Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
AMENDMENT (CORPORATIONS AND MARKETS ADVISORY COMMITTEE
ABOLITION) BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Treasurer, the Hon J. B. Hockey MP)
Table of contents
Glossary .................................................................................................. 1
General outline and financial impact ....................................................... 3
Chapter 1 Cessation of the Corporations and Markets
Advisory Committee ...................................................... 5
Index ..................................................................................................... 19
Glossary
The following abbreviations and acronyms are used throughout this
explanatory memorandum.
Abbreviation Definition
ASIC Australian Securities and Investments
Commission
ASIC Act Australian Securities and Investments
Commission Act 2001
CAMAC Corporations and Markets Advisory
Committee
ICCPR International Covenant on Civil and Political
Rights
the Minister the relevant Treasury Portfolio Minister
Ombudsman Commonwealth Ombudsman
the Treasury Department of the Treasury
1
General outline and financial impact
Cessation of the Corporations and Markets Advisory
Committee
This Bill repeals Part 9 of the Australian Securities and Investments
Commission Act 2001 (ASIC Act), which provides for the establishment,
functions and operation of the Corporations and Markets Advisory
Committee (CAMAC).
This Bill makes a number of consequential amendments to the ASIC Act
as a result of the repeal of Part 9 and provides for the transitional and
savings arrangements that are necessary to reflect the cessation of the
agency.
Date of effect: The cessation of CAMAC and all of the other
amendments in Schedule 1 to the Bill take effect on the 28th day after this
Bill receives Royal Assent.
Proposal announced: The proposal was announced in the
2014-15 Budget.
Financial impact: The cessation of CAMAC is expected to have a
positive impact on the fiscal balance of $2.8 million, and on underlying
cash of $3.1 million over the forward estimates.
These estimates make allowances for the costs of shutting down CAMAC,
such as employee redundancies and contract termination costs.
Human rights implications: This Bill does not raise any human rights
issues. See Statement of Compatibility with Human Rights -- Chapter 1,
paragraphs 1.64 to 1.77.
Compliance cost impact: The cessation of CAMAC has no regulatory
impact on business or the community more broadly.
3
Chapter 1
Cessation of the Corporations and
Markets Advisory Committee
Outline of chapter
1.1 This Bill repeals Part 9 of the Australian Securities and
Investments Commission Act 2001 (ASIC Act), which provides for the
establishment, functions and operation of Corporations and Markets
Advisory Committee (CAMAC).
1.2 It also makes a number of consequential amendments to the
ASIC Act as a result of the repeal of Part 9 and provides for the
transitional and savings arrangements that are necessary to reflect the
cessation of the agency.
1.3 Sections 1 to 3 provide, respectively, for the short title and the
commencement of this Bill and for the Schedule.
Context of amendments
1.4 CAMAC was established in 1989 as part of a legislative package
that set up a national scheme for corporations and financial markets.
CAMAC provides independent advice to the Australian Government on
matters relating to the amendment, administration or reform of the
corporations legislation, matters relating to companies or a segment of the
financial products and services industry, and proposals to improve the
efficiency of financial markets.
1.5 CAMAC is a statutory body corporate, comprising part-time
members appointed by a Treasury Portfolio Minister under section 147 of
the ASIC Act. Members are appointed in a personal capacity on the basis
of their knowledge and experience in business, financial markets, law,
economics or accounting. CAMAC is supported by a full-time Executive
of three staff.
1.6 The decision to cease the operation of CAMAC was announced
in the 2014-15 Budget. The decision was made in the context of the
broader Smaller and More Rational Government reforms to reduce the
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Australian Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014
number of Australian Government bodies and streamline the shape of
government. The abolition and merger of some government bodies,
including CAMAC, is expected to improve coordination and
accountability, reduce the costs associated with separate governance
arrangements and increase efficiency in how public funds are used to
deliver services to the community.
1.7 This Bill does not provide for the termination of the employment
of CAMAC's Secretariat staff, as these are matters that are handled by
administrative processes conducted in accordance with the Public Service
Act 1999 and relevant private contracts.
Summary of new law
1.8 CAMAC's operation ceases.
Comparison of key features of new law and current law
New law Current law
CAMAC's operation ceases. CAMAC is established and has
functions under Part 9 of the
ASIC Act.
Detailed explanation of new law
Short title and introductory matters
1.9 Once enacted, the name of the Act will be the Australian
Securities and Investments Commission Amendment (Corporations and
Markets Advisory Committee Abolition) Act 2014. [Clause 1]
1.10 Provisions of the ASIC Act are amended or repealed as set out
in Schedule 1. Each other item in Schedule 1 has effect according to its
terms. [Clause 3]
1.11 Clauses 1 (Short title), 2 (Commencement) and 3 (Schedules)
commence on the day this Bill receives Royal Assent. [Subclause 2(1), item 1
in the table]
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Cessation of the Corporations and Markets Advisory Committee
Cessation of the Corporations and Markets Advisory Committee
1.12 CAMAC is abolished by repealing the provisions of the
ASIC Act (that is, Part 9) which establish it and provide for its functions
and operation. [Schedule 1, Part 1, item 11, Part 9 of the ASIC Act]
1.13 The cessation of CAMAC takes effect on the 28th day after this
Bill receives Royal Assent. This provides sufficient time to finalise any
unresolved issues with the winding up of the operations of CAMAC
before the cessation takes effect. [Subclause 2(1), item 2 in the table]
Consequential amendments
1.14 Numerous consequential amendments -- repeals and omissions
-- are made to the ASIC Act to reflect the cessation of CAMAC. These
take effect on the 28th day after this Bill receives Royal Assent.
[Subclause 2(1), item 2 in the table]
1.15 References to CAMAC or terms related to CAMAC in the
ASIC Act are repealed or omitted as follows.
· A reference to CAMAC is omitted from the long title of the
ASIC Act, which describes that the ASIC Act provides for
the ASIC, CAMAC and certain other bodies, and for other
purposes. [Schedule 1, Part 1, item 1, Title of the ASIC Act]
· The objects of the ASIC Act include establishing CAMAC.
This description is repealed. [Schedule 1, Part 1, item 2,
paragraph 1(1)(c) of the ASIC Act]
· Definitions of `CAMAC', `Convenor', `meeting' and
`member' are amended or repealed, as appropriate.
[Schedule 1, Part 1, items 3 to 8, subsection 5(1) of the ASIC Act]
· CAMAC is omitted from the list of agencies to which a
person who is authorised by the Chairperson of the
Australian Securities and Investments Commission (ASIC)
may disclose particular information in certain circumstances.
[Schedule 1, Part 1, item 10, paragraph 127(4)(a) of the ASIC Act]
- A saving provision is provided -- refer to paragraph 1.32.
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· The broad provision in the ASIC Act listing entities and
persons who are exempt from liability for damages in
relation to the performance of their functions and powers is
amended to omit references to CAMAC, its members and its
staff, consultants and secondees. [Schedule 1, Part 1, item 12,
paragraphs 246(1)(b), (d) and (h) of the ASIC Act]
- A saving provision is provided -- refer to paragraphs 1.60
and 1.61.
1.16 Section 261 of the ASIC Act provides that a body that was
established under the Australian Securities and Investments Commission
Act 1989 (the `old ASIC Act') continues in existence as if it had been
established under this Act. A note is added to identify that CAMAC
ceased to exist on the commencement of Schedule 1 to this Bill.
[Schedule 1, Part 1, item 13, note to section 261 of the ASIC Act]
1.17 Notwithstanding the repeal of Part 9 of the ASIC Act, ASIC
retains its power to advise and make recommendations to the relevant
Treasury Portfolio Minister (the Minister), on its own initiative or when
requested by the Minister, about matters relating to:
· proposals, amendment or reform of the corporations
legislation;
· the operation or administration of the corporations
legislation;
· companies or a segment of the financial products and
financial services industry; and
· proposals to improve the efficiency of the financial markets.
1.18 These are matters on which both CAMAC and ASIC currently
have the power to advise and make recommendations to the Minister. The
functions of CAMAC will therefore not be transferred to ASIC or any
other Commonwealth agency. [Schedule 1, Part 1, item 9, subsection 11(3) of the
ASIC Act]
Transitional and saving provisions
1.19 Transitional and saving provisions are required to deal with the
repeal of Part 9 of the ASIC Act or to preserve aspects of that Part. Many
of these provisions are standard provisions that apply whenever an agency
is abolished. These take effect on the 28th day after this Bill receives
Royal Assent. [Subclause 2(1), item 2 in the table]
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Cessation of the Corporations and Markets Advisory Committee
1.20 References in this Bill and explanatory memorandum to
`Minister' and `Department' are references to the relevant Treasury
Portfolio Minister (currently, the Acting Assistant Treasurer) and the
Department of the Treasury (the Treasury), respectively.
1.21 In terms of the version of the Acts Interpretation Act 1901 that
applies to this Bill, the Bill specifies that section 5A of the ASIC Act
applies to Part 2 in Schedule 1 to this Bill (the transitional and saving
provisions) as if that Part were part of the ASIC Act. Section 5A of the
ASIC Act applies the Acts Interpretation Act 1901 as in force on
1 January 2005 (rather than the current version from time to time) to the
ASIC Act. Because Part 1 of Schedule 1 to this Bill only amends the
ASIC Act, also applying section 5A to Part 2 of Schedule 1 to this Bill
makes the operation of the Acts Interpretation Act 1901 consistent.
[Schedule 1, Part 2, subitem 14(2)]
Operational matters
Final reporting obligation
1.22 Currently, the Convenor of CAMAC is required to prepare an
annual report under section 162 of the ASIC Act. Once the operation of
CAMAC ceases, the Secretary to the Treasury must prepare and give to
the Minister a report on the activities of CAMAC during the final
reporting period. [Schedule 1, Part 2, subitem 22(1)]
1.23 The definition of `final reporting period' provides flexibility to
facilitate the commencement of Schedule 1 whenever it may commence.
· If, when CAMAC's operation ceases (at the `commencement
time'), CAMAC has not yet given the annual report for the
last financial year ending before the commencement time to
the Minister, then the final reporting period includes the
financial year for which no annual report has been given, as
well as so much of the new financial year that has passed
before the commencement time.
- Under Part 9 of the ASIC Act the Convenor of CAMAC
is required to prepare and give to the Minister as soon as
practicable after 30 June in each year a report on
CAMAC's operations during the financial year.
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· Otherwise, the final reporting period is that part of the
financial year in which CAMAC's operation ceases that has
passed prior to cessation. In this case, the final reporting
period would be less than one full financial year.
[Schedule 1, Part 2, subitem 22(5)]
1.24 Commencement time is defined as the time at which Schedule 1
commences (being the 28th day after this Bill receives Royal Assent).
[Schedule 1, Part 2, subitem 14(1)]
1.25 The Minister for Finance (being the Minister administering the
Public Governance, Performance and Accountability Act 2013) may give
the Secretary to the Treasury written directions in relation to the report on
CAMAC's activities during the final reporting period. The Secretary is
required to comply with any such directions in preparing the report.
[Schedule 1, Part 2, subitem 22(2)]
1.26 The Minister for Finance may delegate this power to give
directions -- refer to paragraphs 1.42 and 1.43. [Schedule 1, Part 2,
subitem 24(2)]
1.27 The Secretary to the Treasury must give the Minister the report
within four months of the commencement time. [Schedule 1, Part 2,
subitem 22(3)]
1.28 After the report is given to the Minister, the Minister is required
to table the report in both the House of Representatives and the Senate
within 15 sitting days of that House. [Schedule 1, Part 2, subitem 22(4)]
Transfer of records
1.29 Any records or documents that were in CAMAC's possession
need to be transferred to the Treasury once CAMAC's operations are
ceased. [Schedule 1, Part 2, item 20]
1.30 The records and documents are Commonwealth records for the
purposes of the Archives Act 1983, which means that there are particular
rules governing their transfer, storage and disposal. [Schedule 1, Part 2,
note to item 20]
Preservation of protection of disclosures
1.31 Under subsection 127(4) of the ASIC Act, disclosure of
information by ASIC to CAMAC is taken to be authorised use and
disclosure of the information if the Chairperson of ASIC is satisfied that
the information will enable or assist CAMAC to perform or exercise its
functions or powers. Under subsection 127(4A), the Chairperson of ASIC
may impose conditions in relation to the disclosed information.
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Cessation of the Corporations and Markets Advisory Committee
1.32 Item 10 in Part 1 of Schedule 1 omits the reference to CAMAC
in subsection 127(4) of the ASIC Act (see paragraph 1.15). Item 21 in
Part 2 of Schedule 1 preserves the protection of information already
disclosed by ASIC to CAMAC under subsection 127(4) of the ASIC Act.
If ASIC imposed conditions on a person (for example, a member of
CAMAC's Secretariat) under subsection 127(4A) of the ASIC Act in
relation to the protected information, then those conditions continue to
apply to the person after the commencement time. [Schedule 1, Part 2,
item 21]
Assumption of assets and liabilities
1.33 When the operation of CAMAC ceases, CAMAC's assets and
liabilities cease to be assets and liabilities of CAMAC and become assets
and liabilities of the Commonwealth. They do so automatically without
the need for any conveyance, transfer or assignment. [Schedule 1, Part 2,
item 15]
1.34 `Asset' and `liability' are defined broadly to ensure that all
assets and liabilities, whether actual, contingent or prospective, of
CAMAC are covered. Asset means any legal or equitable estate or
interest in real or personal property and any right, power, privilege or
immunity. Liability means any liability, duty or obligation. [Schedule 1,
Part 2, subitem 14(1)]
1.35 While it is not expected that these provisions about the treatment
of assets and liabilities will be used, the provisions provide a safety net in
the event that CAMAC still has assets or outstanding liabilities upon
cessation.
1.36 This Bill provides a process for the registration of the vesting of
land and other assets, for use in the event that any land or other asset
becomes vested in the Commonwealth under Part 2 of Schedule 1 to the
Bill. (Land is defined as any legal or equitable estate or interest in real
property, whether actual, contingent or prospective.) [Schedule 1, Part 2,
subitems 14(1), 16(1) and 16(2)]
Authenticity of documents
1.37 Unless the contrary is established, a document that appears to be
a certificate made under item 16 is taken to be such a certificate and to
have been properly made. [Schedule 1, Part 2, subitem 16(3)]
1.38 This Bill states that a certificate made under item 16 of
Schedule 1 is not a `legislative instrument' within the meaning of
section 5 of the Legislative Instruments Act 2003. This provision is
merely declaratory of the law and is included to assist readers. The
provision in no way purports to exempt the item from the requirements of
the Legislative Instruments Act 2003. [Schedule 1, Part 2, subitem 16(4)]
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Taxes not payable
1.39 No stamp duty or other tax is payable under the law of a State or
Territory in respect of the vesting of an asset or a liability under Part 2 of
Schedule 1 or the operation of the Part in any other respect. [Schedule 1,
Part 2, item 23]
Compensation for acquisition of property
1.40 To the extent that the operation of Part 2 of Schedule 1 results in
the acquisition of property from a person on other than just terms, the
Commonwealth is liable to pay a reasonable amount of compensation to
the person. If the Commonwealth and the person cannot agree on the
amount of any such compensation to be paid, the person may institute
proceedings against the Commonwealth and the court may determine a
reasonable amount of compensation. [Schedule 1, Part 2, item 26]
Ministers' powers
Delegation by Ministers
1.41 The Minister may delegate all or any of his or her powers and
functions under Part 2 of Schedule 1 to this Bill to either the Secretary to
the Treasury or a member of the Senior Executive Service (SES) (or
acting member of the SES) of the Treasury. (`SES employee' and `acting
SES employee' are defined in the Acts Interpretation Act 1901.) The
delegation must be made in writing. [Schedule 1, Part 2, subitem 24(1) and note
to subitem 24(1)]
1.42 The Minister for Finance may delegate to the Secretary to the
Department of Finance, his or her power to give directions to the
Secretary to the Treasury in relation to the final report-- see
paragraphs 1.25 and 1.26.
1.43 In exercising powers or functions under a delegation, the
delegate must comply with any directions of the delegating Minister.
[Schedule 1, Part 2, subitem 24(3)]
Transitional rules
1.44 The Minister may make rules:
· specifying matters which are required or permitted by
Schedule 1 to be prescribed in rules; or
· in relation to transitional matters that may arise out of the
amendments and repeals made by Schedule 1.
[Schedule 1, Part 2, subitem 14(1) and item 27]
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Cessation of the Corporations and Markets Advisory Committee
1.45 This standard rule-making power provides flexibility to ensure
that the cessation of CAMAC occurs in an orderly and straightforward
manner, and that unforeseen matters that may arise can be dealt with
appropriately, without confusion, in accordance with the effect of this
Bill. It is not designed to override or otherwise alter the effect of this Bill.
1.46 Such rules are legislative instruments governed by the
Legislative Instruments Act 2003. The rules would be disallowable by
either House of the Parliament under section 42 of the Legislative
Instruments Act 2003. [Schedule 1, Part 2, item 27]
Matters related to instruments and the operation of laws
References to CAMAC in instruments
1.47 Once CAMAC's operation ceases, references to CAMAC in
instruments that were already in force at that time are to be read as
references to the Commonwealth. This preserves the operation of
instruments despite the cessation of CAMAC. It does not prevent the
instrument from being terminated or varied after the cessation. [Schedule 1,
Part 2, subitems 17(1) and (2)]
1.48 Instrument is defined as including a contract, undertaking, deed,
agreement, notice, authority, order or instruction. It also includes an
instrument made under an Act or under regulations but does not include
an Act or an instrument made under this Bill. The Corporations
Agreement 2002 is also excluded from the definition of `instrument' to
avoid the unworkable outcome that would result from references to
CAMAC in that Agreement being read as references to the
Commonwealth. [Schedule 1, Part 2, subitem 14(1)]
1.49 In order to ensure that the substitution does not create an
inappropriate outcome, the Minister may make rules specifying:
· particular instruments or references in instruments are not
treated in accordance with subitem 17(1) of Schedule 1
(described in paragraph 1.47), meaning that a reference or
references to CAMAC in an instrument are retained; or
· particular instruments or references in instruments are treated
in accordance with subitem 17(1), but instead of substituting
the Commonwealth for CAMAC, a person identified in the
rules is substituted for CAMAC.
[Schedule 1, Part 2, subitem 17(3) and paragraph 27(a)]
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Australian Securities and Investments Commission Amendment (Corporations and Markets
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1.50 This capacity for the Minister to make exceptions in rules
provides flexibility to avoid a situation where substituting
`Commonwealth' for `CAMAC' would create an absurd, unworkable or
unintended outcome.
1.51 The rules must be registered in accordance with the Legislative
Instruments Act 2003. Despite subsection 12(2) of the Legislative
Instruments Act 2003 (which provides for when legislative instruments
may take effect) rules made by the Minister pertaining to references in
instruments may take effect from a day before the rules are registered.
They may not, however, take effect before the cessation of CAMAC.
[Schedule 1, Part 2, subitem 17(4)]
CAMAC's acts attributed to the Commonwealth
1.52 Except in the case of the operation of the Ombudsman Act 1976
(explained in paragraphs 1.56 to 1.58), once CAMAC's operation ceases,
anything done by or in relation to CAMAC before it is abolished will be
treated as if it had been done by, or in relation to, the Commonwealth.
[Schedule 1, Part 2, subitem 18(1)]
1.53 In order to ensure that the substitution does not create an
inappropriate outcome, the Minister may make rules specifying:
· particular things which are not treated in accordance with
subitem 18(1) of Schedule 1 (described in paragraph 1.52),
meaning that things done by or in relation to CAMAC before
its cessation will continue to be treated as having been done
by or in relation to CAMAC, despite its cessation; or
· particular things which are treated in accordance with
subitem 18(1), but instead of substituting the Commonwealth
for CAMAC, a person identified in the rules is substituted for
CAMAC.
[Schedule 1, Part 2, subitem 18(3) and paragraph 27(a)]
1.54 Allowing the Minister to make exceptions in rules provides
flexibility to avoid a situation where treating a thing as having been done
by the Commonwealth would create an absurd, unworkable or unintended
outcome.
1.55 Similar to rules relating to references in instruments, despite
subsection 12(2) of the Legislative Instruments Act 2003, rules made by
the Minister pertaining to things done by or in relation to CAMAC may
take effect before the rules are registered. However, they may not take
effect before the cessation of CAMAC. [Schedule 1, Part 2, subitem 18(4)]
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Cessation of the Corporations and Markets Advisory Committee
CAMAC's acts attributed to the Treasury
1.56 For the purpose of the operation of the Ombudsman Act 1976
after the cessation of CAMAC, action taken by or in relation to CAMAC
prior to the cessation is taken to have been done by or in relation to the
Treasury. [Schedule 1, Part 2, subitem 18(2)]
1.57 As the Commonwealth Ombudsman (the Ombudsman) is not
empowered to investigate complaints about the Commonwealth, this
provision substitutes the Department (being Treasury) rather than the
Commonwealth for CAMAC.
1.58 If, at the commencement time, a complaint had been made to the
Ombudsman about action taken by or in relation to CAMAC, or the
Ombudsman had commenced an investigation into action taken by or in
relation to CAMAC, then the Ombudsman Act 1976 applies after
CAMAC ceases as if the relevant action had been taken by or in relation
to the Treasury. This item also allows new complaints to be made and
dealt with after CAMAC's operation ceases, again substituting `the
Department' for `CAMAC'.
Continuation of legal proceedings
1.59 Once CAMAC ceases, the Commonwealth is substituted for
CAMAC as a party to any proceedings that were pending in any court or
tribunal and to which CAMAC was a party. This provision ensures that
any existing litigation is not affected by the cessation of CAMAC.
[Schedule 1, Part 2, item 19]
Preservation of exemption from liability
1.60 Although item 12 in Part 1 of Schedule 1 removes references
relating to CAMAC from the list of entities and persons in
subsection 246(1) of the ASIC Act who are exempt from liability for
damages in relation to the performance of their functions and powers in
certain circumstances, this Bill provides a saving provision.
1.61 Thus, despite the repeal of the references to CAMAC, its
members and its staff, consultants and secondees in section 246 of the
ASIC Act (specifically, paragraphs 246(1)(b), (d) and (h)), those persons
continue to be exempt from liability for damages in relation to an act done
or omitted in good faith in the performance or purported performance of
any function or power conferred under the corporations legislation before
the commencement time. The exemption from liability applies in relation
to those acts or omissions as if the repeal (in item 12) had not happened.
[Schedule 1, Part 2, subitem 25(1)]
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Australian Securities and Investments Commission Amendment (Corporations and Markets
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1.62 In the case of the reference to CAMAC in paragraph 246(1)(b)
of the ASIC Act, the exemption from liability continues in relation to acts
or omissions by CAMAC before the commencement time as if the
Commonwealth were referred to in that paragraph. This substitutes `the
Commonwealth' for `CAMAC'. [Schedule 1, Part 2, subitem 25(2)]
1.63 This item does not limit the operation of section 8 of the Acts
Interpretation Act 1901 as in force on 1 January 2005 in relation to
matters that are not covered by the item. Section 8 of the Acts
Interpretation Act 1901 as in force on 1 January 2005 provides for the
effect of the repeal of Acts or parts of Acts. (See paragraph 1.21 for an
explanation about the version of the Acts Interpretation Act 1901
applying.) [Schedule 1, Part 2, subitem 25(3)]
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
Australian Securities and Investments Commission Amendment
(Corporations and Markets Advisory Committee Abolition) Bill 2014
1.64 This Bill is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3
of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
1.65 This Bill repeals Part 9 of the Australian Securities and
Investments Commission Act 2001 (ASIC Act), which provides for the
establishment, functions and operation of the Corporations and Markets
Advisory Committee (CAMAC). In doing so, the agency ceases to exist.
1.66 This decision was made in the 2014-15 Budget in the context of
the broader Smaller and More Rational Government reforms to reduce the
number of Australian Government bodies and streamline the shape of
government.
1.67 This Bill also makes a number of consequential amendments to
the ASIC Act as a result of the repeal of Part 9 and provides for the
transitional and savings arrangements that are necessary to facilitate the
cessation of CAMAC.
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Cessation of the Corporations and Markets Advisory Committee
Human rights implications
1.68 This Bill engages the following human rights:
· the right to a fair hearing and fair trial in Article 14 of the
International Covenant on Civil and Political Rights
(ICCPR);
· the right to an effective remedy in Article 2 of the ICCPR;
and
· the right to privacy in Article 17 of the ICCPR.
Right to a fair hearing and fair trial and right to an effective remedy
1.69 Item 18 in Part 2 of Schedule 1 to this Bill (a transitional
provision) provides for the Commonwealth to take the place of CAMAC
in relation to the operation of any law of the Commonwealth and for the
Department of the Treasury (the Treasury) to take the place of CAMAC
for the purposes of the Ombudsman Act 1976.
1.70 By attributing acts of CAMAC to the Commonwealth or to
Treasury, this Bill engages the right to a fair hearing and fair trial in
Article 14 of the ICCPR and the right to an effective remedy in Article 2
of the ICCPR. It supports these rights by preserving the capacity for
action to be taken in relation to acts of CAMAC, notwithstanding its
abolition.
1.71 Item 18 in Part 2 of Schedule 1 also provides for the relevant
Treasury Portfolio Minister (or delegate in accordance with item 24 in
Part 2 of Schedule 1) to make rules which:
· carve out things in relation to which the Commonwealth will
not take the place of CAMAC; and/or
· prescribe things in relation to which a particular person --
rather than the Commonwealth -- will take the place of
CAMAC.
1.72 Allowing for the making of such rules which carve out things in
relation to which the Commonwealth will not take the place of CAMAC
could be argued to inhibit future proceedings to be launched against
CAMAC, and consequently may limit the right to a fair hearing and fair
trial in Article 14 of the ICCPR and the right to an effective remedy in
Article 2 of the ICCPR.
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Australian Securities and Investments Commission Amendment (Corporations and Markets
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1.73 It is not expected that any rules will be required under item 18.
The item is considered to be reasonable and necessary to mitigate any
unintended consequences which might arise from the substitution of the
Commonwealth or the Treasury for CAMAC in particular circumstances.
Right to privacy
1.74 Item 21 in Part 2 of Schedule 1 (a transitional provision)
provides for the continuation of conditions placed on CAMAC in relation
to information disclosed under subsection 127(4) of the ASIC Act.
1.75 By regulating disclosed information, this Bill engages the right
to privacy in Article 17 of the ICCPR. It supports the right to privacy by
preserving protections which are in place under the existing law.
1.76 It appears that no conditions have been placed on CAMAC in
relation to information disclosed by ASIC under subsection 127(4).
Item 21 is included as safeguard to ensure that, if it arises that there were
such conditions imposed on CAMAC, those conditions continue to apply
to the recipients of the information.
Conclusion
1.77 This Bill is compatible with human rights because, to the extent
that it may limit human rights, those limitations are reasonable, necessary
and proportionate.
18
Index
Schedule 1: Amendments
Bill reference Paragraph number
Part 1, item 1, Title of the ASIC Act 1.15
Part 1, item 2, paragraph 1(1)(c) of the ASIC Act 1.15
Part 1, items 3 to 8, subsection 5(1) of the ASIC Act 1.15
Part 1, item 9, subsection 11(3) of the ASIC Act 1.18
Part 1, item 10, paragraph 127(4)(a) of the ASIC Act 1.15
Part 1, item 11, Part 9 of the ASIC Act 1.12
Part 1, item 12, paragraphs 246(1)(b), (d) and (h) of the ASIC Act 1.15
Part 1, item 13, note to section 261 of the ASIC Act 1.16
Part 2, subitem 14(1) 1.24, 1.34, 1.48
Part 2, subitems 14(1), 16(1) and 16(2) 1.36
Part 2, subitem 14(1) and item 27 1.44
Part 2, subitem 14(2) 1.21
Part 2, item 15 1.33
Part 2, subitem 16(3) 1.37
Part 2, subitem 16(4) 1.38
Part 2, subitems 17(1) and (2) 1.47
Part 2, subitem 17(3) and paragraph 27(a) 1.49
Part 2, subitem 17(4) 1.51
Part 2, subitem 18(1) 1.52
Part 2, subitem 18(2) 1.56
Part 2, subitem 18(3) and paragraph 27(a) 1.53
Part 2, subitem 18(4) 1.55
Part 2, item 19 1.59
Part 2, item 20 1.29
Part 2, note to item 20 1.30
Part 2, item 21 1.32
Part 2, subitem 22(1) 1.22
Part 2, subitem 22(2) 1.25
Part 2, subitem 22(3) 1.27
Part 2, subitem 22(4) 1.28
19
Australian Securities and Investments Commission Amendment (Corporations and Markets
Advisory Committee Abolition) Bill 2014
Bill reference Paragraph number
Part 2, subitem 22(5) 1.23
Part 2, item 23 1.39
Part 2, subitem 24(1) and note to subitem 24(1) 1.41
Part 2, subitem 24(2) 1.26
Part 2, subitem 24(3) 1.43
Part 2, subitem 25(1) 1.61
Part 2, subitem 25(2) 1.62
Part 2, subitem 25(3) 1.63
Part 2, item 26 1.40
Part 2, item 27 1.46
20