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Abstract
Australia has enacted extraterritorial legislation affecting the financial sector which imposes Australian legal requirements and values on others outside Australia. In pursuing further extraterritorial legislation, Australia faces three challenges. First, securing legitimacy based on international law. Second, gaining the support of Australian banks as they operationalise the Australian extraterritorial legislation and simultaneously comply with other nations’ laws covering the same subject matter. Third, enacting extraterritorial legislation in accordance with the broader policy objective of improving Australia’s integration in the Asia financial sector, particularly in light of the Australia in the Asian Century White Paper and the Free Trade Agreement between Australia and China.
To address these three challenges in the context of Australian extraterritorial legislation affecting the financial sector, this thesis examines the merits of adding a requirement that any such legislation should pass a reasonableness test, following an approach expounded by Zerk. Zerk’s reasonableness approach is assessed for its strengths, weaknesses and suitability for Australian conditions. The finding is that Zerk’s reasonableness approach should be adopted by the Australian government and incorporated into the regulatory impact analysis framework for proposed Australian extraterritorial legislation affecting the financial sector. This research contributes to the existing body of knowledge by building on and proposing enhancements to Zerk’s reasonableness approach, concluding that it is suitable for Australian conditions and likely to be supported by the Australian financial sector if adopted by Australia.