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Explanatory Statement

 

ASIC Derivative Trade Repository Rules (Amendment) Instrument 2026/52

This is the Explanatory Statement for ASIC Derivative Trade Repository Rules (Amendment) Instrument 2026/52 (Amending Instrument).

The Explanatory Statement is approved by the Australian Securities and Investments Commission (ASIC).

Summary

1. The Amending Instrument is made under section 903K of the Corporations Act 2001 (the Act) with the consent of the Minister under section 903H of the Act and amends the ASIC Derivative Trade Repository Rules 2023 (the Rules) to make consequential rule changes.

2.  This Amending Instrument amends the Rules to re-reference definitions in the Act which have been amended by the Treasury Laws Amendment (2023 Law Improvement Package No. 1) Act 2023 (Treasury Laws Amendment) and make other minor administrative amendments.

Purpose of the instrument

3. The purpose of the Amending Instrument is to amend the Rules to ensure they incorporate the amendments from the Treasury Laws Amendment and make other minor administrative amendments. The amendments do not change the meaning of the relevant terms in the Rules. The amendments will ensure the Rules remain clear, consistent and fit for regulatory purposes.

Background

4. The Treasury Laws Amendment amended the Australian Securities and Investments Commission Act 2001, Corporations Act 2001 and 42 other Acts to implement certain recommendations of the Australian Law Reform Commission’s Financial Services Interim Reports A and B to, including (among other things) to create a single glossary of defined terms in the Corporations Act 2001.

5. The relevant amendments referencing definitions commenced on 20 September 2023 (the day the Treasury Laws Amendment received Royal Assent). The Treasury Laws Amendment was registered on the Federal Register of Legislation on 22 September 2023, the same day that the Rules were made. This close timing contributed to the Rules inadvertently not including the updated definition references of the Treasury Laws Amendment.

Consultation

  1.          Section 903G of the Act requires ASIC to consult the public before making rules. On 10 March 2025, ASIC published CS 17 Proposed updates to the ASIC Derivative Trade Repository Rules 2023 (CS 17) which closed on 8 April 2025. ASIC received written support for the proposed amendments from DTCC Data Repository (Singapore) Pte. Ltd. and the Australian Financial Markets Association. No issues or concerns were raised in response to CS 17.
  2.          ASIC has consulted with the Office of Impact Analysis (OIA) in relation to whether an Impact Analysis (IA) would be required. The OIA has confirmed that the preparation of an IA is not required because the changes are minor and machinery and have no regulatory impact.

Operation of the instrument

Part 1: Preliminary

  1.          Section 1 of Part 1 provides that the name of the Amending Instrument is the ASIC Derivative Trade Repository Rules (Amendment) Instrument 2026/52.
  2.          Section 2 of Part 1 provides that the Amending Instrument commences on the day after the Amending Instrument is registered on the Federal Register of Legislation.
  3.          Section 3 of Part 1 provides that the Amending Instrument is made under section 903K of the Act.
  4.          Section 4 of Part 1 provides that each instrument that is specified in a Schedule to the Amending Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Amending Instrument has effect according to its terms.

Schedule 1 Amendments

  1.          Item 1 of the Amending Instrument repeals the note in Rule 1.2.2 as it no longer applies following the repeal of definitions in the Rules that duplicate definitions provided in the Act.
  2.          Item 2 of the Amending Instrument repeals the definition “Chapter 5 Body Corporate” under Rule 1.2.3 since it is also a definition under section 9 of the Act.
  3.          Item 3 of the Amending Instrument repeals the definition “Derivative” under Rule 1.2.3 since it is also a definition under section 9 of the Act.
  4.          Item 4 of the Amending Instrument updates the definition of “Derivative Trade Data” under Rule 1.2.3 to replace “section 761A” with “section 9” to reflect changes made under the Treasury Laws Amendment.
  5.          Item 5 of the Amending Instrument repeals the definition “Derivative Trade Repository” under Rule 1.2.3 since it is also a definition under section 9 of the Act.
  6.          Item 6 of the Amending Instrument repeals the definition “Derivative Transaction” under Rule 1.2.3 since it is also a definition under section 9 of the Act.
  7.          Item 7 of the Amending Instrument updates the definition of “Licence” under Rule 1.2.3 to replace “section 761A” with “section 9” to reflect changes made under the Treasury Laws Amendment.
  8.          Item 8 of the Amending Instrument repeals the definition “Officer” under Rule 1.2.3 since it is also a definition under section 9 of the Act.
  9.          Item 9 of the Amending Instrument repeals the definition “Prescribed Derivative Trade Repository” under Rule 1.2.3 since it is also a definition under section 9 of the Act.
  10.          Item 10 of the Amending Instrument updates the definition of “Trade Repository” under Rule 1.2.3 to replace “section 761A” with “section 9” to reflect changes made under the Treasury Laws Amendment.
  11.          Item11 of the Amending Instrument replaces an erroneous reference to “Linked Providers” with the term “Linked Entities” under paragraph 2.4.4(2)(b). The term “Linked Entities is defined in Rule 1.2.3.

Legislative instrument and primary legislation

  1.          The subject matter and policy implemented by the Amending Instrument is more appropriate for a legislative instrument rather than primary legislation because:
    1.           the Amending Instrument utilises powers given by Parliament to ASIC that allow ASIC to make, amend and repeal rules relating to derivatives transactions; and
    2.           the matters contained in the Amending Instrument are specific amendments to the Rules and reflect the changed location of definitions in the Act as a consequence of the Treasury Laws Amendment and other minor administrative amendments.
  2.          The duration of the amendments made by this Amending Instrument align with the duration of the Rules, which are scheduled to sunset on 1 October 2033.

Legislative authority

  1.          The Amending Instrument is made under subsection 903K of the Act, which provides that ASIC may amend or revoke a derivative trade repository rule in like manner and subject to like conditions.
  2.          Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
  3.          Section 903A of the Act provides that rules made under this section are by way of legislative instrument. This means that such rules are subject to disallowance in accordance with section 42 of the Legislation Act. Section 44 of the Legislation Act does not apply to this instrument. This instrument is subject to disallowance.
  4.          Section 903H of the Act provides that ASIC must not make a derivative trade repository rule unless the Minister has consented, in writing, to the making of the rule. The Minister consented to the making of the Rules by written notice to ASIC dated 8 August 2023.
  5.          ASIC sought and received the Minister’s consent to making the amendments. The Minister consented to the making of the Amending Instrument by written notice to ASIC dated 11 March 2026.

Statement of Compatibility with Human Rights

  1.          The Explanatory Statement for a disallowable legislative instrument must contain a Statement of Compatibility with Human Rights under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility with Human Rights is in the Attachment.

Attachment

Statement of Compatibility with Human Rights

 

This Statement of Compatibility with Human Rights is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

ASIC Derivative Trade Repository Rules (Amendment) Instrument 2026/52

Overview

  1.              The ASIC Derivative Trade Repository Rules (Amendment) Instrument 2026/52 (the Amending Instrument) is made by ASIC under section 903K of the Corporations Act 2001 (the Act), acting with the consent of the Minister under section 903H of the Act.
  2.              The Amending Instrument amends the ASIC Derivative Trade Repository Rules 2023 (the Rules). The Derivative Transaction Rules (Reporting) 2024 (Reporting Rules) require reporting entities to report transactions to a derivative trade repository, and the Rules require a licensed derivative trade repository to, among other things, provide participants with access to its services, receive and handle the derivative trade data reported by entities under the Reporting Rules, and provide timely and reliable access to derivative trade data to ASIC and, if required, to other Australian regulators.
  3.              The Amending Instrument amends the Rules to re-reference definitions in the Act which have been amended by the Treasury Laws Amendment (2023 Law Improvement Package No. 1) Act 2023 (Treasury Laws Amendment) and make other minor administrative amendments. The amendments do not change the meaning of the relevant terms in the Rules.

Assessment of human rights implications

Article 17 of the International Covenant on Civil and Political Rights

  1.              Article 17 of the International Covenant on Civil and Political Rights (ICCPR) prohibits unlawful or arbitrary interferences with a person's privacy, family, home (which the UN Human Rights Committee has interpreted as including a person’s workplace) and correspondence. It also prohibits unlawful attacks on a person’s reputation. It provides that persons have the right to the protection of the law against such interference or attacks. The UN Human Rights Committee has not defined “privacy”. The Commonwealth Attorney-General’s Department has provided guidance that privacy should be understood to comprise freedom from unwarranted and unreasonable intrusion into activities that society recognises as falling into the individual sphere of autonomy. To avoid being considered arbitrary, any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances.
  2.              The Amending Instrument will not engage the right to privacy and reputation in Article 17 of the ICCPR.

Conclusion

  1.              The Amending Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.