ASIC Corporations (Repeal) Instrument 2017/185

Administered by Department of the Treasury

Legislation au F2017L00191 Not in force Legislative Instrument

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EXPLANATORY STATEMENT for
ASIC Corporations (Repeal) Instrument 2017/185

Prepared by the Australian Securities and Investments Commission

 

Corporations Act 2001

 

The Australian Securities and Investments Commission (ASIC) makes the ASIC Corporations (Repeal) Instrument 2017/185 (the Instrument) under subsections 992B(1) and 1020F(1) of the Corporations Act 2001 (the Act).

The Instrument repeals ASIC Class Orders [CO 02/246]; [CO 02/286]; and [CO 02/641].

Subsection 992B(1) of the Act provides that ASIC may exempt a person or a financial product or class of persons or financial products from all or specified provisions of Part 7.8 of the Act.

Subsection 1020F(1) provides that ASIC may exempt a person or class of persons from all or specified provisions of Part 7.9 of the Act and may declare that Part 7.9 of the Act applies in relation to a person or a class of persons as if specified provisions were omitted, modified or varied.

Under subsection 33(3) of the Acts Interpretation Act 1901 (as in force as at 1 January 2005 and 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.

 

  1.                                             Background

[CO 02/246] was issued to address concerns that offers of financial products over the internet may give rise to uncertainty about the application of laws in jurisdictions where such offers can be accessed. Accordingly, the purpose of [CO 02/246] was to ensure that:

  • offers to which the exemption applies are only issued in Australia incidentally to their issue in foreign jurisdictions where those offers can be lawfully made; and
  • such offers are not intended to result in applications for investments being made by persons in Australia.

In this way, [CO 02/246] was intended for the benefit of foreign offerors that make offers of financial products to persons outside of Australia.

[CO 02/286] was issued by ASIC in 2002 to provide relief to a person in circumstances where they have been exempted from the obligation to provide a PDS under s 1012B(3) of the Act but not from the requirement to provide a PDS under s 1012B(4). [CO 02/286] was issued to correct possible oversights in instruments issued before March 2002 which, while providing relief from s 1012B(3), did not express relief in a way that would provide relief from s 1012B(4). 

[CO 02/641] was issued by ASIC in 2002 to ensure that particular financial products only have to comply with one anti-hawking provision. In the absence of this relief, issues of: securities; interests in managed investment schemes; and interests in unregistered managed investment schemes would all be required to comply with multiple hawking regimes. [CO 02/641] ensures certainty of obligation for business.

Under the Legislation Act 2003, legislative instruments cease automatically, or ‘sunset’, after 10 years, unless action is taken to exempt or preserve them. To preserve its effect, a legislative instrument must be remade before its sunset date.

[CO 02/246]; [CO 02/286]; and [CO 02/641] are all scheduled to cease on 1 April 2017. ASIC has decided to preserve the effect of [CO 02/246] and [CO 02/641] and those instruments are being made in the following instruments, respectively:

(a)   ASIC Corporations (Offers over the internet) Instrument 2017/181; and

(b)   ASIC Corporations (Securities and Managed Investment Scheme Hawking Relief) Instrument 2017/184.

ASIC has formed the view that no continuing instruments rely on the relief provided by [CO 02/286]. Accordingly, we are of the view that the instrument should be repealed.

 

2.                                                Purpose of the instrument

The purpose of the ASIC Corporations (Repeal) Instrument 2017/185 is to repeal:

(a)   ASIC Class Order [CO 02/246];

(b)   ASIC Class Order [CO 02/286]; and

(c)   ASIC Class Order [CO 02/641].

As explained above, [CO 02/246] and [CO 02/641] have been remade. [CO 02/286] is no longer necessary.

 

3.                                                Operation of the instruments

Clause 4 of the instrument provides that each instrument that is specified in a Schedule to the instrument is repealed as set out in the applicable items in the Schedule concerned.

Schedule 1 repeals [CO 02/246]; [CO 02/286]; and [CO 02/641].  

 

4.                                                Consultation

 

In November 2016 ASIC released ASIC Consultation Paper 271 Remaking and repealing ASIC class orders on internet offers, hawking and PDS obligations (CP 271), which consulted on remaking [CO 02/246] and [CO 02/641] and repealing [CO 02/286]. ASIC did not receive any submissions in response to CP 271.

 

 

Overview

The ASIC Corporations (Repeal) Instrument 2017/185, enacted in 2017, was introduced to address the need for updating and streamlining financial regulations in Australia. This instrument, prepared by the Australian Securities and Investments Commission (ASIC), serves to repeal certain ASIC Class Orders under the Corporations Act 2001. Specifically, it repeals Class Orders [CO 02/246], [CO 02/286], and [CO 02/641], which were issued in 2002 to address specific issues such as the uncertainty of internet-based financial product offers, discrepancies in Product Disclosure Statement (PDS) obligations, and the need for a singular anti-hawking provision. The objective of this repeal is to ensure that regulations remain relevant and effective, reflecting the evolving financial landscape. The instrument is a response to the automatic sunset provisions under the Legislation Act 2003, ensuring that outdated rules do not persist in the regulatory framework.

Scope and Application

The ASIC Corporations (Repeal) Instrument 2017/185 is a legislative instrument made by the Australian Securities and Investments Commission (ASIC) under the Corporations Act 2001. It repeals three ASIC Class Orders issued in 2002, specifically [CO 02/246], [CO 02/286], and [CO 02/641], which were set to expire on 1 April 2017 under the Legislation Act 2003. This instrument applies to entities and individuals affected by the repealed Class Orders, particularly those involved in financial product offerings and managed investment schemes. The geographic reach of this repeal is national, as the repealed Class Orders were intended to apply across Australia. While [CO 02/246] and [CO 02/641] have been remade in separate instruments, [CO 02/286] is considered unnecessary and has been repealed. The repeal does not extend or restrict application through subordinate instruments, but the instrument itself operates by explicitly repealing the specified Class Orders as outlined in Schedule 1.

Key Provisions

The ASIC Corporations (Repeal) Instrument 2017/185 primarily concerns the repeal of specific ASIC Class Orders: [CO 02/246], [CO 02/286], and [CO 02/641]. Section 4 of the Instrument specifies that these Class Orders are repealed as detailed in Schedule 1 of the Instrument. This repeal takes effect on the date the Instrument is registered, which is 1 April 2017. The repealed Class Orders originally addressed various regulatory requirements concerning financial product offers made over the internet, exemptions from disclosure document obligations, and relief from multiple anti-hawking provisions. Specifically, [CO 02/246] was designed to clarify the circumstances under which financial product offers could be made over the internet from outside Australia to Australian residents without triggering local regulatory obligations. [CO 02/286] provided a transitional relief for entities exempted from certain disclosure obligations but still required to provide a Product Disclosure Statement (PDS). [CO 02/641] ensured that financial products only needed to comply with one anti-hawking provision, simplifying compliance for businesses. Entities and individuals previously governed by these Class Orders must now comply with the new instruments that have replaced them: the ASIC Corporations (Offers over the internet) Instrument 2017/181 for [CO 02/246] and the ASIC Corporations (Securities and Managed Investment Scheme Hawking Relief) Instrument 2017/184 for [CO 02/641]. The repeal of [CO 02/286] indicates that no current instruments rely on its provisions, thus it is no longer necessary. The repeal of these Class Orders also necessitates that those affected by them review and adjust their practices to comply with the new regulatory framework established by the replacement instruments. This includes understanding the new requirements for internet offers of financial products, the revised PDS obligations, and the streamlined anti-hawking compliance measures. In terms of consequences, failure to comply with the new regulatory requirements outlined in the replacement instruments could result in significant penalties. Under the Corporations Act 2001, breaches of certain provisions can lead to civil penalty provisions, including fines of up to $210,000 for individuals and up to $1,050,000 for bodies corporate, depending on the nature and severity of the breach. Additionally, criminal penalties may apply, particularly for serious or repeated breaches, which could result in imprisonment. These penalties underscore the importance of adhering to the updated regulatory framework.

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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.