ASIC Corporations (Amendment) Instrument 2023/160

Administered by Department of the Treasury

Legislation au F2023L00290 Not in force Legislative Instrument

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Explanatory Statement

 

ASIC Corporations (Amendment) Instrument 2023/160

This is the Explanatory Statement for ASIC Corporations (Amendment) Instrument 2023/160.

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

Summary

1. ASIC Corporations (Amendment) Instrument 2023/160 amends ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 to determine a foreign financial market for the purposes of section 1100K of the Corporations Act 2001 (Corporations Act).

2. ASIC Instrument 2023/160 also updates ASIC Instrument 2017/669 and two other instruments so that they refer to ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705 rather than to ASIC Class Order [CO 12/752], which is no longer current.

Purpose of the instrument

3. The instrument determines a foreign financial market for the purposes of section 1100K of the Corporations Act. 

Consultation

4. ASIC consulted on technical relief in relation to the employee share scheme (ESS) provisions in Division 1A of Part 7.8 of the Corporations Act in Consultation Paper 364 Modifications to the ESS regime (CP 364). In CP 364, we noted that for the purposes of subsection 1100K(2), we intended to determine the foreign financial markets consistent with ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669; see, for example, the note to paragraph 18 of CP 364. Submissions in response to CP 364 did not object to this proposal.

5. The determination is also consistent with the transitional arrangements provided by subsection 1696(1) of the Corporations Act, as inserted by Treasury Laws Amendment (Cost of Living Support and Other Measures) Act 2022. Section 1696 will cease to apply when ASIC determines a foreign market under subsection 1100K(2): subsection 1696(2).

Operation of the instrument

6. Section 4 of the instrument states that each instrument specified in the Schedule is amended as set out in the applicable items in the Schedule.

7. Item 1 of the Schedule to the instrument amends ASIC Class Order [CO 13/761] so that it refers to ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705 rather than ASIC Class Order [CO 12/752], which is no longer current.

8. Item 2 of the Schedule to the instrument amends ASIC Corporations (Financial Requirements for CSF Intermediaries) Instrument 2017/339 so that it refers to ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705 rather than ASIC Class Order [CO 12/752].

9. Item 3 of the Schedule to the instrument amends section 3 of ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 to add subsection 1100ZK(2) as an authority for that instrument.

10. Item 4 of Schedule to the instrument amends the definition of ‘applicable ASIC legislative instrument’ in paragraph 4(b) of ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 so that it refers to ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705 rather than ASIC Class Order [CO 12/752].

11. Item 5 of the Schedule to the instrument adds a new Part 3 Determination and section 6 to ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669. Section 6 provides that, for the purposes of section 1100K, each approved foreign market (within the meaning of section 5 of ASIC Instrument 2017/669) is determined.

12. The instrument will commence on the day after it is registered on the Federal Register of Legislation.

Legislative instrument and primary legislation  

13. The subject matter and policy implemented by this instrument are more appropriate for a legislative instrument rather than primary legislation because the instrument is made under a power specifically delegated to ASIC which requires a detailed, technical assessment that is best suited for ASIC to undertake rather than Parliament. The instrument operates to fill in a more comprehensive regulatory framework that sits alongside the primary law.

Duration of the instrument

14. The duration of amendments made by ASIC Instrument 2023/160 aligns with the duration of the instruments amended.

Legislative authority

15. The instrument is made under subsections 283GA(1), 601QA(1), 655A(1), 741(1), 926A(2), 992B(1), 1020F(1) and 1100K(2) of the Corporations Act.

16. The instrument amends ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669, ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705 and ASIC Corporations (Financial Requirements for CSF Intermediaries) Instrument 2017/339. Where an Act confers a power to make an instrument, the power is to be construed as including a power to amend the instrument: see subsection 33(3) of the Acts Interpretation Act 1901 (as in force as at 1 January 2005, per section 5C of the Corporations Act).

17. The instrument is a disallowable instrument.

Statement of Compatibility with Human Rights  

18. 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. A Statement of Compatibility with Human Rights 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 2023/160

Overview

1. This instrument amends ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 to determine a foreign financial market for the purposes of section 1100K of the Corporations Act 2001.

2. The instrument also updates ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669, ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705 and ASIC Corporations (Financial Requirements for CSF Intermediaries) Instrument 2017/339 so that those instruments refer to ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705 rather than ASIC Class Order [CO 12/752], which is no longer current.

Assessment of human rights implications

3. This instrument does not engage any of the applicable rights or freedoms.

Conclusion

4. This 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 2023/160 was enacted to amend the ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669. This instrument determines a foreign financial market for the purposes of section 1100K of the Corporations Act 2001. Additionally, it updates the references in the aforementioned instruments to align with the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705, replacing references to the outdated ASIC Class Order [CO 12/752]. The Australian Securities and Investments Commission (ASIC) developed this instrument to ensure regulatory consistency and update the relevant references in the legislative framework. The policy objective behind this instrument is to maintain a coherent and up-to-date regulatory environment that supports the effective administration of the Corporations Act.

Scope and Application

The ASIC Corporations (Amendment) Instrument 2023/160 amends the ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 to determine a foreign financial market for the purposes of section 1100K of the Corporations Act 2001. This amendment applies to financial markets outside Australia that are relevant to the operation of the Corporations Act. The instrument also updates several ASIC instruments to ensure they refer to the current ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705, replacing references to the outdated ASIC Class Order [CO 12/752]. This ensures that the instruments remain current and effective in regulating financial activities. The amendments are made under specific powers conferred to ASIC and will commence on the day after the instrument is registered on the Federal Register of Legislation. The instrument operates within the Commonwealth jurisdiction and is applicable to entities and individuals involved in financial transactions that are regulated under the Corporations Act. There are no stated exclusions or exemptions in the instrument, but it does extend its application through subordinate instruments, ensuring comprehensive regulatory coverage.

Key Provisions

The ASIC Corporations (Amendment) Instrument 2023/160 (ASIC Instrument 2023/160) primarily amends the ASIC Corporations (Definition of Approved Foreign Market) Instrument 2017/669 (ASIC Instrument 2017/669) to determine a foreign financial market for the purposes of section 1100K of the Corporations Act 2001 (Corporations Act) (sections 3 and 6). This amendment ensures that the definition of an approved foreign market is updated and aligned with current regulatory requirements. The instrument also updates references in ASIC Instrument 2017/669, ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705, and ASIC Corporations (Financial Requirements for CSF Intermediaries) Instrument 2017/339 to reflect the most recent legislative requirements, ensuring consistency and currency across related instruments (items 1, 2, 4, and 5). Entities and individuals governed by these instruments are required to comply with the updated definitions and references provided by ASIC Instrument 2023/160. Specifically, financial institutions, issuers of retail over-the-counter (OTC) derivatives, and intermediaries must ensure their operations and compliance strategies align with the revised standards and references (sections 3 and 6). This includes updating internal policies, training staff, and reviewing current practices to ensure they meet the updated regulatory requirements. Breaches of the provisions in the Corporations Act and related instruments can result in civil or criminal penalties. For example, contravening the financial services provisions of the Corporations Act can result in substantial fines and, in severe cases, imprisonment. Specifically, section 1311 of the Corporations Act imposes penalties for civil penalty provisions, which can include fines of up to $2.1 million for corporations and $420,000 for individuals, depending on the nature and severity of the breach (section 1311). Additionally, section 1317 of the Corporations Act allows for criminal penalties, including imprisonment for up to five years, for serious or repeated breaches of the financial services provisions. The instrument will commence on the day after it is registered on the Federal Register of Legislation, ensuring that the amendments and updates take effect immediately upon registration (section 12). This timing ensures that all relevant entities have a clear understanding of the new requirements and can adjust their practices accordingly. The instrument is made under various subsections of the Corporations Act, including subsections 283GA(1), 601QA(1), 655A(1), 741(1), 926A(2), 992B(1), 1020F(1), and 1100K(2), and it is a disallowable instrument, meaning that it can be reviewed and disallowed by Parliament (section 15). The duration of the amendments aligns with the duration of the instruments being amended (section 14).

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Area of Law
Corporate Law & Governance
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Transitional Provisions
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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.