Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Josh Frydenberg MP)Chapter 14 - Formalising ASIC meeting procedures (recommendation 6.11)
Outline of chapter
14.1 Part 3 of Schedule 12 to the Bill implements recommendation 6.11 of the Financial Services Royal Commission to formalise ASIC meeting procedures.
Context of amendments
14.2 Recommendation 6.11 of the Financial Services Royal Commission was that further requirements for ASIC's meeting procedures be formalised and that those requirements be substantially similar to the existing APRA meeting procedures as contained in the APRA Act. This is on the basis that the formalisation of these requirements will serve to reinforce the centrality of collective decision-making in ASIC.
14.3 The ASIC Act requires ASIC to consist of not fewer than three and no more than eight members. The Governor-General appoints members on the nomination of the Minister.
14.4 The ASIC Act provides for the convening of meetings of ASIC members as the Chairperson thinks necessary for the efficient performance of ASIC's functions or where requested by two or more of the members and contains some limited procedural requirements as to how the meetings are held and who is to preside.
14.5 Part 3 of Schedule 12 gives effect to the Government's commitment to implement recommendation 6.11 of the Financial Services Royal Commission to amend the ASIC Act to include provisions dealing with the location of Commissioner meetings, the quorum required, who is to preside, how voting is to occur and the passing of resolutions without meetings.
Summary of new law
14.6 Part 3 of Schedule 12 amends the ASIC Act to include provisions substantially similar to those set out in sections 27 to 32 of the APRA Act to deal with the times and places of meetings, how voting is to occur and the passing of resolutions without meetings.
Comparison of key features of new law and current law
| New law | Current law |
| ASIC must hold meetings that are necessary for the efficient performance and exercise of its functions and powers. | The Chairperson must convene a meeting as the Chairperson thinks necessary for the efficient performance of ASIC's functions. |
| The person presiding at a meeting has a deliberative vote, and if necessary, also a casting vote. | The member presiding at a meeting has a deliberative vote but not a casting vote. |
| If determined by ASIC, resolutions may be passed without a meeting where a majority of members indicate agreement in accordance with the method determined by ASIC and that majority would have constituted a quorum. | No equivalent. |
Detailed explanation of new law
14.7 ASIC must hold the meetings that are necessary for the efficient performance and exercise of its functions and powers. Meetings are to be held at the times and places that the Chairperson determines and the Chairperson must convene a meeting if requested in writing by two or more members. [Schedule 12, item 14, section 103 of the ASIC Act]
14.8 A question arising at a meeting is to be determined by a majority of the votes of the members present and voting. The person presiding at the meeting has a deliberative vote and if necessary, also a casting vote. [Schedule 12, item 16, section 107 of the ASIC Act]
14.9 ASIC may regulate proceedings at its meetings as it considers appropriate provided they are consistent with the other requirements in Division 4 of Part 4 of the ASIC Act. [Schedule 12, item 16, section 107A of the ASIC Act]
14.10 In accordance with section 5A of the ASIC Act, the reference to section 33B of the Acts Interpretation Act 1901 in note 1 is a reference to section 33B of the Acts Interpretation Act 1901 as in force on 1 January 2005. [Schedule 12, item 16, section 107A of the ASIC Act]
14.11 Resolutions can be passed without a meeting provided ASIC has determined that resolutions may be passed in accordance with this section and the method to indicate agreement. The resolution is taken to be passed if a majority of members indicates agreement in accordance with the method determined and that majority would have constituted a quorum at a meeting. [Schedule 12, item 16, section 107B of the ASIC Act]
Application and transitional provisions
14.12 The amendments apply from the later of 1 January 2021 and the day after Royal Assent. [Clause 2]