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ASIC Class Order [CO 13/1200]

Authoritative Version
CO 13/1200 Orders/ASIC Class Orders as made
This class order provides temporary relief to AQUA quoted and Listed managed investment scheme issuers from the obligation under s1017D to give periodic statements to members of the schemes. After the temporary exemption period expires, the instrument modifies the obligation under s1017D for these issuers to overcome the practical difficulties in complying with the obligation in its non-modified form.
Administered by: Treasury
Made 09 Oct 2013
Registered 15 Oct 2013
Tabled HR 12 Nov 2013
Tabled Senate 12 Nov 2013

 

Australian Securities and Investments Commission
Corporations Act 2001—Paragraphs 1020F(1)(a) and 1020F(1)(c)—Exemption and Declaration

 

Enabling legislation

1.             The Australian Securities and Investments Commission makes this instrument under paragraphs 1020F(1)(a) and 1020F(1)(c) of the Corporations Act 2001 (the Act).

Title

2.             This instrument is ASIC Class Order [CO 13/1200].

Commencement

3.             This instrument commences on the date it is registered under the Legislative Instruments Act 2003.

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/.

Exemption

AQUA Products

4.             The issuer of an interest in a registered scheme that is an AQUA Product and is admitted to Trading Status does not have to comply with subsection 1017D(1) of the Act for each reporting period ending on or before 31 December 2013 in relation to the interest.

5.             The exemption in paragraph 4 only applies if the interest is in a class of interests that have been admitted to Trading Status for the whole of the relevant reporting period for the interest.

Interests that are quoted ED securities

6.             The issuer of an interest in a registered scheme that is a quoted ED security does not have to comply with subsection 1017D(1) of the Act for each reporting period ending on or before 29 June 2014 in relation to the interest.

7.             The exemption in paragraph 6 only applies if the interest is in a class of interests that have been quoted ED securities for the whole of the relevant reporting period for the interest.

Declaration

8.             Part 7.9 of the Act applies in relation to an interest in a registered scheme that is:

(a)     an AQUA Product that is admitted to Trading Status; or

(b)     a quoted ED security;

as if section 1017D were modified or varied as follows:

(c)     after paragraph (5)(f), insert:

“(fa)  if the financial product is an interest in a registered scheme whose first financial year ended on or before the end of the reporting period, information about the performance of the scheme relative to the investment objectives of the scheme that the issuer reasonably believes is sufficient for the holder to make an informed assessment of the performance of the scheme for the following periods:

(i)      the period of 1 year ending at the end of the most recent financial year of the scheme;

(ii)     if the scheme has been a registered scheme for less than 5 years at the end of the most recent financial year of the scheme, the period starting on the date the scheme became a registered scheme and ending at the end of that financial year;

(iii)    if the scheme has been a registered scheme for at least 5 years at the end of the most recent financial year of the scheme, the period of 5 years ending at the end of that financial year;”; and

(d)     after subsection (8) (as notionally inserted by regulation 7.9.16O of the Corporations Regulations 2001), insert:

“(8A)         If the financial product is an interest in a registered scheme that forms part of a stapled security, the periodic statement:

(a)     despite section 1010A, must include the information required by subsections (4), (5) and (5A) as affected by regulations 7.9.16O, 7.9.60B, 7.9.74A and 7.9.75 of the Corporations Regulations 2001 (the Regulations)) and set out such information in the manner and using the terminology and descriptions required by subregulations 7.9.16O(2) and 7.9.60B(7) of the Regulations as if:

(i)      costs, fees, amounts and other information required in relation to the product were required, and determined, in relation to the stapled security; and

(ii)     costs, fees, amounts and other information required in relation to the scheme were required, and determined, in relation to the stapled security entities in aggregate; and

(iii)    costs, fees and amounts paid or payable from a stapled security entity to another stapled security entity were ignored; and

(iv)    the assets of each stapled security entity that is a body were held in a common fund for the holders of the stapled securities; and

(v)     the statement required by paragraph 7.9.75(1)(c) of the Regulations need only be made in relation to those components of the stapled security for which there is a dispute resolution mechanism; and

(b)     other than to the extent necessary to comply with paragraph (a), does not need to:

(i)      include such information; or

(ii)     set out such information in a particular manner; or

(iii)    use the terminology or descriptions required by subregulations 7.9.16O(2) and 7.9.60B(7) of the Regulations;

in relation to the product.

(8B)  This subsection applies in relation to a transfer of a financial product if:

(a)     the product is an interest in a registered scheme; and

(b)     the holder acquired or disposed of interests in the scheme under the transfer during the reporting period; and

(c)     the issuer is not aware of the price at which the interests were transferred or, if the product forms part of a stapled security, the price at which the stapled securities were transferred.

(8C)  Despite subsections (4), (5), (5A) and (8A) and regulation 7.9.74A of the Regulations, if subsection (8B) applies in relation to a transfer of a financial product:

(a)     the periodic statement does not need to include:

(i)      the amount per interest or, if applicable, stapled security paid under the transfer, the total amount paid under the transfer or any other amounts in dollars in relation to the transfer; or

(ii)     the information required by paragraph (5)(e) or by paragraph (8A)(a) as it applies to information required by paragraph (5)(e), provided that:

(A)    the issuer is not able to calculate the return on investment during the reporting period; and

(B)    the periodic statement explains why this information is not included and describes how it can be obtained or calculated; and

(b)     the part of the periodic statement that itemises transactions must include:

(i)      the date of the transfer and whether the holder acquired or disposed of interests or, if applicable, stapled securities under the transfer; and

(ii)     the number of interests or stapled securities transferred; and

(iii)    an explanation of why the price per interest or stapled security for the transfer and the total dollar value of the transfer have not been included.

(8D)  In this section:

first financial year means, in relation to a registered scheme, the financial year for the scheme referred to in subsection 323D(1).

most recent financial year means, in relation to a registered scheme an interest in which is the subject of a periodic statement, the most recent financial year of the scheme that ended on or before the end of the reporting period covered by the periodic statement.

stapled security means two or more financial products (which may include securities) including at least one interest in a registered scheme:

(a)     that under the constitution of the registered scheme must be transferred together; and

(b)     where there are no financial products in the same class as those financial products which may be transferred separately; and

(c)     where one or more of the financial products is a share of a body corporate, the body corporate has not issued any share that may be transferred separately; and

(d)     where one or more of the financial products is an interest in a managed investment scheme, no interests in that scheme may be transferred separately.

stapled security entity means, in relation to a stapled security, the registered scheme and each other scheme or body, an interest in which, or a security of which, is a component of the stapled security.

(8E)  In this section, the investment objectives of:

(a)     a registered scheme for a period are the investment objectives for the scheme that were disclosed most recently before the beginning of the period in any of the following:

(i)      a Product Disclosure Statement for an interest in the scheme that was lodged with ASIC;

(ii)     a continuous disclosure notice provided by the responsible entity of the scheme; and

(b)     stapled security entities for a period are the investment objectives for the stapled security entities that were disclosed most recently before the beginning of the period in any of the following:

(i)      a Product Disclosure Statement or disclosure document in relation to a stapled security that was lodged with ASIC;

(ii)     a continuous disclosure notice provided by the responsible entity of a scheme that is a stapled security entity or by a body that is a stapled security entity.”.

9.             Interpretation

In this instrument:

AQUA Product has the same meaning as in the operating rules of ASX Limited (ACN 008 624 691) on 9 October 2013.

Trading Status has the same meaning as in the operating rules of ASX Limited (ACN 008 624 691) on 9 October 2013.

 

Dated this 9th day of October 2013.

 

 

Signed by Stephen Yen PSM
as a delegate of the Australian Securities and Investments Commission