ASIC Corporations (Disregarding Technical Relief) Instrument 2016/73

Overview

The ASIC Corporations (Disregarding Technical Relief) Instrument 2016/73, enacted in 2016, aims to address the gap in existing legislation by providing specific modifications to technical relief instruments under the Corporations Act 2001. This legislative instrument was made under sections 741 and 1020F of the Act and is administered by the Australian Securities and Investments Commission (ASIC). The primary policy objective is to ensure that certain technical relief provisions do not apply to all persons, thereby maintaining the integrity and consistency of corporate governance and reporting standards. By disregarding certain technical relief instruments, the legislation seeks to uphold the intended legislative framework and avoid unintended exemptions that could undermine compliance and regulatory oversight.

Scope and Application

The ASIC Corporations (Disregarding Technical Relief) Instrument 2016/73 applies to all persons, including companies, as defined under the Corporations Act 2001. It affects the application of Chapter 6D and Part 7.9 of the Act by modifying or varying the provisions of specific instruments and class orders, which are detailed in the instrument. These instruments and class orders, referred to as "technical relief instruments," are listed in the table included in the instrument, each identified by its ASIC Instrument or ASIC Class Order number. The instrument applies nationally across Australia, as it is made under the Commonwealth authority of the Corporations Act 2001. The legislative instrument does not specify any exclusions, exemptions, or thresholds. The application and effect of the instrument can be extended or restricted through subordinate instruments, which are detailed in the endnotes, outlining the amendment history and instrument history.

Key Provisions

The ASIC Corporations (Disregarding Technical Relief) Instrument 2016/73, as part of the Corporations Act 2001, introduces specific modifications to certain statutory provisions to ensure they apply as if certain relief instruments were modified or varied (section 5). This legislative instrument primarily affects Chapter 6D and Part 7.9 of the Act by altering the definitions and scope of several provisions to disregard certain technical relief instruments. For instance, section 5(a) defines a "technical relief instrument" as any instrument listed in the accompanying table, which includes various ASIC instruments and class orders, as they were in force before their repeal. The obligations imposed by this instrument on parties and entities governed by the Corporations Act include the requirement to adhere to the Act as modified by this instrument. Specifically, it mandates that certain statutory provisions apply as if the relief instruments listed were varied. For example, section 9 of the Act must be read as if it includes specific definitions of "technical relief instruments," and this definition must be applied consistently across the Act to ensure compliance with the modified provisions. Failure to comply with the provisions of the Corporations Act as modified by this instrument may result in various civil or criminal consequences. For example, violations could potentially lead to penalties under the Corporations Act, including fines and, in severe cases, imprisonment. However, the specific penalties for breaches of the modified provisions are not explicitly stated in this instrument but are generally governed by the broader provisions of the Corporations Act. The Act includes a range of penalties, including fines that can extend into millions of dollars for corporations and imprisonment for individuals, depending on the severity and nature of the breach. This legislative instrument ensures that the technical relief instruments listed are disregarded for certain statutory purposes, thereby affecting how the Corporations Act applies to these instruments. The obligations on entities and individuals governed by the Act include strict adherence to the modified provisions, with potential significant penalties for non-compliance. The specific penalties for breaches are aligned with the broader enforcement mechanisms provided by the Corporations Act, which include both civil and criminal sanctions.