ASIC Class Order [CO 13/284]

Administered by Department of the Treasury

Legislation au F2013L00461 Not in force Legislative Instrument

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ASIC CLASS ORDER [CO 13/284]

 

EXPLANATORY STATEMENT

 

Prepared by the Australian Securities and Investments Commission

 

Corporations Act 2001

 

The Australian Securities and Investments Commission (ASIC) makes Class Order [CO 13/284] under paragraph 911A(2)(l) of the Corporations Act 2001 (the Act).

 

Paragraph 911A(2)(l) of the Act provides that a person is exempt from the requirement to hold an Australian financial services licence for a financial service they provide if the provision of the service is covered by an exemption specified by ASIC in writing and published in the Gazette.

 

1. Background

 

ASIC Regulatory Guide 176 Licensing: Discretionary powers – wholesale foreign financial services providers outlines when ASIC will grant conditional relief from the requirement to hold an Australian financial services licence to foreign financial services providers that provide financial services in Australia only to wholesale clients.

 

A foreign financial services provider that is regulated by the Financial Services Authority (the FSA) of the United Kingdom is one class of foreign financial services provider that falls within the policy of Regulatory Guide 176. ASIC Class Order [CO 03/1099] (the principal class order)  gives effect to that policy in relation to providers regulated by the FSA.

 

As a result of legislative amendments made to the Financial Services and Markets Act 2000 of the United Kingdom (the FSM Act) by the Financial Services Act 2012 of the United Kingdom, the body corporate known as the FSA will, from 1 April 2013, be renamed as the Financial Conduct Authority (the FCA): section 1A of the FSM Act.

 

The FCA will be the same legal entity as the FSA.

 

2. Purpose of the class order

 

The purpose of this class order is to update references in the principal class order to reflect the changes to the legislative regime in the United Kingdom, in particular the renaming of the FSA to the FCA, without effecting any substantive change to the conditional relief provided by the principal class order.

 

3. Operation of the class order

 

This class order amends the principal class order.

 

The former definition of FSA in the principal class order has been replaced with a new definition of FCA.  FCA is defined to include the FSA as it was previously known before 1 April 2013.

 

There are a number of bodies that are relying on the principal class order and will continue to be relying on it on and after 1 April 2013. The amendments to the principal class order will not cause a body that is currently eligible to rely on the relief, and is so relying on it, to cease to be eligible to rely on the relief. In particular:

 

(a) a body that, before 1 April 2013, had provided to ASIC a deed containing the undertakings and covenants required by the principal class order, is not required to provide a new or amended deed to ASIC to reflect the renaming of the FSA to the FCA; and

 

(b) a body that, before 1 April 2013, had provided to ASIC written consents to the sharing of information about the body between ASIC and the FSA, is not required to provide new written consents to the sharing of information about the body between ASIC and the FCA.

 

As the FCA will be the same legal entity as the FSA, ASIC takes the view that:

 

(a) existing deeds of bodies containing undertakings and covenants that are expressed to apply in relation to the FSA will be enforceable by ASIC against the body in relation to the FCA;

 

(b) existing written consents provided by the body to the sharing of information about the body between ASIC and the FSA are written consents to the sharing of information about the body between ASIC and the FCA; and

 

(c) if an enforcement action, disciplinary action or investigation, of a significant kind, had been taken against the body by the FSA before 1 April 2013 and which would have required notification to ASIC but has not yet been notified, it continues to be notifiable to ASIC on and after 1 April 2013.

 

4.  Consultation

 

ASIC did not engage in any consultation before making this amending class order. The amendments made are of a minor and technical nature and are merely consequential on a particular change to the name of the financial services regulator in the United Kingdom.

 


 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

ASIC Class Order [CO 13/284]

 

This class order is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the class order

 

This class order amends ASIC Class Order [CO 03/1099] (the principal class order) by updating references in the principal class order to reflect the changes to the legislative regime in the United Kingdom, in particular the renaming of the Financial Services Authority to the Financial Conduct Authority, which will take effect on 1 April 2013, without effecting any substantive change to the licensing relief provided by the principal class order.

 

Human rights implications

 

This class order does not engage any of the applicable rights or freedoms.

 

Conclusion

 

This class order is compatible with human rights as it does not raise any human rights issues.

Overview

The Australian Securities and Investments Commission (ASIC) introduced ASIC Class Order [CO 13/284] under the Corporations Act 2001 to address the need for updating the regulatory framework in response to legislative changes in the United Kingdom. Specifically, this class order was enacted to adjust references in the existing ASIC Class Order [CO 03/1099] to reflect the renaming of the Financial Services Authority (FSA) to the Financial Conduct Authority (FCA), effective from 1 April 2013, while maintaining the same substantive licensing relief for foreign financial services providers. The purpose of this amendment is to ensure continuity and clarity in regulatory compliance without altering the core policy objectives established by the original class order. The class order operates by replacing the definition of FSA with FCA in the principal class order, thereby accommodating the new entity without disrupting the eligibility or obligations of entities already complying with the previous order.

Scope and Application

The ASIC Class Order [CO 13/284] amends ASIC Class Order [CO 03/1099] to update references in the principal class order to reflect changes to the legislative regime in the United Kingdom, specifically the renaming of the Financial Services Authority to the Financial Conduct Authority, effective from 1 April 2013. This update ensures that the class order remains current without altering the substantive relief provided to foreign financial services providers, such as those regulated by the FCA, who offer financial services in Australia exclusively to wholesale clients. This class order applies to foreign financial services providers regulated by the FCA, ensuring they continue to benefit from the licensing exemption under the Corporations Act 2001. It is geographically relevant to Australia and pertains to the conduct of these foreign entities operating within Australian financial markets. There are no exclusions or thresholds specified in this class order, and it does not introduce new exemptions or restrictions. Instead, it maintains the existing framework by aligning with the legislative changes in the United Kingdom. The amendments made through this class order do not require additional submissions or consultations as they are of a minor, technical nature and consequential to the name change of the UK financial services regulator.

Key Provisions

The ASIC Class Order [CO 13/284] amends ASIC Class Order [CO 03/1099] to update references to the Financial Services Authority (FSA) to the Financial Conduct Authority (FCA) in light of legislative changes in the United Kingdom. This change, effective from 1 April 2013, is purely technical and aims to maintain the continuity of the conditional relief granted to foreign financial services providers that operate solely with wholesale clients in Australia, as outlined in ASIC Regulatory Guide 176. The amendment ensures that the relief provided remains unchanged despite the renaming of the UK regulator (section 2). The primary obligation imposed by this class order is on foreign financial services providers, particularly those regulated by the FCA, to ensure that they comply with the updated references in the class order. This includes maintaining their eligibility for the licensing exemption by adhering to the conditions set out in the principal class order. For example, providers must continue to provide undertakings and covenants as previously required, without needing to submit new documents to ASIC post the renaming of the FSA to the FCA (section 3(a) and (b)). Any breach of the conditions stipulated in the class order may result in the provider losing their exemption from holding an Australian financial services licence. While specific penalties are not detailed in the explanatory statement, breaches of similar provisions under the Corporations Act 2001 can lead to substantial civil and criminal penalties. These penalties may include fines and imprisonment, depending on the severity of the breach and the discretion of the court (section 3(c)). The compatibility statement affirms that this class order does not engage any human rights issues and is thus compatible with the human rights and freedoms recognised in relevant international instruments.

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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.