Treasury Laws Amendment (Modernising Business Communications) Bill 2022: Virtual hearings and examinations
This submission relates to the exposure draft Treasury Laws Amendment (Modernising Business Communications) Bill 2022 (Cth) (Draft Bill) and exposure draft Treasury Laws Amendment (Modernising Business Communications) Regulations 2022 (Cth) (Draft Regulations), together with the accompanying exposure draft Explanatory Memorandum and Explanatory Statement documents, which were released by Treasury for consultation on 29 August 2022.
The purpose of the Draft Bill and the Draft Regulations is to clarify that relevant Treasury portfolio regulators can hold hearings and examinations virtually.
The Financial Services Committee and the Corporations Committee of the Business Law Section of the Law Council of Australia (the Committees) appreciate the opportunity to provide feedback on the Draft Bill and the Draft Regulations and the granting of an extension to do so until 30 September 2022.
The Committees consider that, in principle, it is appropriate for regulators to be able to use virtual technology methods to conduct hearings and examinations in circumstances where attendance in person by all parties is not practicable (for example, where a natural disaster or severe weather event has impacted the home or business address of a participant, or where a public health emergency declaration that restricts close person to person contact is in place) provided that an appropriate minimum level of procedural fairness can be maintained.
The Draft Bill contemplates that the relevant regulator may only use a virtual technology method if each participant in the relevant process has a “reasonable opportunity” to participate in and be represented at the hearing or examination.
However, for the reasons articulated below, the Committees consider that:
(a) the parameters within which the use of virtual technology methods is permitted for future hearings and examinations should be carefully considered; and
(b) there are other relevant and important matters not canvassed in the consultation documents which should be taken into account in developing the proposed new legislation.