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Reviews of Judicial Impartiality and the Legislative Framework for Corporations and Financial Services Regulation

Media Release

The Morrison Government has referred two matters to the Australian Law Reform Commission (ALRC) for review. First, on the issue of judicial impartiality, and the second, a review of the legislative framework for corporations and financial services regulation.

The review into judicial impartiality will consider whether, and if so what, reforms to the laws relating to impartiality and bias as they apply to the federal judiciary are necessary or desirable.

"It is a fundamental principle of our legal system that a judge or magistrate must not sit on a case in which he or she is biased ('actual bias') or might reasonably be thought to be biased ('apprehended bias')," the Attorney-General said.

"This is clearly important both so that justice is not only done but also seen to be done. There are well established tests for actual and apprehended judicial bias but how these are applied can vary depending on the actual situation."

The review of the legislative framework for corporations and financial services regulation follows the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, which amongst other conclusions found that the law was too complex and made recommendations about the need to simplify the law so that its intent can be met.

"This complexity of corporations and financial services laws makes it harder for consumers and regulated entities to understand how the law applies to them and increases their regulatory compliance burden," the Attorney General said.

"The Government is asking the ALRC to undertake a review of the legislative framework for corporations and financial services regulation to identify ways to make it more adaptive, efficient and navigable for consumers and regulated entities.

"The review will provide a principled blueprint for a more efficient, navigable and adaptive legislative framework for corporations and financial services regulation that would allow industry and consumers to more easily understand their rights, obligations and the intent and effect of the law."

The terms of reference for both reviews are attached and information about the reviews will be available on the ALRC website.

The Commission's report into judicial impartiality will be delivered to Government by 30 September 2021. Interim reports on the review of corporations and financial services regulation are to be delivered progressively from November 2021 with a consolidated final report delivered by 30 November 2023.
 

Terms of Reference

REVIEW OF JUDICIAL IMPARTIALITY

I, the Hon Christian Porter MP, Attorney-General of Australia, having regard to:

  • the importance of maintaining public confidence in the administration of justice for all Australians;
  • the importance of ensuring that justice is both done and seen to be done in Commonwealth courts and tribunals; and
  • the fundamental principles of procedural fairness, including that decision-makers must be independent and impartial

REFER to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 (Cth), a consideration of whether, and if so what, reforms to the laws relating to impartiality and bias as they apply to the federal judiciary are necessary or desirable, in particular in relation to the following matters:

  • whether the existing law about actual or apprehended bias relating to judicial decision-making remains appropriate and sufficient to maintain public confidence in the administration of justice;
  • whether the existing law provides appropriate and sufficient clarity to decision-makers, the legal profession and the community about how to manage potential conflicts and perceptions of partiality;
  • whether current mechanisms for raising allegations of actual or apprehended bias, and deciding those allegations, are sufficient and appropriate, including in the context of review and appeal mechanisms; and
  • any other matters related to these Terms of Reference.

I further request that the ALRC consider what changes, if any, should be made to Commonwealth legislation to implement its recommendations.

Collaboration and consultation

In undertaking this reference, the ALRC should consult widely with the legal profession, courts, tribunals and the broader community. The ALRC should produce consultation documents to ensure experts, stakeholders and the community have the opportunity to contribute to the review.

Timeframe for reporting

The ALRC should provide its report to the Attorney-General by 30 September 2021.
 

Terms of Reference

ALRC REVIEW OF THE LEGISLATIVE FRAMEWORK FOR CORPORATIONS AND FINANCIAL SERVICES REGULATION

I, the Hon Christian Porter MP, Attorney-General of Australia, having regard to:

  • the Government's commitment in response to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry to simplify financial services laws;
  • the importance, within the context of existing policy settings, of having an adaptive, efficient and navigable legislative framework for corporations and financial services;
  • the need to ensure there is meaningful compliance with the substance and intent of the law; and
  • the continuing emergence of new business models, technologies and practices;

REFER to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 (Cth), a consideration of whether, and if so what, changes to the Corporations Act 2001 (Cth) and the Corporations Regulations 2001 (Cth) could be made to simplify and rationalise the law, in particular in relation to the matters listed below.

  1. The use of definitions in corporations and financial services legislation, including:
    • the circumstances in which it is appropriate for concepts to be defined, consistent with promoting robust regulatory boundaries, understanding and general compliance with the law;
    • the appropriate design of legislative definitions; and
    • the consistent use of terminology to reflect the same or similar concepts.
  2. The coherence of the regulatory design and hierarchy of laws, covering primary law provisions, regulations, class orders, and standards, to examine:
    • how legislative complexity can be appropriately managed over time;
    • how best to maintain regulatory flexibility to clarify technical detail and address atypical or unforeseen circumstances and unintended consequences of regulatory arrangements; and
    • how delegated powers should be expressed in legislation, consistent with maintaining an appropriate delegation of legislative authority.
  3. How the provisions contained in Chapter 7 of the Corporations Act 2001 (Cth) and the Corporations Regulations 2001 (Cth) could be reframed or restructured so that the legislative framework for financial services licensing and regulation:
    • is clearer, coherent and effective;
    • ensures that the intent of the law is met;
    • gives effect to the fundamental norms of behaviour being pursued; and
    • provides an effective framework for conveying how the law applies to consumers and regulated entities and sectors.

Scope of the reference

The ALRC should identify and have regard to existing reports and inquiries, and any associated Government responses, including:

  • the 2019 Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry;
  • the 2017 Report of the Treasury's ASIC Enforcement Review Taskforce;
  • the 2015 Final Report of the Australian Government Competition Policy Review;
  • the 2014 Final Report of the Financial System Inquiry;
  • the 2014 Final Report of the Productivity Commission, Access to Justice Arrangements; and
  • any other inquiries or reviews that it considers relevant.

Consultation

The ALRC should consult widely including with regulatory bodies, the financial services sector, business and other representative bodies, consumer groups, other civil society organisations, and academics. The ALRC should produce consultation documents to ensure experts, stakeholders and the community have the opportunity to contribute to the review.

Timeframe for reporting

The ALRC should provide a consolidated final report to the Attorney-General by 30 November 2023, and interim reports on each discrete matter according to the following timeframes:

  • 30 November 2021 for Topic A;
  • 30 September 2022 for Topic B;
  • 25 August 2023 for Topic C.