ASIC Corporations (Repeal) Instrument 2018/356

Administered by Department of the Treasury

Legislation au F2018L00596 Not in force Legislative Instrument

Legislation content

 

EXPLANATORY STATEMENT for
ASIC Corporations (Repeal) Instrument 2018/356

Prepared by the Australian Securities and Investments Commission

 

Corporations Act 2001

 

The Australian Securities and Investments Commission (ASIC) makes the ASIC Corporations (Repeal) Instrument 2018/356 (the Instrument) under paragraphs 741(1)(b), 911A(2)(l) and 1020F(1)(c) and subsection 1075A(1) of the Corporations Act 2001 (the Act).

The Instrument repeals ASIC Class Order [CO 14/829].

Paragraph 741(1)(b) of the Act provides that ASIC may declare that Chapter 6D of the Act applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration.

Paragraph 911A(2)(l) of the Act provides that ASIC may exempt a person from the requirement to hold an Australian financial services licence for a financial service they provide. This is done by granting an exemption in writing and publishing it in the Gazette.

Paragraph 1020F(1)(c) of the Act provides that ASIC may declare that Part 7.9 of the Act applies in relation to a person or a financial product, or a class of person or financial products, as if specified provisions were omitted, modified or varied as specified in the declaration.

Subsection 1075A(1) provides that ASIC may exempt specified financial products, or a specified class of financial products, from a provision of Part 7.11 of the Act or declare that Part 7.11 of the Act applies to specified financial products, or a specified class of financial products, as if specified provisions were omitted, modified or varied as specified in the declaration.

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument (including rules, regulations or bylaws), 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 14/829] was issued to:

  •     amend Class Order [CO 02/312], to ensure that a definition in that instrument (relating to CHESS Depository Interests (CDIs)) was consistent with that in a third instrument, Class Order [CO 14/827] (paragraph 4 of [CO 14/829]); and
  •     amend [CO 14/827] by renumbering various paragraphs, to address a drafting error (paragraph 5 of [CO 14/829]).

Paragraph 3 of the [CO 14/829] specifies the following in relation to the commencement of that instrument:

  •     paragraph 4 was to commence on the date [CO 14/829] was registered under the Legislative Instruments Act 2003; and
  •     paragraph 5 was to commence on the later of:

­        the date of its gazettal;

­        the date of its registration under the Legislative Instruments Act 2003;

­        the day after the commencement date of [CO 14/827] ([CO 14/827] commenced on 5 November 2014).

[CO 14/829] was registered on 13 October 2014 and paragraph 4 of [CO 14/829] commenced on that date.

In relation to the commencement of paragraph 5 of [CO 14/829], two of three preconditions were met, in that [CO 14/827] did in fact commence, and [CO 14/829] was registered. However, [CO 14/829] was ultimately not gazetted, so paragraph 5 did not commence.

While paragraph 5 of [CO 14/829] made an attempt to correct the drafting error in [CO 14/827], that amending paragraph itself contained a mis-description. In any event, as noted above, the mis-described amendment in paragraph 5 of Class Order [CO 14/829] did not take effect because that class order was not gazetted. A subsequent instrument, Class Order [CO 14/1106], was made to address the drafting error in [CO 14/827].

Under section 48A of the Legislative Instruments Act 2003 (as in force at the time [CO 14/829] was made, a legislative instrument that is made on or after the commencement of that section and the only legal effect of which is to amend or repeal one or more other legislative instruments, is automatically repealed. This occurs on the day after the latest occurrence of the commencement of the instrument or of the last of its provisions to commence, or the registration of the instrument. While the sole purpose of [CO 14/829] is to amend other legislative instruments, as not all of its provisions commenced, it was not subject to automatic repeal under section 48 A of the Legislative Instruments Act 2003, and remains in force.

2.                                                Purpose of the instrument

The purpose of the ASIC Corporations (Repeal) Instrument 2018/356 is to repeal [CO 14/489], given that:

  •     the purpose of paragraph 4 of [CO 14/489] has been achieved in amending [CO 02/312]; and
  •     paragraph 5 of [CO 14/489] has been made redundant by a subsequent instrument, [CO 14/1106].

3.                                                Operation of the instrument

Clause 4 of the instrument provides that each of the instruments set out in Schedule 1 are amended or repealed as set out in that Schedule. Schedule 1 provides that [CO 14/489] is repealed in full.

 

4.                                                Consultation

ASIC undertook consultation before making [CO 14/829] by issuing Consultation Paper 220 Fundraising: Facilitating offers of CHESS Depositary Interests (CP 220). ASIC received seven submissions in response to CP 220, all of which were supportive of the proposals set out in that paper. Details of the submissions received are contained in Report 414 Response to submissions on CP 220 Fundraising: Facilitating offers of CHESS Depository Interests (REP 414), which is available on ASIC’s website www.asic.gov.au.

 

 

 

Overview

The Corporations Act 2001, enacted to modernise and consolidate corporate law in Australia, provides the Australian Securities and Investments Commission (ASIC) with the authority to issue class orders and legislative instruments. The ASIC Corporations (Repeal) Instrument 2018/356 was introduced to address the need for repealing outdated or redundant class orders. This instrument repeals ASIC Class Order [CO 14/829], which had been rendered largely ineffective as its intended amendments did not come into effect and were superseded by subsequent instruments. The policy objective of this repeal is to streamline and clarify the regulatory framework by removing unnecessary or superseded legislative instruments, ensuring that the law remains current and effective. The repeal was carried out in accordance with the powers conferred by the Corporations Act 2001 and the Acts Interpretation Act 1901, ensuring that the legal framework continues to adapt to the evolving corporate environment.

Scope and Application

The ASIC Corporations (Repeal) Instrument 2018/356 applies to entities subject to the Corporations Act 2001 and specifically targets the amendments and repeals of certain class orders under the Act. This instrument is made by the Australian Securities and Investments Commission (ASIC) under the authority granted by the Act, which allows ASIC to declare and modify specified provisions, exempt certain entities from financial services licensing requirements, and adjust the application of financial product regulations. The repeal of Class Order [CO 14/829], which aimed to correct inconsistencies and drafting errors in other class orders, is now rendered unnecessary as those issues have been addressed by subsequent instruments and no longer require the provisions of [CO 14/829]. The repeal of [CO 14/489], as outlined in the Instrument, follows similar reasoning, as its purpose has been fulfilled through other amendments and it has been made redundant by subsequent legislation. This repeal does not extend beyond the specified class orders and does not affect other provisions of the Corporations Act or related instruments. The repeal does not impose new obligations or restrictions on entities outside the scope of these class orders, ensuring that the changes are confined to the intended areas of correction and redundancy.

Key Provisions

The ASIC Corporations (Repeal) Instrument 2018/356 (the Instrument) primarily operates by repealing ASIC Class Order [CO 14/829], as outlined in Clause 4 and Schedule 1 of the Instrument. The key section in this regard is section 4, which details the amendments or repeals of specific instruments. Specifically, Schedule 1 of the Instrument indicates that [CO 14/489] is repealed in full. This repeal is justified because the purpose of certain provisions in [CO 14/489] has already been achieved through other amendments, and other provisions have become redundant due to subsequent legislative instruments. The Act imposes several obligations and requirements on the parties or entities it governs. Firstly, it requires that any changes or repeals of existing legislative instruments, such as class orders, are made through instruments like the ASIC Corporations (Repeal) Instrument. This ensures that all legislative changes are formally documented and communicated to the relevant stakeholders. Additionally, the Act mandates that any such instruments must be registered under the Legislative Instruments Act 2003 and, where applicable, gazetted to officially commence. These steps are critical for the legal validity and enforceability of the changes. The Instrument also highlights the importance of proper consultation and transparency in the legislative process. The Australian Securities and Investments Commission (ASIC) undertook consultation by issuing Consultation Paper 220, which received seven supportive submissions. This consultation process is crucial for ensuring that the changes proposed in the Instrument are well-considered and supported by stakeholders. Moreover, ASIC's obligation to publish details of the submissions and the responses on its website further ensures transparency and public accountability. In terms of penalties and consequences, the Instrument does not explicitly outline specific offences or penalties for breaches. However, the broader Corporations Act 2001 provides a framework for potential civil and criminal penalties for non-compliance with legislative instruments. For instance, under the Act, breaches of certain provisions can result in substantial fines for corporations and, in more serious cases, imprisonment for individuals. The exact penalties depend on the nature and severity of the breach but can be significant, reflecting the importance of adhering to regulatory requirements. Overall, the ASIC Corporations (Repeal) Instrument 2018/356 serves to streamline and update the legislative framework governing financial services in Australia. By repealing outdated or redundant provisions and ensuring that all changes are formally documented and communicated, the Instrument helps maintain a clear, efficient, and effective regulatory environment.

Legal classification tags

Area of Law
Corporate Law & Governance
Instrument
Statutory Instrument
Concepts
Repeal & Amendment
Regulatory Standards
Consultation Requirements

Interactions

Authorises

All Versions

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.