ASIC Corporations (Amendment) Instrument 2019/1056

Administered by Department of the Treasury

Legislation au F2019L01377 Not in force Legislative Instrument

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Explanatory Statement

 

ASIC Corporations (Amendment) Instrument 2019/1056

This is the Explanatory Statement for ASIC Corporations (Amendment) Instrument 2019/1056 (the amending instrument).

The Explanatory Statement is approved by the Australian Securities and Investments Commission (ASIC).

Summary

1. ASIC makes the amending instrument to extend the relief in ASIC Class Order [CO 14/443] Deferral of choice product dashboard and portfolio holdings disclosure regimes from portfolio holdings disclosure (PHD) requirements.  

2. The continued deferral will facilitate the Government considering and settling its policy position on the PHD requirements, including making regulations to prescribe the content and format of disclosure.  

Purpose of the instrument

 3. The PHD requirements were introduced into the Corporations Act 2001 (the Act) by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012.  The provisions require most superannuation trustees to publish investment holdings information on their websites within 90 days of each ‘reporting day’ (being 30 June or 31 December each year).  

4.  On 5 May 2014, the Government announced that the first reporting day would be deferred to 1 July 2015. To facilitate this deferral, ASIC made CO 14/443. ASIC has subsequently amended CO 14/443 to implement a series of further deferrals, most recently to insert a first reporting day of 31 December 2019.  

5.  Effective 5 April 2019, the Treasury Laws Amendment (Improving Accountability and Member Outcomes in Superannuation Measures No. 1) Act 2019 amended the PHD requirements.  These amendments simplified the PHD requirements and introduced exemptions for specific entities and types of holdings. The amendments also revised the first reporting day in section 1540 of the Act to 31 December 2019 which aligns with the date in CO 14/443.

6.  Without regulations to support the PHD requirements, there is no information prescribed to standardise the format for PHD and provide further information about specific exemptions from the requirements. In 2017, the Government consulted on draft regulations to support PHD.  

7.  The amending instrument allows further time to develop and make regulations by amending CO 14/443 to extend the first reporting date from 31 December 2019 to 31 December 2020.  

8.  This deferral does not represent a policy view by ASIC in relation to the application of the PHD requirements or a view as to the time likely to be taken by Government in settling a policy view.

Consultation

9. Before making the amending instrument, ASIC consulted with the Department of the Treasury and APRA but did not undertake a formal public consultation process.  This is because the amendments do not affect the position of any entity relying on the existing relief and are a transitional measure of a minor or machinery nature.

Operation of the instrument

10. The PHD requirements are imposed by subsection 1017BB(1) of the Act. The  requirements are imposed on trustees of registrable superannuation entities except trustees of a pooled superannuation trusts, single member funds or small APRA funds.

11. The amending instrument defers the first reporting day for PHD requirements in CO 14/443 so that a trustee of a registrable superannuation entity to whom the requirements apply does not have to comply with subsection 1017BB(1) of the Act in relation to a reporting day occurring before 31 December 2020.

12. The amending instrument commences on the day after it is registered on the Federal Register of Legislation.  

Incorporation by reference

13. The amending instrument does not incorporate any matter by reference for the purposes of section 14 of the Legislation Act 2003.

Retrospective application

14. The amending instrument does not have retrospective application.

Legislative authority

15. ASIC makes the amending instrument under subsection 1020F(1) of the Act. Subsection 1020F(1) provides that ASIC may:

(a) exempt a person or financial product, or a class of persons or financial products, from all or specified provisions of Part 7.9 of the Act; or

(b) declare that Part 7.9 of the Act applies in relation to a person or financial product, or a class of persons or financial products, as if specified provisions were omitted, modified or varied as specified in the declaration.

16. Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument, 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.

Statement of Compatibility with Human Rights 

17. The Explanatory Statement for a disallowable legislative instrument must contain a Statement of Compatibility with Human Rights under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011.

18. Instruments (not being regulations) relating to superannuation are not disallowable legislative instruments: see regulation 9 of the Legislation (Exemptions and Other Matters) Regulation 2015.

19. ASIC considers there is a reasonable basis for the view that the amending instrument to which this Explanatory Statement relates is properly described as an instrument relating to superannuation. Nonetheless, ASIC has decided to prepare a Statement of Compatibility with Human Rights, which is in the Attachment.


Attachment

Statement of Compatibility with Human Rights

 

This Statement of Compatibility with Human Rights is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

ASIC Corporations (Amendment) Instrument 2019/1056

Overview

1. The amending legislative instrument amends ASIC Class Order 14/443  to continue the deferral of the portfolio holdings disclosure requirements in section 1017BB of the Corporations Act 2001.

2. The portfolio holdings disclosure requirements apply to most superannuation trustees. The continuation of the deferral is necessary to allow Government additional time to implement regulations to support the disclosure requirements.

Assessment of human rights implications

3. The amending legislative instrument does not engage any of the applicable rights or freedoms.

Conclusion

4. The amending legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

The ASIC Corporations (Amendment) Instrument 2019/1056 was enacted to extend the relief provided under ASIC Class Order [CO 14/443] regarding the deferral of the portfolio holdings disclosure (PHD) regime, originally introduced by the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012. This legislation, introduced by the Australian Securities and Investments Commission (ASIC), aims to facilitate the Government's consideration and settlement of its policy position on the PHD requirements, including the making of regulations that will prescribe the content and format of disclosure. The initial deferral was announced on 5 May 2014, and subsequent amendments to CO 14/443 have further postponed the first reporting day, most recently to 31 December 2019. The amending instrument extends this date to 31 December 2020, providing additional time for the development and implementation of necessary regulations. The instrument does not represent a policy view by ASIC on the application of the PHD requirements or the timeframe for government policy decisions.

Scope and Application

The ASIC Corporations (Amendment) Instrument 2019/1056 amends the ASIC Class Order 14/443 to extend the deferral of the portfolio holdings disclosure (PHD) requirements for superannuation trustees. This relief is granted under the Corporations Act 2001, which applies to trustees of registrable superannuation entities, excluding pooled superannuation trusts, single member funds, and small APRA funds. The deferral is intended to provide the Government additional time to consider and settle its policy position on the PHD requirements, including the development of regulations to prescribe the content and format of disclosure. The geographic reach of the Act is nationwide, affecting entities operating within Australia. The instrument does not have retrospective application and commences on the day after it is registered on the Federal Register of Legislation. ASIC made the amending instrument under subsection 1020F(1) of the Act, which allows ASIC to exempt or declare the application of the Act in relation to certain persons or financial products. This instrument is a transitional measure and does not incorporate any matter by reference for the purposes of section 14 of the Legislation Act 2003.

Key Provisions

The main operative sections of the ASIC Corporations (Amendment) Instrument 2019/1056, focus on extending the deferral of the portfolio holdings disclosure (PHD) requirements for superannuation trustees. Section 1017BB(1) of the Corporations Act 2001 mandates that most superannuation trustees publish investment holdings information on their websites within 90 days of each reporting day. The amending instrument, through ASIC Class Order [CO 14/443], extends the first reporting day from 31 December 2019 to 31 December 2020. This is aimed at providing additional time for the Government to consider policy positions and draft regulations to support the disclosure requirements (section 11). The instrument also simplifies the PHD requirements and introduces exemptions for specific entities and types of holdings (section 5). The obligations imposed by the Act on the parties it governs include ensuring that trustees of registrable superannuation entities comply with the amended reporting requirements. These trustees must publish investment holdings information on their websites within 90 days of each reporting day, but only after the extended date of 31 December 2020. Trustees of pooled superannuation trusts, single member funds, or small APRA funds are exempt from these requirements (section 10). The instrument aims to facilitate the Government's policy consideration and regulation-making process without affecting entities that rely on the existing relief. There are no specific offences, penalties, or civil/criminal consequences mentioned for breach of the provisions in the amending instrument itself. However, non-compliance with the portfolio holdings disclosure requirements, once the regulations are made and the deferral period ends, could potentially result in penalties as prescribed by the Corporations Act 2001. The maximum penalties for breaches of the Act generally include fines and imprisonment terms, which vary depending on the severity of the breach. The specific penalties for non-compliance with the PHD requirements would be detailed in the regulations that the Government is tasked with developing. The amending instrument allows for a continued deferral of the PHD requirements, facilitating the Government's policy development and regulation-making process. It ensures that superannuation trustees are not required to comply with the disclosure obligations before the extended date of 31 December 2020, thereby providing a transitional measure without imposing immediate penalties or consequences for non-compliance.

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Area of Law
Corporate Law & Governance
Superannuation & Retirement
Instrument
Legislative Instrument
Concepts
Delegation & Subordinate Legislation
Regulatory Standards
Compliance Obligations
Reporting & Disclosure 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.