ASIC (Amendment) Instrument 2023/0558

Administered by Department of the Treasury

Legislation au F2023L00932 Not in force Legislative Instrument

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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

 

  1. 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

 

  1. 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.

Overview

The ASIC (Amendment) Instrument 2023/0558 was enacted to amend the definition of 'senior staff members' within the Australian Securities and Investments Commission (ASIC), specifically by modifying the positions that are considered 'senior staff member' positions for all purposes. The instrument was developed by ASIC in accordance with the requirements of the ASIC Act and the Acts Interpretation Act 1901. The primary purpose of this amendment was to update the roles deemed senior within ASIC by removing the position of 'Chief Operating Officer' and adding the position of 'Chief Executive Officer' to the list of senior staff member positions. This change reflects the evolving structure of ASIC and ensures that the appropriate staff members are designated with the necessary powers and responsibilities. The instrument does not involve any retrospective application and came into effect on 1 July 2023 or the day after its registration on the Federal Register of Legislation, whichever is later. A Statement of Compatibility with Human Rights is provided, confirming that the amendment does not adversely affect any human rights or freedoms.

Scope and Application

The ASIC (Amendment) Instrument 2023/0558 modifies the definition of ‘senior staff members’ in ASIC Instrument 2019/117, specifically to update the positions considered as 'senior staff member' roles for all purposes within the Australian Securities and Investments Commission (ASIC). This amendment removes the position of ‘Chief Operating Officer’ from the list of ‘senior staff member’ positions and adds the position of ‘Chief Executive Officer’ to that list. The instrument applies to the Commonwealth of Australia and affects the internal governance and delegation of powers within ASIC, without any retrospective application. The instrument does not incorporate any documents by reference and was made under section 122A of the ASIC Act, serving as an amending instrument. The instrument was deemed not to require consultation due to its administrative nature, focusing on the identification of certain staff members eligible for delegation of powers. It is compatible with human rights, as determined by the Statement of Compatibility with Human Rights attached to the instrument.

Key Provisions

The ASIC (Amendment) Instrument 2023/0558 (subsection 11) primarily amends the definition of 'senior staff members' in the ASIC (Senior Staff Members—Determination) Instrument 2019/117 (subsection 6). Specifically, it removes the position of 'Chief Operating Officer' from the list of senior staff member positions and adds the position of 'Chief Executive Officer' to that list (subsection 6). This amendment ensures that the delegation of certain powers within the Australian Securities and Investments Commission (ASIC) aligns with the current organisational structure and responsibilities. Under the amended instrument, the obligations and requirements imposed on ASIC involve the proper identification and designation of senior staff members who are eligible for the delegation of specific powers. The amendment necessitates that only those individuals holding the positions newly defined as 'senior staff members' can be entrusted with these responsibilities. This ensures clarity and consistency in the delegation processes and maintains the integrity of decision-making within ASIC. The instrument does not explicitly outline specific offences, penalties, or consequences for breaches. However, any failure to adhere to the amended definitions and requirements could potentially lead to issues in the delegation of powers, thereby impacting the operational efficiency and compliance of ASIC. While the instrument itself does not specify penalties, any resultant operational failures or mismanagement due to non-compliance could be subject to internal or external review, with potential repercussions for those responsible. The focus of the instrument remains on ensuring the correct identification of senior staff members to facilitate effective governance and delegation within ASIC.

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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.