ASIC Corporations (Repeal) Instrument 2024/604

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Legislation au F2024L01114 Not in force Legislative Instrument

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Explanatory Statement

 

ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605 and ASIC Corporations (Repeal) Instrument 2024/604

 

This is the Explanatory Statement for ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605 (the Foreign Markets Amendment Instrument) and ASIC Corporations (Repeal) Instrument 2024/604 (the Exemption Repeal Instrument).

The Explanatory Statement is approved by the Australian Securities and Investments Commission (ASIC).

Summary

  1.              The Foreign Markets Amendment Instrument is made under subrule 1.2.4(5) of the ASIC Derivative Transaction Rules (Reporting) 2024 (the 2024 Reporting Rules) and the effect of the amendments is to repeal ASIC Regulated Foreign Markets Determination 2023/346 (the 2023 Foreign Markets Determination) on 21 October 2024.
  2.              The Exemption Repeal Instrument is made under paragraph 907D(2)(a) of the Corporations Act 2001 and repeals ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844 (the 2015 Exemption) on 21 October 2024.
  3.              On 21 October 2024, ASIC Derivative Transaction Rules (Reporting and Clearing) Amendment Instrument 2024/416 (Amendment Instrument 2024/416) amends the 2024 Reporting Rules to substitute a generic definition of an excluded exchange-traded derivative (ETD) in place of the existing list of specified financial markets and classes of financial markets for which the derivatives traded on those financial markets are prescribed as excluded ETDs.
  4.              The generic definition under the 2024 Reporting Rules is based on subsection 5(1) of the 2015 Exemption and, in effect, supersedes:
    1.           The provisions of section 5 of the 2015 Exemption, and, as all other provisions of the 2015 Exemption cease to have effect on 21 October 2024, the 2015 Exemption is repealed on 21 October 2024; and
    2.           The determinations made in the 2023 Foreign Markets Determination, and this determination is repealed on 21 October 2024.

Purpose of the instruments

5. The key purpose of the Foreign Markets Amendment Instrument and the Exemption Repeal Instrument is to repeal instruments whose purposes are no longer consistent with, or supported by, the 2024 Reporting Rules from 21 October 2024.

Background to the instruments

  1.              ASIC made the 2024 Reporting Rules on 19 December 2022 following two rounds of consultation: Consultation Paper 334 Proposed changes to simplify the ASIC Derivative Transaction Rules (Reporting): First consultation (released on 27 November 2020); and Consultation Paper 361 Proposed changes to simplify the ASIC Derivative Transaction Rules (Reporting): Second consultation (released on 16 May 2022). The 2024 Reporting Rules will commence on 21 October 2024.
  2.              Following a further round of consultation[1], ASIC made amendments to the 2024 Reporting Rules under ASIC Derivative Transaction Rules (Reporting) 2024 Amendment Instrument 2024/1 to make minor and technical changes to the data elements under the 2024 Reporting Rules and other minor updates.
  3.              These public consultations and rulemaking prioritised implementing the international harmonised standards for entity, product and transaction identifiers under ISO 20022 ‘Financial Services – Universal financial industry message scheme’ as the technical standard for trade reporting, as well as more closely aligning the reportable data elements with those of other major jurisdictions. These priority elements require the longest lead times for system and process changes and impact all reporting entities.
  4.              Following a final round of consultation, Consultation Paper 375 Proposed changes to the ASIC Derivative Transaction Rules (Reporting): Third consultation (CP 375), with the Minister’s consent, on 11 August 2024, ASIC made Amendment Instrument 2024/416. This instrument includes amending the 2024 Reporting Rules on 21 October 2024 to substitute a generic definition of an excluded ETD in place of the existing classes of financial markets for which the derivatives traded on those financial markets are excluded ETDs – thus making the purposes of the 2023 Foreign Markets Determination and section 5 of the 2015 Exemption Instrument no longer consistent with, or supported by, the 2024 Reporting Rules.

Consultation

  1.          On 15 February 2024, ASIC released CP 375. The consultation period closed on 28 March 2024. CP 375 made proposals to, among other things:
    1.           simplify and permanently exclude ETDs wholly by provisions within the 2024 Reporting Rules, but with a determination power to adjust for any unanticipated definitional uncertainties; and
    2.           on 21 October 2024, withdraw the 2023 Foreign Markets Determination and repeal section 5 of the 2015 Exemption Instrument.
  2.          ASIC’s proposals were supported by industry feedback to CP 375. ASIC received eight submissions in total from industry associations, a trade repository, reporting entities and service providers.
  3.          ASIC has consulted with the Reserve Bank of Australia (RBA) and the Australian Prudential Regulation Authority (APRA) in relation to the CP 375 proposals to amend the 2024 Reporting Rules. The RBA and APRA support the rules amendments.
  4.          ASIC has consulted with the Office of Impact Analysis (OIA) in relation to whether an Impact Analysis (IA) would be required. OIA advised that the preparation of an IA was not required because it assessed the proposals as unlikely to have a more than minor regulatory impact.

Operation of the instruments

ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605

Part 1: Preliminary

  1.          Section 1 of Part 1 provides that the name of the instrument is the ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605.
  2.          Section 2 of Part 1 provides that the instrument commences on the later of:
    1.           21 October 2024;
    2.           the day after it is registered on the Federal Register of Legislation.
  3.          Section 3 of Part 1 provides that the instrument is made under 1.2.4(5) of the ASIC Derivative Transaction Rules (Reporting) 2024.
  4.          Section 4 of Part 1 provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

Schedule 1 Amendments

  1.          Item 1 of Schedule 1 provides that subsection 7(3) of the 2023 Foreign Markets Determination, is amended to change the date of repeal from “1 April 2033” to “21 October 2024” to coincide with the commencement of the 2024 Reporting Rules.

ASIC Corporations (Repeal) Instrument 2024/604

Part 1: Preliminary

  1.          Section 1 of Part 1 provides that the name of the instrument is the ASIC Corporations (Repeal) Instrument 2024/604.
  2.          Section 2 of Part 1 provides that the instrument commences on the later of 21 October 2024 and the day after it is registered on the Federal Register of Legislation.
  3.          Section 3 of Part 1 provides that the instrument is made under 907D(2)(a) of the Corporations Act 2001.
  4.          Section 4 of Part 1 provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

Schedule 1 Repeal

  1.          Item 1 of Schedule 1 provides that ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844 is repealed.

Legislative instrument and primary legislation

  1.          The subject matter and policy implemented by the Foreign Markets Amendment Instrument and the Exemption Repeal Instrument is more appropriate for a legislative instrument rather than primary legislation because the effect of the instruments is to repeal instruments that are themselves legislative instruments rather than primary legislation.
  2.          The duration of the instruments is until 21 October 2024, which aligns with the commencement of the 2024 Reporting Rules.

Legislative authority

  1.          The Foreign Markets Amendment Instrument is made under subrule 1.2.4(5) of the 2024 Reporting Rules. Under subrule 1.2.4(5), a determination by ASIC may be withdrawn by ASIC, from a date specified in a notice of withdrawal that is not less than 1 calendar month after the date the notice of withdrawal is registered under the Legislation Act 2003. The Foreign Markets Amendment Instrument amends the self-repealing provision in the 2023 Foreign Markets Determination to effectively withdraw the Foreign Markets Determination on 21 October 2024.
  2.          The Exemption Repeal Instrument is made under paragraph 907D(2)(a) of the Corporations Act 2001. Under paragraph 907D(2)(a) of the Act, ASIC may exempt a person or class of persons from all or specified provisions of the Rules made under Part 7.5A of the Act.
  3.          Under subsection 33(3) of the Acts Interpretations Act 1901 (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.

Statement of Compatibility with Human Rights

  1.          The Explanatory Statement for a disallowable legislative instrument must contain a Statement of Compatibility with Human Rights under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility with Human Rights is in the Attachment.


Attachment

Statement of Compatibility with Human Rights

 

This Statement of Compatibility with Human Rights is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605 and ASIC Corporations (Repeal) Instrument 2024/604

Overview

  1.              The ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605 is made under subrule 1.2.4(5) of the ASIC Derivative Transaction Rules (Reporting) 2024 (the 2024 Reporting Rules) and the effect of the amendments is to repeal ASIC Regulated Foreign Markets Determination 2023/346 (the 2023 Foreign Markets Determination) on 21 October 2024.
  2.              The ASIC Corporations (Repeal) Instrument 2024/604 is made under paragraph 907D(2)(a) of the Corporations Act 2001 and repeals ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844 (the 2015 Exemption) on 21 October 2024.
  3.              On 21 October 2024, ASIC Derivative Transaction Rules (Reporting and Clearing) Amendment Instrument 2024/416 amends the 2024 Reporting Rules to substitute a generic definition of an excluded exchange-traded derivative (ETD) in place of the existing list of specified financial markets and classes of financial markets for which the derivatives traded on those financial markets are prescribed as excluded ETDs.
  4.              The generic definition is based on subsection 5(1) of the 2015 Exemption and, in effect, supersedes:
    1.           The provisions of section 5 of the 2015 Exemption, and, as all other provisions of the 2015 Exemption cease to have effect on 21 October 2024, the 2015 Exemption is repealed on 21 October 2024; and
    2.           The determinations made in the 2023 Foreign Markets Determination, and this determination is repealed on 21 October 2024.

Assessment of human rights implications

  1.              The ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605 and the ASIC Corporations (Repeal) Instrument 2024/604 do not engage any of the applicable rights or freedoms.

Conclusion

  1.              The ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605 and the ASIC Corporations (Repeal) Instrument 2024/604 are 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.

[1] ASIC Derivative Transaction Rules (Reporting) 2024: Follow-on consultation on changes to data elements and other minor amendments, released 15 November 2023

Overview

The ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605 and the ASIC Corporations (Repeal) Instrument 2024/604 were enacted in 2024 to address the need for regulatory alignment and simplification in the reporting of derivative transactions. These instruments were introduced by the Australian Securities and Investments Commission (ASIC) under the authority of the Corporations Act 2001 and the ASIC Derivative Transaction Rules (Reporting) 2024, respectively. Their primary objective is to repeal outdated regulatory instruments that no longer align with the updated reporting rules, ensuring consistency and efficiency in the regulatory framework. This repeal is set to take effect on 21 October 2024, coinciding with the commencement of the new reporting rules that introduce a generic definition for excluded exchange-traded derivatives, thereby rendering the previous lists and specific determinations obsolete.

Scope and Application

The ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605 and ASIC Corporations (Repeal) Instrument 2024/604 are legislative instruments that will repeal two existing instruments on 21 October 2024. The Foreign Markets Amendment Instrument, made under subrule 1.2.4(5) of the ASIC Derivative Transaction Rules (Reporting) 2024, will repeal the ASIC Regulated Foreign Markets Determination 2023/346, while the Exemption Repeal Instrument, made under paragraph 907D(2)(a) of the Corporations Act 2001, will repeal the ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844. These repeals align with the amendments to the 2024 Reporting Rules made by the ASIC Derivative Transaction Rules (Reporting and Clearing) Amendment Instrument 2024/416, which will introduce a generic definition for excluded exchange-traded derivatives (ETDs) to replace the existing list of specified financial markets. The repeals are part of a broader effort to simplify and harmonise derivative transaction reporting with international standards. These instruments affect financial entities and markets subject to the repealed determinations and exemption, thereby ensuring that reporting obligations under the 2024 Reporting Rules are accurately aligned with the new regulatory framework. The instruments apply nationally across Australia, as they are issued under Commonwealth authority. There are no stated exclusions or exemptions within these instruments, but their scope is inherently limited to the specific repealed instruments and their associated provisions.

Key Provisions

The primary operative sections of the ASIC Regulated Foreign Markets Determination (Amendment) Instrument 2024/605 and the ASIC Corporations (Repeal) Instrument 2024/604 are those that specify the repeal of the ASIC Regulated Foreign Markets Determination 2023/346 and the ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844. Section 1 of Part 1 of the Amendment Instrument and the Repeal Instrument provides the names of the respective instruments. Section 2 of both instruments states that they will commence on the later of 21 October 2024 or the day after they are registered on the Federal Register of Legislation. The Schedules to each instrument detail the specific changes and repeals that will take effect on 21 October 2024, which aligns with the commencement of the 2024 Reporting Rules. These instruments impose obligations on entities subject to the repealed instruments, requiring them to align their practices with the new regulations introduced by the 2024 Reporting Rules. Specifically, entities will need to ensure compliance with the new generic definition of excluded exchange-traded derivatives (ETDs) as substituted by the ASIC Derivative Transaction Rules (Reporting and Clearing) Amendment Instrument 2024/416. This involves updating any relevant systems, processes, and reporting frameworks to reflect the changes. Entities will also need to cease applying the repealed instruments and any provisions that are no longer in effect from 21 October 2024. There are no explicit offences, penalties, or civil/criminal consequences mentioned for the breach of these instruments themselves. However, entities that fail to comply with the 2024 Reporting Rules, which include the new generic definition of excluded ETDs, could face regulatory action under the Corporations Act 2001. Such actions may include fines, legal proceedings, or other enforcement measures by ASIC. The potential penalties for non-compliance with the 2024 Reporting Rules would be in accordance with the provisions of the Corporations Act 2001 and any related regulations or guidelines.

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Legislative Instrument
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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.