Australian Securities and Investments Commission
Corporations Law — Subsection 741(1) — Declaration
Under subsection 741(1) of the Corporations Law (Law) the Australian Securities and Investments Commission hereby declares that Chapter 6D of the Law applies to all persons in respect of offers of interests in managed investment schemes as if it were modified or varied as follows:
(1) in paragraph 701(d), “body.” were replaced with “body; and”;
(2) after paragraph 701(d), the following paragraphs were added:
“(e) the formation and promotion of the scheme were those of the body; and
(f) a promoter of the scheme were that of the body; and
(g) the business of the scheme were that of the body; and
(h) a financial report of the scheme were that of the body; and
(i) the affairs of the scheme were those of the body; and
(j) the products and services of the scheme were those of the body.”;
(3) paragraph 711(4)(a) were omitted;
(4) the words “and proposed directors” were added at the end of paragraph 711(4)(c); and
(5) in the table in section 720 (item 1, in the column headed “People whose consent is required”):
(a) the references to “every director of the body” and “every person named in the document as a proposed director of the body” were omitted; and
(b) the words “every director of that body” were replaced with “every director and proposed director of that body”.
Dated this 12th day of March 2000
Signed by Brendan Byrne
as a delegate of the Australian Securities and Investments Commission
Overview
The Australian Securities and Investments Commission Corporations Law, enacted in 2000, addresses the need for clear regulations governing offers of interests in managed investment schemes. This legislative instrument modifies Chapter 6D of the Corporations Law to ensure that the formation, promotion, business operations, financial reporting, and management of such schemes are attributable to the responsible body. The Australian Securities and Investments Commission, through this legislative instrument, aims to enhance transparency and accountability in the management of investment schemes, thereby protecting investors and maintaining the integrity of the financial market. By specifying the required consents from directors and proposed directors, the Act further solidifies the responsibility and oversight of these entities in relation to managed investment schemes.
Scope and Application
The Australian Securities and Investments Commission (ASIC) has extended the application of Chapter 6D of the Corporations Law to all persons in respect of offers of interests in managed investment schemes, as declared under subsection 741(1). This declaration modifies the application of Chapter 6D by altering certain definitions and requirements, specifically incorporating provisions related to the formation, promotion, business operations, financial reporting, and affairs of the schemes, making it applicable as if it were the business of the body itself. This legislative amendment ensures that the obligations and disclosures required under the Corporations Law are aligned with the actual operations and responsibilities of the managed investment scheme, ensuring greater transparency and accountability. The declaration also includes modifications to the consent requirements for certain documents, adjusting who must provide consent from directors and proposed directors of the body to all directors and proposed directors. This legislative instrument operates on a national level, impacting all entities and individuals involved in the offer of interests in managed investment schemes across Australia.
Key Provisions
The primary operative sections of this legislative instrument are subsection 741(1) and its modifications to Chapter 6D of the Corporations Law. Specifically, the Australian Securities and Investments Commission declares that Chapter 6D applies to all persons involved in the offer of interests in managed investment schemes, with several modifications. For instance, the definition of 'body' is expanded to include the formation, promotion, business, financial reports, affairs, products, and services of the scheme. Additionally, certain references to directors and proposed directors are adjusted, removing some requirements while adding others. These modifications aim to clarify the scope of Chapter 6D in relation to managed investment schemes and streamline the regulatory framework.
The obligations imposed by this legislative instrument on the parties involved are multifaceted. Firstly, it mandates that any offer of interests in managed investment schemes must adhere to the modified provisions of Chapter 6D. This includes ensuring that the formation, promotion, business operations, financial reporting, and overall management of the scheme align with the regulatory standards. Furthermore, the requirement for consent from directors and proposed directors has been altered, necessitating a clear understanding and compliance with these updated provisions. These obligations are critical for maintaining transparency, accountability, and integrity in the management of investment schemes.
The legislative instrument also outlines potential consequences for non-compliance. While specific offences are not detailed in this excerpt, the broader Corporations Law provides for both civil and criminal penalties for breaches. Civil penalties can include fines and pecuniary penalties, while criminal penalties might encompass imprisonment and fines, depending on the severity and nature of the breach. The maximum penalties are not specified in this particular legislative instrument but are stipulated elsewhere within the Corporations Law, ensuring that there are significant deterrents against non-compliance. Ensuring adherence to these provisions is essential to uphold the regulatory standards and protect investors.