¹ The terminology is credited to Roscoe, Pound, ‘Law in Books and Law in Action’ (1910) 44 American Law Review 12Google Scholar. The distinction was revisited in the 1970s; see, eg, David, Nelken, ‘The “Gap Problem” in the Sociology of Law: A Theoretical Review’ (1981) 1 The Windsor Yearbook of Access to Justice 35Google Scholar.

² See, eg, Robert, Baldwin and Keith, Hawkins, ‘Discretionary Justice: Davis Reconsidered’ (1984) Public Law 570Google Scholar; Robert Baldwin, Rules and Government (1995) ch 3; Robert Baldwin and Martin Cave, Understanding Regulation — Theory, Strategy and Practice (1999) ch 8.

³ See John, Griffiths ‘Is Law Important?’ (1979) 53 New York University Law Review 339Google Scholar on the direct, indirect, intended and unintended effects of legal rules.

⁴ See, eg, the list of sections in Table 1 of this article.

⁵ ASIC is a statutory corporation established by the Australian Securities and Investments Commission Act 2001 (Cth).

⁶ Corporations Act 2001 (Cth) s 5B states that ‘ASIC has the general administration of this Act'. See also Australian Securities and Investments Commission Act 2001 (Cth) s 11.

⁷ Financial Services and Markets Act 2000 (UK) c 8, s 138(1).

⁸ Securities Act of 1933, 15 USC § 19. See also Securities Exchange Act of 1934, 15 USC § 23(a)(1), giving the Commission power to make rules and regulations.

⁹ ASIC also has power to make rules that regulate market integrity in domestic licensed financial markets, see Corporations Amendment (Financial Market Supervision) Act 2010 (Cth).

¹⁰ Securities Exchange Act of 1934, 15 USC § 12(k)(2).

¹¹ Securities Exchange Act of 1934, 15 USC § 12(k)(7).

¹² Australian Securities and Investments Commission, ASIC Class Order — Covered Short Sales, CO 08/751, 19 September 2008. ASIC Class Orders usually are identified by the label ‘CO', the year of issue (in this case, 2008) and an identifying number, in square brackets. In the text of this article Class Orders will be identified in this way.

¹³ Short selling is the sale of securities which, at the time of the sale agreement, the seller does not own. The seller may at the time have an enforceable right to obtain the shares through an agreement with another party; this is known as a ‘covered’ short sale. Alternatively, in a ‘naked’ short sale there is no other agreement in place at the time of the sale agreement. The seller must then purchase or borrow the required shares before settlement of the sale agreement.

¹⁴ Simultaneously on 19 September the Australian Securities Exchange, with ASIC's agreement, announced that it would abolish naked short selling from the opening of trading on 22 September: ASX Media Release, 19 September 2008.

¹⁵ Australian Securities and Investments Commission, ASIC Class Order — Variation of Class Order CO 08/751, CO 08/752, 21 September 2008.

¹⁶ Australian Securities and Investments Commission, ASIC Class Order − Variation of Class Order CO 08/751, CO 08/753, 22 September 2008.

¹⁷ Australian Securities and Investments Commission, ASIC Class Order — Variation of Class Order CO 08/751, CO 08/763, 23 September 2008.

¹⁸ This was not the end of the story. Before the end of 2008 there were subsequent Class Orders. On 23 October ASIC Class Order [CO 08/801] added a further exemption to the prohibition in s 1020BD (see Australian Securities and Investments Commission, ASIC Class Order — Variation of Class Order CO 08/751, CO 08/801, 23 October 2008); with effect on 19 November, ASIC Class Order [CO 08/824] amended s 1020BD to permit covered short selling of non-financial securities, and amended the reporting regime in s 1020BC (see Australian Securities and Investments Commission, ASIC Class Order — Variation of Class Order CO 08/751 and CO 08/764, CO 08/824, 13 November 2008). In January 2009 ASIC Class Order [CO 09/1052] amended both s 1020BC and 1020BD, in anticipation of parliamentary amendments to the Corporations Act 2001 (see Australian Securities and Investments Commission, ASIC Class Order — Variation of Class Order CO 08/751, CO 09/1052, 5 January 2009). On 25 May 2009, s 1020BD was omitted entirely by ASIC Class Order [CO 09/39] (see Australian Securities and Investments Commission, ASIC Class Order — Variation of Class Order CO 08/751, CO 09/39, 25 May 2009).

¹⁹ The Federal Parliament did not sit until three weeks after these events. The process of parliamentary scrutiny of delegated legislation is described in Part VI of this article.

²⁰ For a comparative analysis, see Kym Sheehan, ‘Principled Regulatory Action? The Case of Short Selling’ (Paper presented at the Corporate Law Teachers Association Conference, Sydney, 3 February 2009).

²¹ Evidence to Senate Standing Committee on Economics (Supplementary Budget Estimates), Parliament of Australia, Canberra, 22 October 2008, 160–4 (Tony D'Aloisio, ASIC Chairman).

²² In addition, as required by the Legislative Instruments Act 2003 (Cth) s 24, each Class Order was registered and published on the Federal Register of Legislative Instruments. ASIC also publishes all of its Class Orders on its website Australian Securities and Investments Commission, Instruments and Class Orders (18 February 2011) <http://www.asic.gov.au/asic/ASIC.NSF/byHeadline/Instruments>.

²³ See Corporations Act s 1484 (commencing 11 December 2008), declaring ASIC Class Orders [CO 08/751], [CO 08/752], [CO 08/753], [CO 08/763] and [CO 08/801] to be ′validly made′. Sheehan suggests that the passage of this Act demonstrates that the process leading to making the Class Orders was known to have been deficient: above n 20, 28.

²⁴ A point noted by Sheehan, above n 20, 28.

²⁵ The Corporations Amendment (Short Selling) Act 2008 (Cth) inserted s 1020F(8) which, amongst other things, states that a modification under s 1020F(1)(c) may prohibit any form of short selling of financial products.

²⁶ This Table omits Corporations Act ss 342A and 1073E(2), which authorise ASIC to make limited modifications in specified circumstances.

²⁷ The term ‘provisions’ is defined to include a reference to regulations made for the purposes of that Chapter or Part (see, eg, s 601QA(5)).

²⁸ ASIC will sometimes make identical modifications for a number of successive individual applicants.

²⁹ Australian Securities and Investments Commission, ‘Applications for Relief’ (Regulatory Guide No 51, December 2009) <http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg51.pdf/$file/rg51.pdf>.The Commission has also issued regulatory guidance for specific exemption and modification powers, for example ‘Fundraising: Discretionary Powers’ (Regulatory Guide No 151, February 2000); ‘Licensing: Discretionary Powers ‘(Regulatory Guide No 167, January 2007); and ‘Foreign Collective Investment Schemes’ (Regulatory Guide No 178, May 2004).

³⁰ The Guide also deals with relief from the Superannuation Industry (Supervision) Act 1993 (Cth), the National Consumer Credit Protection Act 2009 (Cth), and the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth).

³¹ Data taken from ASIC quarterly reports on decisions on relief applications, available at Australian Securities and Investments Commission, Reports (30 March 2011) <http://www.asic.gov.au/asic/ASIC.NSF/byHeadline/Reports>.

³² This is reinforced in Explanatory Memorandum, Financial Services Reform Amendment Bill 2003 (Cth) [3.65] which notes that ‘in most situations’ exemption and modification powers are exercised in response to requests.

³³ Australian Securities and Investments Commission, ′Applications for Relief′ above n 29, [51.51]–[51.53].

³⁴ Ibid [51.57].

³⁵ Ibid [51.63].

³⁶ Ibid [51.62].

³⁷ Confirmed in an interview with ASIC officers (Sydney, 15 July 2010).

³⁸ Noted also by Sheehan, above n 20.

³⁹ Named after Sir Richard Eggleston, chair of the Committee whose 1969 report on takeover law first recommended these principles: Company Law Advisory Committee, Parliament of Victoria, Second Interim Report to the Standing Committee of Attorneys-General on Disclosure of Substantial Shareholdings and Takeovers (1969).

⁴⁰ This last point is a more recent addition to the original Eggleston principles.

⁴¹ Corporations Act 2001 (Cth) s 760A(a) and (c). Similarly, the modification powers in Chapter 10 would take into account the objects for that Chapter set out in s 1370.

⁴² Otter Gold Mines Ltd v Australian Securities Commission & Ors (1997) 15 ACLC 1 732, 1 738.

⁴³ A point suggested during an interview with Financial Services Council representatives (Sydney, 31 August 2010).

⁴⁴ ASIC v DB Management Pty Ltd (2000) 199 CLR 321, 333 (emphasis added). The Court was referring to the modification power found in a forerunner to the current s 655A(1), found in s 58 of the Companies (Acquisition of Shares) Code of 1980.

⁴⁵ These figures are drawn from ASIC's website, see above n 22. As will be seen, the modification powers pre-date the Corporations Act 2001 (Cth), and there are a number of pre-2001 Class Orders still in operation.

⁴⁶ 2010 figures as at 3 December 2010. Six of the 2010 Class Orders were made under the National Consumer Credit Protection Act 2009 (Cth) or the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth).

⁴⁷ It is likely that the comparatively large number of Class Orders in 2002 resulted from the implementation of the new Corporations Act 2001, and similarly, the increase in 2004 may have resulted from the commencement of the Financial Services Reform Amendment Act 2003 (Cth) between December 2003 and July 2004.

⁴⁸ Interview with ASIC officers (Sydney, 15 July 2010).

⁴⁹ Australian Securities and Investments Commission, Submission to LIA Review Committee: Review of the Legislative Instruments Act 2003, May 2008,) 11.

⁵⁰ Explanatory Memorandum, Financial Services Reform Amendment Bill 2003 (Cth) [3.66].

⁵¹ Ibid [3.65].

⁵² For example, ASIC Class Order [CO 10/333], (Australian Securities and Investments Commission, ASIC Class Order − Corporations Act 2001 — Paragraphs 601QA(1)(b), 926A(2)(a), 992B(1)(a) and 1020F(1)(a) — Declaration and Exemptions, CO 10/333, 5 May 2010), exempting funded representative proceedings from provisions in the Corporations Act 2001 (Cth) that regulate managed investment schemes, was made in response to the Government's announcement that it intended to make Regulations to the same effect (Explanatory Statement in Australian Securities and Investments Commission, ASIC Class Order − Corporations Act 2001 — Paragraphs 601QA(1)(b), 926A(2)(a), 992B(1)(a) and 1020F(1)(a) — Declaration and Exemptions, CO 10/333, 5 May 2010). This, in turn, was a response to the decision in Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd [2009] FCAFC 147, holding that a funded representative action was a managed investment scheme as defined in Corporations Act 2001 (Cth) s 9.

⁵³ Explanatory Statement in Australian Securities and Investment Commission, ASIC Class Order Corporations Act 2001 — Paragraph 992B(1)(c) — Declaration, CO 05/21, 14 January 2005.

⁵⁴ See Corporations Act 2001 (Cth) s 601GA.

⁵⁵ ASIC Class Order [CO 09/425] specifies certain exemptions from provisions in the Act governing share and interest purchase plans; see Australian Securities and Investments Commission, ASIC Class Order Corporations Act 2001 — Share and Interest Purchase Plans, CO 09/425, 15 June 2009.

⁵⁶ Except for responsible entities of time-sharing schemes, see Australian Securities and Investments Commission, ASIC Class Order — Constitutional Provisions about the Consideration to Acquire Interests, CO 05/26, 4 May 2005 [4], [5] and [5A].

⁵⁷ Corporations Act 2001 (Cth) ss 636(3) and 638(5) provide, respectively, that bidder's statements and target's statements must not include a statement made by a person unless the person has consented to the inclusion of that statement.

⁵⁸ Commonwealth, Parliamentary Debates, House of Representatives, 2 April 1980, Vol H of 117, 1635 (Victor Garland).

⁵⁹ Company Law Advisory Committee to the Standing Committee of Attorneys-General [the Eggleston Committee], Parliament of Victoria, First Interim Report on Accounts and Audit (1968) [41].

⁶⁰ Senate Select Committee on Securities and Exchange [the Rae Committee], Parliament of Australia, Australian Securities Markets and their Regulation (1974) 16.18.

⁶¹ I am grateful to Tony Hartnell for alerting me to this.

⁶² Louis, Loss, Securities Regulation (Little, Brown and Company, 2nd ed, 1961)Google Scholar.

⁶³ Louis, Loss, Proposals for Australian Companies and Securities Legislation: Comments from the American Experience (Cth Attorney-General's Dept, 1973) 22Google Scholar.

⁶⁴ Ibid 23.

⁶⁵ See Part VII A of this Article.

⁶⁶ See above n 39. The modification power was found in s 58; the Eggleston principles were in s 59.

⁶⁷ Companies Code 1981 s 215C(6).

⁶⁸ See Corporations Law ss 1084(6)–(7) and the parallel provision for takeovers in s 730 (emphasis added). The latter section was still subject to the Eggleston principles, set out in s 731.

⁶⁹ Explanatory Memorandum, Corporations Bill 1988 (Cth) 559.

⁷⁰ See ss 109(3)(d), 163(3)(d) of that Act.

⁷¹ According to that definition a legislative instrument is an instrument in writing which is of a legislative character (in that it determines or alters the content of the law and has the effect of affecting a privilege or interest, imposing an obligation, creating a right or varying or removing an obligation or right), and it is made in the exercise of a power delegated by Parliament. Only two of the current sections in Table 1 above expressly provide that a modification which applies to a class or persons or financial products or estates is a legislative instrument, see Corporations Act 2001 (Cth) ss 601YAA(3), 926A(4).

⁷² Legislative Instruments Act 2003 (Cth) s 26 and the definition of ‘explanatory statement’ in s 4.

⁷³ The author is presently the legal adviser to the Committee. The views expressed in this article are those of the author.

⁷⁴ Parliament of Australia, Senate, Standing Order 23.

⁷⁵ See Senate Regulations and Ordinances Committee, Parliament of Australia, Senate Guidelines on the Committee's Application of its Principles (14 May 2003) <http://www.aph.gov.au/Senate/committee/regord_ctte/guidelines.htm>.

⁷⁶ Ibid.

⁷⁷ The SCRO meets only during weeks when the Senate is sitting and not during periods of parliamentary recess (sometimes up to five weeks in duration) or during estimates hearings, whereas legislative instruments, including Class Orders, are made and registered throughout the year.

⁷⁸ Administrative Review Council, ′What Decisions Should Be Subject to Merit Review?′ (Administrative Review Council, 1999) [3.3]–[3.7].

⁷⁹ Whilst the AAT did hear the initial challenge to the Class Order modification that was eventually decided by the High Court in ASIC v DB Management Pty Ltd (1999) 199 CLR 321, discussed below n 100. That Order related to a specific takeover.

⁸⁰ By comparison the National Consumer Credit Protection Act 2009 (Cth) s 327(1)(a) and (b) specifically excludes ASIC's power of legislative modification from AAT review.

⁸¹ The two exclusions are s 655A (relating to takeovers) and certain decisions under s 673 which relate to securities of a target company in a takeover bid; see Corporations Act 2001 (Cth) ss 1317C(ga)–(gb). Jurisdiction to review these particular decisions is conferred on the Takeovers Panel by s 656A.

⁸² See, eg, Jeffrey Lucy (Deputy Chair of ASIC), ‘The Impact of FSR on the Regulatory Culture of ASIC’ (Speech delivered at the 7th Annual Conference of the Australian Compliance Institute, Sydney, 5 September 2003) <http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/ACI_speech_5903.pdf/$file/ACI_speech_5903.pdf>.

⁸³ Financial Services Authority, ‘Principles-Based Regulation: Focusing on the Outcomes that Matter', (Financial Services Authority April 2007) 4.

⁸⁴ Ibid. See also Julia, Black, ‘Forms and Paradoxes of Principles Based Regulation’ (2008) 3(4) Capital Markets Law Journal 425Google Scholar; Julia, Black, Martyn, Hopper and Christa, Band, ‘Making a Success of Principles-Based Regulation’ (2007) 1 Law and Financial Markets Review 191Google Scholar.

⁸⁵ Australian Securities and Investments Commission, ′Applications for Relief′ above n 29, [51.39].

⁸⁶ See above n 39 and accompanying text.

⁸⁷ See Australian Securities and Investments Commission, ASIC Class Order — Disclosure Relief for Rights Issues, CO 08/35, 12 May 2008.

⁸⁸ Christine, Parker et al, ‘Introduction', in Christine, Parker et al (eds), Regulating Law (Oxford University Press, 2004) 1, 10–11Google Scholar.

⁸⁹ See also Julia, Black, ‘Talking About Regulation’ [1998] Public Law 77, 91–2Google Scholar.

⁹⁰ John, Braithwaite, Regulatory Capitalism: How It Works, Ideas for Making It Work Better (Edward Elgar Publishing, 2008) 88Google Scholar.

⁹¹ Ian, Ayres and John, Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, 1992)Google Scholar.

⁹² Insofar as clear lines can be drawn between these different areas of study.

⁹³ Parker et al, above n 88, 11.

⁹⁴ Ibid 12.

⁹⁵ See, eg, the discussion in Stephen, Bottomley and Simon, Bronitt, Law in Context (Federation Press, 3rd ed, 2006) 63Google Scholar.

⁹⁶ Similar concerns apply to Class Orders that do not change the legislation but which change the way in which it operates, for example by granting wide-ranging exemptions.

⁹⁷ Leighton, McDonald, ‘The Rule of Law in the “New Regulatory State“’ (2004) 33 Common Law World Review 197Google Scholar; see also Martin, Krygier, ‘The Rule of Law: Legality, Teleology and Sociology’ in G, Palombella and N, Walker (eds), Relocating the Rule of Law (Hart Publishing, 2009) 45Google Scholar.

⁹⁸ McDonald, above n 97, 215–16.

⁹⁹ See generally Krygier, above n 97, describing the ‘anatomical approach’ to the rule of law.

¹⁰⁰ (1999) 199 CLR 321. This was an appeal from a decision of the Full Court of the Federal Court, upholding an appeal from a decision at first instance which, in turn, had affirmed an AAT decision affirming ASIC's declaration. See above n 79 and accompanying text.

¹⁰¹ This was the Corporations Law as it stood prior to major amendments made in 1999. See now Corporations Act 2001 (Cth) ss 655A, 669. Interestingly, and unlike current sections, s 730 required an application to be made by a person to the Commission before the modification power could be exercised.

¹⁰² ASIC v DB Management Pty Ltd (1999) 199 CLR 321, 333.

¹⁰³ Ibid 341.

¹⁰⁴ Ibid 341–2.

¹⁰⁵ Ibid 338, referring to decisions of the Federal Court in Otter Gold Mines Ltd v Australian Securities Commission (1997) 15 ACLC 1732 and TNT Ltd v National Companies and Securities Commission (1986) 4 ACLC 624.

¹⁰⁶ Administrative Review Council, ′Rule Making by Commonwealth Agencies′, (Report No 35, Administrative Review Council, 26 March 1992) 16 [2.33].

¹⁰⁷ (1931) 46 CLR 73.

¹⁰⁸ Ibid 84, quoting (1909) 8 CLR 626, 646.

¹⁰⁹ Ibid 101.

¹¹⁰ Ibid.

¹¹¹ Ibid 117.

¹¹² Edward, Rubin, ‘Law and Legislation in the Administrative State’ (1989) 89 Columbia Law Review 369Google Scholar.

¹¹³ Ibid 391.

¹¹⁴ Ibid.

¹¹⁵ For a review of the High Court's approach to the power to make delegated legislation in general, see Gerald, Ng, ‘Slaying the Ghost of Henry VIII: A Reconsideration of the Limits Upon the Delegation of Commonwealth Legislative Power’ (2010) 38 Federal Law Review 205Google Scholar.

¹¹⁶ There are other possibilities. For example, Trade Marks Act 1995 (Cth) s 189A(3) permits regulations to be made to enable performance of Australia's obligations under the Madrid Protocol. Such regulations may be inconsistent with the Act and will prevail over the Act to the extent of any inconsistency.

¹¹⁷ See, eg, Competition and Consumer Act 2010 (Cth) s 172.

¹¹⁸ See, eg, Corporations Act 2001 (Cth) s 1364(1)(b).

¹¹⁹ See Edward, C Page, Governing by Numbers: Delegated Legislation and Everyday Policy-Making (Hart Publishing, 2001)Google Scholar ch 3; note also principle D of the Senate Standing Committee on Regulations and Ordinance terms of reference, requiring the Committee to ensure that delegated legislation does not contain matter more appropriate for parliamentary enactment: see above n 74 and accompanying text.

¹²⁰ On inconsistency of delegated legislation, see Dennis, Pearce and Stephen, Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 3rd ed, 2005)Google Scholar ch 19.

¹²¹ See, eg, Corporations Act 2001 (Cth) ss 891B, 1200M.

¹²² SirDavid, Williams, ‘Subordinate Legislation and Judicial Control’ (1997) 8(2) Public Law Review 77Google Scholar, 78 (quoting the UK Donoughmore Committee of 1932).

¹²³ See, eg, Pearce and Argument, above n 120, 14–15; N W, Barber and Alison, L Young, ‘The Rise of Prospective Henry VIII Clauses and Their Implications for Sovereignty’ [2003] Public Law 112Google Scholar.

¹²⁴ See Scrutiny of Legislation Committee, Legislative Assembly of Queensland, The Use of ‘Henry VIII Clauses’ in Queensland Legislation (1997) 18–19.

¹²⁵ To confuse this picture, however, Corporations Act 2001 (Cth) ss 742, 854B, 893A, 926B, 951C, 992C, 1020G, 1045A authorise the making of regulations which provide that specified provisions of the Act will apply ‘as if’ they were ‘omitted, modified or varied', thus using the same language as the sections listed in Table 1 of this article.

¹²⁶ The regulation making power in the parent Act is given to the Governor-General who, for this purpose, acts with the advice of the Executive Council: Acts Interpretation Act 1901 (Cth) s 16A.

¹²⁷ See Acts Publication Act 1905 (Cth) s 2.

¹²⁸ ASIC v DB Management Pty Ltd (1999) 199 CLR 321, 341.

¹²⁹ Administrative Review Council, above n 106, 30 [5.2].

¹³⁰ Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report No 95 (2002) 256 [6.178].

¹³¹ Corporations Agreement 2002 <http://www.treasury.gov.au/documents/495/pdf/corporations_agreement_2002_as_amended.pdf>.

¹³² Consisting of one Minister from each party to the Corporations Agreement.

¹³³ Corporations Agreement 2002 cl 509(1).

¹³⁴ Ibid cl 509(2).

¹³⁵ The list in cl 507(1) of the Corporations Agreement 2002 does not include s 205G (notifiable interests of director of listed company), ch 5D (licensed trustee companies) or ch 10 (transitional matters).

¹³⁶ Corporations Agreement 2002 cl 511(1).

¹³⁷ Ibid cl 511(2).

¹³⁸ Ibid cl 506(1).

¹³⁹ Legislative Instruments Act 2003 (Cth) s 17(1).

¹⁴⁰ Ibid s 17(2).

¹⁴¹ And as Edward Page notes, much so-called ‘public consultation’ usually equates to input from ‘a specialist audience; mainly public interest groups': Page, above n 119, 129.

¹⁴² The heading to s 17 misleadingly states ‘Rule-makers should consult before making legislative instruments'.

¹⁴³ Legislative Instruments Act 2003 (Cth) s 18.

¹⁴⁴ Ibid s 19.

¹⁴⁵ The OBPR is an independent division within the Department of Finance and Deregulation.

¹⁴⁶ Australian Government, Best Practice Regulation Handbook (June 2010) 11 <http://www.finance.gov.au/obpr/proposal/handbook/docs/Best-Practice-Regulation-Handbook.pdf>.

¹⁴⁷ Australian Government, Department of Finance and Deregulation, Office of Best Practice Regulation, ′Best Practice Regulation Report 2008–09′ (Report, Office of Best Practice Regulation) (2009) 15.

¹⁴⁸ Australian Government, above n 146, 51.

¹⁴⁹ Ibid 18.

¹⁵⁰ See, eg, Australian Government, Department of Finance and Deregulation above n 147.

¹⁵¹ For example, only three of the 25 Class Orders issued in 2009 were accompanied by a RIS.

¹⁵² Australian Securities and Investments Commission, ′Applications for Relief′ above n 29, [51.64].

¹⁵³ Ibid [51.45].

¹⁵⁴ This description is based on statements about consultation found in the Explanatory Statements that accompany those Class Orders that are registered as legislative instruments.

¹⁵⁵ See, eg, Investment and Financial Services Association, ′IFSA — Towards Better Regulation: Policy on Future Regulation of Financial Services in Australia′ (Headland Statement, Investment and Financial Services Association, February 2006) <http://www.ifsa.com.au/downloads/file/PublicationsFile/2006_Publications_Regulation.pdf>.

¹⁵⁶ Page, above n 119, 154.

¹⁵⁷ According to my limited research, this saying is attributed to Thomas Bertram Lance, Director of the US Office of Management and Budget in 1977, as quoted in the newsletter of the US Chamber of Commerce, Nation's Business, May 1977.

¹⁵⁸ See Ng, above n 115, 225, noting that the validity of the modification provisions is ‘a finely balanced matter.’

¹⁵⁹ This latter possibility was suggested in an interview with Financial Services Council representatives (Sydney, 31 August 2010).

¹⁶⁰ It should be noted that the Legislative Instruments Act 2003 (Cth) specifies mechanisms for the ‘sunsetting’ of legislative instruments. In broad terms, legislative instruments cease to have effect 10 years after being made (or in the case of instruments made before the commencement of that Act, 10 years after the deadline for registration). Parliament may resolve to continue the operation of legislative instruments before the sunset provision takes effect (s 53).

¹⁶¹ Confirmed in interviews with staff at ASIC (Sydney, 15 July 2010) and the Commonwealth Treasury (Canberra, 5 August 2010).

¹⁶² Australian Law Reform Commission, above n 130, 218 [6.37]. Despite its wide coverage, the Report does not deal with legislative modifications of the type discussed in this article.

¹⁶³ See <www.comlaw.gov.au>.

¹⁶⁴ Some commercially published editions of the Corporations Act note the existence of relevant Class Orders but do not include the text of the notional sections.