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ASIC Class Order [CO 07/753]

Authoritative Version
  • - F2007L04461
  • In force - Superseded Version
  • View Series
CO 07/753 Orders/ASIC Class Orders as made
This Order provides conditional relief from managed investment scheme registration, financial product disclosure and AFS licensing provisions under the Corporations Act 2001 for the operation of collective investment schemes authorised by the Monetary Authority of Singapore.
Administered by: Treasury
General Comments: This Class Order was published in the Australian Securities and Investments Commission Gazette on 11 December 2007.
Made 15 Nov 2007
Registered 23 Nov 2007
Tabled HR 12 Feb 2008
Tabled Senate 12 Feb 2008
This Legislative Instrument has been subject to a Motion to Disallow:
Motion Date:
14-May-2008
Expiry Date:
03-Sep-2008
House:
Senate
Details:
Full
Resolution:
Withdrawn
Resolution Date:
23-Jun-2008
Resolution Time:
Provisions:

 

Australian Securities and Investments Commission

Corporations Act 2001 — Paragraphs 601QA(1)(a), 911A(2)(l), 1020F(1)(a) and 1020F(1)(c) — Exemptions and Declaration

 

 

Enabling legislation

 

1.            The Australian Securities and Investments Commission (ASIC) makes this instrument under paragraphs 601QA(1)(a), 911A(2)(l), 1020F(1)(a) and 1020F(1)(c) of the Corporations Act 2001 (the Act).

 

Title

 

2.            This instrument is ASIC Class Order [CO 07/753]

 

Commencement

 

3.            This instrument commences on the later of:

 

(a)     the date it is registered under the Legislative Instruments Act 2003; and

 

(b)     the date of its gazettal.

 

Note:   An instrument is registered when it is recorded on the Federal Register of Legislative Instruments (FRLI) in electronic form: see Legislative Instruments Act 2003, s 4 (definition of register). The FRLI may be accessed at http://www.frli.gov.au/.

 

Schemes covered by this class order

 

4.            A managed investment scheme that is not registered under section 601EB of the Act is an exempt FCIS for this instrument as long as both of the following apply:

 

(a)          the scheme is constituted in Singapore as a unit trust and is authorised by the MAS under section 286 of the SF Act;

 

(b)         having regard to all offers of interests in the scheme that have been made at any time (whether in this jurisdiction or elsewhere), promotion of membership of the scheme has not been principally aimed at persons in this jurisdiction and there is no reason to believe that the operator of the scheme intends that promotion of membership of the scheme will be principally aimed at persons in this jurisdiction.

 

Operators covered by this class order

 

5.            A foreign company that operates an exempt FCIS is an exempt operator for this instrument as long as all of the following apply:

 

(a)          the foreign company is registered under Division 2 of Part 5B.2 of the Act;

(b)         the foreign company has provided ASIC with the information in Schedule A Documents to be provided to ASIC and ASIC has notified the operator in writing that such information provided by the operator is adequate;

 

(c)          ASIC has not notified the foreign company in writing that it is excluded from relying on this instrument;

 

(d)         10 business days have not passed since the foreign company became or should reasonably have become aware of matters that give it reason to believe that it has failed, other than in an immaterial respect, to comply with a requirement set out in paragraph 11 or Schedule B Notification of significant changes to ASIC without full particulars of the failure having been provided to ASIC (to the extent that the foreign company knows those particulars or would have known them if it had made reasonable enquiries);

 

(e)          having provided particulars under paragraph (d) within the time allowed by that paragraph, 20 business days have not passed from the provision of those particulars without ASIC having notified the foreign company in writing that it may continue to rely on this instrument.

 

Relief from the requirement to register a managed investment scheme

 

6.            An exempt operator does not have to comply with section 601ED of the Act in relation to an exempt FCIS.

 

Relief from the requirement to obtain an AFSL

 

7.            An exempt operator does not have to hold an Australian financial services licence for the provision of the following financial services:

 

(a)          dealing in financial products in the ordinary course of the operation of the exempt FCIS other than by issuing financial products;

 

(b)     dealing in derivatives or foreign exchange contracts for the purpose of managing a financial risk to an exempt FCIS that arises in the ordinary course of the operation of the exempt FCIS  (provided dealings in derivatives or foreign exchange contracts with persons in this jurisdiction are not a significant part of the exempt operator’s business);

 

(c)     providing a custodial or depositary service by holding assets of an exempt FCIS.

 

Relief from the financial product disclosure requirements

 

8.            An exempt operator does not have to comply with Part 7.9 of the Act (except for sections 1017G, 1018A and 1020E) in relation to an exempt FCIS. 

 

 

Modification in relation to financial product disclosure

 

9.            Part 7.9 of the Act applies in relation to an exempt operator in its capacity as the operator of an exempt FCIS as if section 1018A were modified or varied as follows:

 

(a)     omit “Product Disclosure Statement” (wherever occurring, including the heading to the section and any subsection), substitute “Singaporean prospectus”; and

 

(b)     in subsection (1) omit “applies or will apply,”, substitute “applies or will apply, or would apply if an exemption under paragraph 1020F(1)(a) did not apply,”; and

 

(c)     in subparagraph (1)(c)(ii) omit “applies or will apply—”, substitute “applies or will apply, or would apply if an exemption under paragraph 1020F(1)(a) did not apply—”; and

 

(d)     in subsection (2) omit “will apply,”, substitute “will apply, or would apply if an exemption under paragraph 1020F(1)(a) did not apply,”; and

 

(e)     in subparagraph (2)(c)(ii) omit “will apply—”, substitute “will apply, or would apply if an exemption under paragraph 1020F(1)(a) did not apply—”; and

 

(f)      in subparagraph (4)(d)(ii) omit “Statement”, substitute “prospectus”; and

 

(g)     after subsection (6) insert:

 

“(7)      In this section, Singaporean prospectus means a prospectus registered by the Monetary Authority of Singapore under section 240 of the Securities and Futures Act 2001 of Singapore.”.

 

10.        Part 7.9 of the Act applies in relation to an exempt operator in its capacity as the operator of an exempt FCIS as if section 1020E were modified or varied as follows:

 

(a)     after subparagraph (1)(a)(i) insert:

“(iaa)    a Singaporean prospectus is defective (see subsection (11)); or”; and

 

(b)     in paragraphs (2)(a) and (7)(b), after “document,”, insert “prospectus,”; and

(c)     in subsection (11):

(i)         in the definition of defective after paragraph (a), insert:

 

“(aa)     in relation to a Singaporean prospectus—means there is a misleading or deceptive statement in the prospectus, or an omission from the prospectus of material required under the  Securities and Futures Act 2001 of Singapore as in force on the date of commencement of this section; and”; and

 

(ii)        after the definition of disclosure document or statement, insert:

 

Singaporean prospectus has the same meaning as in subsection 1018A(7).”.

 

Conditions

 

11.        An exempt operator of an exempt FCIS who relies on paragraphs 6, 7 or 8 must comply with each of the following conditions:

 

Disclosure to Australian investors and ASIC

 

(a)          The exempt operator must give a Singaporean prospectus relating to interests in the exempt FCIS to a retail client in circumstances where, but for the exemption in paragraph 8 of this instrument, it would have an obligation to give a Product Disclosure Statement under sections 1012B or 1012C of the Act; and

 

(b)         The exempt operator must ensure that the Singaporean prospectus complies with the Singaporean regulatory requirements relating to the offer of interests in the exempt FCIS; and

 

(c)          The exempt operator must prominently disclose the following information in each Singaporean prospectus it gives a retail client under paragraph 11(a) of this instrument:

 

(i)            the exempt FCIS and its exempt operator are regulated by the Singapore regulatory requirements, and those requirements differ from the Australian regulatory requirements; and

 

(ii)          the rights and remedies available to Australian investors who acquire interests in the exempt FCIS may differ from those of Australian investors acquiring interests in Australian managed investment schemes; and

 

(iii)         the main rights and remedies available to Australian investors under the Singaporean regulatory requirements and how those rights and remedies can be accessed; and

 

(iv)        the exempt operator has in place an internal dispute resolution system, covering complaints by Australian investors and how that system may be accessed; and

 

(v)          the exempt operator is a member of an external dispute resolution system approved by ASIC, that Australian investors will have access to, and which system that is and how it may be accessed; and

 

(vi)        general information about significant Australian taxation implications in respect of holding, acquiring or disposing of the interests in the exempt FCIS; and

 

(vii)       information about whether a cooling-off regime applies for acquisitions of interests in the exempt FCIS and whether that regime is provided for in the Singaporean regulatory requirements; and

 

(viii)     the nature of any special risks associated with cross-border investing, such as risks arising from foreign taxation requirements, foreign currency or time differences; and

 

(ix)        the nature and consequences of significant differences between the Singaporean regulatory requirements and the Australian regulatory requirements; and

 

(d)         The exempt operator must notify in writing all wholesale clients in this jurisdiction before they become a member of the exempt FCIS or apply for an interest in the exempt FCIS that the exempt FCIS and its exempt operator are regulated by the Singaporean regulatory requirements, and that those requirements differ from Australian regulatory requirements; and

 

(e)          The exempt operator must notify ASIC that the Singaporean prospectus is in use in this jurisdiction within five business days after a copy of the prospectus is first given to a retail investor under paragraph 11(a) of this instrument; and

 

(f)           The exempt operator must:

 

(i)      keep a copy of the Singaporean prospectus for seven years after it is first given to a retail investor under paragraph 11(a) of this instrument; and

 

(ii)     make a copy of the prospectus available to ASIC on request; and

 

Information about the exempt FCIS

 

(g)          The exempt operator must make available on request, to members in this jurisdiction, any publicly available information about the exempt FCIS that has been produced by, or on behalf of, the exempt operator and that relates to the exempt FCIS, unless members in this jurisdiction can otherwise obtain that information conveniently and for no greater charge (if any) than would apply in Singapore.  The information must be provided in English and at no greater charge (if any) than applies in Singapore; and

 

(h)          The exempt operator must promptly give ASIC any annual financial statement of the exempt FCIS when the financial statement is published together with any associated audit and other reports.  If the statement or reports are not in English, the exempt operator must give ASIC an English translation of any such statement or report in a reasonable time if ASIC requests such a translation; and

 

(i)            The exempt operator must maintain in this jurisdiction, at a place disclosed in writing to members in this jurisdiction, a register of members that it reasonably believes are in this jurisdiction and their contact details; and

 

Targeting

 

(j)           The exempt operator must take all reasonable steps to ensure that no more than 30% by value of all interests in the exempt FCIS are held by persons who the operator has reason to believe are in this jurisdiction.

 

 

Schedule A — Documents to be provided to ASIC

 

An operator of an exempt FCIS must provide the following written information to ASIC before relying on the exemptions in this instrument in relation to an exempt FCIS:

 

A1.   evidence that the operator is authorised to operate an exempt FCIS;

 

A2.   a deed of the operator for the benefit of and enforceable by ASIC, the other persons referred to in subsection 659B(1) of the Act and any member or former member of the exempt FCIS in this jurisdiction, which applies notwithstanding that the operator may have ceased to rely, or never have relied, on this instrument, and which provides that:

 

(a)          the deed is irrevocable except with the prior written consent of ASIC; and

 

(b)         the operator covenants to comply with the Singaporean regulatory requirements in respect of their conduct in this jurisdiction as if the conduct occurred in Singapore in like circumstances; and

 

(c)          the operator covenants to:

 

(i)      ensure that each of their agents and representatives that engages in conduct in this jurisdiction will comply with the Singaporean regulatory requirements in respect of their conduct in this jurisdiction as if the conduct occurred in Singapore in like circumstances; or

 

(ii)     ensure that each of their agents and representatives that engages in conduct in this jurisdiction has entered into a deed as required by this paragraph A2; and

 

(d)         the operator submits to the non-exclusive jurisdiction of the Australian courts in legal proceedings conducted by any of the following:

 

(i)      ASIC (including under section 50 of the ASIC Act); and

 

(ii)     any member (or former member) of the exempt FCIS in this jurisdiction; and

 

(iii)    in relation to proceedings relating to a financial services law — any person referred to in subsection 659B(1) of the Act;

 

and in the case of proceedings brought by a person covered by subparagraph (i) or (iii), whether brought in their name, on behalf of the Crown or otherwise;

 

(e)          the operator covenants to comply with any order of an Australian court in respect of any matter relating to the provision of the financial services in relation to the exempt FCIS or the operation of the exempt FCIS; and

 

(f)           the operator covenants that, on written request of either MAS or ASIC, it will give or vary written consent and take all other practicable steps to enable and assist MAS to disclose to ASIC and ASIC to disclose to MAS any information or document that MAS or ASIC has that relates to the operator or the exempt FCIS;

 

A3.   written consents to the disclosure by MAS to ASIC and ASIC to MAS of any information or document that MAS or ASIC has that relates to the operator or the exempt FCIS;

 

A4.   the most recent financial statements of the exempt FCIS proposed to be operated in this jurisdiction by the operator, any audit report, and any subsequent public disclosures by that exempt FCIS about its financial position or compliance with the Singaporean regulatory requirements;

 

A5.   a copy of the most recent Singaporean prospectus relating to an offer of interests in the exempt FCIS;

 

A6.   a copy of the constitution or other governing rules (however described) of the exempt FCIS;

 

A7.   a description of how the operator will plan for, monitor and assess its compliance with the requirements and conditions of this instrument and any Australian regulatory requirements to which it will be subject;

 

A8.   a description of the financial services relating to the exempt FCIS it intends to provide in this jurisdiction; and

 

A9.   information about the interests in the exempt FCIS that the operator intends to offer in this jurisdiction and how it plans to seek members in this jurisdiction.

 

 

Schedule B — Notification of significant changes to ASIC

 

The exempt operator must notify ASIC, as soon as practicable and in such form if any as ASIC may from time to time specify in writing, of the details of:

 

B1.       each significant change to a licence, registration, authorisation or other approval (however described) granted by MAS relevant to the operation of the exempt FCIS;

 

B2.       each significant change to the Singaporean regulatory requirements (including the power or authority of MAS to supervise, monitor or procure compliance by the exempt operator with the Singaporean regulatory requirements with respect to the exempt FCIS) that is relevant to the operation or intended operation of the exempt FCIS in this jurisdiction unless ASIC has stated in writing that notification of that change is not required for the purposes of this instrument;

 

B3.       each significant exemption or other relief which the exempt operator obtains from the Singaporean regulatory requirements; and

 

B4.       each enforcement or disciplinary action taken by MAS or any other overseas regulatory authority against the exempt operator.

 

Interpretation

 

In this instrument:

 

1.            Australian regulatory requirements means the Australian legislative provisions that apply in relation to managed investment schemes and financial services, including any instruments made under those legislative provisions and any relevant policies or other documents (however described) issued by ASIC;

 

2.            custodial or depositary services has the meaning given by section 766E of the Act;

 

3.            exempt FCIS has the meaning given by paragraph 4;

 

4.            exempt operator has the meaning given by paragraph 5;

 

5.            financial services law has the meaning given by section 761A of the Act;

 

6.            foreign exchange contract has the meaning given by section 761A of the Act;

 

7.            issuer, in relation to a financial product, has a meaning affected by section 761E of the Act;

8.            MAS means the Monetary Authority of Singapore;

 

9.            offer has a meaning affected by subsection 1010C(2) of the Act;

 

10.        overseas regulatory authority means a foreign regulatory authority (other than MAS) which regulates financial services and which is established by or for the purposes of a foreign government or legislative body;

 

11.        retail client has the meaning given by section 761G of the Act;

 

12.        SF Act means the Securities and Futures Act 2001 of Singapore;

 

13.        Singaporean prospectus means a prospectus registered by MAS under section 240 of the SF Act;

 

14.        Singaporean regulatory requirements means the rules that apply in relation to an exempt FCIS and an exempt operator, including any applicable legislation, instruments made under that legislation and any relevant policies or other documents (however described) issued by MAS;

 

15.        wholesale client has the meaning given by section 761G of the Act.

 

 

 

Dated this 15th day of November 2007

 

 

 

 

 

 

Signed by Brendan Byrne

as a delegate of the Australian Securities and Investments Commission