ASIC Class Order [CO 13/656]

Administered by Department of the Treasury

Legislation au F2013L00968 Not in force Legislative Instrument

Legislation content

ASIC Class Order [CO 13/656]

About this compilation

 

Compilation No. 4

 

This is a compilation of ASIC Class Order [CO 13/656] as in force on 15 November 2022. It includes any commenced amendment affecting the legislative instrument to that date.

 

This compilation was prepared by the Australian Securities and Investments Commission.

 

The notes at the end of this compilation (the endnotes) include information

about amending instruments and the amendment history of each amended provision.

 

Australian Securities and Investments Commission
Corporations Act 2001 — Subsections 601QA(1) and 1243(2) — Exemption

Enabling legislation

1. The Australian Securities and Investments Commission makes this instrument under subsections 601QA(1) and 1243(2) of the Corporations Act 2001 (the Act).

Title

2. This instrument is ASIC Class Order [CO 13/656].

Exemption – Equality of treatment for responsible entity of a registered scheme

4. A responsible entity of a registered scheme does not have to comply with paragraph 601FC(1)(d) of the Act to the extent that it would prevent the responsible entity from doing any or all of the following:

(a) not making an offer of interests to a member (a non-resident) with a registered address outside Australia, New Zealand and, in the case of an Australian passport fund, each host economy of the fund, if the responsible entity:

(i) where the scheme is included in the official list of the financial market operated by ASX Limited and the offer is one to which Rule 7.7 (Issues to Australian and New Zealand holders and overseas holders) of the listing rules of ASX Limited as at 1 June 2013 applies—complies with the requirements of that rule that are applicable to the relevant offer and issue of interests; or

(ii) where the scheme is not included in the official list of the financial market operated by ASX Limited and the offer is renounceable—appoints a nominee to sell the rights to acquire the interests that are not offered to the non-residents and distribute to each non-resident their proportion of the proceeds of sale net of expenses; or

(iii) in any other case—determines that it would be unreasonable to make the offer to the non-resident having regard to each of the following:

(A) the number of members in the place (the relevant place) where the registered address of the non-resident is situated;

(B) the number and the value of the interests that may be issued to non residents in the relevant place;

(C) the cost of complying with legal requirements and the requirements of any relevant regulatory authority applicable to making the offer in the relevant place;

(b) offering interests to some members (the priority offerees) who would be acquiring as wholesale clients at an earlier time than other members where:

(i) the terms of the offer require the priority offerees to notify the responsible entity of their acceptance of the offer by a date that occurs before another date by which other members are to notify their acceptance; and

(ii) under the terms of the offers interests will not be issued to the priority offerees before the earliest date on which interests may be issued to the other members of the scheme; and

(iii) interests are only issued to the priority offerees in accordance with the terms of the offers required by paragraphs (i) and (ii);

(c) dealing with complaints made by members who acquire an interest as wholesale clients differently from complaints by other members;

(d) offering and issuing interests in accordance with ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547.

Exemption – Equality of treatment for corporate director of a retail CCIV

4A. A corporate director of a retail CCIV does not have to comply with paragraph 1224D(2)(b) of the Act to the extent that it would prevent the corporate director from doing any or all of the following:

(a) not making an offer of shares to a member of the retail CCIV (a non-resident) with a registered address outside Australia, New Zealand and, in the case of an Australian passport fund, each host economy of the fund, if the corporate director:

(i) where the sub-fund of the retail CCIV is not included in the official list of the financial market operated by ASX Limited and the offer is renounceable—appoints a nominee to sell the rights to acquire the shares that are not offered to the non-residents and distribute to each non-resident their proportion of the proceeds of sale net of expenses; or

(ii) in any other case—determines that it would be unreasonable to make the offer to the non-resident having regard to each of the following:

(A) the number of members of the retail CCIV in the place (the relevant place) where the registered address of the non-resident is situated;

(B) the number and the value of the shares that may be issued to non residents in the relevant place;

(C) the cost of complying with legal requirements and the requirements of any relevant regulatory authority applicable to making the offer in the relevant place;

(b) offering shares to some members of a sub-fund of the retail CCIV (the priority offerees) who would be acquiring as wholesale clients at an earlier time than other members where:

(i) the terms of the offer require the priority offerees to notify the corporate director of their acceptance of the offer by a date that occurs before another date by which other members of the sub-fund are to notify their acceptance; and

(ii) under the terms of the offers shares will not be issued to the priority offerees before the earliest date on which shares may be issued to the other members of the sub-fund; and

(iii) shares are only issued to the priority offerees in accordance with the terms of the offers required by subparagraphs (i) and (ii);

(c) dealing with complaints made by members of a sub-fund of the retail CCIV who acquire a share as wholesale clients differently from complaints by other members of the sub-fund;

(d) offering and issuing shares in accordance with ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547.

 

Exemption – Acquiring interests on forfeiture

5. A responsible entity of a registered scheme does not have to comply with paragraph 601FG(1)(a) of the Act to the extent that it would prevent the responsible entity from acquiring interests on trust for the members of the scheme on forfeiture of the interests where the constitution requires that any sale of the interests be in accordance with the requirements in subsection 601GAD(9) of the Act as notionally in force because of ASIC Class Order [CO 13/655].

Interpretation

6. In this instrument:

offer includes, in relation to an issue of interests, inviting an application for the issue of interests.

wholesale client has the meaning given by section 761G of the Act.

Notes to ASIC Class Order [CO 13/656]

Note 1

ASIC Class Order [CO 13/656] (in force under s601QA(1) and s1243(2) of the Corporations Act 2001) as shown in this compilation comprises that Class Order amended as indicated in the tables below.

Table of Instruments

Instrument number

Date of making or FRL registration

Date of commencement

Application, saving or transitional provisions

[CO 13/656]

13/6/2013 (see 

F2013L00968)

 

13/6/2013

 

2017/65

23/3/2017 (see 

F2017L00284)

 

24/3/2017

-

2018/697

13/9/2018 (see

 F2018L01281)

 

18/9/2018

-

2019/548

28/8/2019 (see 

F2019L01115)

 

29/8/2019

-

2022/0940

14/11/2022 (see F2022L01459)

15/11/2022

-

Table of Amendments

ad. = added or inserted     am. = amended     LA = Legislation Act 2003    rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Section 1

am. 2022/0940

Section 3

rep. s48D LA

Section 4 (heading)

rs. 2022/0940

Paragraph 4(a)

am. 2017/65 and 2018/697

Paragraph 4(d)

am. 2019/548

Section 4A

ad. 2022/0940

 

Overview

The Australian Securities and Investments Commission (ASIC) Class Order [CO 13/656] was introduced in 2013 under the Corporations Act 2001, aiming to address specific compliance issues faced by responsible entities of registered schemes and corporate directors of retail Continuously Variable Interest Vehicles (CCIVs). The order was enacted by the Australian Securities and Investments Commission to provide exemptions to responsible entities and corporate directors, ensuring they do not have to comply with certain provisions of the Act where it would prevent them from performing their duties effectively. The primary policy objective is to allow responsible entities and corporate directors to manage their operations more efficiently by exempting them from specific compliance requirements when it would be unreasonable or impractical to adhere to them. This class order provides exemptions that enable responsible entities and corporate directors to exclude non-resident members from offers of interests or shares under certain conditions, such as complying with ASX listing rules or determining it unreasonable to offer interests or shares to non-residents based on various factors. Additionally, it allows for different treatment of wholesale clients and priority offerees, as well as the acquisition of interests on trust for members of the scheme on forfeiture, provided certain conditions are met.

Scope and Application

ASIC Class Order [CO 13/656] applies to responsible entities of registered schemes and corporate directors of retail continuous-capital investment vehicles (CCIVs) as defined under the Corporations Act 2001. This legislation provides specific exemptions from certain provisions of the Act, allowing responsible entities and corporate directors to deviate from strict compliance in particular circumstances. These exemptions pertain to the offer and issue of interests or shares, the treatment of complaints, and the acquisition of interests on trust for scheme members. The exemptions are designed to provide flexibility while maintaining certain standards and requirements in the offer and issue processes, particularly concerning non-resident members and wholesale clients. The scope of the Class Order is national, as it applies across Australia under the Commonwealth legislation. There are no explicit exclusions mentioned in the text, but the exemptions are conditional and apply only to the extent necessary to avoid unreasonable burdens on the responsible entities or corporate directors. The application and interpretation of the Class Order may be further refined or extended through subordinate instruments or regulations.

Key Provisions

ASIC Class Order [CO 13/656] outlines certain exemptions from specific provisions of the Corporations Act 2001, primarily for responsible entities of registered schemes and corporate directors of retail continuous-capital investment vehicles (CCIVs). This class order allows responsible entities to avoid complying with certain requirements related to equality of treatment for members of their schemes under subsection 601FC(1)(d) of the Act (section 4). Similarly, it exempts corporate directors of retail CCIVs from certain obligations under subsection 1224D(2)(b) of the Act (section 4A). Furthermore, the class order provides an exemption for responsible entities from acquiring interests on trust for scheme members under subsection 601FG(1)(a) of the Act, subject to certain conditions (section 5). The primary obligations imposed by this class order concern the responsibilities of responsible entities and corporate directors. Responsible entities are required to adhere to certain conditions when making offers of interests to members, particularly non-resident members, to ensure compliance with the ASX listing rules or to determine if it would be unreasonable to make such offers (section 4). Similarly, corporate directors must comply with the conditions set forth for offering shares to members, again with particular attention to non-resident members (section 4A). Additionally, responsible entities must ensure that any sale of interests in their schemes adheres to the requirements of subsection 601GAD(9) of the Act, as notionally in force due to ASIC Class Order [CO 13/655], when acquiring interests on trust for scheme members on forfeiture (section 5). ASIC Class Order [CO 13/656] does not explicitly outline offences, penalties, or civil/criminal consequences for breaches. However, any failure to comply with the Corporations Act 2001 provisions exempted by this class order may still be subject to the general penalties and enforcement actions available under the Act. These may include civil penalty provisions, pecuniary penalties, disqualification orders, and criminal prosecution, depending on the nature and severity of the breach. The specific penalties for breaches of the Act are determined by the courts and can vary widely depending on the circumstances.

Legal classification tags

Area of Law
Corporate Law & Governance
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Exemptions & Exclusions
Compliance Obligations

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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.