ASIC Corporations (Superannuation Payment Facility) Instrument 2023/271
I, Fleur Grey, delegate of the Australian Securities and Investments Commission, make the following notifiable instrument.
Date: 13 April 2023
Fleur Grey
Contents
Part 1—Preliminary
1 Name of notifiable instrument
2 Commencement
3 Cessation
4 Authority
5 Definitions
Part 2—Exemptions
6 Exemption from Part 7.8A in relation to Non-Cash Payment Facility
7 Conditions
Part 1—Preliminary
1 Name of notifiable instrument
This is the ASIC Corporations (Superannuation Payment Facility) Instrument 2023/271.
2 Commencement
This instrument commences on the day it is signed.
Note: The register may be accessed at www.legislation.gov.au.
3 Cessation
This instrument ceases on 31 May 2023.
4 Authority
This instrument is made under paragraph 994L(1)(a) of Corporations Act 2001 (Act).
5 Definitions
In this instrument:
ANZ means Australia and New Zealand Banking Group Limited ABN 11 005 357 522.
CBDC Pilot means the central bank digital currency pilot project administered by the RBA and the Digital Finance Cooperative Research Centre.
eAUD means a digital currency issued by the RBA for the purpose of the CBDC Pilot.
Pilot Participant means an entity that has entered into a Pilot Participation Agreement with the RBA.
Pilot Participation Agreement means, in relation to a Pilot Participant, the agreement between the Pilot Participant and the RBA that covers the terms and conditions of the Pilot Participant’s participation in the CBDC Pilot.
Pilot Payer Customer means OBAN Pty Ltd ACN 163 365 080.
Pilot Recipient Customer means each of:
(a) United Super Pty Ltd ACN 006 261 623 as trustee of the Constructions and Building Unions Superannuation Fund;
(b) H.E.S.T Australia Ltd ABN 66 006 818 695 as trustee of HESTA ABN 64 971 321;
(c) Wainer Nominees Pty Ltd ACN 159 400 236 as trustee for Wainer Superannuation Fund.
RBA means the Reserve Bank of Australia.
Relevant Non-Cash Payment Facility means a facility, constituted by arrangements between ANZ, the Pilot Payer Customer and the Pilot Recipient Customers, issued by ANZ through which, or through the acquisition of which, the Pilot Payer Customer makes non-cash payments (within the meaning in section 763D of the Act) to the Pilot Recipient Customers where ANZ:
(a) exchanges Australian currency for eAUD to an equivalent monetary value and credits eAUD to an account held with ANZ by the Pilot Payer Customer;
(b) transfers eAUD to an account or accounts held with ANZ by one or more Pilot Recipient Customers; and
(c) redeems eAUD with the RBA and disburses the redemption amounts to nominated accounts of the Pilot Recipient Customers.
Part 2—Exemptions
6 Exemption from Part 7.8A in relation to Non-Cash Payment Facility
(1) ANZ does not have to comply with Part 7.8A of the Act in relation to a Relevant Non-Cash Payment Facility.
Where exemptions apply
(2) Subject to subparagraph 7(1), the exemption in subparagraph 6(1) applies in relation to the issue of a Relevant Non-Cash Payment Facility where:
(a) ANZ is a Pilot Participant in the CBDC Pilot under a Pilot Participation Agreement with the RBA; and
(b) under the terms of the facility, the total value of payments to be made through the facility cannot exceed $1,000.
7 Conditions
(1) If ANZ relies on the exemption in subparagraph 6(1), ANZ must:
(a) comply with the terms and conditions of the Pilot Participation Agreement; and
(b) before commencement of payments through the Relevant Non-Cash Payment Facility provide the following information in writing to the Pilot Payer Customer and Pilot Recipient Customers:
(i) details of the terms and conditions of the Relevant Non-Cash Payment Facility;
(ii) the expected cessation date of the Relevant Non-Cash Payment Facility; and
(iii) details of the dispute resolution system that covers complaints by the Pilot Payer Customer and Pilot Recipient Customers and about how that system may be accessed.
Overview
The ASIC Corporations (Superannuation Payment Facility) Instrument 2023/271 was enacted on 13 April 2023, addressing a specific gap in the regulation of non-cash payments within the superannuation system, particularly in the context of the Reserve Bank of Australia's Central Bank Digital Currency (CBDC) pilot project. This notifiable instrument was issued by Fleur Grey, acting as a delegate of the Australian Securities and Investments Commission (ASIC) under the Corporations Act 2001. The primary objective of this instrument is to exempt Australia and New Zealand Banking Group Limited (ANZ) from certain compliance requirements related to non-cash payment facilities, provided that ANZ participates in the CBDC Pilot and adheres to specific conditions. This exemption is intended to facilitate the smooth operation of the pilot project by allowing ANZ to conduct non-cash superannuation payments without the need to comply with certain provisions of the Corporations Act.
Scope and Application
The ASIC Corporations (Superannuation Payment Facility) Instrument 2023/271 applies to Australia and New Zealand Banking Group Limited (ANZ) in its capacity as a Pilot Participant in the central bank digital currency pilot project (CBDC Pilot) administered by the Reserve Bank of Australia (RBA). Specifically, the instrument provides an exemption from Part 7.8A of the Corporations Act 2001 in relation to a Relevant Non-Cash Payment Facility issued by ANZ under certain conditions. The exemption applies to the issue of a Relevant Non-Cash Payment Facility where ANZ is a Pilot Participant under a Pilot Participation Agreement with the RBA and the total value of payments to be made through the facility does not exceed $1,000. The instrument imposes conditions on ANZ, requiring compliance with the terms and conditions of the Pilot Participation Agreement and the provision of specific information to Pilot Payer Customers and Pilot Recipient Customers before the commencement of payments through the Relevant Non-Cash Payment Facility. This instrument does not extend its application through subordinate instruments and ceases to apply on 31 May 2023.
Key Provisions
The ASIC Corporations (Superannuation Payment Facility) Instrument 2023/271, issued under the authority of Fleur Grey, a delegate of the Australian Securities and Investments Commission, provides an exemption from certain compliance requirements for Australia and New Zealand Banking Group Limited (ANZ) in relation to a specified non-cash payment facility. Specifically, section 6 exempts ANZ from complying with Part 7.8A of the Corporations Act 2001 when operating a Relevant Non-Cash Payment Facility, provided that ANZ is a participant in the Reserve Bank of Australia’s (RBA) Central Bank Digital Currency (CBDC) pilot and the total value of payments through the facility does not exceed $1,000. This exemption is subject to conditions outlined in section 7, which require ANZ to adhere to the terms and conditions of its Pilot Participation Agreement with the RBA and to inform both the Pilot Payer Customer and Pilot Recipient Customers of the terms and conditions of the facility, its expected cessation date, and details of the available dispute resolution system.
ANZ, as a Pilot Participant, is obligated to comply with the terms and conditions stipulated in the Pilot Participation Agreement with the RBA and must provide written information to the Pilot Payer Customer and Pilot Recipient Customers before initiating payments. The information required includes details about the terms and conditions of the Relevant Non-Cash Payment Facility, the expected cessation date of the facility, and details about the dispute resolution system. This ensures transparency and informs the parties involved of their rights and obligations under the facility. Additionally, ANZ must ensure that the total value of payments made through the Relevant Non-Cash Payment Facility does not exceed the specified limit of $1,000.
Failure to comply with the conditions set out in section 7 may result in ANZ being subject to civil or criminal penalties. The exact penalties are not specified within the instrument but would typically be governed by the relevant sections of the Corporations Act 2001 and any other applicable laws. Non-compliance could potentially lead to enforcement actions by ASIC, which might include fines, legal proceedings, or other regulatory measures. The potential penalties underscore the importance of adhering to the terms and conditions set forth in the Pilot Participation Agreement and the requirements for transparent communication with the Pilot Payer Customer and Pilot Recipient Customers.