Ross Parsons Corporate Law Series: The Notional Legislator: ASIC's role as Lawmaker

14 October 2013

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Along with its power to exercise 'on the ground' discretion to alter the way in which legislative rules are applied (for example, by granting exemptions in particular cases), the Australian Securities and Investments Commission (ASIC) has the power to re-write aspects of that legislation. It can, in effect, do the work of Parliament. This paper examines ASIC's discretionary power to change the operation of the Corporations Act 2001 by issuing Class Orders that omit, modify or insert provisions into the Act. The existence and operation of ASIC's power has attracted little critical attention in the legal literature, be it academic, judicial, or professional. The paper examines the scope of this power, its operation and history. This inquiry is prompted by a concern that the system of statutory modification via Class Order, while beneficial to the flexible regulation of the corporate and finance sector, has developed into a substantial and complex body of 'notional legislation'.

Stephen Bottomley is Dean of the ANU College of Law, and Professor of Commercial Law, at the Australian National University. He came to the university in 1988, having previously taught corporate and commercial law for a number of years in Sydney while completing his postgraduate thesis on law and psychiatry.

Prior to commencing the Deanship in January 2013, he has served in the College in a number of capacities, including as Sub-Dean (1993-1995); Director, Graduate Program in Law (2000-2002); Chair, Undergraduate Studies Committee (2002-2004); Associate Dean and Head of School (2005-2009); and Head of School (since 2011).

He was the inaugural Director of the College's Centre for Commercial Law (1998-2005).

Commentator: David O'Reilly, General Counsel, Fiducian Portfolio Services.

Chair: Professor Jennifer Hill, Sydney Law School

Lawyers/barristers: attendance at this seminar is equal to 1 MCLE/CPD unit.

Time: 6 - 7.15pm (Registration & refreshments from 5.30pm)

Location: Minter Ellison Room, Level 13 Old Law School, St James Campus, Phillip St, Sydney

Cost: Full Fee $77; SLS Alumni $66; SLS Student $44; Group (3+) $55 inc GST

Contact: PLaCE Coordinator

Phone: 02 9351 0429

Email: 2e081b443206082815196f34293d05572144323e44412802