ASIC Corporations (Miscellaneous Technical Relief) Instrument 2015/1115

Overview

The ASIC Corporations (Miscellaneous Technical Relief) Instrument 2015/1115 was enacted in 2015 to address technical issues and clarify certain provisions within the Corporations Act 2001. This legislative instrument was prepared by the Australian Securities and Investments Commission (ASIC) and provides relief in response to technical and administrative issues that arose in the implementation of the Corporations Act. The policy objective of this instrument is to ensure that the application of the Act is consistent with its intent, by addressing any discrepancies or ambiguities that might have been identified in practice. This instrument was made under the authority of the Corporations Act 2001, specifically under subsections 655A(1), 741(1), 926A(2), and 1020F(1). It modifies the application of certain parts of the Act to provide relief for entities that are exempt from holding an Australian financial services licence. The modifications aim to ensure that these entities are subject to the same regulatory requirements as those who hold such a licence, thereby maintaining a level playing field within the financial services industry. Additionally, the instrument addresses the consequences of lodging supplementary or replacement documents, ensuring that the provisions of the Act are uniformly applied across different chapters and instruments.

Scope and Application

The ASIC Corporations (Miscellaneous Technical Relief) Instrument 2015/1115 is a legislative instrument made under the authority of the Corporations Act 2001, aiming to provide technical relief and clarification to certain provisions of the Act. This instrument applies to persons and entities that are exempt from the requirement to hold an Australian financial services licence in relation to one or more financial services, as well as to all persons in relation to specific chapters and parts of the Corporations Act. The instrument modifies or varies certain sections of the Act to ensure that the regulatory framework applies appropriately to those who are exempt from holding a financial services licence. It also extends the application of certain chapters of the Act to include supplementary or replacement documents and instruments made for the purposes of the Act, thereby clarifying the scope of these chapters. The instrument has a national reach, as it is made under the Commonwealth jurisdiction, and it came into effect on 4 December 2015, with subsequent amendments taking effect from 4 July 2017 onwards. There are no stated exclusions or exemptions within the text of this instrument, although it is subject to the broader provisions and exclusions of the Corporations Act 2001.

Key Provisions

The ASIC Corporations (Miscellaneous Technical Relief) Instrument 2015/1115 modifies and varies certain sections of the Corporations Act 2001 to provide relief and technical adjustments. Section 5 of the instrument amends Part 7.6 of the Act to clarify the application of licensing exemptions under section 926A. Specifically, it modifies subparagraph 911A(2)(a)(ii) and paragraph 911A(2)(a) to account for entities exempt from the need to hold an Australian financial services licence due to an exemption under subsection 926A(2). This adjustment ensures that the licensing requirements apply consistently to entities that are exempt from holding such a licence. Additionally, section 6 of the instrument modifies Chapter 6 of the Act, which concerns the consequences of lodging supplementary or replacement documents. The modifications ensure that the Chapter applies to these documents as well as to instruments made for the purposes of the Act. This includes changes to sections 646, 719(4) to (9), 719A(7) to (9), and 738W(8) and (9), which are now extended to cover supplementary or replacement documents. These changes ensure that the procedural requirements for these documents are aligned with the broader legislative framework. Under the ASIC Corporations (Miscellaneous Technical Relief) Instrument 2015/1115, entities that fail to comply with the modified provisions may face various consequences. While the instrument itself does not detail specific offences or penalties, non-compliance with the Corporations Act 2001 can result in civil or criminal penalties. For instance, breaches of disclosure requirements can attract fines up to $1.8 million for corporations and $360,000 for individuals, as stipulated in section 1317E of the Act. Additionally, individuals found guilty of serious breaches may face imprisonment for up to five years, as outlined in section 1317G. These penalties underscore the importance of adhering to the legislative requirements set forth in the Act and its subsidiary instruments.