The Australian Law Reform Commission (ALRC) is conducting a three year inquiry into the legislative framework for corporations and financial services regulation with the broad aim of achieving an 'adaptive effective and navigable legislative framework'.   

The ALRC is due to deliver its final report to the Attorney General on 30 November 2023.  

The focus of the ALRC's second interim report, Interim Report B released on 30 September 2022, is on the 'design choices relevant to determining where material is located within the legislative hierarchy, who makes regulation, and how the content of regulation is organised and structured'. 

To this end, the ALRC recently consulted on 16 proposals for reform relating to a proposed legislative hierarchy model (included in Chapter 2 of the report).  

MinterEllison's submission is generally supportive of the proposals put forward.

In particular, MinterEllison: 

• strongly supports the proposal to upgrade the legislative hierarchy for the financial services regime, with an Act which provides the framework for the regime and sets the standards of conduct expected of financial service providers but delegates the role of setting the boundaries of the regime and detailed rules where required after appropriate consultation to an independent regulator.  
• agrees that it is critical that any rule-making power should be subject to appropriate oversight and also suggested expanding the mandate of the Financial Regulator Assessment Authority (FRAA) for that purpose. 
• strongly supports the proposal to require consultation before making or amending the Scoping Order or rules but we believe that such consultation should be mandatory unless there is an urgent requirement to make the change (which should be subject to appropriate oversight).

We are however concerned that the proposal to give the Minster and ASIC concurrent powers to make the Scoping Order and rules is not appropriate.

You can find our detailed submission to the proposals and questions raised in the Report using the link below.

Please get in touch if you would like to discuss the inquiry and what it may mean for your organisation going forward.