Terms of Reference

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.

A. 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.

B. 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.

C. 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.