ASIC Corporations (Repeal) Instrument 2021/820

Overview

The ASIC Corporations (Repeal) Instrument 2021/820, enacted to address the automatic sunset of ASIC Class Order [CO 11/272], was introduced by the Australian Securities and Investments Commission (ASIC) and approved by the Parliament in accordance with subsection 673(1) of the Corporations Act 2001. This instrument was designed to repeal the aforementioned class order ahead of its scheduled expiration on 1 October 2021, ensuring that there was no disruption to the regulatory framework governing securities lending arrangements. ASIC has already provided substantially similar declaratory relief through ASIC Corporations (Securities Lending Arrangements) Instrument 2021/821, which was the subject of consultation with various stakeholders in July 2021. The instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, as confirmed in the Statement of Compatibility with Human Rights.

Scope and Application

The ASIC Corporations (Repeal) Instrument 2021/820 applies to the Australian Securities and Investments Commission (ASIC) in its regulatory capacity concerning corporate conduct and securities. This instrument specifically repeals ASIC Class Order [CO 11/272] which was set to sunset on 1 October 2021. The repeal is effective as of the day after the instrument is registered on the Federal Register of Legislation and operates under the legislative authority granted to ASIC under subsection 673(1) of the Corporations Act 2001. The instrument is not subject to disallowance under the Legislation Act 2003 due to the automatic repeal mechanism under section 48A. The instrument’s reach is limited to the Commonwealth jurisdiction, affecting entities and individuals subject to ASIC’s oversight and the provisions of the Corporations Act 2001. The instrument does not introduce new exclusions or exemptions beyond the automatic sunset of [CO 11/272]. The compatibility of this instrument with human rights has been assessed, concluding that it does not engage any of the applicable rights or freedoms and is compatible with the human rights and freedoms recognised in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The ASIC Corporations (Repeal) Instrument 2021/820 primarily repeals ASIC Class Order [CO 11/272], which was set to expire on 1 October 2021 (section 4). This repeal action aligns with section 50 of the Legislation Act 2003, which governs the automatic repeal of certain legislative instruments (section 7). The instrument commences on the day after it is registered on the Federal Register of Legislation (section 5). ASIC has concurrently granted declaratory relief under ASIC Corporations (Securities Lending Arrangements) Instrument 2021/821, mirroring the terms of the repealed class order (section 2). This instrument is made under the authority of subsection 673(1) of the Corporations Act 2001 (section 7). The obligations imposed by this instrument on the entities it governs primarily involve compliance with the new declaratory relief provided in the ASIC Corporations (Securities Lending Arrangements) Instrument 2021/821. This includes adhering to the terms and conditions outlined in the new instrument, ensuring that any securities lending arrangements comply with the updated regulatory framework. The entities must also ensure that they are aware of the repeal of [CO 11/272] and adjust their practices accordingly. Breaches of the provisions contained within the repealed [CO 11/272] are not directly addressed in this repeal instrument. However, non-compliance with the new declaratory relief in ASIC Corporations (Securities Lending Arrangements) Instrument 2021/821 could result in civil or criminal consequences, depending on the severity and nature of the breach. The penalties for breaches of the Corporations Act 2001 can include substantial fines for both individuals and corporations, with maximum penalties varying according to the specific offence committed. In criminal cases, individuals may also face imprisonment. The exact penalties are detailed within the relevant sections of the Corporations Act 2001 and any subsequent amendments or regulations.