Explanatory Statement
ASIC (Amendment) Instrument 2021/344
This is the Explanatory Statement for ASIC (Amendment) Instrument 2021/344.
The Explanatory Statement is approved by the Chairperson of the Australian Securities and Investments Commission (ASIC).
Summary
- This instrument amends ASIC (Senior Staff Members—Determination) Instrument 2019/117 (the principal instrument) by determining certain new positions to be ‘senior staff members’ for the limited purposes of certain delegation provisions relating to the employment of ASIC staff under section 120 of the Australian Securities and Investments Commission Act 2001 (the ASIC Act).
Purpose of the instrument
2. The purpose of the instrument is to facilitate the delegation of employment powers to certain staff within ASIC’s People and Development, Information Technology and Office of Enforcement teams.
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 mechanical 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 staff holding particular positions, being Heads within ASIC’s People and Development and Information Technology teams and Group Senior Managers in ASIC’s Office of Enforcement, are ‘senior staff members’ for purposes relating to the employment of ASIC staff under section 120 of the ASIC Act. The determination is considered appropriate because it ensures that following internal restructures within ASIC, certain staff members at an appropriate level of seniority can perform human resources functions including signing, varying and terminating employment contracts.
Commencement
7. This legislative instrument commences on the day after it is registered on the Federal Register of Legislation.
Incorporation by reference
8. This legislative instrument does not incorporate any documents by reference.
Retrospective application
9. This legislative instrument does not have retrospective application.
Legislative authority
10. This legislative instrument is made under section 122A of the ASIC Act.
11. 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
12. 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 2021/344
Overview
- This instrument amends ASIC (Senior Staff Members—Determination) Instrument 2019/117 by determining certain positions in ASIC's People and Development, Information Technology and Office of Enforcement teams to be 'senior staff members' for purposes relating to the employment of ASIC staff under section 120 of the Australian Securities and Investments Commission Act 2001 (the ASIC Act).
Assessment of human rights implications
2. The determination of certain positions to be ‘senior staff members’ merely facilitates the delegation of powers by ASIC, ASIC’s Chairperson and/or the relevant Minister to ASIC staff members holding the specified positions. 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
ASIC (Amendment) Instrument 2021/344 is an amending instrument enacted to address internal structural changes within the Australian Securities and Investments Commission (ASIC). This instrument modifies the ASIC (Senior Staff Members—Determination) Instrument 2019/117, specifically by identifying certain new positions within ASIC’s People and Development, Information Technology, and Office of Enforcement teams as ‘senior staff members’. This change facilitates the delegation of specific employment powers to these staff members, enabling them to perform human resources functions such as signing, varying, and terminating employment contracts. The instrument was introduced without prior consultation due to its mechanical nature, focusing on the identification of appropriate staff members for delegation purposes. The instrument is compatible with human rights as it does not engage any of the applicable rights or freedoms. It comes into effect the day after its registration on the Federal Register of Legislation and does not have retrospective application.
Scope and Application
ASIC (Amendment) Instrument 2021/344 amends the ASIC (Senior Staff Members—Determination) Instrument 2019/117 by specifically identifying certain positions within the Australian Securities and Investments Commission (ASIC) as 'senior staff members'. This designation is crucial for the limited purposes of certain delegation provisions concerning the employment of ASIC staff under section 120 of the Australian Securities and Investments Commission Act 2001 (ASIC Act). The targeted positions include Heads within the People and Development and Information Technology teams, as well as Group Senior Managers in the Office of Enforcement. The amendment ensures that following internal restructures, appropriately senior staff can perform human resources functions such as signing, varying, and terminating employment contracts. This instrument applies specifically to those designated positions within ASIC and is intended to facilitate more efficient delegation of employment powers within the specified teams. It does not apply to any other roles or departments within ASIC or any external entities. The instrument is made under section 122A of the ASIC Act and comes into effect on the day after it is registered on the Federal Register of Legislation. Notably, the instrument does not have retrospective application and does not incorporate any documents by reference.
Key Provisions
The ASIC (Amendment) Instrument 2021/344, as referenced in F2021L00557, amends the ASIC (Senior Staff Members—Determination) Instrument 2019/117 by designating certain positions within ASIC's People and Development, Information Technology, and Office of Enforcement teams as 'senior staff members'. These positions include Heads within the People and Development and Information Technology teams, and Group Senior Managers in the Office of Enforcement (Schedule 1, Item 1). The designation is intended to facilitate the delegation of specific employment powers to these individuals, which are otherwise reserved for ASIC, ASIC’s Chairperson, and the relevant Minister under section 120 of the Australian Securities and Investments Commission Act 2001 (ASIC Act). This delegation allows them to perform human resources functions such as signing, varying, and terminating employment contracts, ensuring that internal restructures within ASIC do not hinder the smooth operation of these functions.
Entities governed by the ASIC Act and the amended instrument must ensure that the designated senior staff members are correctly identified and that they are properly briefed on their delegated authorities. These entities are obligated to ensure that the employment decisions made by these senior staff members comply with the provisions of the ASIC Act and any relevant policies and procedures established by ASIC. It is critical that these staff members are adequately trained and informed about their new responsibilities to avoid any potential breaches of the Act.
There are no explicit offences, penalties, or civil/criminal consequences detailed in the Explanatory Statement for non-compliance with the provisions of this amending instrument. However, any failure to adhere to the employment delegations and human resources functions outlined could potentially lead to administrative or disciplinary actions under internal ASIC policies or other relevant employment laws. While the amending instrument itself does not specify maximum penalties, breaches of the ASIC Act or associated regulations could result in significant legal repercussions for both the individuals involved and the entities they represent. Therefore, adherence to the Act and its associated instruments is crucial to avoid any adverse outcomes.