ASIC CLASS ORDER [CO 05/ 770 ]
EXPLANATORY STATEMENT
Prepared by the Australian Securities and Investments Commission
Corporations Act 2001
Chapters 2L, 5C, 6, 6D and Parts 7.6, 7.8 and 7.9 – Variation
The Australian Securities and Investments Commission (ASIC) makes class order [CO 05/770] under subsections 283GA(1), 601QA(1), 655A(1), 741(1), 951B(1), 992B(1) and 1020F(1) and paragraph 911A(2)(l) of the Corporations Act 2001 (the Act).
Subsection 283GA(1) provides that ASIC may exempt a person from a provision in Chapter 2L of the Act.
Subsection 601QA(1) provides that ASIC may exempt a person from a provision in Chapter 5C of the Act.
Subsection 655A(1) provides that ASIC may exempt a person from a provision in Chapter 6 of the Act.
Subsection 741(1) provides that ASIC may exempt a person from a provision in Chapter 6D of the Act.
Paragraph 911A(2)(l) provides that ASIC may exempt a person from the requirement to hold an Australian financial services licence.
Subsection 951B(1) provides that ASIC may exempt a person from a provision in Part 7.7 of the Act.
Subsection 992B(1) provides that ASIC may exempt a person from a provision in Part 7.8 of the Act.
Subsection 1020F(1) provides that ASIC may exempt a person from a provision in Part 7.9 of the Act.
1. Background
ASIC has previously made a number of Class Orders concerning the issue and sale of, and publishing of notices in relation to, foreign securities. These include the following ASIC class orders:
[CO 00/180] Foreign securities: publishing of reports and notices
- [CO 00/181] Foreign securities: publishing of reports and notices
- [CO 00/183] Foreign rights issue
- [CO 00/185] Foreign securities
- [CO 00/214] Foreign securities: listed foreign companies making 20 or fewer offers in Australia in 12 months
- [CO 03/184] Employee Share Schemes
These class orders provide relief from various provisions of Chapter 6D of the Act (dealing with fundraising) for certain activities in relation to securities which are quoted on an 'approved foreign market'.
ASIC's policy on approving foreign markets for the purposes of the fundraising provisions of the Act is outlined in ASIC Policy Statement 72 Foreign securities prospectus relief.
The concept of financial products being listed on an approved foreign market has also been used as a basis for ASIC to provide relief in areas other than fundraising. ASIC has granted limited relief from the takeovers provisions in the Act in regard to securities listed on an approved foreign market. This is contained in Class Order [00/2238] Relief from the minimum bid price principle – s621(3). ASIC has also provided limited relief from formal requirements regarding the provision of personal financial product advice for some financial products listed on an approved foreign market. This is contained in Class Order [CO 04/10] Statement of Advice relief for certain products able to be traded on an approved foreign market. In addition, Class Order [03/184] Employee Share Schemes also provides incidental relief from the debenture, managed investment scheme, licensing and financial product advice provisions in the Act for products listed on an approved foreign market.
At the request of the JSE Securities Exchange South Africa (JSE), ASIC has decided to expand its current list of approved foreign markets to include JSE. This is because ASIC is satisfied that JSE meets the criteria for approval set out in our existing policy.
2. The Class Order
ASIC Class Order [CO 05/770] varies each of the existing ASIC Class Orders mentioned above so as to include JSE as an approved foreign market. It also makes technical amendments to a number of the class orders. These amendments include updating the references to other approved foreign markets to reflect name changes and removing some foreign markets that have ceased to exist.
3. Consultation
ASIC did not undertake any consultation with external stakeholders before these instruments were made. Consultation was not undertaken because the instrument is considered minor or machinery in nature.