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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Treasury Laws Amendment (Enhancing
ASIC's Capabilities) Bill 2018
No. , 2018
(Treasury)
A Bill for an Act to amend the Australian Securities
and Investments Commission Act 2001 in relation to
competition in the financial system, to provide that
ASIC is not a Statutory Agency, and to remove the
requirement for ASIC to engage staff under the
Public Service Act 1999, and for related purposes
No. , 2018
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Schedules ........................................................................................... 2
Schedule 1--Amendments relating to competition in the
financial system
3
Australian Securities and Investments Commission Act 2001
3
Schedule 2--Amendments relating to engagement of ASIC staff
4
Part 1--Main amendments
4
Australian Securities and Investments Commission Act 2001
4
Part 2--Consequential amendments
12
Australian Securities and Investments Commission Act 2001
12
Business Names Registration Act 2011
12
Corporations Act 2001
12
Mutual Assistance in Business Regulation Act 1992
13
No. , 2018
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
1
A Bill for an Act to amend the Australian Securities
1
and Investments Commission Act 2001 in relation to
2
competition in the financial system, to provide that
3
ASIC is not a Statutory Agency, and to remove the
4
requirement for ASIC to engage staff under the
5
Public Service Act 1999, and for related purposes
6
The Parliament of Australia enacts:
7
1 Short title
8
This Act is the Treasury Laws Amendment (Enhancing ASIC's
9
Capabilities) Act 2018.
10
2
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
No. , 2018
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after this Act receives the Royal
Assent.
3. Schedule 2
1 July 2019.
1 July 2019
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Schedules
13
Legislation that is specified in a Schedule to this Act is amended or
14
repealed as set out in the applicable items in the Schedule
15
concerned, and any other item in a Schedule to this Act has effect
16
according to its terms.
17
Amendments relating to competition in the financial system Schedule 1
No. , 2018
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
3
Schedule 1--Amendments relating to
1
competition in the financial system
2
3
Australian Securities and Investments Commission Act 2001
4
1 After subsection 1(2)
5
Insert:
6
(2A) Without limiting subsection (2), ASIC must consider the effects
7
that the performance of its functions and the exercise of its powers
8
will have on competition in the financial system.
9
Schedule 2 Amendments relating to engagement of ASIC staff
Part 1 Main amendments
4
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
No. , 2018
Schedule 2--Amendments relating to
1
engagement of ASIC staff
2
Part 1--Main amendments
3
Australian Securities and Investments Commission Act 2001
4
1 Subsection 5(1)
5
Insert:
6
senior staff member means a staff member identified as a senior
7
staff member in a determination made under section 122A.
8
2 Subsection 5(1) (definition of staff member)
9
Repeal the definition, substitute:
10
staff member means:
11
(a) a person employed under section 120; or
12
(b) a person engaged under subsection 121(1); or
13
(c) any of the officers, employees and persons who under
14
section 122 are to assist ASIC.
15
3 Section 10A
16
Repeal the section, substitute:
17
10A Chairperson not subject to direction by ASIC on certain
18
matters
19
The Chairperson of ASIC is not subject to direction by ASIC in
20
relation to the Chairperson's performance of functions, or exercise
21
of powers, under:
22
(a) the Public Governance, Performance and Accountability Act
23
2013; or
24
(b) Part 6 or 7 of this Act.
25
4 Paragraph 102(2C)(b)
26
Repeal the paragraph, substitute:
27
(b) a senior staff member.
28
Amendments relating to engagement of ASIC staff Schedule 2
Main amendments Part 1
No. , 2018
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
5
5 At the end of subsection 102(2C)
1
Add:
2
Note:
Senior staff members are identified in determinations under
3
section 122A.
4
6 At the end of subsection 119A(2)
5
Add:
6
; or (c) if the member is the Chairperson or a Deputy Chairperson
7
and the function or power is a function or power of the
8
member as Chairperson or Deputy Chairperson--another
9
member or a senior staff member.
10
7 Section 120
11
Repeal the section, substitute:
12
120 Staff
13
(1) The Chairperson may, on behalf of ASIC, employ under written
14
agreements such permanent, temporary or casual staff as the
15
Chairperson considers necessary for the performance or exercise of
16
any of ASIC's functions or powers.
17
(2) The terms and conditions of employment (including as to
18
remuneration) are to be determined by the Chairperson.
19
8 Subsection 121(1)
20
Omit "on the Commonwealth's behalf", substitute "on behalf of ASIC".
21
9 At the end of Part 6
22
Add:
23
122A Senior staff member determination
24
(1) The Chairperson may, by written instrument, make a determination
25
identifying which staff members are senior staff members.
26
(2) A determination under subsection (1) may identify a staff member
27
who holds or acts in a specified position as a senior staff member.
28
(3) A determination under subsection (1) is a legislative instrument.
29
Schedule 2 Amendments relating to engagement of ASIC staff
Part 1 Main amendments
6
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
No. , 2018
10 Paragraph 125(1)(a)
1
Repeal the paragraph, substitute:
2
(a) performing functions or services as a staff member, otherwise
3
than because the person is:
4
(i) a person employed under section 120; or
5
(ii) an officer or employee of an Agency, within the
6
meaning of the Public Service Act 1999, whose services
7
are made available under section 122; or
8
11 At the end of Division 1 of Part 7
9
Add:
10
126A Chairperson to ensure adequate disclosure of interest
11
requirements for ASIC staff members
12
The Chairperson must take reasonable steps to ensure that there
13
are, where appropriate, adequate disclosure of interest
14
requirements applying to staff members.
15
126B ASIC Code of Conduct
16
(1) The Chairperson must determine, in writing, the ASIC Code of
17
Conduct.
18
Note:
Subsection 33(3) of the Acts Interpretation Act 1901 provides for the
19
repeal, variation etc. of instruments.
20
(2) The ASIC Code of Conduct applies to ASIC members and staff
21
members employed under section 120.
22
(3) To avoid doubt, a determination under subsection (1) is not a
23
legislative instrument.
24
126C ASIC Values
25
(1) The Chairperson must determine, in writing, the ASIC Values.
26
Note:
Subsection 33(3) of the Acts Interpretation Act 1901 provides for the
27
repeal, variation etc. of instruments.
28
(2) The Chairperson must uphold and promote the ASIC Values.
29
Amendments relating to engagement of ASIC staff Schedule 2
Main amendments Part 1
No. , 2018
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
7
(3) ASIC members (other than the Chairperson) and staff members
1
employed under section 120 must uphold the ASIC Values.
2
(4) To avoid doubt, a determination under subsection (1) is not a
3
legislative instrument.
4
12 In the appropriate position
5
Insert:
6
Part 25--Transitional provisions relating to the
7
Treasury Laws Amendment (Enhancing
8
ASIC's Capabilities) Act 2018
9
10
309 Definitions
11
In this Part:
12
APS employee has the meaning given in section 7 of the Public
13
Service Act 1999.
14
commencement day means the day on which Schedule 2 to the
15
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Act
16
2018 commences.
17
staff member has the meaning given in subsection 5(1) as in force
18
on and from the commencement day.
19
310 Staff members engaged under former subsection 120(3)
20
Each person who, immediately before the commencement day, was
21
a staff member employed under a written agreement under
22
subsection 120(3) continues to be employed under that agreement.
23
That agreement is taken to be an agreement under section 120 as in
24
force on and from that day.
25
311 APS employees in ASIC
26
(1) This section applies to a person who, immediately before the
27
commencement day, was a staff member (as defined in
28
subsection 5(1) as in force immediately before the commencement
29
day) engaged under the Public Service Act 1999.
30
Schedule 2 Amendments relating to engagement of ASIC staff
Part 1 Main amendments
8
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
No. , 2018
(2) On and from the commencement day, the person is taken:
1
(a) to cease to be engaged under the Public Service Act 1999;
2
and
3
(b) to be employed by ASIC under a written agreement under
4
section 120 as in force on and from the commencement day;
5
and
6
(c) except as provided by this Act:
7
(i) to be employed on the same terms and conditions as
8
those that applied to the person immediately before the
9
commencement day; and
10
(ii) to have accrued an entitlement to benefits, in connection
11
with that employment by ASIC, that is equivalent to the
12
entitlement that the person had accrued, in connection
13
with his or her employment, immediately before the
14
commencement day.
15
(3) The person's service as an employee of ASIC is taken, for all
16
purposes, to be continuous with his or her service as an APS
17
employee.
18
(4) This Part does not affect any promotion, performance management
19
or disciplinary actions (however described) in relation to the
20
person that had been started before the commencement day.
21
(5) A staff member who ceases to be an APS employee because of
22
subsection (2) is not entitled to receive any payment or other
23
benefit merely because he or she ceased to be an APS employee.
24
312 ASIC Enterprise Agreement
25
(1) In this section:
26
Enterprise Agreement means the Australian Securities &
27
Investments Commission Enterprise Agreement 2016-2019
28
approved under the Fair Work Act 2009 on 20 May 2016, as in
29
force immediately before the commencement day.
30
(2) The Enterprise Agreement:
31
(a) continues, on and from the commencement day, to cover and
32
apply to employees whom it covered and applied to
33
immediately before the commencement day; and
34
Amendments relating to engagement of ASIC staff Schedule 2
Main amendments Part 1
No. , 2018
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
9
(b) covers and applies to employees at the classification levels
1
covered by the Enterprise Agreement whose employment
2
with ASIC commences on or after the commencement day.
3
(3) On and after the commencement day, the Enterprise Agreement
4
covers and applies to the Chairperson as the employing authority
5
but on behalf of ASIC under section 120.
6
(4) This section does not prevent the variation or termination of the
7
Enterprise Agreement in accordance with law.
8
(5) This section does not affect the operation of section 58 of the Fair
9
Work Act 2009.
10
313 Variation of terms and conditions of employment
11
(1) This Part does not prevent the terms and conditions of a staff
12
member's employment after the commencement day from being
13
varied:
14
(a) in accordance with those terms and conditions; or
15
(b) by or under a law, award, determination or agreement.
16
(2) In this section:
17
vary, in relation to terms and conditions, includes:
18
(a) omitting any of those terms and conditions; and
19
(b) adding to those terms and conditions; and
20
(c) substituting new terms or conditions for any of those terms
21
and conditions.
22
314 Transitional rules
23
(1) In this section:
24
transitional rule means an instrument made under subsection (2)
25
or (4).
26
(2) The Minister may make a written instrument prescribing matters of
27
a transitional nature (including prescribing any saving or
28
application provisions) relating to sections 310 to 313 in relation to
29
a particular person.
30
Schedule 2 Amendments relating to engagement of ASIC staff
Part 1 Main amendments
10
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
No. , 2018
(3) An instrument made under subsection (2) is not a legislative
1
instrument.
2
Note:
Subsection 33(3) of the Acts Interpretation Act 1901 provides for the
3
repeal, variation etc. of instruments.
4
(4) The Minister may, by legislative instrument, prescribe matters of a
5
transitional nature (including prescribing any saving or application
6
provisions) relating to sections 310 to 313 in relation to a class of
7
persons.
8
(5) Without limiting subsection (2) or (4):
9
(a) a transitional rule made under subsection (2) may declare that
10
a specified provision of sections 310 to 313 is to have effect,
11
in relation to a particular person, as if it were modified as
12
specified in the transitional rule; and
13
(b) a transitional rule made under subsection (4) may declare that
14
a specified provision of sections 310 to 313 is to have effect,
15
in relation to a class of persons, as if it were modified as
16
specified in the transitional rule.
17
The provision has effect accordingly.
18
(6) A transitional rule:
19
(a) must not be made after 12 months after the commencement
20
day; and
21
(b) if it is a legislative instrument--takes effect from the later of:
22
(i) the day after the day it is registered; or
23
(ii) a later day specified in the rule; and
24
(c) if it is not a legislative instrument--takes effect from the later
25
of:
26
(i) the day after the day it is made; or
27
(ii) a later day specified in the rule; and
28
(d) unless revoked earlier, remains in effect for 12 months from
29
the day the rule takes effect, or a shorter period specified in
30
the rule.
31
(7) To avoid doubt, a transitional rule may not do any of the following:
32
(a) create an offence or civil penalty;
33
(b) provide powers of:
34
(i) arrest or detention; or
35
(ii) entry, search or seizure;
36
Amendments relating to engagement of ASIC staff Schedule 2
Main amendments Part 1
No. , 2018
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
11
(c) impose a tax;
1
(d) set an amount to be appropriated from the Consolidated
2
Revenue Fund under an appropriation in this Act;
3
(e) directly amend the text of this Act.
4
Schedule 2 Amendments relating to engagement of ASIC staff
Part 2 Consequential amendments
12
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
No. , 2018
Part 2--Consequential amendments
1
Australian Securities and Investments Commission Act 2001
2
13 Section 96
3
Omit "subsection 120(3)", substitute "section 120".
4
Business Names Registration Act 2011
5
14 Subsection 79(1)
6
Omit "or a staff member who is an SES employee or an acting SES
7
employee", substitute "or a staff member who is a senior staff member
8
(within the meaning given by subsection 5(1) of the Australian
9
Securities and Investments Commission Act 2001)".
10
15 Paragraph 80(1)(b)
11
Repeal the paragraph, substitute:
12
(b) a staff member who is a senior staff member (within the
13
meaning given by subsection 5(1) of the Australian
14
Securities and Investments Commission Act 2001);
15
Corporations Act 2001
16
16 Paragraph 1101J(c)
17
Repeal the paragraph, substitute:
18
(c) a staff member of ASIC who is a senior staff member (within
19
the meaning given by subsection 5(1) of that Act).
20
17 Paragraph 50-10(4)(c) of Schedule 2
21
Repeal the paragraph, substitute:
22
(c) a staff member of ASIC who is a senior staff member (within
23
the meaning given by subsection 5(1) of that Act).
24
Amendments relating to engagement of ASIC staff Schedule 2
Consequential amendments Part 2
No. , 2018
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
13
Mutual Assistance in Business Regulation Act 1992
1
18 After paragraph 22(2)(a)
2
Insert:
3
(aa) if the Commonwealth regulator is the Australian Securities
4
and Investments Commission--a senior staff member (within
5
the meaning given by subsection 5(1) of the Australian
6
Securities and Investments Commission Act 2001); or
7
19 Paragraph 22(2)(b)
8
Omit "a Commonwealth regulator", substitute "a Commonwealth
9
regulator (other than the Australian Securities and Investments
10
Commission)".
11