ASIC (Senior Staff Members—Determination) Instrument 2019/117

Overview

The ASIC (Senior Staff Members—Determination) Instrument 2019/117, enacted in 2019, serves to clarify and define the roles and responsibilities of senior staff members within the Australian Securities and Investments Commission (ASIC). This legislative instrument was made under section 122A of the Australian Securities and Investments Commission Act 2001, thereby providing a legal framework for identifying senior staff members who hold or act in specified positions. The primary objective of this instrument is to ensure that there is a clear delineation of senior staff roles, which in turn supports the efficient administration and enforcement of financial market integrity and consumer protection laws. By establishing a definitive list of senior staff positions, the instrument aims to enhance the accountability and transparency of ASIC’s operations.

Scope and Application

The ASIC (Senior Staff Members—Determination) Instrument 2019/117 applies to staff members of the Australian Securities and Investments Commission (ASIC) and defines who among them are considered senior staff members for various purposes. Specifically, it applies to individuals holding or acting in certain positions within ASIC, such as the Chief Executive Officer, Executive Director, Senior Executive Leader, and other specified roles including Chief Financial Officer, Chief Technology Officer, and Chief Risk Officer. Additionally, staff members who act as Chairs, Deputy Chairs, or Members of the Markets Disciplinary Panel are designated as senior staff members for limited purposes, primarily related to disciplinary functions. For employment-related purposes, Heads and Senior Managers of the People and Culture division are also classified as senior staff members. This instrument is a legislative instrument made under the Australian Securities and Investments Commission Act 2001 and is applicable within the Commonwealth of Australia. It does not include explicit exclusions but rather delineates specific roles that qualify as senior staff members, thereby implicitly excluding those not listed. The application of this instrument may be extended or modified through subsequent legislative amendments, as evidenced by the amendment history provided in the endnotes.

Key Provisions

The ASIC (Senior Staff Members—Determination) Instrument 2019/117 primarily determines which staff members within the Australian Securities and Investments Commission (ASIC) are classified as "senior staff members" for various purposes. Under section 5, the list of positions considered senior staff members for all purposes includes the Chief Executive Officer, Executive Director, Senior Executive Leader, Senior Executive Specialist, Chief Financial Officer, Chief Technology Officer, Chief Risk Officer, Deputy General Counsel, and General Counsel. These individuals are deemed senior staff members across all contexts governed by the ASIC Act. Section 6 further specifies roles such as MDP Chair, MDP Deputy Chair, and MDP Member as senior staff members for the purposes of market disciplinary functions, and Head, People and Culture and Senior Manager, People and Culture for employment-related functions. The obligations and requirements imposed by the instrument on the identified senior staff members are significant. As senior staff members for all purposes, they are entrusted with high-level responsibilities and decision-making authority within ASIC. For instance, they are likely to be involved in strategic planning, policy formulation, and oversight of regulatory functions. Those designated as senior staff members for limited purposes, such as market disciplinary roles or employment functions, must adhere to specific duties and standards relevant to those areas. This includes ensuring compliance with market integrity rules and fair employment practices. Failure to comply with the requirements or misuse of the designated roles can lead to serious consequences. While the instrument itself does not explicitly state penalties, breaches of duties or misuse of position can potentially lead to disciplinary action under the ASIC Act, which may include fines and other sanctions. Additionally, in the context of market disciplinary functions, contraventions of market integrity rules under the Corporations Act could result in penalties as prescribed by that Act. The exact penalties would depend on the nature and severity of the breach, as outlined in the relevant legislation.