Unlike other ASIC staff, who are governed by employment contracts that incorporate codes of conduct, commissioners do not even have employment contracts.
I was asked to make a submission to the Senate inquiry into the Australian Securities and Investments Commission’s enforcement effectiveness.
affecting ASIC’s effectiveness that I raised last year. These relate to the employment and accountability arrangements of ASIC’s commissioners. Commissioners are statutory appointees, appointed for a fixed term by the governor-general on the advice of the federal cabinet, and have independent powers and responsibilities.First, employment terms for ASIC commissioners are unnecessarily complicated. This results in commissioners having different employment arrangements to other ASIC staff.
It is hardly surprising that employment issues relating to, say, the overseas transfer of a commissioner could be convoluted, given this “Swiss cheese” approach to employment terms.Second, commissioners are not subject to the same termination-for-cause provisions as other employees. . It is relevant that the governor-general is the only person empowered to terminate ASIC commissioners. This means, by convention, that they could do so only at the recommendation of the cabinet. This brings the process into the political domain.
This, along with legislative confusion around the roles and responsibilities of commissioners vis-à-vis the chair or accountable authority influences decision-making. In turn, this has significant cultural ramifications for the agency.This is ironic, given ASIC’s role as the custodian of director accountability in Australia.
It is vital that this independent body apply due process, adopt appropriate transparency, and acknowledge victims’ rights.
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