ASIC Corporations (Amendment) Instrument 2017/817

Overview

The ASIC Corporations (Amendment) Instrument 2017/817 was enacted by the Australian Securities and Investments Commission (ASIC) under section 741 of the Corporations Act 2001. This amendment aims to address a gap in the existing regulatory framework for crowd-sourced funding by extending the relief provided to issuers of fundraising disclosure documents to certain statements and data in crowd-sourced funding offer documents. The Corporations Amendment (Crowd-sourced Funding) Act 2017 introduced new disclosure requirements for crowd-sourced funding offers, and this amendment seeks to streamline the process by reducing the need for obtaining consent for specific types of statements and data in these documents. The policy objective is to facilitate the operation of crowd-sourced funding while ensuring that investors are provided with adequate information.

Scope and Application

The ASIC Corporations (Amendment) Instrument 2017/817 applies to eligible companies that are making crowd-sourced funding (CSF) offers in Australia. It specifically pertains to the disclosure framework introduced by the Corporations Amendment (Crowd-sourced Funding) Act 2017 in Part 6D.3A of the Corporations Act 2001. The instrument extends relief from the requirement to obtain written consent for certain statements and data in CSF offer documents, aligning with the relief already provided for statements and data in other fundraising disclosure documents under Chapter 6D and Part 7.9 of the Act. The relief applies to statements made by official persons, contained in public official documents, or already published in a book, journal, or comparable publication, as well as to historical geological data and trading data, provided certain conditions are met. This instrument operates nationally across Australia, as it is a Commonwealth regulation under the Corporations Act 2001. There are no specific exclusions or exemptions mentioned in the text, but the relief applies only when the specified conditions are fulfilled. The instrument operates in conjunction with the ASIC Corporations (Consents to Statements) Instrument 2016/72, which provides the primary relief, and together they modify the Corporations Act 2001 to streamline the consent process for certain types of statements and data in CSF offer documents.

Key Provisions

The ASIC Corporations (Amendment) Instrument 2017/817 primarily modifies the ASIC Corporations (Consents to Statements) Instrument 2016/72 (paragraph 1(3)). It extends the relief provided in the principal instrument to certain statements and data in crowd-sourced funding (CSF) offer documents, aligning them with the relief granted for other fundraising disclosure documents under the Corporations Act 2001 (section 741). Specifically, the amendment instrument ensures that consent need not be obtained for the inclusion of certain types of statements and data in CSF offer documents if certain conditions are met. This includes statements made by officials, contained in public official documents or already published in a book, journal or comparable publication, historical geological data, and trading data (paragraph 3). Under the amended Act, eligible companies making CSF offers must still comply with the consent requirement for statements attributed to or based on statements made by another person, unless the relief applies. The relief applies to the specified types of statements and data if they meet the criteria outlined in the principal instrument (paragraph 1(a)-(c)). The amendment instrument thus provides a framework for companies to include certain types of information in their CSF offer documents without needing to obtain individual consents from the sources of those statements and data. The obligations imposed on parties by the amendment instrument include ensuring that any statements and data included in a CSF offer document that fall under the relief criteria must meet the specified conditions. Companies must ensure that the statements and data are accurately represented and properly sourced. They must also verify that the consent requirements are met for any other types of statements included in the document that do not fall under the relief criteria. The amendment instrument places a responsibility on companies to comply with both the consent requirements and the relief provisions to ensure transparency and accuracy in their CSF offer documents. Failure to comply with the requirements of the amendment instrument can result in legal consequences. While the explanatory statement notes that ASIC considers the amendment instrument to be of a minor or machinery nature, any non-compliance with the Act's provisions, including those modified by the amendment instrument, could lead to enforcement actions by ASIC. These actions could include administrative penalties, legal proceedings, or other regulatory actions to ensure compliance with the Act. The specific penalties for breaches of the Corporations Act are not detailed in the amendment instrument but can include fines and other sanctions as determined by the courts or ASIC in accordance with the Act.