, to consider reforms to the way Federal anti-discrimination laws apply to religious educational institutions.

The Government has appointed New South Wales Supreme Court Judge, the Hon Justice Stephen Rothman AM, as a Part-Time Commissioner for the Inquiry.

The new reference  asks the ALRC to consider what reforms should be made, compatible with Australia’s international human rights obligations, to ensure, to the extent practicable, Federal anti-discrimination laws reflect the Government’s policy commitments in this area.

The Terms of Reference describe the Government’s commitments as ensuring ‘that an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

• must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
• must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy;
• can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff’.

The ALRC is required to report back to the Attorney-General by 21 April 2023.

In conducting its Inquiry the ALRC will have regard to extensive consultations previously undertaken on these issues by federal, state, and territory inquiries. Based on this, it will undertake further consultations in accordance with the Terms of Reference.

President of the ALRC, the Hon Justice SC Derrington AM, welcomed the new Inquiry.

“We will work closely with stakeholders to understand the key issues in managing the intersections of the important rights and freedoms raised by the Inquiry.

“In this, we are fortunate to be able to build upon a number of recent inquiries that have examined these issues at the Commonwealth, state, and territory level,” Justice Derrington said.

She also warmly welcomed the appointment of Justice Rothman to the role of Part-Time Commissioner for the Inquiry, noting his eminence and experience in the field.

The Terms of Reference replace a previous Inquiry into religious exemptions in anti-discrimination legislation that has been on hold since March 2020.

ENDS

Religious Educational Institutions and Anti-Discrimination Law Inquiry: https://www.alrc.gov.au/inquiry/anti-discrimination-laws/

Terms of Reference: https://www.alrc.gov.au/inquiry/anti-discrimination-laws/terms-of-reference

Further information on the work of the ALRC:  https://www.alrc.gov.au/

Download Media Release >>

Government Response to ALRC Judicial Impartiality Recommendations

Watch the Attorney-General deliver the Australian Government’s response to the ALRC’s final report and recommendations in the Judicial Impartiality Inquiry, followed by reflections on different aspects of the report by three members of the Inquiry’s Advisory Committee.

The ALRC Report, Without Fear or Favour: Judicial Impartiality and the Law on Bias (Report 138, 2021) was tabled in Parliament by the Attorney-General of Australia, the Hon Mark Dreyfus KC MP on 2 August 2022
The report makes 14 recommendations to promote and protect judicial impartiality and public confidence in the Commonwealth judiciary.

Judicial Impartiality eNews

27 October 2022

Government Response to ALRC Judicial Impartiality Recommendations

Watch the Attorney-General deliver the Australian Government’s response to the ALRC’s final report and recommendations in the Judicial Impartiality Inquiry, followed by reflections on different aspects of the report by three members of the Inquiry’s Advisory Committee.

The ALRC Report, Without Fear or Favour: Judicial Impartiality and the Law on Bias (Report 138, 2021) was tabled in Parliament by the Attorney-General of Australia, the Hon Mark Dreyfus KC MP on 2 August 2022
The report makes 14 recommendations to promote and protect judicial impartiality and public confidence in the Commonwealth judiciary.

WEBINAR

Legislation Renovation: What Interim Report B means for you

Re-designing, Renovating and Renewing the Legislative Framework for Corporations and Financial Services

Wednesday 16 November 2022 at 1.00pm AEDT | 12.00pm AEST

Join the ALRC to examine Interim Report B and its proposed legislative model. Hear about the research and novel data analysis underpinning the ALRC’s most recent report into simplifying the legislative framework for corporations and financial services legislation.

Ask questions, as the panel outlines the ALRC’s proposed legislative model for Chapter 7 of the Corporations Act, which could produce a more user-friendly legislative framework for financial services.

Second interim report proposes a simpler model for financial services legislation

Interim Report B contains proposals for an alternative legislative model that aims to be more coherent and principled, to accommodate change, and to make the law easier to navigate. The ALRC’s proposed legislative model combines existing legislative tools with a more principled approach to legislative design. The ALRC anticipates the reform ideas in Interim Report B would offer considerable benefits to consumers, industry, and regulated entities with a shorter, clearer, and more navigable legal framework that should significantly reduce compliance costs.

Interim Report B contains 6 recommendations, 16 proposals, and 2 questions.

The ALRC is seeking submissions from the public in response to the proposals and questions by 30 November 2022. Submissions and further consultations will help the ALRC to formulate its ultimate recommendations at the conclusion of the Inquiry.

LATEST BACKGROUND PAPER

New Business Models, Technologies, and Practices (FSL7)

ICOs, DAOs, DLT and crypto — with such fast-moving technology, how can the law keep up?

This Paper examines the regulation of new business models, technologies, and practices.

Inquiry Background Papers

The ALRC has published Background Papers which aim to provide a high-level overview of key principles and research on topics of relevance to the Financial Services Legislation Inquiry.

• Initial Stakeholder Views (FSL1)
• Complexity and Legislative Design (FSL2) 
• Improving the Navigability of Legislation (FSL3)
• Historical Legislative Developments (FSL4)
• Risk and Reform in Australian Financial Services Law (FSL5)
• Reflecting on Reforms – Submissions to Interim Report A (FSL6)

Pressed for time?

Take a few minutes to read Dr William Isdale & Christopher Ash’s article on the Interim Report B:

“If Australia’s corporations and financial services statutes were likened to a house, it would be a large and disordered one. A house in which new annexes have been added with little thought to overall design, and in which objects are scattered and hidden, with little regard to how they may be found in the future. In short, a house that is thoroughly disordered. A house that needs re-design and serious tidying.”

Re-designing, Renovating and Renewing the Legislative Framework for Corporations and Financial Services

Wednesday 16 November 2022 at 1.00pm AEDT | 12.00pm AEST

In daily life, it helps if you know where to find things. The same is true of the law.

Join the ALRC to examine Interim Report B and its proposed legislative model. Hear about the research and novel data analysis underpinning the ALRC’s most recent report into simplifying the legislative framework for corporations and financial services legislation.

Ask questions, as the panel outlines the ALRC’s proposed legislative model for Chapter 7 of the Corporations Act, which could produce a more user-friendly legislative framework for financial services.

Topics of discussion include:

• What goes where (and why) in the legislative hierarchy?
• Who makes the law, and how can they make it easier to find?
• Who should create offences and set penalties?

The panel will also foreshadow key questions to be addressed in Interim Report C, focused on how Chapter 7 of the Corporations Act could be restructured or reframed to simplify the law.

Chair:

• Dr Andrew Godwin, Special Counsel, ALRC

Panel:

• Christopher Ash, Principal Legal Officer (A/g), ALRC
• Cindy Davies, Legal Officer, ALRC
• Dr William Isdale, Senior Legal Officer, ALRC

Submit your questions to the panel on registration or via [email protected].

Monday 5 December 2022 at 5.00pm AEDT
Federal Court of Australia, 305 William Street, Melbourne, or via live streaming

This annual lecture celebrates the law reform legacy of the Hon Michael Kirby AC CMG both as the inaugural Chairman of the ALRC and as one of Australia’s leading jurists.

The 2022 keynote address will be delivered by the Attorney-General of Australia, the Hon Mark Dreyfus KC MP.

As the inaugural Chairman of the ALRC from 1975 until 1984, Michael Kirby laid the foundation for the Commission’s community consultative approach to law reform that continues today. Those consultative processes are recorded in the photos that line the walls of the ALRC office of the community circles undertaken on Country as part of the Recognition of Aboriginal Customary Laws (ALRC Report 31).

This event will also provide the opportunity to formally thank outgoing ALRC Commissioner, the Hon Justice John Middleton AM, for his significant contributions to law reform. Justice Middleton was first appointed as a part-time Commissioner in 2012 and has provided invaluable expertise and guidance to numerous ALRC Inquiries over the last ten years.

Attendance available in person in Melbourne, or via live streaming. 

Please note that due to a last minute commitment interstate the Attorney-General will be appearing virtually.

For any queries regarding this event, please contact: [email protected].

Dr William Isdale and Christopher Ash

If Australia’s corporations and financial services statutes were likened to a house, it would be a large and disordered one. A house in which new annexes have been added with little thought to overall design, and in which objects are scattered and hidden, with little regard to how they may be found in the future. In short, a house that is thoroughly disordered. A house that needs re-design and serious tidying. 

Today, the ALRC launches Interim Report B as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation. The report focuses on the role of legislative design and hierarchy in ensuring that the law is coherent and navigable, while remaining flexible enough to meet future needs. If implemented, the proposals would ensure that relevant legislation adopts a more rational and navigable architecture — so that our house of law remains habitable into the future.  The key focus of some proposals is Chapter 7 of the Corporations Act (concerning financial services), but many of the proposals could be applied more broadly, and others are general in nature.

Stakeholders are invited to provide feedback on the proposals and questions in Interim Report B by 30 November 2022.

The current problem

Over several decades, corporations and financial services legislation has developed in an ad hoc manner. Amendments spurred by crises, and schemes underpinned by differing approaches to regulation (from the pithy and principled to the painfully prescriptive), have slowly accumulated. The law as it stands today is the work of many architects, each following different plans.

Unfortunately, this history means that the law today does not reflect any single design philosophy. It is disorganised, unwieldy, incoherent, and difficult to navigate (let alone comprehend). For example, core obligations are currently scattered across different layers of the legislative hierarchy – the Act, regulations, and other legislative instruments. Little-known regulations or instruments sometimes provide for hefty terms of imprisonment, but are difficult to find or understand. The Act itself, far from covering only core principles, is stuffed full of prescriptive minutiae (including more than 96,000 words on the topic of disclosure alone).

As a result, the current law is unnecessarily complex, undermining the likelihood that its substance and intent will be understood and followed. As the ALRC has previously observed:

Complexity matters because it makes the law difficult to understand. In turn, this makes it harder for consumers and their advocates to know their rights and be able to exercise them; for practitioners to be able to advise their clients confidently; for regulated entities to know how to comply with the law; and for regulators to enforce the law.

In the ALRC’s view, the introduction of a more rational legislative design and hierarchy is key to resolving much of the byzantine complexity that currently afflicts corporations and financial services law. While fixing this problem will be no small task, it can be undertaken in a staged approach — one room at a time. Without change, the law is on track for even greater complexity and incomprehensibility. It is time to put our house in order.

What goes where (and why)

Everyone knows that rooms should serve a purpose, and that it doesn’t make sense to put the stovetop in the bathroom or the bathtub in the kitchen. In other words, a plan as to what goes where, and why, is essential in matters of design. The ALRC proposes such a plan for key financial services legislation, in which the law would be located in:

• the Act;
• a Scoping Order; and
• thematically consolidated rules.

Just as different tradespeople work together to produce a structurally sound house, the ALRC’s model ensures that multiple law-makers — Parliament, the Minister, and ASIC — use the right tools to produce coherent and navigable laws.

Under the ALRC’s proposed model, Parliament would continue to set the core policy of the regulatory regime in the Corporations Act. The Act should establish the broad parameters and key objectives of regulation, providing a clear picture of what the law requires in broad outline. To maintain transparency and democratic legitimacy, all significant criminal offences and civil penalties should be in the Act. By principally containing matters of core policy and principle, the Act would be flexible enough to meet the needs of new situations (supplemented with detail provided by the other layers of the hierarchy). The Act should not be filled with prescriptive detail, as it currently is.

A Scoping Order would contain the vast majority of exclusions and exemptions from the Act, and other detail that helps to set the Act’s scope. Currently, exclusions and exemptions are spread across numerous locations, and are often expressed in tediously intricate ways. For example, hundreds of legislative instruments create bespoke laws for certain entities by ‘notionally amending’ the Corporations Act. The resulting labyrinth — and the onerous expectation it places on readers to ‘piece together’ the law — is inconsistent with the rule of law ideal that the law should be accessible and knowable. In comparison, a Scoping Order would provide a single and clearly identifiable ‘home’ for exclusions, exemptions, and other detail defining the Act’s scope.

Finally, to the extent further prescriptive detail may be necessary, it can be provided by rules in thematically consolidated legislative instruments — or ‘rulebooks’. Rulebooks would be readily adaptable to meet the needs of changing circumstances, and organised by topic to ensure navigability. Rules would contain prescriptive detail that is consistent with, and controlled by, the overarching principles in the Act. For example, the Act would contain a core obligation to provide appropriate disclosure before issuing certain products, while a disclosure rulebook may descend to the level of page length, presentation, and other specifics. Rulebooks organised by theme would reduce the number of places a person needs to look to find the law.

As experience teaches, it is easier to find things if they are put where you expect to find them. Shoes are best placed on a shoe-rack and keys put in a drawer. Frequently used appliances are best located on a bench, with crockery and utensils stored in drawers organised by theme or function. The ALRC’s proposed legislative model aims to bring a similar logic to financial services legislation.

Putting (and keeping) things in order

The ALRC’s legislative design proposals are complemented by a range of measures designed to put, and keep, our law in proper order. Broadly, these relate to:

• how the legislative hierarchy should be used (including processes for the making of delegated legislation); and
• the need for a more general tidying-up of legislation, including through fixing mistakes and infelicities, and removing redundant provisions.

These measures reflect the desirability of legislative stewardship, in which there is a long-term focus on the care and maintenance of the law.

Making better use of the legislative hierarchy

In the ALRC’s proposed model, delegated legislation adds flesh to the bones of the core regulatory regime. Delegated law-making is both necessary and beneficial, but may lack the same level of democratic accountability as laws enacted by Parliament. Given the ever-increasing volume and significance of delegated law-making, it should be guided by sound principles and subject to appropriate review.

The ALRC proposes that consolidated and improved guidance on using the legislative hierarchy would help legislative designers create better legislation. Draft guidance developed by the ALRC would, if implemented, help lawmakers determine ‘what goes where’, and how powers to create delegated legislation should be expressed. Further, the ALRC has suggested improvements to the processes for making delegated legislation — for example, requiring consultation with an expert Advisory Committee to promote its quality and appropriateness; and requiring periodic sunsetting, to help ensure it remains fit for purpose.

Tidying-up the existing stock of legislation

The existing stock of corporations and financial services legislation needs substantial tidying-up. Over time, countless errors and infelicities have crept in. For example, the ALRC has identified over 100 spent provisions and cross-references to repealed provisions. Other examples include two sections numbered 5C.2 (in Part 5C of Sch 10A of the Corporations Act), and multiple references to disclosure for ‘managed investment schemes’ in Ch 6D of the Corporations Act, despite the removal of such schemes from that chapter in 2004. Existing processes for repealing redundant provisions, or for engaging in other forms of legislative ‘tidying-up’, are not keeping pace with legislative change. As Simoes da Silva and Isdale have observed, this is a house of law in which:

Lawyers are understandably scared of opening the cupboards. Things will fall out, or be near impossible to find. We have stuffed things in every nook and cranny for years, only rarely bothering to clean our house out.

The ALRC proposes a program of tidying-up that includes the identification and repeal of spent transitional provisions and instruments, redundant definitions, references to repealed provisions, and redundant regulation-making powers. Further, there is a need to fix unclear and incorrect provisions, and various outdated notes and references. These steps should be accompanied by measures designed to prevent the accumulation of such provisions in the future.

Perhaps most importantly, there is a need to make our law simpler. A key step to achieving this would be the removal of ‘notional amendments’ as a form of law-making — which the ALRC’s proposed legislative model seeks to achieve — and the transposition of notional amendments into textual amendments where possible. Currently, over 1,200 distinct notional amendments affect more than 600 provisions in the Corporations Act and Corporations Regulations. Instruments containing notional amendments make changes to the law without those changes being visible on the face of the legislation. Piecing together this puzzle is an enormous challenge and cost for business, legal professionals, and other users of legislation.

Conclusion

The ALRC’s latest report makes the case that Australia’s corporations and financial services legislation would benefit from a consistent design and hierarchy, and from substantial tidying-up. In short, that we might embrace a bit more minimalism, relocate some of our clutter, and throw out the broken toys and scattered pizza boxes. If implemented, the ALRC’s proposals would make our house of law much more inviting, for all those required to visit.

 To learn more, please download the ALRC’s Interim Report B (in both summary and complete forms). The ALRC welcomes submissions in response by 30 November 2022. 

Today the Australian Law Reform Commission’s (ALRC’s) second Interim Report in its three year review to reduce complexity in corporations and financial services legislation was tabled in Parliament by the Attorney-General of Australia, the Hon Mark Dreyfus KC MP.

Interim Report B contains proposals for an alternative legislative model that aims to be more coherent and principled, to accommodate change, and to make the law easier to navigate.

The ALRC’s proposed legislative model combines existing legislative tools with a more principled approach to legislative design.

The ALRC anticipates the reform ideas in Interim Report B would offer considerable benefits to consumers, industry, and regulated entities with a shorter, clearer, and more navigable legal framework that should significantly reduce compliance costs.

Interim Report B contains 6 recommendations, 16 proposals, and 2 questions.

The ALRC is seeking submissions from the public in response to the proposals and questions by 30 November 2022. Submissions and further consultations will help the ALRC to formulate its ultimate recommendations at the conclusion of the inquiry.

To demonstrate the potential for substantial reduction in the length and complexity of financial services regulation the ALRC has also published Prototype Legislation. A 66% reduction in length is achieved when the proposed model is applied to select parts of the Corporations Act.  That is a reduction of more than 24,000 words. Adding delegated legislation, the ALRC’s Prototype Legislation is one third shorter than the current legal regime for financial services.

These reductions can be achieved without changing the substantive effect of the law — there is no diminution of existing consumer protections under the ALRC’s legislative model. At the same time, the proposed model is no less flexible and enables tailoring for particular industry sectors.

The ALRC’s proposed legislative model is made up of three elements:

• a de-cluttered Corporations Act, containing key obligations and offences;
• a Scoping Order, containing exclusions and exemptions; and
• thematic rulebooks, which enable the prescriptive detail to organised in a more coherent and navigable way.

Interim Report B demonstrates that many aspects of existing complexity in the legal regime for corporations and financial services are unnecessary. The ALRC’s proposals seek to promote the rule of law — the law should be accessible and knowable.

President of the ALRC, the Hon Justice SC Derrington, said the groaning complexity in the law regulating corporations and financial services comes at a significant cost to industry and ultimately consumers.

“That complexity is steadily increasing — the Corporations Act has grown 597 pages since the ALRC’s Inquiry commenced.”

“To be fit for purpose, the legislative framework must reflect the dynamic nature of the financial services sector and its significant contribution to the Australian economy. In addition, the regulatory framework must meet the needs of consumers of financial products and services trying to understand their legal entitlements,” Justice Derrington said.

The Inquiry is part of the Government’s response to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry released in February 2019. A third interim report is due in August 2023, with the final report due by 25 November 2023.

ENDS

Financial Services Legislation: Interim Report B (ALRC Report 139) and Summary Report: https://www.alrc.gov.au/publication/fsl-report-139/

Financial Services Legislation Inquiry: https://www.alrc.gov.au/inquiry/review-of-the-legislative-framework-for-corporations-and-financial-services-regulation/

Financial Services Legislation Inquiry Terms of Reference: https://www.alrc.gov.au/inquiry/review-of-the-legislative-framework-for-corporations-and-financial-services-regulation/terms-of-reference/

Further information on the work of the ALRC:  https://www.alrc.gov.au/

Download Media Release >>