Law reform obituary – CAMAC 1983-2018

The Corporations and Markets Advisory Committee (CAMAC) was a corporate law reform body comprised of individuals eminent in that field.  It was created in 1983 and belatedly abolished in 2018,[1] although it had not operated since 2014.  The reasons for its abolition were to do with ‘smaller government’.

Professor Ian Ramsay, a former long-term member of CAMAC, has written its history,[2] concluding that its abolition was wrong. I was also a member of CAMAC, from 2011 until 2014, but I may disagree. This is consistent with my earlier views: see Vale CAMAC.

CAMAC

Ramsay describes CAMAC as an

‘independent body [established] to provide advice to the Australian government on matters of corporate law reform. CAMAC and its predecessors published many reports and their influence on corporate law reform has been significant’.

As he explains, the decision to abolish CAMAC was made by the government in the face of very strong opposition from organisations representing business, shareholders and various professions. Its abolition

“has resulted in a weakened law reform process”.

The history of CAMAC and its predecessors is interesting, though, as a member of CAMAC, and as a reader of its reports over the years, I may not agree that it should have survived.

CAMAC and law reform

A statutory law reform body is a necessary part of many modern jurisdictions. CAMAC had a focus on corporate law.  Many of its reports led to significant law reform, most recently, the crowd sourced equity funding legislation. But many others did not.  And they did not either for reasons of the lack of acceptability of the recommendations, or of the lassitude of the government, or the government’s refocus or loss of interest in the matter referred by the time CAMAC’s findings were released.  One example of the latter is CAMAC’s 2008 report on long tail liabilities, a very difficult issue, arising out of James Hardie and asbestos liabilities, but one to which no government has never responded.

Both CAMAC’s more recent reports on charitable trusts and managed investment schemes have been criticised for reasons apart from their content[3] and the recommendations of neither report were taken up. Its major 2004 report on the rehabilitation of companies in financial difficulties has recently been criticised, largely on the basis that CAMAC’s focus was purely legal, without the input of other disciplines that might better have informed its outcomes.

Other law reform options

There are perhaps better law reform options. We have the ALRC for major inquiries, and the state equivalents.  Parliamentary inquiries are another option, with their reports often better than is indicated by the quality of their inquiry processes.  ARITA has put up law reform platforms of its own initiative, although not now for some time, and it and other such bodies, including the Law Council, have their particular perspectives, particularly in tax reform. Academics and others will offer their views in their books and other writings.

Other jurisdictions refer matters to an expert select committee, of professionals and academics, with recent examples from NZ and Singapore. A good model recently came from the UK, with academia, the professional bodies and the relevant ASIC equivalent working together on a law reform report.  The level of collegiality between those bodies, at least in my area of interest, would not allow that.

Then there is government itself. When CAMAC was being abolished, the government said that it had good enough internal expertise within Treasury and other departments instead. Recent law reform processes from Treasury may have borne that out.  Treasury formulates a proposal, then consults closely in order to test it and then refine it.  Submissions are usually fulsome, if reactive and narrow.

One benefit of government is that a department like Treasury, and many others, can enlist necessary other disciplines – economics, technology and relevant social sciences – and be more informed of a whole of government approach.

Now ASIC has the initiative

One merit of CAMAC, never used, was its ability to act on its own initiative in prompting an inquiry, under former s 148 of the ASIC Act.  CAMAC always relied on the government making a decision that a matter needed a referral.  Whether those referrals were valid is a matter of history but the outcome is that CAMAC did write good reports that have entered the academic and policy literature, and the law reports.

CAMAC’s policy advising role has now been given to ASIC, with the words of former s 148 now found in s 11(3), describing ASIC’s policy role, to the effect that ASIC may, on its own initiative or when requested by the Minister, advise the Minister, and make such recommendations as it thinks fit, about any matter listed involving the corporations legislation.

The government will bear in mind that ASIC, while expert and knowledgeable, does not have the independence and objectivity of a CAMAC.

‘CAMAC might as well be gone’

But with any law reform bodies, their purpose is lost if they are ignored, and if not acted upon, and reasons given why. So many of CAMAC’s reports have merely entered the literature, which is something, but not enough. That is not really CAMAC’s fault and such an outcome is found across many law reform recommendations in other areas.

Without a process of clear government commitment and response to law reform, and support and respect for its agencies, CAMAC might as well be gone.

Professor Ramsay’s account of CAMAC records the life and demise of an important body in our law reform history.

[1] See the belated Statute Update (Smaller Government) Act 2018, Schedule 7 CAMAC

[2] In honour of the late Professor Bob Baxt.

[3] ASIC Amendment (CAMAC) Abolition) Bill 2014, Bills Digest no. 71 2014–15

 

 

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