EXPLANATORY STATEMENT for
ASIC Corporations (Repeal) Instrument 2017/246
Prepared by the Australian Securities and Investments Commission
Corporations Act 2001
The Australian Securities and Investments Commission (ASIC) makes ASIC Corporations (Repeal) Instrument 2017/246 under subsections 341(1) and 601CK(7), of the Corporations Act 2001 (the Corporations Act).
Subsection 341(1) provides that ASIC may make an order in writing in respect of a specified class of companies, registered schemes or disclosing entities, relieving any of the directors, the companies, registered schemes or disclosing entities themselves, or the auditors of the companies, registered schemes or disclosing entities from all or specified requirements of Parts 2M.2, 2M.3 and 2M.4 (other than Division 4) of the Corporations Act.
Subsection 601CK(7) provides that ASIC may, by Gazette notice declare that section 601CK does not apply to specified foreign companies.
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.
ASIC Corporations (Repeal) Instrument 2017/246 repeals Class Order [CO 98/98] Small proprietary companies which are controlled by a foreign company but which are not part of a large group and Class Order [CO 02/1432] Registered foreign companies – financial reporting requirements.
- Background
Under the Legislation Act 2003, legislative instruments cease automatically, or ʻsunsetʼ, after 10 years, unless action is taken to exempt or preserve them.
To preserve its effect, a legislative instrument, such as a class order, must be remade before the sunset date. The purpose of sunsetting is to ensure that instruments are kept up to date and only remain in force while they are fit for purpose, necessary and relevant.
[CO 98/98] and [CO 02/1432] are due to sunset on 1 April 2017. ASIC has reviewed its policy underlying the relief. In light of this review and following public consultation, ASIC considers that the class order relief is necessary, fit-for-purpose and relevant.
As such, ASIC has decided to reissue the relief underlying [CO 98/98] and [CO 02/1432] in a new legislative instrument, ASIC Corporations (Foreign-Controlled Company Reports) Instrument 2017/204.
2. Purpose of the instrument
In light of the relief in [CO 98/98] and [CO 02/1432] being remade in a new legislative instrument, the purpose of ASIC Corporations (Repeal) Instrument 2017/246 is to repeal [CO 98/98] and [CO 02/1432].
3. Operation of the instrument
Schedule 1 of ASIC Corporations (Repeal) Instrument 2017/246 repeals [CO 98/98] and [CO 02/1432.
4. Consultation
ASIC has not consulted on this instrument as it is machinery in nature.