Explanatory Statement
ASIC (Amendment) Instrument 2023/0558
This is the Explanatory Statement for ASIC (Amendment) Instrument 2023/0558.
The Explanatory Statement is approved by the Chairperson of the Australian Securities and Investments Commission (ASIC).
Summary
- This instrument amends the definition of ‘senior staff members’ in ASIC Instrument 2019/117 (the principal instrument) by amending the positions determined to be ‘senior staff member’ positions for all purposes.
Purpose of the instrument
2. The purpose of the instrument is to amend the positions determined to be ‘senior staff member’ positions for all purposes at ASIC. Specifically, the purpose of the instrument is to remove the position of ‘Chief Operating Officer’ previously determined to be a ‘senior staff member’ position for all purposes at ASIC and add the position of ‘Chief Executive Officer’ as a ‘senior staff member’ position for all purposes at ASIC.
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 removes the position of ‘Chief Operating Officer’ as a ‘senior staff member’ position at ASIC and adds the position of ‘Chief Executive Officer’ as a ‘senior staff member’ position at ASIC.
7. The amending legislative instrument is considered appropriate as the position of ‘Chief Operating Officer’ will cease to exist at ASIC and the position of ‘Chief Executive Officer’ is a ‘senior staff member’ position for all purposes at ASIC.
Commencement
8. This legislative instrument commences on the later of:
(a) 1 July 2023; and
(b) 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 19011 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
13. A Statement of Compatibility with Human Rights is in the Attachment.
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.
Statement of Compatibility with Human Rights
Attachment
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 2023/0558
Overview
- This instrument amends ASIC (Senior Staff Members—Determination) Instrument 2019/117 to remove the reference to ‘Chief Operating Officer’ as a ‘senior staff member’ position at ASIC and add the position of ‘Chief Executive Officer’ as a ‘senior staff member’ position for all purposes at ASIC.
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.