The Notional Legislator: The Australian Securities and Investments Commission's Role as a Law-Maker

Federal Law Review, Vol. 39, pp. 1-31, 2011

ANU College of Law Research Paper No. 12-04

33 Pages Posted: 16 Feb 2012 Last revised: 10 Mar 2012

Date Written: 2011

Abstract

This article was awarded the 2011 Zines Prize for Excellence in Legal Research, an annual award for the best article published in the Federal Law Review.

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 executive agency that is charged with administering the corporations legislation in Australia has the power to re-write aspects of that legislation. It can, in effect, do the work of Parliament. This article examines the discretionary power of the Australian Securities and Investments Commission (ASIC) 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. This article examines the scope of this power, its operation and history. The article 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'.

Suggested Citation

Bottomley, Stephen, The Notional Legislator: The Australian Securities and Investments Commission's Role as a Law-Maker (2011). Federal Law Review, Vol. 39, pp. 1-31, 2011, ANU College of Law Research Paper No. 12-04, Available at SSRN: https://ssrn.com/abstract=2006053

Stephen Bottomley (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

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