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ASIC Class Order [CO 09/552]

Authoritative Version
CO 09/552 Orders/ASIC Class Orders as amended, taking into account amendments up to ASIC Corporations (Amendment) Instrument 2018/697
Administered by: Treasury
Registered 09 Oct 2018
Start Date 18 Sep 2018

ASIC Class Order [CO 09/552]

About this compilation

 

Compilation No. 2

 

This is a compilation of ASIC Class Order [CO 09/552] as in force on 18 September 2018. It includes any commenced amendment affecting the legislative instrument to that date.

 

This compilation was prepared by the Australian Securities and Investments Commission.

 

The notes at the end of this compilation (the endnotes) include information

about amending instruments and the amendment history of each amended provision.

 

Australian Securities and Investments Commission

Corporations Act 2001 — Paragraph 601QA(1)(b) — Declaration

 

Enabling Legislation

 

1.       The Australian Securities and Investments Commission makes this instrument under paragraph 601QA(1)(b) of the Corporations Act 2001 (the Act).

 

Title

 

2.       This instrument is ASIC Class Order [CO 09/552].

 

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, section 4 (definition of register).  The FRLI may be accessed at https://www.legislation.gov.au/.

 

Declaration

 

4.       Chapter 5C of the Act applies to all persons in relation to a registered scheme as if section 601GC of the Act were modified or varied as follows:

(a)     in subsection (1) omit “The”, substitute “Subject to this section, the”; and

(b)     after subsection (1) insert:

(1A)          If the constitution of a scheme sets out a procedure for varying or cancelling rights of a class of members of the scheme, or rights attached to a class of interests under the scheme, those rights may be varied or cancelled by a resolution under paragraph (1)(a) only if that procedure is complied with.

(1AAA)     The constitution of the scheme may be modified, or repealed and replaced with a new constitution, by the responsible entity if at least one of the following is satisfied at the time of the modification, or repeal and replacement:

(a)     a meeting of members is unable to be held because the quorum requirement in either subsection 252R(2) or the scheme’s constitution is not capable of being satisfied because the scheme has an insufficient number of members;

(b)     every member of the scheme is not entitled to vote at a meeting of members because of section 253E;

(c)     all interests in the scheme were issued:

(i)      in situations that did not require the responsible entity to give a Product Disclosure Statement; and

(ii)     without disclosure to investors under Part 6D.2; and

(iii)    without a prospectus under Division 2 of Part 7.12 of the old Corporations Law.

(1AAB)    The responsible entity may only make the modification, or repeal and replacement, under subsection (1AAA) if, before the modification, or repeal and replacement, both of the following are satisfied:

(a)        the responsible entity has provided to each member of the scheme, the auditor of the scheme and the auditor of the scheme’s compliance plan, all the information that the responsible entity reasonably expects to be material to the decision of a member whether to consent to the modification, or repeal and replacement;

(b)       after the information in paragraph (a) has been provided, every member of the scheme has given their written consent, to the modification, or repeal and replacement.

 

(1AAC)   In this section:

 

old Corporations Law means the Corporations Law of each State and Territory as in force from time to time before 13 March 2000.

 

Passport Rules

(1AAD)   The responsible entity of a registered scheme may modify the constitution of the scheme to the extent the responsible entity reasonably considers necessary to ensure the constitution:

(a)   is consistent with section 4 of the Passport Rules for this jurisdiction; and

(b)   specifies a right of withdrawal and contains provisions for making and dealing with withdrawal requests that are consistent with Division 7.1 of Part 7 of those Rules.

Any modifications made to the constitution under this subsection may be made before the scheme has a status of being an Australian passport fund but only have operative effect while the Passport Rules for this jurisdiction apply in relation to the fund.”.

 

 

 

 

Notes to ASIC Class Order [CO 09/552]

Note 1

ASIC Class Order [CO 09/552] (in force under s601QA(1)(b) of 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 FRL registration

Date of commencement

Application, saving or transitional provisions

[CO 09/552]

23/9/2009 (see F2009L03603)

23/9/2009

 

2017/545

4/7/2017 (see F2017L00875)

5/7/2017

-

2018/697

13/9/2018 (see F2018L01281)

18/9/2018

-

Table of Amendments

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

Provision affected

How affected

Para 4(b) (notional subsection 601GC(1A))...............



ad. 2017/545

Para 4 (notional subsection 601GC(1AAD)) ........



ad. 2018/697