BILLS DIGEST NO. 111, 2017–18              23 May 2018

Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018

Liz Wakerly
Economics Section 

Date introduced: 28 March 2018

House:  House of Representatives

Portfolio: Treasury

Commencement: Schedule 1, the day after Royal Assent; Schedule 2, 1 July 2019.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at May 2018.

Purpose of the Bill

The purpose of the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Bill 2018 (the Bill) is to amend the Australian Securities and Investments Commission Act 2001 (the ASIC Act) to:

•       require the Australian Securities and Investments Commission (ASIC) to consider the effects that the performance of its functions and the exercise of its powers will have on competition in the financial system and

•       allow ASIC to employ staff outside of the Public Service Act 1999 (PSA).

Structure of the Bill

The Bill is comprised of two schedules:

•       Schedule 1 contains amendments relating to competition in the financial system and

•       Schedule 2 contains amendments relating to the engagement of ASIC staff.

Background

Schedule 1 – competition in the financial system

Regulation in the financial system

The level of competition in the financial system is influenced by regulatory interventions. The Productivity Commission (PC) has argued that competition in Australia’s financial system is ‘without a champion’ among the existing regulators:[1]

•       the Australian Competition and Consumer Commission (ACCC) is an independent statutory authority which promotes competition and fair trade in markets to benefit consumers, businesses and the community (ensuring that individuals and businesses comply with Australian competition, fair trading and consumer protection laws, in particular the Competition and Consumer Act 2010)[2]

•       the Australian Prudential Regulation Authority (APRA) oversees banks, credit unions, building societies, general insurance and reinsurance companies, life insurance, private health insurance, friendly societies and most of the superannuation industry with responsibility for prudential supervision (including capital requirements)[3]

•       ASIC regulates Australian companies, financial markets, financial services organisations and professionals who deal in and advise on investments, superannuation, insurance, deposit taking and credit, with responsibility for consumer protection (applying to financial products and services) and conduct regulation[4]

•       the Reserve Bank of Australia (RBA) is responsible for monetary and banking policy, including stability of the financial system. The Reserve Bank Board and the Payments Systems Board are required to direct their policy to maximise the advantages to the people of Australia.[5]

The Council of Financial Regulators acts as a coordinating body for the RBA, APRA, ASIC and the Treasury. It advises the government on the adequacy of Australia’s financial system regulatory arrangements, but is a non-statutory body with no legal functions or powers separate from those of its members.[6]

Current state of competition in the financial system

There is limited publicly available information on how the financial system regulators make their decisions and, in particular, how they consider the effects of their decisions on competition.[7]

The ACCC has responsibility for policing actions that may substantially lessen competition but has no formal role in reviewing or providing proactive input into the actions of regulators that may impede competition.[8]

APRA has financial system stability as its primary objective, but is required to also consider the effects of its interventions on financial system safety and efficiency, contestability, competition and competitive neutrality.[9]

ASIC is currently required (among other things) to:

•       maintain, facilitate and improve the performance of the financial system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy and

•       promote the confident and informed participation of investors and consumers in the financial system.[10]

There is no explicit mention of consideration of competition. In the UK, the regulator for financial firms and financial markets, the Financial Conduct Authority (FCA),[11] is required under the Financial Services and Markets Act 2000 to promote effective competition in the interests of consumers of regulated financial services.[12]

The RBA Payments System Board is required to act in a way which best contributes to ‘promoting competition in the market for payment services, consistent with the overall stability of the financial system’.[13]

The current regulatory system appears to emphasise stability over competition, with APRA arguing that competition is a possible risk to financial stability:

… competition can also lead to instability in the financial system and there are times where it is important for APRA to actively temper competitive forces.[14]

Financial System Inquiry recommendations

The 2014 Financial System Inquiry (FSI) was charged with ‘examining how the financial system could be positioned to best meet Australia's evolving needs and support Australia's economic growth’.[15] Recommendations would be made to foster an ‘efficient, competitive and flexible financial system’.[16] The Financial System Inquiry: Final Report (the Final Report) was released on 7 December 2014.[17]

In its response to the FSI, the Government accepted Recommendation 30 of the Final Report to strengthen the focus on competition in the financial system, and specifically, to include consideration of competition in ASIC’s mandate by the end of 2016.[18] The amendment in Schedule 1 of the Bill implements this commitment.

The FSI also recommended that:

•       policy makers and regulators should take increased account of competition when making regulatory decisions and

•       periodic external reviews of the state of competition should be undertaken, including assessing whether Australia can reduce barriers to market entry for new domestic and international competitors.[19]

The Government planned to address the first issue in updated Statements of Expectations; the second issue was not addressed in the Government response.[20] Statements of Expectations have yet to be revised.[21]

In its 2018 Competition in the Australian Financial System – Draft Report, the PC called for a central government body—the ACCC or ASIC—to be tasked with promoting competition in the financial system. The aim would be to create a transparent regulatory system which would ‘recognise its potential to inhibit competition and actively work towards minimising any damage to competition and innovation that may otherwise result from regulator actions’.[22]

The Explanatory Memorandum to the Bill notes that competition should not be considered in isolation, but that ASIC should consider competition in conjunction with its other requirements at subsection 1(2) of the ASIC Act.[23]

Schedule 2 – the engagement of ASIC staff

Engagement under the PSA

ASIC staff can currently be employed through the PSA, the ASIC Act and using Individual Flexibility Arrangements (IFAs):

•       the PSA is the primary form of employment of ASIC’s staff. Employment contracts are subject to terms and conditions agreed in Enterprise Agreements (EAs). The PSA also contains provisions dealing with recruitment

•       the ASIC Chairperson has the option to hire staff ‘as the Chairperson thinks necessary for the performance or exercise of any of its functions and powers’.[24] Terms and conditions of employment are determined by the Chairperson with the Minister’s written approval.[25] This option may provide the potential for more competitive remuneration and flexibility in employment contracts.[26] As at 30 June 2015, ASIC employed 67 people under the ASIC Act (22 were at the Senior Executive Service (SES) level)[27]

•       IFAs enable variations of EA terms and conditions.[28] These are not common (27 instances, outside SES level, as at 30 June 2015).[29]

In Fit for the future – a capability review of the Australian Securities and Investments Commission (the ASIC Capability Review), the review panel found that operating under the PSA imposes a number of restrictions on ASIC:

•       a cap on the number of SES to 25

•       a remuneration cap on those SES employed under the PSA

•       salary increases, terms and conditions for all non-SES staff are subject to the Government’s Workplace Bargaining policy

•       the Government’s Workplace Bargaining policy does not allow ASIC to lift salary bands to meet the market and

•       recruitment and management of staff appointments are subject to Australian Public Service Commissioner regulations.[30]

PSA requirements mean that ASIC has complex employment arrangements at the SES level. The ASIC Capability Review identified a number of disadvantages, including:

•       impacting ASIC’s ability to attract and retain suitability qualified employees (peer agencies, APRA and RBA – which are not bound by the PSA – can offer more attractive remuneration packages)

•       slowing down the ability to promote internally

•       limiting opportunities for career advancement

•       no formal delegations powers for SES-equivalent staff employed under the ASIC Act and

•       increasing reliance on IFAs.[31]

Recommendation 24 of the ASIC Capability Review stated that the Government should remove ASIC from the PSA as a matter of priority, ‘to support more effective recruitment and retention strategies’.[32]

Part 1 of Schedule 2 to the Bill amends the ASIC Act to cease the requirement for ASIC staff to be engaged under the PSA.

Governance

Once ASIC is no longer required to engage staff under the PSA, existing governance provisions under the PSA will no longer apply. In particular, ASIC staff will no longer be bound by the APS Code of Conduct (section 13, PSA) and APS Values (section 10, PSA).

Amendments in Schedule 2 provide for the Chairperson of ASIC to determine an ASIC Code of Conduct and ASIC Values.

Committee consideration

The Senate Selection of Bills Committee recommended that the Bill not be referred to a committee for inquiry.[33]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.[34]

Policy position of non-government parties/independents

At the time of writing this Bills Digest, there were no public statements on the Bill from non-government parties or independents.

Position of major interest groups

Representatives and delegates from the Community and Public Sector Union (CPSU) met ASIC in February 2018 to discuss ASIC’s proposed exit from the Australian Public Service.[35] At the time, ASIC committed to provide the draft legislation to the CPSU for further discussion.

Financial implications

According to the Explanatory Memorandum, there are no financial implications.[36]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[37]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights expressed concern over whether the proposal to remove the requirement for ASIC staff to be employed under the PSA is compatible with the right to just and favourable conditions of work.[38] In particular, the Committee raised questions about the proportionality of the measure and whether the proposed approach was the least rights restrictive way of achieving the stated aim of reducing barriers to recruitment and retention of staff.[39] Accordingly, the Committee sought the Minister’s advice as to:

•       whether there is reasoning or evidence that establishes that the stated objective addresses a pressing or substantial concern or whether the proposed changes are otherwise aimed at achieving a legitimate objective;

•       how the measure is effective to achieve (that is, rationally connected to) that objective;

•       whether the limitation is a reasonable and proportionate measure to achieve the stated objective, including whether less rights restrictive measures may be reasonably available and the sufficiency of any relevant safeguards; and

•       whether the measure is compatible with Australia's obligations not to take any backwards steps (retrogressive measures) in relation to the right to just and favourable conditions of work.[40]

At the time of writing, the Committee had not received a response from the Minister.[41]

Key issues and provisions

Schedule 1

Section 1 of the ASIC Act sets out the objects of the Act. Subsection 1(2) sets out outcomes that ASIC must strive to achieve when performing its functions and exercising its powers. Item 1 of Schedule 1 inserts proposed subsection 1(2A) into the ASIC Act to require ASIC (without limiting subsection 1(2)) to consider the effects that the performance of its functions and the exercise of its powers will have on competition in the financial system. ASIC will be required to consider competition in conjunction with the elements in subsection 1(2), including to:

(a)  maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy.[42]

ASIC is required to determine the weight it will give to competition based on the relevant circumstances. The measure is not designed to limit or expand the scope of ASIC’s regulatory responsibilities.[43]

Schedule 1 will commence the day after Royal Assent.

Schedule 2

The amendments in Part 1 of Schedule 2 to the Bill remove the requirement for ASIC staff to be engaged under the PSA.

Part 2 of Schedule 2 makes consequential amendments to the Corporations Act 2001, Business Names Registration Act 2011 and Mutual Assistance in Business Regulation Act 1992.

Staff engagement

Item 1 inserts a new definition in subsection 5(1) for ‘senior staff member’ as identified by the ASIC Chairperson. Item 2 repeals the definition of ‘staff member’ under subsection 5(1) and substitutes a definition which includes staff employed by the ASIC Chairperson rather than staff employed under the PSA.

Section 10A of the ASIC Act currently provides that the ASIC Chairperson is not subject to direction by ASIC in relation to the Chairperson’s performance of functions, or exercise of powers in relation to ASIC, under the Public Governance, Performance and Accountability Act 2013 or the PSA. Item 3 amends section 10A to remove reference to the PSA, substituting reference to Parts 6 and 7 of the ASIC Act which deal with staff and preventing conflicts of interest.

Several items amend provisions in the ASIC Act (items 4 and 5),[44] Corporations Act 2001 (items 16 and 17),[45] Business Names Registration Act 2011 (items 14 and 15)[46] and Mutual Assistance in Business Regulation Act 1992 (items 18 and 19)[47] to allow functions to be delegated to ‘senior staff members’ of ASIC as determined by the ASIC Chairperson instead of SES or acting SES employees.

The functions and powers of the ASIC Chairperson or Deputy Chairperson may only be delegated to another ASIC member or senior staff member of ASIC (item 6).[48]

Item 7 repeals the requirement for ASIC to engage staff under the PSA and provides for the ASIC Chairperson to engage permanent, temporary or casual staff under a written agreement ‘as the Chairperson considers necessary for the performance or exercise of any of ASIC’s functions or powers’.[49] The ASIC Chairperson must determine the terms and conditions of employment.[50]

Once ASIC ceases to employ staff under the PSA, the ASIC Chairperson will employ staff and consultants ‘on behalf of ASIC’ rather than ‘on behalf of the Commonwealth’ (items 7 and 8).[51]

Item 9 provides that the ASIC Chairperson’s determination to identify which staff members are senior staff members must be a written instrument.[52] The determination may identify a staff member who holds or acts in a specified position as a senior staff member.[53] The determination is a legislative instrument and will therefore be subject to ‘appropriate’ Parliamentary scrutiny.[54]

The requirement for consultants to notify ASIC of direct or indirect pecuniary or other interests that could result in a conflict of interest is maintained.[55] Item 10 repeals paragraph 125(1)(a) and substitutes provisions to exclude staff seconded to ASIC who are employed under the PSA (who are subject to the APS Code of Conduct)[56] and staff employed by ASIC (who will be subject to the ASIC Code of Conduct)[57] from these notification requirements.

Governance of staff

Item 11 deals with governance arrangements. The Chairperson of ASIC is required to:

•       take reasonable steps to ensure that there are adequate disclosure of interest requirements applying to all staff employed by ASIC[58]

•       determine, in writing, the ASIC Code of Conduct which will apply to all ASIC members and staff employed under section 120[59] and

•       determine, in writing, the ASIC Values which must be upheld by the Chairperson, ASIC members and staff employed under section 120.[60]

The ASIC Code of Conduct and ASIC Values are not legislative instruments.[61]

Application and transitional provisions

The amendments in Schedule 2 of the Bill apply from 1 July 2019.

Transitional provisions (item 12) are required to ensure that existing conditions, rights and contracts continue to apply to ASIC staff as they transition from engagement under the PSA to engagement under the ASIC Act.

Under subsection 72(1) of the PSA (machinery of government changes), the Public Service Commissioner may:

(b)              determine in writing that APS employees cease to be APS employees and become non-APS employees of a specified Commonwealth body or Commonwealth authority.

Further, section 72 of the PSA provides:

(3)               If an APS employee (the transferred employee) becomes a non-APS employee of a Commonwealth body or Commonwealth authority under paragraph (1)(b), the employee is entitled to remuneration and other conditions of employment that are not less favourable than the terms and conditions to which the employee was entitled as an APS employee, immediately before ceasing to be an APS employee, under:

                            (a)              a fair work instrument;[62] or

                            (b)               a WR Act transitional instrument;[63] or

                            (c)               a determination under this Act; or

                            (d)               a written contract of employment.

(4)               Subsection (3) ceases to have effect on the next occasion when there is a relevant change in the terms and conditions of employment applicable to the transferred employee or a class of employees that includes the transferred employee. For this purpose, relevant change means a change that results from:

              (a)              the making, variation or termination of a modern award, an enterprise agreement, a workplace determination or a written contract of employment; or

              (b)               the variation, termination or replacement of a WR Act transitional instrument.

ASIC staff employed under a written agreement immediately prior to the commencement of the Bill will continue to be employed under the written agreement.[64] Staff employed under the PSA immediately before commencement of the Bill will, on and from commencement day:

•       cease to be engaged under the PSA

•       be employed by ASIC under a written agreement under section 120

•       be employed on the same terms and conditions, and with the same accrued entitlement to benefits and

•       maintain their continuity of service with ASIC.[65]

These changes to ASIC’s engagement of staff will not affect any promotions, performance management or disciplinary actions commenced before 1 July 2019; and will not give rise to any entitlements or benefits because an ASIC staff member is no longer employed under the PSA.[66]

The ASIC Enterprise Agreement (ASIC EA) will continue to be in effect and will apply to the ASIC Chairperson, to all staff who were employed under the ASIC Act and covered by the ASIC EA immediately before commencement, and to new staff employed by ASIC after commencement, until a new enterprise agreement is made.[67] Under section 58 of the Fair Work Act 2009, only one enterprise agreement can apply to an employee at a particular time.

Proposed section 313 relates to the variation of terms and conditions of employment: the transitional provisions do not prevent the terms and conditions of a staff member’s employment after 1 July 2019 from being varied in accordance with those terms and conditions or by law, award, determination or agreement.

The Minister may make transitional rules prescribing matters of a transitional nature for 12 months after the Bill commences. The transitional rule will remain in effect for a maximum of 12 months from the day it takes effect and may apply either in relation to a particular person or to a class of persons. Transitional rules that apply to a class of persons will be legislative instruments.[68]

Transitional rules cannot create an offence or civil penalty, provide powers of arrest or detention or entry, search or seizure, impose a tax, set an amount to be appropriated from the Consolidated Revenue Fund, or directly amend the text of the ASIC Act.[69]

Whether ASIC staff, currently employed under the PSA, will be no worse off under the ASIC Act, will depend upon agreements made after the 12 month transitional period following commencement of Schedule 2 on 1 July 2019. For example, the PSA provides for APS employees to transfer between APS agencies, specifies a minimum retirement age of 55 years and requires SES employees to provide APS-wide strategic leadership, including cooperation within and between agencies. Some of these provisions will no longer be relevant in relation to ASIC.

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[1].              Productivity Commission (PC), Competition in the Australian Financial System, draft report, PC, January 2018, p. 17.

[2].              Australian Competition and Consumer Commission (ACCC), ‘About us’, ACCC website.

[3].              Australian Prudential Regulation Authority (APRA), ‘Australian Prudential Regulation Authority’, APRA website.

[4].              Australian Securities and Investments Commission (ASIC), ‘Our role’, ASIC website.

[5].              Subsections 10(2) and 10B(3), Reserve Bank Act 1959; Reserve Bank of Australia (RBA), ‘Our role’, RBA website.

[6].              Council of Financial Regulators (CFR), ‘About the CFR’, CFR website.

[7].              PC, Competition in the Australian Financial System, op. cit., p. 426.

[8].              The ACCC recently received additional funding to establish a Financial Services Unit to monitor competition in Australia’s financial services sector (PC, Competition in the Australian Financial System, op. cit., p. 93).

[9].              Section 8, Australian Prudential Regulation Authority Act 1998.

[10].              Subsection 1(2), ASIC Act.

[11].              Financial Conduct Authority (FCA), ‘FCA homepage’, FCA website.

[12].              Section 1E of Part 1A, Financial Services and Markets Act 2000.

[13].              Subparagraph 10B(3)(b)(iii), Reserve Bank Act 1959.

[14].              PC, Competition in the Australian Financial System, op. cit., p. 416.

[15].              Financial System Inquiry (FSI), ‘The inquiry’s terms of reference’, FSI website.

[16].              Ibid.

[17].              D Murray, K Davis, C Dunn, C Hewson and B McNamee, Financial system inquiry: final report, The Treasury, Canberra, November 2014.

[18].              Australian Government, Improving Australia’s financial system – Government response to the financial system inquiry, The Treasury, Canberra, 2015, p. 24.

[19].              D Murray et al, Financial system inquiry: final report, op. cit., pp. 237 and 254.

[20].              Australian Government, Improving Australia’s financial system – Government response to the financial system inquiry, op. cit., p. 24.

[21].              Both the ASIC Statement of Expectations and the APRA Statement of Expectations were set in 2014.

[22].              PC, Competition in the Australian Financial System, op. cit., p. 418.

[23].              Explanatory Memorandum, Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Bill 2018, p. 6.

[24].              Subsection 120(3), ASIC Act.

[25].              Subsection 120(4), ASIC Act.

[26].              ASIC Capability Review Panel, Fit for the future – a capability review of the Australian Securities and Investments Commission, The Treasury, Canberra, December 2015, p. 107.

[27].              Ibid.

[28].              PricewaterhouseCoopers, ASIC capability review – evidence report: volume 1, November 2015, p. 52. IFAs are typically used to advance EL2s to ‘substantive EL2s’ acting in an SES role, when they cannot be promoted to SES level due to the SES cap restriction.

[29].              ASIC Capability Review Panel, Fit for the future – a capability review of the Australian Securities and Investments Commission, op. cit., p. 107.

[30].              Ibid., pp. 107–8.

[31].              Ibid., p. 108.

[32].              Ibid., p. 21.

[33].              Senate Standing Committee for the Selection of Bills, Report, 5, 2018, The Senate, Canberra, 10 May 2018.

[34].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2018, The Senate, Canberra, 9 May 2018, p. 65.

[35].              Community and Public Sector Union, ASIC moving out of the APS, media release, 15 February 2018.

[36].              Explanatory Memorandum, Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Bill 2018, p. 3.

[37].              The Statement of Compatibility with Human Rights can be found at pages 15 to 16 of the Explanatory Memorandum to the Bill.

[38].              Parliamentary Joint Committee on Human Rights, Report, 4 2018, Australian Parliament, Canberra, 8 May 2018, p. 26.

[39].              Ibid., p. 27.

[40].              Ibid., pp. 28–29.

[41].              Parliamentary Joint Committee on Human Rights, Correspondence register, Australian Parliament website.

[42].              Paragraph 1(2)(a), ASIC Act.

[43].              Explanatory Memorandum, Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Bill 2018, pp. 6–7.

[44].              Proposed paragraph 102(2C)(b) and the proposed note at the end of subsection 102(2C), ASIC Act.

[45].              Proposed paragraph 1101J(c) and proposed paragraph 50-10(4)(c) of Schedule 2, Corporations Act 2001.

[46].              Amended subsection 79(1) and proposed paragraph 80(1)(b), Business Names Registration Act 2011.

[47].              Proposed paragraph 22(2)(aa) and amended paragraph 22(2)(b), Mutual Assistance in Business Regulation Act 1992.

[48].              Proposed paragraph 119A(2)(c), ASIC Act.

[49].              Proposed subsection 120(1), ASIC Act.

[50].              Proposed subsection 120(2), ASIC Act.

[51].              Proposed subsection 120(1) and proposed amendment to subsection 121(1), ASIC Act.

[52].              Proposed subsection 122A(1), ASIC Act.

[53].              Proposed subsection 122A(2), ASIC Act.

[54].              Proposed subsection 122A(3), ASIC Act; Explanatory Memorandum, Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Bill 2018, p. 11.

[55].              Proposed paragraph 125(1)(a), ASIC Act.

[56].              Proposed subparagraph 125(1)(a)(ii), ASIC Act.

[57].              Proposed subparagraph 125(1)(a)(i), ASIC Act.

[58].              Proposed section 126A, ASIC Act.

[59].              Proposed subsections 126B(1) and 126B(2), ASIC Act.

[60].              Proposed subsections 126C (1), 126C(2) and 126C(3), ASIC Act.

[61].              Proposed subsections 126B(3) and 126C(4), ASIC Act.

[62].              A ‘fair work instrument’ is a modern award, enterprise agreement, workplace determination or Fair Work Commission order. See section 12 of the Fair Work Act 2009 and section 7 of the PSA.

[63].              Where ‘WR Act transitional instrument’ means an award, workplace agreement, a pre-reform certified agreement, an AWA (Australian Workplace Agreement) or a pre-reform AWA.

[64].              Proposed section 310, ASIC Act.

[65].              Proposed section 311, ASIC Act.

[66].              Ibid.

[67].              Proposed section 312, ASIC Act; Australian Securities and Investments Commission, Enterprise Agreement 2016–19,
20 May 2016.

[68].              Proposed section 314, ASIC Act.

[69].              Proposed subsection 314(7), ASIC Act.