This discussion of the submissions received in response to Interim Report C is the 12th in a series of background papers released by the Australian Law Reform Commission (‘ALRC’) as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. They discuss key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish the Final Report of the Inquiry by 30 November 2023. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
The Australian Law Reform Commission report, Financial Services Legislation: Interim Report C (Report 140, 2023), was tabled in Parliament by the Attorney-General of Australia, the Hon Mark Dreyfus KC MP on 22 June 2023.
Interim Report C contains recommendations, proposals, and questions in relation to the reform of corporations and financial services legislation. The recommendations in Interim Report B relate to technical improvements that would simplify corporations and financial services legislation. The recommendations are in a form that may be implemented prior to the conclusion of the Inquiry, if accepted by the Australian Government.
In respect of the proposals and questions, the ALRC is seeking written submissions from stakeholders. Submissions, together with further consultations, surveys, workshops, and seminars, will form part of the evidence base for a further Interim Report and the Final Report.
Submissions close 26 July 2023.
Download the Summary Report.
Download Interim Report C.
Hard copy versions of the report are also available to purchase.
Download additional resources:
- Selection of OPC Drafting Rules: Note summarising a range of drafting rules and conventions adopted by the Office of Parliamentary Counsel (Cth).
- Illustrative FSL Schedule: This Appendix, also published as Appendix D to Interim Report C, illustrates how the financial services-related aspects of Chapter 7 of the Corporations Act and the entirety of Part 2 Div 2 of the ASIC Act may be restructured within Sch 1 to the Corporations Act (the FSL Schedule), as contemplated by Proposals C9 and C10 of Interim Report C.
Further resources are available as part of the ALRC’s data analysis for the Review of the Legislative Framework for Corporations and Financial Services Regulation.
|
Read the summary article: |
This discussion of superannuation and the legislative framework for financial services is the 11th in a series of background papers released by the Australian Law Reform Commission (‘ALRC’) as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers may be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish one further Interim Report during the Inquiry, and this Report will include specific questions and proposals for public comment. A call for further submissions will be made on the release of this Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
This discussion of post-legislative scrutiny is the eighth in a series of background papers to be released by the Australian Law Reform Commission (‘ALRC’) as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers will be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish one further Interim Report during the Inquiry, and this Report will include specific questions and proposals for public comment. A call for further submissions will be made on the release of this Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
The Australian Law Reform Commission seeks stakeholder submissions on proposals to change the way Commonwealth anti-discrimination law applies to religious schools and other educational institutions.
The Consultation Paper sets out four general propositions supported by 14 technical proposals for reform. If adopted, these would:
- make discrimination against students on the grounds of sexual orientation, gender identity, marital or relationship status, or pregnancy in schools and other religious educational institutions unlawful, by removing exceptions currently available under federal law,
- protect teachers and other school staff from discrimination on the grounds of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, by removing similar exceptions, and
- allow religious schools to maintain their religious character by permitting them to:
- give preference to prospective staff on religious grounds where the teaching, observance, or practice of religion is a part of their role (and it is not discriminatory on other grounds); and
- require all staff to respect the educational institution’s religious ethos.
Submissions close 24 February 2023.
Download the Consultation Paper.
|
On 4 November 2022, Commonwealth Attorney-General, the Hon Mark Dreyfus MP KC, asked the ALRC to recommend reforms to the law to implement the Government’s policy commitments in this area in a way that is consistent with Australia’s international legal obligations. |
Additional Resources:
This discussion of the submissions received in response to Interim Report B is the 10th in a series of background papers to be released by the Australian Law Reform Commission (‘ALRC’) as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers will be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish one further Interim Report during the Inquiry, and this Report will include specific questions and proposals for public comment. A call for further submissions will be made on the release of this Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
This discussion of unconscionable and misleading or deceptive conduct is the ninth in a series of background papers to be released by the Australian Law Reform Commission (‘ALRC’) as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers will be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish one further Interim Report during the Inquiry, and this Report will include specific questions and proposals for public comment. A call for further submissions will be made on the release of this Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
|
Read the summary article: |
This discussion of the regulation of new business models, technologies, and practices is the seventh in a series of background papers to be released by the Australian Law Reform Commission (‘ALRC’) as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers will be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish one further Interim Report during the Inquiry, which will include specific questions and proposals for public comment. A call for further submissions will be made on the release of the third Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
The Australian Law Reform Commission report, Financial Services Legislation: Interim Report B (Report 139, 2022), was tabled in Parliament by the Attorney-General of Australia, the Hon Mark Dreyfus KC MP on 30 September 2022.
Interim Report B contains recommendations, proposals, and questions in relation to the reform of corporations and financial services legislation. The recommendations in Interim Report B relate to technical improvements that would simplify corporations and financial services legislation. The recommendations are in a form that may be implemented prior to the conclusion of the Inquiry, if accepted by the Australian Government.
In respect of the proposals and questions, the ALRC is seeking written submissions from stakeholders. Submissions, together with further consultations, surveys, workshops, and seminars, will form part of the evidence base for a further Interim Report and the Final Report.
Submissions close 30 November 2022.
Download the Summary Report.
Download Interim Report B.
Hard copy versions of the report are also available to purchase
|
Prototype Legislation B The ALRC has developed prototype legislation to illustrate the proposed legislative model for financial services regulation put forward in Interim Report B. In particular, Prototype Legislation B illustrates how Proposals B1–B9 and B15 discussed in Interim Report B could be implemented. |
Download additional resources referred to in Interim Report B:
- Comparative Frameworks for Promoting Good Legislative Design: Note outlining the ways in which comparable jurisdictions promote good legislative design.
- Recent Developments — Penalties and enforcement: Note providing further detail on recent reviews and subsequent developments relating to penalties and enforcement in corporations and financial services legislation.
- Corporations Act Offence and Penalty Architecture: Note summarising key features of the offence and penalty architecture under the Corporations Act 2001 (Cth) and associated legislative instruments.
- Offences and Penalties Related to Defective Disclosure: List of offence and civil penalty provisions relating to defective disclosure in the Corporations Act 2001 (Cth).
- Data Methodology: Explanation of the methodology adopted to generate the data analysed in Interim Report B.
- Recommendations 14 and 15 — Redundant provisions note: Note providing additional detail to assist in implementing Recommendations 14 and 15.
- Recommendation 14 — Redundant provisions database: Database of spent and redundant provisions in corporations and financial services legislation, providing further detail related to Recommendation 14.
- Recommendation 16 — Drafting improvements note: Note providing additional detail to assist in implementing Recommendation 16.
- Recommendation 17 — Unnecessary complexity note: Note providing additional detail to assist in implementing Recommendation 17.
- Recommendation 18 — Notional amendments note: Note providing additional detail to assist in implementing Recommendation 18.
- Recommendation 18 — Notional amendments database: Database of notional amendments in the Corporations Regulations 2001 (Cth) and ASIC legislative instruments, providing further detail related to Recommendation 18.
Further resources are available as part of the ALRC’s data analysis for the Review of the Legislative Framework for Corporations and Financial Services Regulation.
|
Read the summary article: Re-designing our House of Law: Legislative hierarchy and design in financial services law |
Ms Sarah Chidgey
Chair
2021–22 Review of the Legislation Act 2003
By Email: legislationactreview@ag.gov.au
8 December 2021
Dear Ms Chidgey
The Australian Law Reform Commission (ALRC) is grateful for the opportunity to make a submission to the 2021–22 Review of the Legislation Act 2003 (‘Legislation Act’).
This submission is based on findings from the ALRC’s ongoing Review of the Legislative Framework for Corporations and Financial Services Regulation. In the course of this Inquiry, the ALRC has examined the accessibility and navigability of legislation on the Federal Register of Legislation, and the Commission has undertaken extensive data analysis of legislation published on the Register. The ALRC has also made proposals in relation to the publication of legislative materials aimed at improving the experience of users accessing legislation through the Federal Register of Legislation.
Based on findings from the ALRC’s Financial Services Inquiry, this letter briefly responds to several of the issues raised in the Review’s Discussion Paper. The ALRC suggests that enhancements could be made to the Federal Register of Legislation and the publication of legislation that would further support the achievement of the Act’s objects. Amendments to the objects to align the publication of Acts and legislative instruments may also bring benefits in managing and navigating the stock of legislation.
Appendix A contains original ALRC data on the Commonwealth statute book and Appendix B includes relevant excerpts from recent ALRC publications.
Three recent ALRC publications are of particular relevance to the Review Committee’s work:
- Interim Report A: Financial Services Legislation (Report, November 2021)
- Complexity and Legislative Design (FSL 2, October 2021) (‘FSL 2’)
- Improving the Navigability of Legislation (FSL 3, October 2021) (‘FSL 3’)
The ALRC made two recommendations in Interim Report A that are relevant to the Review of the Legislation Act:
- Recommendation 11: The Office of Parliamentary Counsel (Cth) should investigate the production of Commonwealth legislation using extensible markup language (XML).
- Recommendation 12: The Office of Parliamentary Counsel (Cth) should commission further research to improve the user-experience of the Federal Register of Legislation.
The ALRC also made a proposal in relation to the publication of legislative instruments that ‘notionally’ amend the Corporations Act.[1] The ALRC has identified that notional amendments significantly reduce the navigability and accessibility of legislation published on the Federal Register of Legislation.
Publication of legislation in XML
Approximately 67% of parliaments with legislative management systems use XML for at least some of their work, of which 40% use XML to publish legislative materials such as Acts and Bills.[2] The UK, New Zealand, and the USA publish some or all of their legislation in XML. Queensland, NSW, and Tasmania’s adoption of XML has allowed functionalities not available on the Federal Register of Legislation (see FSL 3 [162]).
XML offers a way to make documents both human- and machine-readable, and opens up a range of possibilities for making legislation more meaningfully accessible. For example, XML can support the ‘marking-up’ of definitions, cross-references, dates of amendments, and changes to the text of a provision (including notional amendments). The ALRC explored in detail the potential benefits of XML in FSL 3 ([139]–[170]). The ALRC concluded that, while there would be significant transition costs in implementing XML, doing so would bring benefits for users of legislation, drafters, lawmakers, and RegTech developers.
Most delegated legislation is not drafted by OPC. If the Review Committee considered XML potentially desirable, it could consider whether amending the Legislation Act is necessary in order to achieve consistency in respect of formatting legislation in XML. This could be achieved by granting OPC or the Attorney-General the ability to prescribe publication requirements for legislative instruments.
Changes to the Federal Register of Legislation
Section 3(d) of the Legislation Act provides that an object of the Act is ‘improving public access to Acts and instruments’. The ALRC suggests that the quality of the experience in accessing and navigating legislation through the Federal Register of Legislation is an important aspect of meaningful public access to legislation. The ALRC identified a range of functionalities that other jurisdictions’ legislation websites include that are absent or only partly implemented in the Federal Register of Legislation. These include:
- integrated publication of explanatory materials (FSL 3, [113]–[116]);
- annotations (FSL 3, [117]–[122]);
- consolidated legislative and guidance documents (FSL 3, [124]–[125]);
- hyperlinking, including of uses of defined terms (FSL 3, [126]–[131]); and
- point-in-time versions (FSL 3, [133]–[136]).
These observations were the basis for the ALRC’s recommendation that OPC should commission further research to improve the user-experience of the Federal Register of Legislation. The ALRC also noted that the use of XML would support the implementation of potential publication enhancements.
Improved drafting of Acts as an object
Section 3(c) of the Legislation Act provides that the Act seeks to encourage ‘high standards in the drafting of legislative instruments and notifiable instruments to promote their legal effectiveness, their clarity and their intelligibility to anticipated users’. The Review Committee may wish to consider whether this object should be extended to the drafting of Acts and what processes and institutions may support this object. The ALRC has identified a range of drafting techniques from Australia and overseas that can assist in the navigability, and therefore the accessibility, of Commonwealth legislation (FSL 3, [26]–[110]).
Review of Acts as an object
Section 3(f) of the Legislation Act has the object of establishing mechanisms to ensure that legislative instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed’. This could be extended to Acts. In FSL 3, the ALRC identified a range of processes currently in place in New Zealand and some European jurisdictions for the review of the statute book (FSL 3, [147]–[148]). The Review of the Legislation Act offers an opportunity to consider a ‘stewardship’ approach by OPC to legislation, akin to that in New Zealand.[3] The data in Appendix A underline the importance of processes for reviewing the enormous stock of Commonwealth law.
Repeal of amending Acts and Act provisions
Section 3(ea) of the Legislation Act provides for ‘automatically repealing spent legislative instruments and notifiable instruments (or provisions of those instruments) that merely provide for the amendment, repeal or commencement of Acts or other instruments’ (see also s 48A). This could be extended to Acts or provisions of Acts that merely provide for the amendment, repeal or commencement of Acts or other instruments. In the course of the Financial Services Inquiry, the ALRC has identified a number of Acts that are ostensibly ‘in force’ Principal Acts but which are primarily amending Acts. For example, the over 200-page Corporate Law Reform Act 1992 is still in force as a Principal Act despite most of its provisions amending the now repealed Corporations Law. It remains unrepealed because it includes amendments to other in force Acts, including the Bankruptcy Act 1966, and transitional provisions. Automatic repeal of amending Acts or provisions of Acts would avoid the situation at present whereby people have to wade through Principal Acts that contain amendments that are already included in other Act compilations.
Conclusion
We trust this submission is of assistance. If you require any further information, please do not hesitate to contact the ALRC. The action officer is Nicholas Simoes da Silva (nicholas.simoesdasilva@alrc.gov.au).
Yours Sincerely,
[by email]
Matt Corrigan
General Counsel
[1] See Proposal A12 in Appendix B.
[2] Inter-Parliamentary Union, World E-Parliament Report (2018) 54.
[3] See, for example, Legislation Act 2019 (NZ) ss 92–100, which provide for a process for ‘progressively and systematically’ revising New Zealand legislation (s 92(1)). See, also, Legislative Standards Act 1992 (Qld) ss 4, 7.
|
Report – 2021-2022 Review of the Legislation Act 2003 – published on 3 August 2022. Discussion paper – 2021-2022 Review of the Legislation Act 2003 – invited submissions. |