EXPLANATORY STATEMENT
ASIC Corporations (Amendment) Instrument 2018/473
Prepared by the Australian Securities and Investments Commission
Corporations Act 2001
The Australian Securities and Investments Commission (ASIC) makes ASIC Corporations (Amendment) Instrument 2018/473 (legislative instrument) under paragraph 1020F(1)(c) of the Corporations Act 2001 (Act). Paragraph 1020F(1)(c) provides that ASIC may declare that Part 7.9 of the Act applies in relation to a person or a financial product, or a class of persons or financial products, as if specified provisions were omitted, modified or varied as specified in the declaration.
The legislative instrument amends ASIC Class Order [CO 12/749] (principal class order). Under subsection 33(3) of the Acts Interpretations Act 1901 (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
The Corporations Amendment Regulations 2010 (No 5) established a shorter Product Disclosure Statement (PDS) regime under Subdivision 4.2B (for superannuation products) and Subdivision 4.2C (for simple managed investment schemes) of Division 4 of Part 7.9 of the Corporations Regulations 2001, which commenced on 22 June 2012.
Since 2012 ASIC has deferred the operation of the shorter PDS regime to superannuation platforms, multi-funds and hedge funds (relevant products), by providing temporary relief in successive ASIC Class Orders.
The principal class order extended the relief until 30 June 2018 to permit further consideration of the final policy position in relation to permanent relief from the application of the shorter PDS regime to the relevant products.
2. Purpose of the instrument
The purpose of the legislative instrument is to continue to defer the application of the shorter PDS regime to the relevant products until 30 June 2022. This will extend the deferral, effective since 30 June 2012, for a total period consistent with the 10 year sunsetting period for legislative instruments under the Legislation Act 2003.
This deferral will allow the Government time to consider and settle its policy position. The deferral does not represent a policy view by ASIC in relation to the application of the shorter PDS regime to the relevant products nor a view as to the time likely to be taken by the Government in settling a policy view. Accordingly, the deferral until 30 June 2022 is subject to change pending and according to the finalisation of the Government's policy position.
3. Operation of the instrument
The legislative instrument amends paragraph 6 of the principal class order to extend the operation of the principal class order from 30 June 2018 to 30 June 2022.
4. Consultation
Before making the legislative instrument to extend the existing relief, ASIC consulted with Treasury, but did not undertake a public consultation process. This is because the amendments made by the legislative instrument are transitional measures of a minor or machinery nature, and do not affect the position of any entity relying on the existing relief.