ASIC (Amendment) Instrument 2025/0602

Explanatory Statement

ASIC (Amendment) Instrument 2025/0602

This is the Explanatory Statement for ASIC (Amendment) Instrument 2025/0602 (the amending instrument).  

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

Summary

1.                 This amending 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 and for the purposes of performing functions and exercising powers in relation to the employment of staff under section 120 of the Australian Securities and Investments Commission Act 2001 (the ASIC Act), and removing positions determined to be senior staff members for the purposes of performing functions and exercising powers in relation to registry matters.  

Purpose of the instrument

1.              The purpose of the amending instrument is to:

1.    remove and replace positions determined to be ‘senior staff member’ positions for all purposes, to reflect organisational changes;
2.    amend position titles determined to be ‘senior staff member’ positions for the purposes of performing functions and exercising powers in relation to the employment of staff under section 120 of the ASIC Act, to reflect recent ASIC organisational changes and a team name change; and
3.    remove the positions determined to be ‘senior staff members’ for the purposes of performing functions and exercising powers in relation to registry matters to reflect Registry Machinery of Government changes.

Consultation

1.              Section 17 of the Legislation Act 2003 provides that, before any 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.
2.              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 amending legislative instrument.
3.              No consultation was undertaken prior to the making of this amending instrument. The reason why no consultation was undertaken is because consultation would be inappropriate given the machinery nature of this amending legislative instrument. This amending 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

4. Item 1 of Schedule 1 to the amending instrument amends paragraph 5(d) of the principal instrument to remove reference to ‘Chief of Staff’ and replace reference to ‘Commission Counsel’ with ‘Deputy General Counsel’.

5.  Item 2 of Schedule 1 to the amending instrument amends paragraphs 6(3)(a) and (b) of the principal instrument and replaces reference to ‘People and Development’ with ‘People and Culture’.

6. Item 3 of Schedule 1 to the amending instrument removes the section referencing Registry functions and powers.             

Commencement

7. This amending instrument commences on the day after it is registered on the Federal Register of Legislation.

Incorporation by reference

8. This amending instrument does not incorporate any documents by reference.

Retrospective application

10. This amending instrument does not have retrospective application.

Legislative authority

16. This amending instrument is made under section 122A of the ASIC Act.

17.  Subsection 33(3) of the Acts Interpretation Act 1901 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 

18.  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 2025/0602

Overview

1.              This instrument amends the principal instrument by amending:

1.    the definition of ‘senior staff member’ for all purposes, to remove positions that no longer exist within ASIC;
2.    the position titles that are determined to be ‘senior staff member’ positions for the purpose of performing functions and exercising powers in relation to the employment of staff under section 120 of the ASIC Act; and
3.    the positions that are determined to be ‘senior staff members’ for the purposes of performing functions and exercising powers in relation to registry matters. 

Assessment of human rights implications

2. The determination of certain positions to be ‘senior staff members’ generally, for employment purposes and for registry purposes 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.