Statement of obligations - ASIC Commissioners

Purpose of this statement

This statement sets out the obligations that ASIC’s Commission members must comply with when carrying out their duties.

It sets out:

The obligations apply to all Commission members, including the Chairperson, unless otherwise indicated.

Where the obligations are found

The obligations are found in:

  • various statutes, including the Australian Securities and Investments Commission Act 2001 (ASIC Act) and the Public Governance, Performance and Accountability Act 2013 (PGPA Act);
  • legislative instruments, including the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) and the Public Service Regulations 1999 (Cth);
  • the common law;
  • government policy, including the Bowen Code of Conduct; and
  • ASIC policy.

The Chairperson, as an agency head under the Public Service Act 1999, is also bound by the Australian Public Service (APS) Code of Conduct. Commission members, as statutory office holders, are also bound by the APS Code of Conduct to the extent that they supervise and deal with APS employees.

Core obligations

All Commission members

All Commission members must, in exercising their powers and functions:

  • exercise due care and diligence (PGPA Act, s25);
  • act honestly, in good faith and for a proper purpose (PGPA Act, s26);
  • not improperly use their position to gain an advantage for themselves or others or to cause detriment to ASIC or anyone else (PGPA Act, s 27);
  • not improperly use information (PGPA Act, s28); and
  • disclose details of their material personal interests (PGPA Act, s29).

Chairperson

The Chairperson must govern ASIC in a way that promotes:

  • the proper use and management of public resources;
  • the achievement of the purposes of ASIC; and
  • the financial sustainability of ASIC (PGPA Act, s15(1)).

Managing conflicts of interest

Commission members must perform their duties impartially, without fear or favour.

General disclosure to Minister

Commission members must disclose to the Minister in writing:

  • any direct or indirect pecuniary interest they have in a business in Australia, or any body corporate carrying on a business in Australia;
  • any direct or indirect pecuniary interest in financial products or other interests regulated by ASIC; and
  • any agreement, understanding or expectation that they will resume a previous business relationship or enter into a new business relationship when they cease to be a Commissioner and any related severance arrangement or ongoing financial arrangement (ASIC Act, s123).

Outside employment

Commission members are not permitted to engage in any paid employment outside of the duties of their office without the consent of the Minister (ASIC Act, s111(1)(b)).

Disclosure of material personal interests that relate to the affairs of ASIC and related obligations

All Commission members must disclose any material personal interests that relate to the affairs of ASIC (PGPA Act, s29).

The Chairperson must make the disclosure as soon as practicable and in writing to the Minister (PGPA Rule 13). Other Commissioners must make the disclosure in accordance with instructions given by the Chairperson (PGPA Rule 16).

Additionally, Commission members, including the Chairperson, must make the disclosure to each other member, orally or in writing, at the next meeting of the Commission and ensure the disclosure is recorded in the minutes of the meeting (PGPA Rule 16A).

Where a Commission member has a material personal interest in a matter that is being considered at a Commission meeting, the Commission member must not, unless the remaining Commission members otherwise determine in the absence of the interested member, be present during consideration of the matter or vote on the matter (PGPA Rule 16B).

Approval to trade

Commission members, like all ASIC staff, must obtain approval before they or their connected persons trade in financial products (as defined in ASIC's Trading Policy) or pre-register for an IPO.

Related Party Transactions

Commission members are required to complete an annual Related Party Declaration outlining the details of their related parties and any transactions that have arisen between them within the financial year.

Gifts

Commission members must not accept gifts where they may create a real or perceived conflict of interest with the member's duties. All accepted gifts are required to be disclosed to ASIC.

Accountability for decision making

Commission members must make decisions fairly, in accordance with the law and for a proper purpose.

Commission members are accountable for Commission decisions to the Australian Parliament (including through its committees), the Auditor-General and the Commonwealth Ombudsman.

Some decisions made by the Commission may be reviewed by the Federal Court of Australia, the Supreme Courts of the states and territories, and the Administrative Appeals Tribunal.

Confidentiality

Commission members must protect information given to ASIC in confidence from unauthorised disclosure (ASIC Act, s127(1)).

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Last updated: 16/11/2017 08:09