ASIC (Amendment) Instrument 2021/0139

Administered by Department of the Treasury

Legislation au F2021L00233 Not in force Legislative Instrument

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Explanatory Statement

ASIC (Amendment) Instrument 2021/0139

This is the Explanatory Statement for ASIC (Amendment) Instrument 2021/0139.

 

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 determining a new position as a ‘senior staff member’ for the purposes of certain delegation provisions in the Australian Securities and Investments Commission Act 2001 (the ASIC Act) and other legislation. This instrument also specifies other positions with particular titles as senior staff members for the avoidance of doubt.
     

Purpose of the instrument

 

2.             The purpose of the instrument is to facilitate the delegation of various powers to the Chief Operating Officer, a newly created senior position within ASIC’s management structure.

 

Consultation

 

3.             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.

 

4.             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.

 

5.             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 certain powers that have been conferred on ASIC, ASIC’s Chairperson and the relevant Minister.

 

 

Operation of the instrument

 

6.             Item 1 of Schedule 1 to the amending legislative instrument determines that the Chief Operating Officer is a ‘senior staff member’ for all purposes. The determination is considered appropriate because the Chief Operating Officer will have primary oversight of operational matters within ASIC, and will perform executive functions delegated by ASIC’s Chairperson.

 

7.             Items 2 and 3 of Schedule 1 to the amending legislative instrument specify several senior positions with particular titles to be senior staff members for all purposes. The addition of these positions to the principal instrument is for the avoidance of doubt only.

 

Commencement

 

8.             This legislative instrument commences on the day after it is registered on the Federal Register of Legislation.

 

Incorporation by reference

 

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

 

Retrospective application

 

10.         This legislative instrument does not have retrospective application.

 

Legislative authority

 

11.         This legislative instrument is made under section 122A of the ASIC Act.

 

12.         This legislative instrument is also an amending instrument. Subsection 33(3) of the Acts Interpretation Act 1901[1] 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

 

13.         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 2021/0139

 

Overview

 

  1. This instrument amends ASIC (Senior Staff Members—Determination) Instrument 2019/117 by determining a new position in ASIC, the Chief Operating Officer, to be a ‘senior staff member’ for the purposes of certain delegation provisions in the Australian Securities and Investments Commission Act 2001 (the ASIC Act) and other legislation.

 

Assessment of human rights implications

 

2.             The determination of the Chief Operating Officer to be a ‘senior staff member’ merely facilitates the delegation of powers by ASIC, ASIC’s Chairperson and/or the relevant Minister to an ASIC staff member holding the specified position. 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 2021/0139 was enacted to amend the ASIC (Senior Staff Members—Determination) Instrument 2019/117 by introducing a new senior position within the Australian Securities and Investments Commission (ASIC) and clarifying the designation of certain existing positions as senior staff members. This legislative instrument was introduced to facilitate the delegation of powers to the newly created Chief Operating Officer position, enhancing operational oversight and efficiency within ASIC. The instrument was made under section 122A of the Australian Securities and Investments Commission Act 2001 and is an amending instrument as per subsection 33(3) of the Acts Interpretation Act 1901. It is important to note that this instrument does not require consultation, has no retrospective application, and does not incorporate any documents by reference. The instrument commenced on the day after its registration on the Federal Register of Legislation, and a Statement of Compatibility with Human Rights is included in the Attachment, affirming that it is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011.

Scope and Application

ASIC (Amendment) Instrument 2021/0139 amends the ASIC (Senior Staff Members—Determination) Instrument 2019/117 by designating the newly created position of Chief Operating Officer within the Australian Securities and Investments Commission (ASIC) as a 'senior staff member'. This designation applies to the purposes of certain delegation provisions outlined in the Australian Securities and Investments Commission Act 2001 and other related legislation. The amendment is aimed at facilitating the delegation of various powers to the Chief Operating Officer, who will have primary oversight of operational matters within ASIC and will perform executive functions as delegated by ASIC’s Chairperson. Additionally, this instrument clarifies that certain specified positions with particular titles are also considered senior staff members, a clarification intended purely for the avoidance of doubt. The instrument applies to the Commonwealth jurisdiction and does not incorporate any documents by reference or have retrospective application. It is made under section 122A of the ASIC Act and is considered compatible with human rights as detailed in the Statement of Compatibility with Human Rights.

Key Provisions

The ASIC (Amendment) Instrument 2021/0139 amends the ASIC (Senior Staff Members—Determination) Instrument 2019/117 by identifying a new role within ASIC, the Chief Operating Officer, as a 'senior staff member' (Schedule 1, Item 1). This determination is intended to facilitate the delegation of various powers to the Chief Operating Officer under the Australian Securities and Investments Commission Act 2001 (ASIC Act) and other relevant legislation (Section 2). Additionally, Items 2 and 3 of Schedule 1 clarify that specific titled positions are also considered senior staff members for all purposes, providing clarity on these roles within ASIC's management structure. The obligations imposed by this instrument primarily concern the identification and delineation of roles within ASIC, ensuring that the Chief Operating Officer and other specified senior staff members are formally recognised for the purpose of delegation of powers. This formal recognition is crucial for the proper functioning of ASIC's operations, as it allows for the delegation of executive functions and oversight of operational matters by individuals in these senior positions (Schedule 1, Items 1-3). These obligations ensure that the delegation of powers aligns with the legislative framework and the internal management structure of ASIC. While the instrument itself does not explicitly detail offences, penalties, or civil/criminal consequences for non-compliance, the delegation of powers to senior staff members, such as the Chief Operating Officer, inherently carries the responsibility to act within the scope of their authority as outlined by the ASIC Act and other relevant legislation. Any misuse or unauthorised delegation of powers could potentially lead to disciplinary actions, legal repercussions, or other consequences as prescribed by the governing acts and internal ASIC policies. The instrument's focus is on clarifying roles and ensuring that the delegation process is legally sound and operationally effective.

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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.