Appendix E: Terms of reference

Finance law and international commerce

I, DARYL WILLIAMS, Attorney-General of Australia, having regard to the 1996 report of the Law Reform Commission on legal risk in international transactions (ALRC 80) refer to the Law Reform Commission for review and report under the Law Reform Commission Act 1973 the following aspects of the laws and regulatory practices in Australia relating to cross border financial transactions

  • Australian law on netting and set off but considering netting only in relation to cross border transactions not covered by the recommendations of the Companies and Securities Advisory Committee arising out of its review of derivatives

  • Australia’s legal framework for payments systems and the potential for international cooperation on legal issues relating to payments systems

  • Australian law on bank confidentiality and privacy, including the potential for international consistency on bank confidentiality, privacy and related data security law

  • the prospects for simplifying the doctrine of tracing in relation to claims made on banks and making the doctrine more internationally consistent, and improvements that can be made to Australia’s law on restitution in relation to claims of undue enrichment made on banks.

THE COMMISSION shall, in performing its functions in relation to this reference, consult the Attorney-General’s Department, the Treasury, the Reserve Bank of Australia, the Australian Securities Commission, the Privacy Commissioner and such other government and private bodies as the Commission considers appropriate.

IN MAKING its report the Commission shall have regard to its function in accordance with section 6(1)(d) of the Law Reform Commission Act 1973 to consider and present proposals for uniformity between laws of the Territories and laws of the States.

THE COMMISSION is required to make its report within 2 years from the date of this instrument.


Daryl Williams