ASIC (Amendment) Instrument 2019/606

Administered by Department of the Treasury

Legislation au F2019L00901 Not in force Legislative Instrument

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Explanatory Statement

 

ASIC (Amendment) Instrument 2019/606

This is the Explanatory Statement for ASIC (Amendment) Instrument 2019/606.

The Explanatory Statement is approved by the Chairperson of the Australian Securities and Investments Commission (ASIC).

Summary

1. This instrument amends ASIC (Senior Staff Members—Determination) Instrument 2019/117 (the principal instrument) by adding a new category of ‘senior staff member’ for the purposes of certain delegation provisions in the Australian Securities and Investments Commission Act 2001 (the ASIC Act) relating to the employment of ASIC staff under section 120 of the ASIC Act.

Purpose of the instrument

2. The purpose of the instrument is to facilitate the delegation of employment powers to Senior Managers within ASIC’s People and Development Team.

3. ASIC staff will cease to be employed under the Public Service Act 1999 (the PS Act) from 1 July 2019, as a result of amendments made by the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018 (the Transition Act). Transitional provisions will operate to transition existing ASIC employees from the PS Act.

4. From 1 July 2019, ASIC’s Chairperson, on behalf of ASIC, will be given the power under section 120 of the ASIC Act to employ staff as the Chairperson considers necessary for the performance or exercise of any of ASIC’s functions or powers. The terms and conditions of employment (including as to remuneration) are to be determined by the Chairperson.

5. The power that will be conferred on ASIC’s Chairperson by section 120 of the ASIC Act can only be delegated to another ASIC member or to a ‘senior staff member’: see section 119A of the ASIC Act. The Transition Act introduces a new section 122A of the ASIC Act enabling ASIC’s Chairperson to make a determination identifying which ASIC staff members are ‘senior staff members’.

 

 

Consultation

6. Section 17 of the Legislation Act 2003 provides that, before a legislative instrument is made, the rule-maker must be satisfied that there has been undertaken any consultation that is considered by the rule-maker to be appropriate, and reasonably practicable to undertake.

7. In determining whether any consultation that was undertaken is appropriate, the rule-maker may have regard to any relevant matter, including the extent to which the consultation drew on the knowledge of persons having expertise in fields relevant to the proposed instrument.

8. No consultation was undertaken prior to the making of this amending legislative instrument. The reason why no consultation was undertaken is because consultation would be inappropriate given the machinery nature of this legislative instrument. This legislative instrument deals with the identification of certain staff members in ASIC who are considered appropriate to be delegated employment powers that have been conferred on ASIC’s Chairperson.

Operation of the instrument

9. The amending legislative instrument determines that Senior Managers within ASIC’s People and Development Team are ‘senior staff members’ for purposes relating to the employment of ASIC staff under section 120 of the ASIC Act.

10. The determination is considered appropriate because it lessens the administrative burden imposed on the smaller pool of Executive Directors and Senior Executive Leaders (who are also ‘senior staff members’) to sign, vary and terminate employment contracts.

11. There will continue to be centralised oversight of the management of employment contracts. This will ensure that employment contracts remain consistent and are not varied.  It also ensures that any clauses which are intended to protect ASIC’s risks arising out of the employment relationship remain.  It also means that ASIC’s human resource function “People and Development”, can continue to manage matters involving contract termination. This will ensure that there is no apprehended bias in any investigation into misconduct resulting in termination of employment or disciplinary action.

Commencement

12. This amending instrument commences on the later of the time immediately after the commencement of the principal instrument and the day after this amending instrument is registered on the Federal Register of Legislation. The commencement date is expected to be 1 July 2019.

Incorporation by reference

13. This legislative instrument does not incorporate any documents by reference.

Retrospective application

14. This legislative instrument does not have retrospective application.

Legislative authority

15. This legislative instrument is made under section 122A of the ASIC Act. Section 122A of the ASIC Act commences on 1 July 2019. This instrument has been made before its enabling provision has commenced, relying on subsection 4(1) of the Acts Interpretation Act 1901 (the AIA).[1]

16. This legislative instrument is also an amending instrument. Subsection 33(3) of the AIA states that where an Act confers a power to make an instrument, the power is to be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to amend any such instrument.

Statement of compatibility with human rights

17. A Statement of Compatibility with Human Rights is in the Attachment.

Attachment

Statement of Compatibility with Human Rights

 

This Statement of Compatibility with Human Rights is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  

ASIC (Amendment) Instrument 2019/606

Overview

1. This instrument amends ASIC (Senior Staff Members—Determination) Instrument 2019/117 by adding a new category of ‘senior staff member’ for the limited purposes of certain delegation provisions in the Australian Securities and Investments Commission Act 2001 (the ASIC Act) relating to the employment of ASIC staff under section 120 of the ASIC Act.

Assessment of human rights implications

2. The addition of the new category of ‘senior staff members’ merely facilitates the delegation by ASIC’s Chairperson of employment powers to Senior Managers within ASIC’s People and Development Team. Accordingly, this instrument does not engage any of the applicable rights or freedoms.

Conclusion

3. This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

 

 

 

 

[1] The Acts Interpretation Act 1901 as in force on 1 January 2005 applies to the ASIC Act: see section 5A of the ASIC Act.      

Overview

The ASIC (Amendment) Instrument 2019/606 was enacted to amend the ASIC (Senior Staff Members—Determination) Instrument 2019/117 by adding a new category of ‘senior staff member’ for the purposes of delegation provisions in the Australian Securities and Investments Commission Act 2001. This amendment was introduced to facilitate the delegation of employment powers to Senior Managers within ASIC’s People and Development Team, a necessary change following the transition of ASIC staff from the Public Service Act 1999 to direct employment under the ASIC Act from 1 July 2019. This transition was enabled by the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018. The policy objective is to lessen the administrative burden on the smaller pool of Executive Directors and Senior Executive Leaders by delegating employment powers, while maintaining centralised oversight of employment contracts to ensure consistency and protection of ASIC’s interests. This legislative instrument was made under section 122A of the ASIC Act, and it does not have retrospective application or incorporate any documents by reference.

Scope and Application

The ASIC (Amendment) Instrument 2019/606 serves to amend the ASIC (Senior Staff Members—Determination) Instrument 2019/117 by introducing a new category of 'senior staff member' for specific delegation provisions within the Australian Securities and Investments Commission Act 2001. This amendment facilitates the delegation of employment powers to Senior Managers within ASIC’s People and Development Team, aligning with the transition of ASIC staff from the Public Service Act 1999 to the ASIC Act, effective from 1 July 2019. The instrument applies to the Australian Securities and Investments Commission and its staff, particularly those within the People and Development Team, ensuring that employment powers are appropriately delegated to alleviate administrative burdens on Executive Directors and Senior Executive Leaders. There are no stated exclusions or exemptions within this instrument, and it operates on a national level, aligning with the jurisdictional reach of the ASIC Act. The instrument does not incorporate any documents by reference and has no retrospective application. It is made under section 122A of the ASIC Act and is compatible with human rights as affirmed in the Statement of Compatibility with Human Rights.

Key Provisions

The ASIC (Amendment) Instrument 2019/606 introduces a new category of ‘senior staff member’ under section 122A of the Australian Securities and Investments Commission Act 2001 (ASIC Act). This amendment, specifically, adds Senior Managers within ASIC’s People and Development Team to the list of individuals who can be delegated employment powers by the Chairperson of ASIC. This delegation is in accordance with the provisions in section 120 of the ASIC Act. The amendment aims to facilitate the transition of ASIC staff from being employed under the Public Service Act 1999 to being employed directly by ASIC, a change that takes effect from 1 July 2019 as per the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018. The new category of ‘senior staff member’ established by this instrument comes with specific obligations. Senior Managers within ASIC’s People and Development Team are now authorised to handle employment-related matters on behalf of the Chairperson, including signing, varying, and terminating employment contracts. This delegation is intended to streamline the employment process, reduce the administrative burden on other senior staff, and ensure centralised oversight of employment contracts. The amendment maintains that any clauses intended to protect ASIC’s interests and mitigate risks associated with employment relationships will remain in place. Additionally, the People and Development Team will continue to manage contract terminations to avoid any perceived bias in disciplinary actions or investigations. Breaches of the provisions outlined in the ASIC (Amendment) Instrument 2019/606 could result in various legal consequences. While the specific offences, penalties, or consequences for non-compliance are not detailed in the explanatory statement, breaches of employment-related provisions under the ASIC Act could potentially lead to civil or criminal penalties. Typically, penalties for breaches of the ASIC Act can include fines, imprisonment, or both, depending on the nature and severity of the breach. The exact penalties would be determined based on the specific provisions of the ASIC Act and other relevant laws that apply to the circumstances of the breach.

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Definitions & Interpretation
Delegation of Powers
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.