ASIC Corporations (Amendment and Repeal) Instrument 2016/914

Overview

The ASIC Corporations (Amendment and Repeal) Instrument 2016/914, issued under the Corporations Act 2001, serves to address the obsolescence and redundancy of certain class orders that were due to sunset automatically as per the Legislation Act 2003. The Australian Securities and Investments Commission (ASIC) undertook a review of the policy underlying these class orders and, following public consultation, determined that certain reliefs were still necessary and fit-for-purpose, warranting their reissue in new legislative instruments. This instrument specifically repeals Class Orders [CO 98/106], [CO 98/1417], [CO 98/1418], [CO 99/1225], and [CO 01/1256], while also making consequential amendments to the ASIC Corporations (Disregarding Technical Relief) Instrument 2016/73 to update references to the repealed class orders. The policy objective behind this amendment is to ensure that the regulatory framework remains relevant, effective, and necessary for the contemporary corporate landscape in Australia.

Scope and Application

The ASIC Corporations (Amendment and Repeal) Instrument 2016/914, made under the Corporations Act 2001, applies to various entities and industries by repealing and amending several class orders. Specifically, it repeals Class Orders [CO 98/106], [CO 98/1417], [CO 98/1418], [CO 99/1225], and [CO 01/1256], which previously provided relief for financial reports of superannuation funds, audit relief for proprietary companies, wholly-owned entities, financial reporting requirements for benefit fund friendly societies, and the qualifications of accountants, respectively. The instrument also makes consequential amendments to the ASIC Corporations (Disregarding Technical Relief) Instrument 2016/73. The geographic reach of this instrument is Commonwealth, as it pertains to the regulatory powers of the Australian Securities and Investments Commission (ASIC). The instrument does not specify exclusions or exemptions but does note that the repealed class orders are no longer deemed necessary or effective by ASIC. Additionally, the instrument itself may be further regulated or modified through subordinate instruments, allowing for ongoing adjustments to meet evolving regulatory needs.

Key Provisions

The ASIC Corporations (Amendment and Repeal) Instrument 2016/914, made under the Corporations Act 2001, primarily involves the repeal of certain class orders and the consequential amendments of another legislative instrument. Specifically, the instrument repeals Class Order [CO 98/106], Class Order [CO 98/1417], Class Order [CO 98/1418], Class Order [CO 99/1225], and Class Order [CO 01/1256] (paragraphs 1(a) and 2). Additionally, it makes necessary amendments to the ASIC Corporations (Disregarding Technical Relief) Instrument 2016/73 to reflect these repeals (paragraph 1(b) and Schedule 1). This repeal and amendment process is necessary because these class orders are set to 'sunset' and expire unless they are remade, and ASIC has determined, after review and public consultation, that the relief provided by some of these class orders is still necessary and fit for purpose. The obligations imposed by this instrument on the parties or entities it governs are primarily administrative in nature. Companies, registered schemes, disclosing entities, and their directors and auditors must ensure that they are aware of the repeal of the specified class orders and any consequential amendments to other legislative instruments. They must also ensure compliance with any new legislative instruments that replace the repealed class orders, such as ASIC Corporations (Audit Relief) Instrument 2016/784, ASIC Corporations (Wholly-owned Companies) Instrument 2016/785, and ASIC Corporations (Qualified Accountant) Instrument 2016/786. These new instruments will provide updated relief and requirements in place of the repealed class orders. In terms of consequences for non-compliance, the instrument itself does not outline specific offences, penalties, or civil/criminal consequences for breaching the repealed class orders or failing to comply with the new instruments. However, the overarching Corporations Act 2001 does provide for potential penalties and consequences for non-compliance with its provisions. For example, under the Corporations Act, individuals or entities that fail to comply with financial reporting requirements may face fines or imprisonment, depending on the severity of the breach. Similarly, auditors who fail to comply with their obligations under the Act may also face penalties, including fines and disqualification from practicing as an auditor. The specific penalties for each type of breach would be determined by the courts based on the circumstances of the case and the relevant sections of the Corporations Act.