Australian Securities and Investments Commission Class Order [Co 03/823] (Cth)

Australian Securities and Investments Commission

Corporations Act 2001 — Paragraphs 911A(2)(l) and 992B(1)(a) — Exemption

1. Under paragraph 992B(1)(a) of the Corporations Act 2001 (the Act), the Australian Securities and Investments Commission (ASIC) exempts each foreign ADI which holds an Australian financial services licence from:

(a) the following provisions of the Act:

(i)         section 988B;

(ii)        paragraph 988D(a);

(iii)       section 988E; and

(iv)       section 989C; and

(b)        regulation 7.8.12 of the Corporations Regulations 2001.

2. Under paragraph 992B(1)(a) of the Act, ASIC exempts each foreign ADI which holds an Australian financial services licence from section 989B of the Act on the following conditions and for so long as those conditions are met:

(a)        the foreign ADI must lodge with ASIC, at least once in every calendar year and at intervals of not more than 15 months:

(i)         a copy of its balance-sheet made up to the end of its last financial year; and

(ii)        a copy of its cash flow statement for its last financial year; and

(iii)       a copy of its profit and loss statement for its last financial year;

in such form and containing such particulars and including copies of such documents as the foreign ADI is required to prepare by the law for the time being applicable to that foreign ADI in its place of origin; and

(b)        together with copies of the documents in paragraph (a), the foreign ADI must lodge a statement in writing verifying that the copies are true copies of the documents so required; and

(c)        the foreign ADI must ensure that the documents referred to in subparagraphs (a)(i) to (a)(iii) are audited in accordance with the requirements for the time being applicable to that foreign ADI in its place of origin; and must lodge a copy of a document setting out the views of that auditor about those documents.

Note: Where the foreign ADI is subject to subsection 601CK(1) of the Act, compliance with that subsection will also result in the conditions set out in subparagraphs 2(a) and 2(b) being satisfied.

3. Under paragraph 911A(2)(l) of the Act, ASIC exempts each foreign ADI from the requirement to hold an Australian financial services licence for the provision of a financial service where all of the following apply:

(a)        the service consists only of either or both of the following:

(i)         dealing in derivatives;

(ii)        dealing in foreign exchange contracts; and

(b)        the service does not involve the making of a market for derivatives or foreign exchange contracts; and

(c)        the dealing is entered into for the purpose of managing a financial risk that arises in the ordinary course of the foreign ADI’s banking business; and

(d)        the dealing is entered into on the foreign ADI’s own behalf; and

(e)        the counterparty for the dealing is a wholesale client; and

(f)         the foreign ADI does not hold an Australian financial services licence covering the provision of the service.

Commencement

4.         This instrument takes effect on gazettal.

Interpretation

5.         In this instrument:

foreign ADI has the meaning given by section 5 of the Banking Act 1959;

foreign exchange contract has the meaning given by section 761A of the Act; and

wholesale client has the meaning given by section 761G of the Act.

Dated this 26th day of September 2003

Signed by Stephen Yen, PSM

as a delegate of the Australian Securities and Investments Commission