Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018

The Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018 is a Commonwealth amending Act. It does not operate as a complete standalone regime. Instead, it changes the Australian Securities and Investments Commission Act 2001 and makes consequential amendments to the Business Names Registration Act 2011, Corporations Act 2001 and Mutual Assistance in Business Regulation Act 1992.

The Act has two main themes. First, it inserts a requirement that ASIC must consider the effects that the performance of its functions and the exercise of its powers will have on competition in the financial system. Second, it changes ASIC's staffing and internal governance framework, including staff employment, identification of senior staff members, disclosure of interest requirements, the ASIC Code of Conduct and ASIC Values.

The long title says the Act amends the Australian Securities and Investments Commission Act 2001 in relation to competition in the financial system, provides that ASIC is not a Statutory Agency, and removes the requirement for ASIC to engage staff under the Public Service Act 1999, along with related changes.

That matters because businesses sometimes read an amending Act as if it contains all of the operative rules. It does not. The practical legal effect is found in the amended legislation as it now reads, especially the current consolidated ASIC Act. This page explains the changes made by this Act, but if you are dealing with a live issue you should check the current text of the ASIC Act and any other legislation that applies to your matter.

The direct legal obligations created by this Act are mostly imposed on ASIC, the ASIC Chairperson, ASIC members and ASIC staff arrangements. That means many ordinary businesses are not directly regulated by the Act in the same way they might be regulated by licensing, consumer or employment laws.

Even so, the Act can still matter to businesses that interact with ASIC. It is more relevant if your business seeks ASIC licences or relief, receives ASIC notices or decisions, uses business names processes, operates in a regulated financial market, or needs to assess whether an ASIC officer had authority to act. It is usually less important for businesses with no meaningful dealings with ASIC beyond routine company registration and basic annual compliance.

Schedule 1 inserts a new requirement into the ASIC Act. Without limiting ASIC's existing objects, ASIC must consider the effects that the performance of its functions and the exercise of its powers will have on competition in the financial system.

The wording is important. It says this requirement does not limit the existing objects. So the Act does not turn ASIC into a pure competition regulator, and it does not say competition overrides other statutory responsibilities. Instead, competition becomes a mandatory consideration within ASIC's broader role.

For businesses, the practical trigger point is any ASIC-facing matter where competitive effects are genuinely part of the picture. That could include submissions about market entry, innovation, consumer choice, barriers to entry, or the effect of a regulatory approach on how a financial market operates. The Act does not promise a favourable outcome just because a business says more competition is desirable. But it does support the idea that competition effects may need to be addressed where they are relevant to ASIC's exercise of functions or powers.

Schedule 2 makes substantial changes to ASIC's staffing framework. The Chairperson may, on behalf of ASIC, employ under written agreements such permanent, temporary or casual staff as the Chairperson considers necessary for the performance or exercise of ASIC's functions or powers. The terms and conditions of employment, including remuneration, are to be determined by the Chairperson.

The Act also introduces the concept of a senior staff member. A senior staff member is a staff member identified as a senior staff member in a determination made under section 122A. The Chairperson may make that determination by written instrument, and the determination is a legislative instrument. The Act then updates several provisions so that powers, delegations or references can operate through senior staff members.

For businesses, this is mainly relevant when checking authority. If your business receives a notice, decision or communication from ASIC, the legal question may not always be whether it came from a commissioner-level officeholder. In some contexts, the relevant question is whether it came from a person who was properly identified as a senior staff member or otherwise had authority under the legislation as amended.

The Act creates several internal governance obligations for ASIC leadership. The Chairperson must take reasonable steps to ensure that there are, where appropriate, adequate disclosure of interest requirements applying to staff members. The Chairperson must also determine, in writing, the ASIC Code of Conduct. That Code applies to ASIC members and staff members employed under section 120.

The Chairperson must also determine, in writing, the ASIC Values, must uphold and promote those values, and ASIC members other than the Chairperson, together with staff members employed under section 120, must uphold the ASIC Values.

These are not direct compliance duties for most private businesses. Their practical significance is indirect. They help define ASIC's internal governance standards and may become relevant if a business is examining process, conflicts, conduct or the role of particular ASIC personnel in a live matter.

Part 2 of Schedule 2 makes consequential amendments to several Acts. These include the ASIC Act itself, the Business Names Registration Act 2011, the Corporations Act 2001 and the Mutual Assistance in Business Regulation Act 1992. A common theme is replacing older references to certain ASIC staffing categories with references to senior staff members.

This matters because businesses and advisers often rely on forms, precedents, older advice or assumptions about who within ASIC can exercise a power. If those materials pre-date the amendments, they may use outdated language or refer to staffing concepts that no longer match the current law.

The Act received Royal Assent on 3 October 2018. Sections 1 to 3 commenced on that day. Schedule 1 commenced on 4 October 2018. Schedule 2 commenced on 1 July 2019.

The transitional provisions are important if you are reviewing older ASIC staffing, authority or employment-related issues. People who were already employed under former written agreement arrangements continued under those agreements, which were taken to be agreements under the new section 120. APS employees in ASIC were taken, from the commencement day, to cease being engaged under the Public Service Act 1999 and to be employed by ASIC under written agreement, generally on the same terms and conditions and with continuity of service preserved.

The Act also continued the Australian Securities & Investments Commission Enterprise Agreement 2016 - 2019 in the way set out in the transitional provisions, and allowed later variation or termination in accordance with law. In addition, the Minister was given power to make transitional rules relating to sections 310 to 313, subject to limits set out in the Act.

The safest way to use this Act is as context for understanding ASIC's legal framework. It can help you identify the right questions, but it will rarely be the only law you need. If your business is dealing with ASIC, the practical issues are usually these: whether competition effects should be addressed in your submissions, whether the relevant ASIC officer had authority, whether older advice about ASIC staffing is still current, and whether any procedural concern should be examined against the law in force at the time.

For example, a fintech seeking relief or a licence may want to explain how its model affects competition in the financial system, but still needs to satisfy all other regulatory requirements. A company receiving an ASIC notice signed by a senior staff member may need to check the current legislation and any relevant determination or delegation framework. A business reviewing pre-2019 advice may need to update assumptions about ASIC staff being engaged under the Public Service Act 1999.

The Act does not create a simple new right to challenge ASIC, and it does not guarantee a business-friendly outcome. Its value is that it clarifies part of the regulator's statutory setting. That can matter when preparing submissions, checking authority, preserving evidence, or deciding whether a technical legal review is needed.

Businesses often ask whether this Act gives them a new direct right against ASIC or creates a new compliance burden. In most cases, the answer is no. The Act mainly changes ASIC's framework and internal arrangements. Its practical value is in helping businesses understand what ASIC must consider, who may act for ASIC under the amended structure, and why older assumptions about ASIC staffing or authority may need updating.

Another common question is whether a competition argument will decide the outcome of an ASIC matter. The Act does not say that. It says ASIC must consider competition effects in the financial system, without limiting ASIC's existing objects. That means competition can be relevant, but it sits alongside ASIC's other statutory responsibilities rather than replacing them.

This page is based on the in-force Act text and commencement information published on the Federal Register of Legislation for the Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018, No. 122, 2018. The Act was assented to on 3 October 2018. Schedule 1 commenced on 4 October 2018 and Schedule 2 commenced on 1 July 2019.

Because this is an amending Act, the operative law for most practical purposes will be found in the current consolidated Australian Securities and Investments Commission Act 2001 and any other legislation relevant to your issue.