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ASIC Class Order [CO 02/184]

Authoritative Version
CO 02/184 Orders/ASIC Class Orders as amended, taking into account amendments up to ASIC Class Order [CO 14/757]
Administered by: Treasury
Registered 27 Aug 2014
Start Date 07 Aug 2014
End Date 29 Sep 2016
Date of repeal 29 Sep 2016
Repealed by ASIC Corporations (Repeal) Instrument 2016/810

ASIC Class Order [CO 02/184]

Charitable investment schemes — fundraising

This instrument is made under paragraphs  283GA(1)(a),  601QA(1)(a),  741(1)(a),  911A(2)(l),  992B(1)(a) and  1020F(1)(a) of the Corporations Act 2001.

This compilation was prepared on 14 August 2014 taking into account amendments up to [CO 14/757].

Prepared by the Australian Securities and Investments Commission.

Australian Securities and Investments Commission
Corporations Act 2001 — Paragraphs  283GA(1)(a),  601QA(1)(a),  741(1)(a),  911A(2)(l),  992B(1)(a) and  1020F(1)(a) — Revocation and Exemption

Revocation

Under paragraphs 283GA(1)(a), 601QA(1)(a) and 741(1)(a) of the Corporations Act 2001 (the “Act”) the Australian Securities and Investments Commission (“ASIC”) hereby revokes ASIC Class Order [00/197].

First Exemption — Charitable body etc

ASIC hereby exempts a charitable body and a trustee of a charitable body from:

(a)   Parts 2L.1, 2L.2, 2L.3, 2L.4 and 2L.5 of the Act under paragraph  283GA(1)(a) of the Act;

(b)   Chapter 5C of the Act under paragraph  601QA(1)(a) of the Act; 

(c)   Parts 6D.2 and 6D.3 of the Act under paragraph  741(1)(a) of the Act;

(d)  sections  992A and  992AA of the Act under paragraph 992B(1)(a) of the Act; and

(e)   Division 2 and 4 of Part 7.9 and sections  1017B and  1017G of the Act under paragraph  1020F(1)(a) of the Act;

in relation to:

(f)   an offer of a debenture;

(g)   the operation of a managed investment scheme;

(h)   an offer to issue or to arrange the issue of, an issue of, or a recommendation to acquire, an interest in a managed investment scheme,

by the charitable body or trustee for so long as the following conditions are met:

1.    an identification statement in relation to the charitable body has been registered by ASIC and ASIC has not cancelled the registration;

2.    every offer document the preparation of which the charitable body was party to, contains or is accompanied by the following information:

(a)   the identity of the charitable body;

(b)   the terms and conditions of the offer (or a summary of those terms and conditions) made in connection with the relevant charitable scheme;

(c)   the terms and conditions, if any, under which a person other than the charitable body, or an employee of the charitable body in that capacity, will receive a material benefit in connection with:

(i)      the promotion of the charitable scheme;

(ii)     administering or managing the assets of the charitable scheme; or

(iii)    giving investment advice in respect of the charitable scheme; and

(d)   a statement to the effect that:

(i)      investors should be aware that the specified charitable scheme is not subject to the normal requirement to have a disclosure document or Product Disclosure Statement and be registered or have a trust deed under the Act;

(ii)     the scheme has not been examined or approved by ASIC; and

(iii)    the investment is designed for investors who wish to promote the charitable purposes of the relevant charity and for whom the considerations of profit are not of primary relevance in the investment decision;

3.    there is no reference in any promotional material or offer document that the charitable scheme has been approved or examined by ASIC;

4.    the charitable body lodges with ASIC, in connection with the identification statement registered by ASIC, further statements or another identification statement the effect of which is to rectify any false or misleading material statement in, or any material omission from, the identification statement, as soon as practicable after the charitable body becomes aware that the identification statement is false or misleading or that there is a material omission; and

5.    the charitable body lodges with ASIC:

(a)   where the charitable body is required under a law of the Commonwealth, a state or territory to lodge an annual statement of the accounts kept in relation to the charitable scheme with a statutory body or the Crown, a copy of the statement as soon as practicable after the statement is so required to be lodged; and

(b)   where the charitable body causes a registered company auditor or an affected auditor (as defined in ASIC Class Order [CO 14/757]) to audit those accounts at the end of each financial year, a copy of the auditor's report on the accounts within six months after the end of that financial year; and

(c)   where neither (a) nor (b) applies, either:

(i)      where the charitable body prepares or causes to be prepared at the end of each financial year an annual statement of the accounts kept in relation to the charitable scheme, a copy of the statement and a copy of the auditor's report, if any, on the accounts, within six months after the end of each financial year; or

(ii)     a statement which sets out the following sums:

(A)    the total indebtedness which remains outstanding to holders of debentures issued by the charitable body on 30 June of each year; and

(B)    the total amount subscribed in relation to interests in a managed investment scheme issued by the charitable body and not yet withdrawn on 30 June of each year;

          within six months after 30 June of that year.

And under paragraph  911A(2)(l) of the Act ASIC exempts a charitable body and a trustee of a charitable body from the requirement to hold an Australian financial services licence for the provision of the following financial services where the conditions referred to above are met:

(a)   dealing in financial products by issuing debentures or interests in a managed investment scheme that relate to a charitable scheme;

(b)   dealing in financial products in the ordinary course of the operation of the charitable scheme other than by issuing financial products;

(c)   providing a custodial or depository service by holding assets of the charitable scheme; and

(d)  providing financial product advice that is general  advice included in the offer document issued in connection with the charitable scheme.

Note: An officer or employee of a charitable body is exempt from the requirement to hold an Australian financial services licence for the provision of these financial services on behalf of the body by paragraph 911B(1)(e) of the Act.

Second Exemption — Other persons

Under paragraph 911A(2)(l) and  1020F(1)(a) of the Act, ASIC hereby exempts a person other than a person covered by the First Exemption from:

(a)   the requirement to hold an Australian financial services licence for the provision of financial services in relation to debentures or interests; and

(b)   Part 7.9 of the Act in relation to a recommendation to acquire and an offer to arrange the issue of an interest,

to which a charitable scheme relates where the conditions set out in the First Exemption appear to be met except where the person is aware, or ought reasonably to be aware, that those requirements have not been met.

Interpretation

For the purposes of this instrument:

“charitable body” is a person who is, or a body or fund which is:

(a)   exempt from income tax by virtue of sections  50–5 or  50–30 of the Income Tax Assessment Act 1997 or provisions which correspond to them; or

(b)   a person, body or fund to whom a gift is an allowable deduction for the purposes of calculating the taxable income of a  person making the gift by virtue of section  30–15 Item 1 or 2 of the Income Tax Assessment Act 1997 or provisions which correspond to them; or

(c)   otherwise recognised in law as being constituted for religious, educational, community or other charitable purposes;

“charitable scheme” means a scheme in respect of which a charitable body or trustee of a charitable body does either or both of the following (whether before or after the commencement of this definition):

(a)   offers debentures for issue;

(b)   offers to issue or arrange the issue of, issues, or makes a recommendation to acquire, interests in a managed investment scheme;

 “identification statement” is a statement by a charitable body which sets out:

(a)   the identity of the charitable body;

(b)   a brief description and intended purpose of the relevant charitable scheme; and

(c)   the guarantees or promises, if any, made to or proposed to be made to holders of the interests or debentures as the case may be; and

“offer document” is any document which contains an offer for issue of interests or debentures in connection with a charitable scheme.

Commencement

This instrument takes effect on the commencement of Schedule 1 to the Financial Services Reform Act 2001.

 

Notes to ASIC Class Order [CO 02/184]

Note 1

ASIC Class Order [CO 02/184] (in force under paragraphs  283GA(1)(a),  601QA(1)(a),  741(1)(a),  911A(2)(l),  992B(1)(a) and  1020F(1)(a) the Corporations Act 2001) as shown in this compilation comprises that Class Order amended as indicated in the Tables below.

Table of Instruments

Instrument number

Date of making or FRLI registration

Date of commencement

Application, saving or transitional provisions

[CO 02/184]

16/2/2002 (see F2006C00092)

11/3/2002

-

[CO 04/1569]

17/12/2004 (see F2006B01598)

21/12/2004

-

[CO 14/757]

7/8/2014 (see F2014L01082)

7/8/2014

-

Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

First exemption...........

am. [CO 04/1569] and [CO 14/757]

Second exemption.......

am. [CO 04/1569]

Interpretation...............

am. [CO 04/1569]