ASIC (Amendment) Instrument 2022/0427

Administered by Department of the Treasury

Legislation au F2022L00742 Not in force Legislative Instrument

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Explanatory Statement

ASIC (Amendment) Instrument 2022/0427

This is the Explanatory Statement for ASIC (Amendment) Instrument 2022/0427.

 

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

 

Summary

 

  1. This instrument expands the definition of ‘senior staff members’ in ASIC Instrument 2019/117 (the principal instrument) to include certain staff from the Australian Taxation Office (the ATO).  The amendment will enable certain ATO staff to perform and exercise registry functions and powers conferred to the Minister under subsections 147(2), 601DC(2) and 1213B(6) of the Corporations Act 2001 (Corporations Act), subsections 27(2), 28(2) and 32(3) of the Business Names Registration Act 2011 (Business Names Registration Act), and subsections 9(1) and (2) of the Business Names Registration (Availability of Names) Determination 2015 (Availability of Names Determination), and ASIC, under section 37 and subsections 41(1) and 47(1) of the Business Names Registration Act.

 

2.             This instrument also amends the principal instrument by removing the determination that certain staff members are senior staff members for the purposes of performing functions and exercising powers in relation to matters referred to the Financial Services and Credit Panel. This panel was previously formed as a division of ASIC under section 97 of the Australian Securities and Investments Commission Act 2001 (the ASIC Act) and no longer exists in this form.

 

Purpose of the instrument

 

3.             The purpose of the instrument is to facilitate the delegation of functions and powers conferred to the Minister and ASIC under the Corporations Act, Business Names Registration Act and Availability of Names Determination to certain officers from the ATO who will assist ASIC to exercise functions and powers relating to its registry operations under section 122 of the ASIC Act, and are therefore staff members for the purposes of the ASIC Act. These ATO officers have been delegated certain registry functions by ASIC as part of the implementation of the Modernising Business Registers program by the ATO.

 

4.             This instrument also facilitates the removal of references to the former Financial Services and Credit Panel which was formed as a division of ASIC. This panel is superseded by the Financial Services and Credit Panel that is able to be convened by ASIC following the passage of the Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Act 2021.

 

Consultation

 

5.             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.

 

6.             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.

 

7.             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

 

8.             Items 1 and 2 of Schedule 1 to the amending legislative instrument remove references to the former Financial Services and Credit Panel and remove a determination that certain staff are senior staff members for the purposes of performing functions and exercising powers in relation to a matter referred to the Financial Services and Credit Panel.

 

9.             Item 3 of Schedule 1 determines that staff holding particular positions, being the Deputy Registrar, Deputy Commissioner and Assistant Commissioner in the ATO, are ‘senior staff members’ for the purposes of performing functions and exercising powers under subsections 147(2), 601DC(2) and 1213B(6) of the Corporations Act, subsections 27(2), 28(2), 32(3), section 37 and subsections 41(1) and 47(1) of the Business Names Registration Act, and subsections 9(1) and (2) of the Availability of Names Determination. The determination is considered appropriate because it ensures that as part of the implementation of the Modernising Business Registers program by the ATO, certain ATO officers can perform registry functions that the Minister and ASIC are able to delegate to senior staff members.

 

Commencement

 

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

 

Incorporation by reference

 

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

 

Retrospective application

 

12.         This legislative instrument does not have retrospective application.

 

Legislative authority

 

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

 

14.         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 or vary any such instrument.

 

Statement of compatibility with human rights

 

15.         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 2022/0427

 

Overview

 

  1. This instrument amends ASIC (Senior Staff Members—Determination) Instrument 2019/117 by determining certain ATO officers to be 'senior staff members' for purposes relating to the performance and exercise of registry functions conferred to the Minister and ASIC, and also to remove the determination that certain staff members are senior staff members for the purposes of performing functions and exercising powers in relation to matters referred to the Financial Services and Credit Panel.

 

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

The ASIC (Amendment) Instrument 2022/0427 was enacted to refine the operational framework of the Australian Securities and Investments Commission (ASIC) by expanding the definition of 'senior staff members' to include certain Australian Taxation Office (ATO) staff. This amendment was introduced to address the need for streamlined delegation of registry functions and powers between ASIC, the Minister, and the ATO, particularly in light of the Modernising Business Registers program. The instrument ensures that specific ATO officers can perform certain registry functions, enhancing the efficiency and effectiveness of ASIC’s operations. Additionally, the instrument removes outdated references to the former Financial Services and Credit Panel, which is now superseded by a new panel convened by ASIC following recent legislative reforms. The instrument was made under section 122A of the Australian Securities and Investments Commission Act 2001 and does not have retrospective application. The policy objective is to facilitate the delegation of powers and functions to appropriate officers within the ATO, thereby supporting ASIC's regulatory activities.

Scope and Application

The ASIC (Amendment) Instrument 2022/0427 amends the ASIC (Senior Staff Members—Determination) Instrument 2019/117 to expand the definition of 'senior staff members' to include certain staff from the Australian Taxation Office (ATO). This amendment enables specific ATO staff to perform and exercise registry functions and powers that are conferred to the Minister under various subsections of the Corporations Act 2001, the Business Names Registration Act 2011, and the Business Names Registration (Availability of Names) Determination 2015, as well as ASIC under the Business Names Registration Act. This instrument also removes the determination that certain staff members are senior staff members for the purposes of performing functions and exercising powers in relation to matters referred to the Financial Services and Credit Panel, which was previously formed as a division of ASIC and no longer exists in this form. The instrument is made under section 122A of the ASIC Act and does not have retrospective application. The purpose of the instrument is to facilitate the delegation of functions and powers to certain ATO officers who will assist ASIC in its registry operations under section 122 of the ASIC Act.

Key Provisions

The ASIC (Amendment) Instrument 2022/0427 (the Instrument) amends ASIC (Senior Staff Members—Determination) Instrument 2019/117 by expanding the definition of 'senior staff members' to include certain staff from the Australian Taxation Office (ATO) (Schedule 1, item 3). This amendment enables these ATO staff to perform and exercise registry functions and powers conferred to the Minister under various subsections of the Corporations Act 2001, the Business Names Registration Act 2011, and the Business Names Registration (Availability of Names) Determination 2015, as well as ASIC under the Business Names Registration Act. Specifically, the amendment applies to the Deputy Registrar, Deputy Commissioner, and Assistant Commissioner in the ATO. Furthermore, the Instrument removes the determination that certain staff members are senior staff members for the purposes of performing functions and exercising powers in relation to matters referred to the Financial Services and Credit Panel, which no longer exists in its previous form (Schedule 1, items 1 and 2). The obligations and requirements imposed by the Instrument are primarily focused on the delegation of specific registry functions and powers to certain ATO officers. These officers, now classified as 'senior staff members', are entrusted with the authority to perform and exercise the functions and powers detailed in the Corporations Act, the Business Names Registration Act, and the Availability of Names Determination. The Instrument ensures that these officers are appropriately identified and authorised to carry out these tasks, thereby facilitating the implementation of the Modernising Business Registers program by the ATO. This delegation is a critical component of the streamlined operation of registry activities, which are essential for the efficient administration of business registrations and related functions under the relevant Acts. The Instrument does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches of its provisions. However, breaches of the Corporations Act, Business Names Registration Act, or any other Act that the Instrument seeks to amend, could result in various penalties depending on the nature and severity of the breach. For example, under the Corporations Act, penalties can include fines, imprisonment, or both, depending on the specific subsection and the circumstances of the breach. Similarly, under the Business Names Registration Act, penalties may include fines for non-compliance with registration requirements. These penalties are prescribed by the respective Acts and would apply to any breaches occurring in the context of the functions and powers delegated by this Instrument.

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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.