ASIC Redundant Class Orders (Amendment and Repeal) Instrument 2015/826

Administered by Department of the Treasury

Legislation au F2015L01432 Not in force Legislative Instrument

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EXPLANATORY STATEMENT for
ASIC Redundant Class Orders (Amendment and Repeal) Instrument 2015/826

Prepared by the Australian Securities and Investments Commission

Corporations Act 2001, Friendly Societies Code, National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 and National Consumer Credit Protection Act 2009

The Australian Securities and Investments Commission (ASIC) makes the ASIC Redundant Class Orders (Amendment and Repeal) Instrument 2015/826 under:

(a) subsections 341(1), 601QA(1), 601YAA(1), 709(3), 741(1), 765A(2), 926A(2), 951B(1), 992B(1), 1020F(1) and 1438(6) and paragraph 911A(2)(l) of the Corporations Act 2001 (the Act);

(b) section 158 of the Friendly Societies Code (as it applies as a law of the Commonwealth because of clause 36 of Schedule 4 to the Act);

(c) paragraph 41(3)(d) of Schedule 2 to the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009; and

(d) paragraphs 109(3)(d) and 163(3)(d) of the National Consumer Credit Protection Act 2009.

Corporations Act 2001

Subsection 341(1) of the Act provides that ASIC may make an order in respect of a specified class of companies, registered schemes or disclosing entities, which relieves directors, the companies, registered schemes or disclosing entities, or their auditors from all or specified requirements of Parts 2M.2, 2M.3 and 2M.4 (other than Division 4) of the Act.

Subsection 601QA(1) of the Act provides that ASIC may exempt a person from a provision of Chapter 5C of the Act; or declare that Chapter 5C applies to a person as if specified provisions were omitted, modified or varied.

Subsection 601YAA(1) of the Act provides that ASIC may exempt a person or class of persons, or an estate or class of estates, from all or specified provisions of Chapter 5D of the Act; or declare that Chapter 5D applies to a person or class of persons, or an estate or class of estates, as if specified provisions were omitted, modified or varied.

Subsection 709(3) of the Act provides that ASIC may approve the use of profile statements for offers of securities of a particular kind.

Subsection 741(1) of the Act provides that ASIC may exempt a person from a provision of Chapter 6D; or declare that Chapter 6D applies to a person as if specified provisions were omitted, modified or varied.

Subsection 765A(2) of the Act provides that ASIC may declare that a specified facility, interest or other thing is not a financial product for the purposes of Chapter 7 of the Act.

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.

Subsection 926A(2) of the Act provides that ASIC may exempt a person or a financial product or class of persons or financial products from all or specified provisions of Part 7.6 of the Act (other than Divisions 4 and 8); or declare that Part 7.6 of the Act (other than Divisions 4 and 8) applies in relation to a person or a financial product or class of persons or financial products as if specified provisions were omitted, modified or varied.

Subsection 951B(1) of the Act provides that ASIC may exempt a person or a financial product or class of persons or financial products from all or specified provisions of Part 7.7 of the Act; or declare that Part 7.7 of the Act applies in relation to a person or a financial product or class of persons or financial products as if specified provisions were omitted, modified or varied.

Subsection 992B(1) of the Act provides that ASIC may exempt a person or a financial product or class of persons or financial products from all or specified provisions of Part 7.8 of the Act; or declare that Part 7.8 of the Act applies in relation to a person or a financial product or class of persons or financial products as if specified provisions were omitted, modified or varied.

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

Subsection 1438(6) of the Act provides that ASIC may, by legislative instrument, impose requirements on those who opted into the Financial Services Reform Act 2001 regime prior to its commencement.

Friendly Societies Code

Section 158 of the Friendly Societies Code (as it applies as a law of the Commonwealth because of clause 36 of Schedule 4 to the Act) provides that ASIC may declare that Division 2 of Part 4B of the Friendly Societies Code and the standards made for Division 2 of Part 4B have effect in their application in relation to a particular person or persons, or a particular class of persons, either generally or otherwise as provided in the declaration as if a specified provision or provisions of the Division or of those standards were omitted, modified or varied.

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009

Paragraph 41(3)(d) of Schedule 2 to the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 provides that ASIC may declare that provisions to which Part 5 of the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 applies apply in relation to a credit activity, or a class of persons or credit activities, as if specified provisions were omitted, modified or varied.

National Consumer Credit Protection Act 2009

Paragraph 109(3)(d) provides that ASIC may declare that provisions of Chapter 2 of the National Consumer Credit Protection Act 2009 and definitions in the Act, as they apply to Chapter 2, apply in relation to a credit activity, or a class of persons or credit activities as if specified provisions were omitted, modified or varied.

Paragraph 163(3)(d) provides that ASIC may declare that provisions of Chapter 3 of the National Consumer Credit Protection Act 2009 and definitions in the Act, as they apply to Chapter 3, apply in relation to a credit activity, or a class of persons or credit activities as if specified provisions were omitted, modified or varied.

Background

Under the Legislative Instruments Act 2003 (Legislative Instruments Act), legislative instruments cease automatically, or ‘sunset’, after 10 years, unless action is taken to exempt or preserve them. To preserve its effect, a legislative instrument must be remade before its sunset date.

To ensure necessary legislative instruments are remade, ASIC has reviewed its legislative instruments and identified a number of instruments that no longer served a regulatory purpose.

The instruments to be repealed are broadly divided into the following categories:

(a) class orders that are not relied upon;

(b) class orders that have been superseded either by subsequent ASIC legislative instruments or legislative changes;

(d) class orders that amended or repealed other ASIC class orders.

2. Purpose of the instrument

The purpose of the ASIC Redundant Class Orders (Amendment and Repeal) Instrument 2015/xxx is to:

• amend ASIC Class Order [CO 05/1270] to remove references to redundant class orders. [CO 05/1270] was made to avoid doubt that particular ASIC class orders were in effect;

• repeal 12 instruments as they are no longer relied upon;

• repeal 12 instruments as they have been superseded;

• repeal 33 instruments as they were transitional; and

• repeal 3 instruments as they were amending or repealing other instruments.

Where an instrument is deemed to no longer serve a regulatory purpose ASIC will repeal it. ASIC will repeal instruments rather than allow them to sunset so that industry is certain of our intentions and confident that, where instruments are removed, this was our intention.

3. Operation of the instrument

Clause 4 of the instrument 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.

Schedule 1 amends [CO 05/1270] to remove references to redundant class orders.

Schedule 2 repeals 60 class orders that no longer form a necessary and useful part of the regulatory framework.

4. Consultation

In April 2015 ASIC released Consultation Paper 229 Repealing redundant ASIC class orders (CP 229). CP 229 proposed that ASIC repeal 58 class orders due to sunset between 1 October 2015 and 1 April 2022.

Following CP 229 ASIC decided to repeal the class orders consulted on within CP 229 as well as 3 class orders that were not consulted on as part of that process but that we consider should be repealed. The three class orders not consulted upon were class orders that amended or repealed other class orders. As a result they have no ongoing legislative effect—the changes they effected have already occurred.

We received two submissions in response to CP 229 which were supportive of both our repeal of the relevant instruments and ASIC’s approach to sunsetting generally.

Prior to consultation we were interested in whether any of the instruments which ASIC deemed to no longer be relied upon would receive submissions suggesting that they were in fact relied upon. That we received no submissions on this indicates to ASIC that our presumptions were correct and that it is unlikely that the repeal of any of these instruments will adversely affect any party.

We have decided to repeal all of the class orders that we proposed to repeal in CP 229 with the exception of one, ASIC Class Order [CO 91/27]. This instrument was made under a section of the former Corporations Law. Both the section and the instrument were carried over under Part 10.1 of the Corporations Act. The section was repealed in 2010. The repeal of the section had the effect of also repealing the instrument: Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233.

Overview

The ASIC Redundant Class Orders (Amendment and Repeal) Instrument 2015/826 was introduced to streamline and modernise the regulatory framework by removing outdated and redundant class orders that no longer serve a purpose. This instrument was enacted by the Australian Securities and Investments Commission (ASIC) under the authority granted by the Corporations Act 2001 and other related Acts. The primary objective was to ensure that the regulatory instruments remain relevant and effective by repealing instruments that are no longer relied upon, have been superseded by new regulations, are transitional in nature, or have already achieved their intended legislative effect. This measure was taken to maintain clarity and confidence in the regulatory framework among stakeholders, ensuring that only necessary and useful instruments remain in effect. Consultation with stakeholders was undertaken prior to the instrument's enactment, with feedback received supporting ASIC’s approach to repealing redundant instruments. The decision to repeal specific class orders was based on the lack of reliance on these instruments and the absence of submissions challenging their continued existence, thus affirming ASIC's presumptions about their redundancy. The instrument aims to achieve a more efficient and effective regulatory environment by removing obsolete regulations, thereby reducing regulatory burden and ensuring that the focus remains on current and relevant regulatory needs.

Scope and Application

The ASIC Redundant Class Orders (Amendment and Repeal) Instrument 2015/826 pertains to various aspects of the Australian regulatory framework, primarily focusing on the repeal and amendment of class orders made by the Australian Securities and Investments Commission (ASIC) under the Corporations Act 2001, the Friendly Societies Code, and the National Consumer Credit Protection Act 2009. The instrument applies to entities and individuals within the scope of these Acts, including companies, financial services providers, and credit providers, as well as to the conduct and transactions they undertake. The geographic reach of this legislation is national, as it applies across Australia. The instrument aims to streamline and modernise the regulatory framework by repealing class orders that are no longer necessary, redundant, or have been superseded by new legislation or regulatory changes. Additionally, it includes amendments to ensure clarity and continued effectiveness of the remaining class orders. The instrument also provides for the repeal of specific class orders that are no longer serving a regulatory purpose, ensuring that the legal framework remains current and relevant. The instrument's application extends to the repeal and amendment of class orders, which can further define or restrict their application through subordinate instruments.

Key Provisions

The ASIC Redundant Class Orders (Amendment and Repeal) Instrument 2015/826 contains several key provisions, primarily focusing on the amendment or repeal of certain class orders made by the Australian Securities and Investments Commission (ASIC). Section 4 of the instrument specifies that each instrument listed in the Schedules to the instrument is either amended or repealed as indicated in the applicable items in those Schedules (paragraph 4). This means that specific class orders are either modified to remove outdated references or entirely repealed due to their redundancy or obsolescence. The obligations imposed by this instrument on the parties or entities it governs are primarily related to compliance with the updated or repealed class orders. For example, entities subject to these class orders must ensure that they are aware of any amendments or repeals, and adjust their practices accordingly. Failure to comply with the updated regulatory requirements could result in non-compliance with the Corporations Act 2001, the Friendly Societies Code, or the National Consumer Credit Protection Act 2009, depending on the specific class orders affected. In terms of consequences for breach, the instrument itself does not explicitly outline penalties or offences. However, non-compliance with the class orders as amended or repealed could lead to regulatory action under the relevant Acts. For instance, under the Corporations Act 2001, failure to adhere to the updated or repealed class orders could result in civil penalties, including fines and other sanctions. Additionally, ongoing non-compliance might attract criminal penalties, depending on the severity and intent of the breach. The specific penalties are detailed in the relevant sections of the Acts mentioned, such as sections 1317E (civil penalty provisions) and 1311 (criminal penalty provisions) of the Corporations Act 2001. It is important for affected entities to review the current legislative requirements and ensure full compliance to avoid potential legal repercussions.

Area of Law: Corporate Law & Governance
Instrument: Legislative Instrument
Concepts: Repeal & Amendment; Offence Provisions; Regulatory Standards

Interactions

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.

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