Treasury Releases Draft Legislation Proposing to Modernise Business Communications
Friday 2 September 2022 @ 3.17 p.m. | Corporate & Regulatory | Legal Research
On 29 August 2022, the Federal Treasury released the draft Treasury Laws Amendment (Modernising Business Communications) Bill 2022: Virtual hearings and examinations (2) (Cth) ("the Draft Bill") and the draft Treasury Laws Amendment (Modernising Business Communications) Regulations 2022: Updating forms (Cth) ("the Draft Regulations") for public consultation.
Consultation on these drafts are open until 23 September 2022 and details for submissions are available on the Federal Treasury website.
Rationale
According to the Explanatory Memorandum for the Draft Bill, the proposed legislation seeks to:
“amend the relevant legislation by inserting express provisions clarifying that regulators can hold hearings or examinations using technology.”
The Explanatory Memorandum also makes the observation that during the COVID-19 pandemic:
“[u]ncertainty caused by the absence of express provisions in the relevant legislation allowing for the use of technology at hearings and examinations resulted in regulators first obtaining consent from participants before holding virtual hearings.”
Use of Technology in Hearings and Examinations
The Draft Bill proposes to allow regulators to hold a hearing or examination to hold either physical or virtual hearings or examinations. Regulators will have the option of using one or more physical venues for physical meetings. They will also be able to do hybrid meetings, where the meeting will be held in both one or more physical venues, and using virtual enquiry technology.
Under the Draft Bill, the relevant regulators are the:
- Australian Prudential Regulation Authority (APRA);
- Australian Securities and Investments Commission (ASIC);
- Financial Services and Credit Panels (FSCP);
- Companies Auditors Disciplinary Board (CADB);
- Australian Competition and Consumer Commission (ACCC);
- Australian Energy Regulator (AER); and
- Tax Practitioners Board (TPB).
What is Virtual Enquiry Technology?
The Draft Bill proposes the following definition for ‘virtual enquiry technology’:
“any technology that allows a person to participate in or be represented at all or part of a hearing, examination or other enquiry without being physically present at the hearing, examination or other enquiry.”
The Explanatory Memorandum explains that:
"[t]he definition of ‘virtual enquiry technology’ is not prescriptive and does not limit the regulator to using a single type of technology. The only requirement is that the technology allows a person to participate in or be represented at all or part of a hearing, examination or other enquiry without being physically present at the hearing, examination or other enquiry."
Reasonable Opportunities to Participate and Observe
Regarding this “reasonable opportunity to participate”, the Explanatory Memorandum states:
"The standard of reasonableness protects the right of a person to participate in or be represented at a hearing or examination using technology, while giving the regulator the flexibility as to the form of the hearing or examination. In some circumstances, it may be inappropriate for the regulator to hold a virtual hearing or examination if doing so would not give the participant a reasonable opportunity to participate in or be represented at the hearing or examination. In these cases, the regulator should consider holding all or part of the hearing or examination at a physical venue (i.e. a physical or hybrid hearing or examination). "
The Draft Bill also seeks to impose additional requirements on regulators who hold hearings in public to:
- ensure that any virtual enquiry technology used for such hearings provides the public with a reasonable opportunity to observe these hearings; and
- ensure that information sufficient to allow the public to observe the hearing using the technology is made publicly available in a reasonable way.
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Sources:
[Draft] Treasury Laws Amendment (Modernising Business Communications) Bill 2022: Virtual hearings and examinations (Cth) and draft explanatory materials available from TimeBase's LawOne service
[Draft] Treasury Laws Amendment (Modernising Business Communications) Regulations 2022: Updating forms (Cth) and draft explanatory materials available from TimeBase's LawOne service
