Explanatory Memorandum(Circulated by authority of the Treasurer, the Hon Scott Morrison MP)
Chapter 5 Other provisions
Outline of chapter
5.1 A small number of miscellaneous provisions that support the new financial benchmarks licensing regime are included in this Division, Division 5 of new Part 7.5B.
Summary of new law
5.2 A small number of miscellaneous provisions are grouped together within this Division, including a provision allowing references to be made to instruments as in force from time to time or at a particular time, and a provision giving the Australian Securities and Investments Commission (ASIC) and the regulations exemption powers in relation to the provisions in the Bill.
Comparison of key features of new law and current law
|New law||Current law|
|References may be made in the regulations and ASIC rules to instruments or other written materials, as in force from time to time or at a particular time.
ASIC and the regulations are given exemption powers in relation to the provisions in the Bill.
|No current law.|
Detailed explanation of new law
Schedule 1 - Amendments
Part 1 - Main amendments
Division 5 - Other provisions
5.3 Regulations made under a provision in the Bill and ASIC rules made under Division 3 of the Bill may refer to instruments as in force from time to time or at a particular time. This provision is justified because some of the regulations and ASIC rules are likely to refer to relevant international standards, in particular the Principles for Financial Benchmarks, IOSCO (IOSCO Principles), as the regulatory framework established in this Bill is based on this instrument. It is likely that these instruments will be updated from time to time, with the participation of Australian authorities. Given that it is Australian Government policy for our regulatory framework to remain consistent with the IOSCO Principles, this provision will allow the updated instrument to continue to apply without the need to amend the reference to them in the regulations or ASIC rules. Interested stakeholders who wish to review any changes will have convenient access to the IOSCO Principles as they are set out in a publicly available document which can be accessed on the internet.  Any other international standards that may be incorporated by reference in future will be accessible in a similar way. [Schedule 1, item 1, section 908EA]
5.4 ASIC or the regulations may exempt persons or benchmarks from provisions in this Bill, including from regulations and from ASIC financial benchmark or compelled financial benchmark rules made under Division 3. Conditions may be imposed on an exemption given. An ASIC exemption must be a legislative instrument if it affects a class of persons or a class of benchmarks. This allows Parliament to review the exemption and disallow it if necessary. Otherwise an ASIC exemption must be in writing and must be published on ASIC's website. Unlike a regulation, such an exemption in writing is not subject to disallowance, this is appropriate because it is subject to AAT merits review. The regulations prevail over an ASIC exemption in case of an inconsistency. [Schedule 1, item 1, section 908EB]
5.5 There are no consequential amendments for this Division.
Application and transitional provisions
5.6 There are no application and transitional provisions for this Division.