ASIC Class Order [CO 00/0197]

Administered by Department of the Treasury

Legislation au F2007B00285 Not in force Legislative Instrument

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Australian Securities and Investments Commission
Corporations Law — Subsections 260MA(1), 601QA(1), 741(1) and 1084(2) —
Revocation and Exemption

 

Interpretation

For the purposes of this instrument:

 

"charitable body" is a person who is, or a body or fund which is:

 

(a)        exempt from income tax by virtue of sections 50-5 or 50-30 of the Income Tax Assessment Act 1997 or provisions which correspond to them; or

 

(b)        a person, body or fund to whom a gift is an allowable deduction for the purposes of calculating the taxable income of a person making the gift by virtue of section 30-15 Item 1 or 2 of the Income Tax Assessment Act 1997 or provisions which correspond to them; or

(c)        otherwise recognised in law as being constituted for religious, educational, community or other charitable purposes;

"charitable scheme" is an undertaking, scheme or common enterprise in respect of which a charitable body or trustee of a charitable body offers or proposes to offer for issue or sale interests in a managed investment scheme or debentures or both;

 

"CLERP Commencement Date" means the time at which Schedule 1 of the Corporate Law Economic Reform Program Act 1999 commences;

 

Note : the CLERP Commencement Date is expected to be 13 March 2000.

 

"identification statement" is a statement by a charitable body which sets out:

(a)        the identity of the charitable body;

(b)        a brief description and intended purpose of the relevant charitable scheme; and

(c)        the guarantees or promises, if any, made to or proposed to be made to holders of the interests or debentures as the case may be; and

"offer document" is any document which contains an offer for issue or sale of interests or debentures in connection with a charitable scheme.

 

Revocation

 

The Australian Securities and Investments Commission ("ASIC") revokes ASIC Class Order [98/66] dated 13 July 1998 with effect from the time immediately before the CLERP Commencement Date.

Exemption

With effect from the CLERP Commencement Date ASIC exempts a charitable body and an officer, employee, or trustee of a charitable body from:

 

(a)                  Parts 2L.1, 2L.2, 2L.3, 2L.4 and 2L.5 of the Corporations Law (the "Law") pursuant to subsection 260MA(1) of the Law;

 

(b)                  Chapter 5C of the Law pursuant to paragraph 601QA(1)(a) of the Law; and

 

(c)                  Parts 6D.2 and 6D.3 of the Law pursuant to subsection 741(1) of the Law,

 

in relation to securities issued, or proposed to be issued, by the relevant charitable body or trustee of the charitable body, for as long as and on condition that:

 

1. an identification statement in relation to the charitable body has been registered by ASIC and ASIC has not cancelled the registration;

 

2. every offer document the preparation of which the charitable body was party to, contains or is accompanied by the following information:

(a) the identity of the charitable body;

(b) the terms and conditions of the offer made in connection with the relevant charitable scheme;

(c) the terms and conditions, if any, under which a person other than the charitable body, or an employee of the charitable body in that capacity, will receive a material benefit in connection with:

(i)                 the promotion of the charitable scheme;

(ii)               administering or managing the assets of the charitable scheme; or

(iii)            giving investment advice in respect of the charitable scheme; and

(d) a statement to the effect that:

(i)                 investors should be aware that the specified charitable scheme is not subject to the normal requirement to have a disclosure document and be registered or have a trust deed under the Corporations Law;

(ii)               the scheme has not been examined or approved by the Australian Securities and Investments Commission; and

(iii) the investment is designed for investors who wish to promote the charitable purposes of the relevant charity and for whom the considerations of profit are not of primary relevance in the investment decision;

 

3. there is no reference in any promotional material or offer document that the charitable scheme has been approved or examined by ASIC ;

 

4. the charitable body lodges with ASIC, in connection with the identification statement registered by ASIC, further statements or another identification statement the effect of which is to rectify any false or misleading material statement in, or any material omission from, the identification statement, as soon as practicable after the charitable body becomes aware that the identification statement is false or misleading or that there is a material omission; and

 

5. the charitable body lodges with ASIC:

 

(a)                where the charitable body is required under a law of the Commonwealth, a state or territory to lodge an annual statement of the accounts kept in relation to the charitable scheme with a statutory body or the Crown, a copy of the statement as soon as practicable after the statement is so required to be lodged; and

 

(b)               where the charitable body causes a registered company auditor to audit those accounts at the end of each financial year, a copy of the auditor's report on the accounts within six months after the end of that financial year; and

(c)               where neither (a) nor (b) applies, either:

(i) where the charitable body prepares or causes to be prepared at the end of each financial year an annual statement of the accounts kept in relation to the charitable scheme, a copy of the statement and a copy of the auditor's report, if any, on the accounts, within six months after the end of each financial year; or

(ii) a statement which sets out the following sums:

A the total indebtedness which remains outstanding to holders of debentures issued by the charitable body on 30 June of each year; and

B the total amount subscribed in relation to interests in a managed investment scheme issued by the charitable body and not yet withdrawn on 30 June of each year;

within six months after 30 June of that year.

Dated the 17th day of February 2000

 

 

 

Signed by Brendan Byrne

as delegate of the Australian Securities and Investments Commission

Overview

The Australian Securities and Investments CommissionCorporations Law — Subsections 260MA(1), 601QA(1), 741(1) and 1084(2) —Revocation and Exemption instrument, enacted in 2000, was designed to address the need for regulatory adjustments in the securities market concerning charitable schemes. This legislative instrument was enacted by the Australian Securities and Investments Commission (ASIC) under the authority granted by the Corporations Act 2001. The primary policy objective of this instrument is to provide a regulatory framework that balances the need for investor protection with the operational flexibility required for charitable bodies to raise funds for their intended purposes. The instrument revokes a previous class order and grants exemptions to charitable bodies and their officers, employees, or trustees from certain parts of the Corporations Law, provided specific conditions are met, including the registration of identification statements and the disclosure of certain information in offer documents.

Scope and Application

The Australian Securities and Investments Commission Corporations Law instrument revokes certain provisions related to charitable schemes under the Corporations Law, effective from the Corporate Law Economic Reform Program (CLERP) Commencement Date, which is expected to be 13 March 2000. This legislation exempts charitable bodies, along with their officers, employees, or trustees, from certain parts of the Corporations Law, specifically Parts 2L.1, 2L.2, 2L.3, 2L.4, and 2L.5, Chapter 5C, and Parts 6D.2 and 6D.3, provided that several conditions are met. These conditions include the registration of an identification statement with ASIC, the inclusion of specified information in offer documents, the absence of any reference to ASIC approval or examination in promotional materials, and the timely submission of financial statements or auditor's reports to ASIC. The exemption applies to charitable bodies and their associated personnel on the condition that they adhere to these regulatory requirements. The scope of this legislation is national, applying across Australia, and it is implemented through subordinate instruments to ensure compliance with the outlined conditions.

Key Provisions

The key provisions of this legislative instrument revolve around the revocation of a previous class order and the exemption of charitable bodies from certain parts of the Corporations Law. Firstly, it revokes ASIC Class Order [98/66] dated 13 July 1998 with effect from the CLERP Commencement Date, which is expected to be 13 March 2000 (subsection 260MA(1), 601QA(1), 741(1) and 1084(2)). This means that, from the CLERP Commencement Date, the previous order will no longer be in effect, and the new provisions will take precedence. Secondly, it provides exemptions for charitable bodies and their officers, employees, or trustees from certain sections of the Corporations Law (subsection 260MA(1), 601QA(1), 741(1)) provided certain conditions are met. These exemptions include parts of the Corporations Law related to financial services and disclosure obligations, and they apply as long as the charitable body complies with specific requirements, including the registration of an identification statement with ASIC, the inclusion of certain information in offer documents, and the timely submission of financial statements and auditor's reports. The Act imposes several obligations on charitable bodies and their officers, employees, or trustees. Primarily, it requires the registration of an identification statement with ASIC, which must include details such as the identity of the charitable body, a brief description and intended purpose of the charitable scheme, and any guarantees or promises made to holders of interests or debentures (subsection 260MA(1), 601QA(1), 741(1)). Additionally, any offer document related to the charitable scheme must include the identity of the charitable body, the terms and conditions of the offer, the terms and conditions under which others may receive material benefits, and a statement clarifying that the scheme is not subject to normal disclosure and registration requirements (subsection 260MA(1), 601QA(1), 741(1)). Furthermore, promotional materials must not claim approval or examination by ASIC. Charitable bodies must also promptly rectify any false or misleading statements in their identification statements and submit annual financial statements or auditor's reports to ASIC as required (subsection 260MA(1), 601QA(1), 741(1)). Failure to comply with the provisions of this Act can result in various civil or criminal consequences. Although specific penalties are not detailed in the text, breaches of the Corporations Law can generally lead to substantial fines and, in some cases, imprisonment. The Act’s provisions are designed to ensure transparency and protect investors by requiring charitable bodies to adhere to certain standards. Non-compliance with the obligations to register identification statements, provide accurate offer documents, or submit required financial statements could result in penalties under the Corporations Law, which might include fines and other legal repercussions. Additionally, making false or misleading statements in promotional materials or offer documents could also attract civil or criminal penalties under the relevant sections of the Corporations Law.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.