ASIC CLASS ORDER [CO 05/0646]

EXPLANATORY STATEMENT

Prepared by the Australian Securities and Investments Commission

Corporations Act 2001

Subsections  741(1) and  1020F(1) — Variations

Subsections 741(1) and 1020F(1) of the Corporations Act 2001 (the Act) provide that the Australian Securities and Investments Commission (ASIC) may make an order exempting a person from a provision of Chapter 6D (fundraising) or Part 7.9 (financial product disclosure and other provisions relating to issue, sale and purchase of financial products) of the Act or declare that the Chapter 6D or Part 7.9 applies as if specified provisions were omitted, modified or varied as specified in the declaration.

1. Background - amendments to Class Order [CO 01/1455] “Continuously quoted securities”

The Act permits a disclosing entity to issue a prospectus or Product Disclosure Statement (PDS) with a specified limited content (“transaction-specific disclosure”) for continuously quoted securities: ss.713 and 1013FA.  Transaction-specific disclosure is predicated on the fact that such entities are subject to the continuous disclosure requirements of the Act and that the market generally should have all information necessary to reach an informed view about those securities.

Section 9 of the Act defines “continuously quoted securities” and excludes the securities of an entity where that entity, its directors or auditor have taken advantage of relief under ss.340 or 341 from the financial reporting and audit requirements of Chapter 2M in the 12 months before the date of the prospectus or PDS.  Hence, an entity is not permitted to use transaction-specific disclosures where the entity, its directors or auditor have taken advantage of relief under ss.340 or 341.

Class Order [CO 01/1455] “Continuously quoted securities” allows an entity to use transaction-specific disclosures even where the entity, its directors and/or auditor has taken advantage of certain ASIC relief under ss.340 or 341 that:

(a) is minor and technical; or

(b) otherwise does not detract from the level of information available to the market.

On 29 July 2005, ASIC made three class orders under s.341(1).  Class Order [CO 05/0642] “Combining financial reports of stapled security issuers”, Class Order [CO 05/0643] “Combining registered scheme financial reports” and Class Order [CO 05/0644] “Disclosing post balance date acquisitions and disposals” all of which permit the presentation of information in financial reports that could not otherwise be included in financial reports.

These class orders increase the useful information available to users of financial reports, and [CO 01/1455] now needs a minor amendment in order to permit an entity to use transaction-specific disclosure despite an entity having relied on the relief provided by the three class orders.

2. Background - amendments to Class Order [CO 04/672] “Extension of on-sales exemptions”

The Act requires an entity to issue a prospectus or PDS where the entity is on-selling a financial product within 12 months of that product being issued and:

(a) there was no disclosure at the time of issue; and

(b) certain other criteria are satisfied as outlined in ss.707(3) and 1012C(6).

There are a number of exemptions to the requirements in ss.707(3) and 1012C(6).  In particular, ss.708A(5) and 1012DA(5), the “on-sale exemptions”, recognise that a prospectus or PDS need not accompany the on-sale of a financial product that is quoted on an Australian financial market provided, amongst other things, the on-selling entity, its directors and auditor are not relying on any relief granted in the 12 months prior to the issue of the product under ss.340 or 341.

Class Order [CO 04/672] “Extension of on-sales exemptions” allows an entity to rely on the on-sale exemptions even where the entity, its directors and/or auditor has taken advantage of certain ASIC relief under ss.340 or 341 that:

(a) is minor and technical; or

(b) otherwise does not detract from the level of information available to the market.

As stated above, ASIC made Class Orders [CO 05/0642], [CO 05/0643] and [CO 05/0644] pursuant to s.341(1) on 29 July 2005.  These class order increase the information available in financial reports and ensure that certain financial reporting requirements of the legislation operate in an effective manner.

As a result, [CO 04/672] now needs a minor amendment in order to permit an entity to rely on the on-sale exemptions despite its auditor having relied on the technical relief provided by the three class orders.

3. Class Order [CO 05/0646] “Variation of [CO 01/1455] and [CO 04/0672]”

Class Order [CO 05/0646] “Variation of [CO 01/1455] and [CO 04/672]” amends [CO 01/1455] and [CO 04/672] to permit an entity whose auditor has taken advantage of the relief under Class Orders [CO 05/0642], [CO 05/0643] and [CO 05/0644]:

(a) to rely on transaction specific disclosure;  and

(b) to take advantage of disclosure exemptions for secondary sales of securities and financial products.

[CO 05/0646] recognises that the information provided in financial reports and accompanying documents is in no way reduced by the relief provided under Class Orders [CO 05/0642], [CO 05/0643] and [CO 05/0644].

4.  Consultation

As [CO 05/0646] is of a minor or machinery nature and does not substantially alter existing arrangements, ASIC did not undertake any consultation with stakeholders before that class order was made.