EXPLANATORY STATEMENT for
ASIC Corporations (Amendment) Instrument
2017/1119
Prepared by the Australian Securities and Investments Commission
Corporations Act 2001
The Australian Securities and Investments Commission (ASIC) makes the ASIC Corporations (Amendment) Instrument 2017/1119 (the Instrument) under subsections 283GA(1), 601QA(1), 655A(1), 741(1), 926A(2), 992B(1), 1020F(1) and 1075A(1) of the Corporations Act 2001 (the Act).
Subsection 283GA(1) of the Act provides that ASIC may exempt a person from a provision of Chapter 2L of the Act; or declare that Chapter 2L applies to a person as if specified provisions were omitted, modified or varied.
Subsection 601QA(1) of the Act provides that ASIC may exempt a person from a provision of Chapter 5C of the Act; or declare that Chapter 5C applies to a person as if specified provisions were omitted, modified or varied.
Subsection 655A(1) of the Act provides that ASIC may exempt a person from a provision of Chapter 6 of the Act; or declare that Chapter 6 applies to a person as if specified provisions were omitted, modified or varied.
Subsection 741(1) of the Act provides that ASIC may exempt a person from a provision of Chapter 6D of the Act or declare that the Chapter applies to a person as if specified provisions were omitted, modified or varied.
Subsection 926A(2) of the Act provides that ASIC may exempt a person or a financial product or class of persons or financial products from all or specified provisions of Part 7.6 of the Act (other than Divisions 4 and 8); or declare that Part 7.6 of the Act (other than Divisions 4 and 8) applies in relation to a person or a financial product or class of persons or financial products as if specified provisions were omitted, modified or varied.
Subsection 992B(1) of the Act provides that ASIC may exempt a person or a financial product or class of persons or financial products from all or specified provisions of Part 7.8 of the Act; or declare that Part 7.8 of the Act applies in relation to a person or a financial product or class of persons or financial products as if specified provisions were omitted, modified or varied.
Subsection 1020F(1) of the Act provides that ASIC may exempt a person or a financial product or class of persons or financial products from all or specified provisions of Part 7.9 of the Act and may declare that Part 7.9 of the Act applies in relation to a person or a class of persons as if specified provisions were omitted, modified or varied.
Subsection 1075A(1) of the Act provides that ASIC may exempt specified financial products or class of financial products from all or specified provisions of Part 7.11 of the Act; or declare that Part 7.11 of the Act applies in relation to specified financial products, or a class of financial products, as if specified provisions were omitted, modified or varied.
Under subsection 33(3) of the Acts Interpretation Act 1901 (as in force as at 1 January 2005 and as applicable to the relevant powers because of section 5C of the Act), where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- Background
ASIC has a number of ASIC Legislative Instruments in operation. ASIC has identified that some of these have minor errors, including typographical errors and required points of clarification.
2. Purpose of the instrument
The purpose of the Instrument is to make amendments to ASIC instruments to fix identified errors.
3. Operation of the instrument
Part 1—Preliminary
Section 1 – Name of the legislative instrument
This section provides that the title of the Instrument is the ASIC Corporations (Amendment) Instrument 20171119.
Section 2 – Commencement
This section provides that the Instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the Instrument is made under subsections 283GA(1), 601QA(1), 655A(1), 741(1), 926A(2), 992B(1), 1020F(1) and 1075A(1) of the Corporations Act 2001.
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to the instrument is amended as set out in the applicable items in the Schedule.
Section 5 – Definitions
Act is defined to mean the Corporations Act 2001
Schedule 1—Amendments
Item 1 – ASIC Corporations (Securities: NZ FASTER System) Instrument 2016/891
Item 1 modifies the ASIC Corporations (Securities: NZ FASTER System) Instrument 2016/891 at section 5 to remove a typographical error. A reference to section 1017H is omitted and replaced with section 1071H. This reflects the original intent of the instrument.
Items 2—5 – ASIC Corporations (Nominee and Custody Services) Instrument 2016/1156
Items 2—5 modify the ASIC Corporations (Nominee and Custody Services) Instrument 2016/1156 to remove references to section 912AE and replace them with section 912AH.
The ASIC Corporations (Nominee and Custody Services) Instrument 2016/1156 inserted section 912AE in the Act. Another ASIC instrument, ASIC Corporations (Managed Discretionary Account Services) Instrument 2016/968) inserts a separate section 912AE. The sections apply in different circumstances. While there is no issue with their operation it is preferable to change the section numbers for ease of reference.
Item 6– ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669
Item 6 modifies the ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669. This modification omits a reference to Part 7.7.
The purpose of ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 is to amend 14 of ASIC's legislative instruments so they have a single, consistent definition of ‘approved foreign market’. The instrument lists the chapters and parts of the Act that apply to any person who purports to rely on an applicable ASIC legislative instrument, Part 7.7 was incorrectly included in the list of chapters and parts.
4. Consultation
ASIC did not consult on the technical amendments as ASIC’s view is that none involve a change in policy.