Corporations Amendment (Asia Region Funds Passport) Regulations 2018 (F2018L01144)

Schedule 1   Amendments to the Corporations Regulations 2001

Corporations Regulations 2001

64   After Chapter 8

Insert:

Chapter 8A - Asia Region Funds Passport

Part 8A.4 - Notified foreign passport funds

Division 1 - Becoming a notified foreign passport fund

8A.4.10 Rejecting a notice of intention - name of fund identical to another or unacceptable

(1) For the purposes of subparagraphs 1213B(5)(a)(i), (ii), (iii) and (iv) of the Act, the rules for ascertaining whether a name is identical with another name are the rules set out in Part 1 of Schedule 6.

(2) For the purposes of subparagraph 1213B(5)(a)(v) of the Act, a name is unacceptable for registration under the regulations if it is unacceptable under the rules set out in Part 2 of Schedule 6.

Division 4 - Providing key information in relation to notified foreign passport funds

8A.4.40 Register of members - purposes for which a person may obtain and use a copy

For the purposes of paragraph 1213K(2)(c) (and paragraph 1213L(3)(a)) of the Act, the following purposes are prescribed:

(a) soliciting a donation from a member of a notified foreign passport fund;

(b) soliciting a member of a notified foreign passport fund by a person who is authorised to assume or use the word stockbroker or sharebroker in accordance with section 923B of the Act;

(c) gathering information about the personal wealth of a member of a notified foreign passport fund;

(d) making an offer that satisfies paragraphs 1019D(1)(a) to (d) of the Act;

(e) making an invitation that, were it an offer to purchase a financial product, would be an offer that satisfies paragraphs 1019D(1)(a) to (d) of the Act.

Note: Section 1019D of the Act deals with unsolicited offers to purchase financial products off-market.

8A.4.45 Destruction of records by ASIC - period before documents may be destroyed

For the purposes of paragraph 1213Q(b) of the Act, the period of possession is 7 years.

Part 8A.5 - Register of passport funds

8A.5.10 Prescribed details for the Register of Passport Funds

Prescribed details of Australian passport funds

(1) For the purposes of paragraph 1214(3)(a) of the Act, the following details are prescribed for each Australian passport fund:

(a) the APFRN for the fund;

(b) the name of the fund;

(c) the ARSN of the registered scheme that constitutes the fund;

(d) a statement that the fund is registered as an Australian passport fund;

(e) the date on which the fund was registered as an Australian passport fund;

(f) if the fund has or had a name in a participating economy (including Australia) that is different from its current name in Australia, then for each name that the fund has or had in a participating economy:

(i) that name; and

(ii) the name of each participating economy in which the fund has or had that name; and

(iii) for each such economy - the start date and (if applicable) the end date of each period during which the fund has or had that name in that economy;

(g) the name, ACN and ABN (if any) of the operator of the fund;

(h) if the fund has at any time had an operator with a name, ACN or ABN that is different from the name, ACN or ABN (as the case requires) mentioned in paragraph (g):

(i) that other name, ACN or ABN; and

(ii) the start date and the end date of each period during which an operator of the fund has had that other name, ACN or ABN;

(i) the review date for the fund;

(j) for each financial year for the fund - the name of each auditor of a financial report for the fund for that year;

(k) for each review period for the fund for which the fund is required under section 15 of the Passport Rules for this jurisdiction to conduct an implementation review - the name of the implementation reviewer.

(2) For the purposes of paragraph 1214(3)(b) of the Act, the following details are prescribed for each fund that has been deregistered as an Australian passport fund:

(a) the details that were prescribed for the fund under subregulation (1) immediately before the fund was deregistered, except for the details that were prescribed under paragraph (1)(d);

(b) a statement that the fund has been deregistered;

(c) the date on which the fund was deregistered;

(d) a statement indicating which of the following the fund was deregistered under:

(i) Division 2 of Part 5C.10 of the Act (deregistration as an Australian passport fund as a result of deregistration as a registration scheme);

(ii) Subdivision A of Division 1 of Part 8A.7 of the Act (voluntary deregistration);

(iii) Subdivision B of Division 1 of Part 8A.7 of the Act (deregistration initiated by ASIC).

Prescribed details of notified foreign passport funds

(3) For the purposes of paragraph 1214(3)(a) of the Act, the following details are prescribed for each notified foreign passport fund:

(a) the NFPFRN for the fund and any other unique number for the fund allocated to the fund by ASIC;

(b) the name of the fund;

(c) a statement that the fund is a notified foreign passport fund;

(d) the name of the home economy for the fund;

(e) the date on which the fund became a notified foreign passport fund;

(f) if the fund has or had a name in a participating economy (including Australia) that is different from its current name in Australia, then for each name that the fund has or had in a participating economy:

(i) that name; and

(ii) the name of each participating economy in which the fund has or had that name; and

(iii) for each such economy - the start date and (if applicable) the end date of each period during which the fund has or had that name in that economy;

(g) the name and ARBN of the operator of the fund;

(h) if the fund has at any time had an operator with a name or ARBN that is different from the name or ARBN (as the case requires) mentioned in paragraph (g):

(i) that other name or ARBN; and

(ii) the start date and the end date of each period during which an operator of the fund has had that other name or ARBN;

(i) the review date for the fund;

(j) for each financial year for the fund - the name of each auditor of a report for the fund for that year that is prepared in accordance with the financial reporting requirements applying to the fund under the Passport Rules for the home economy of the fund;

(k) for each review period for the fund for which the fund is required under section 15 of the Passport Rules for this jurisdiction to conduct an implementation review - the name of the implementation reviewer.

(4) For the purposes of paragraph 1214(3)(b) of the Act, the following details are prescribed for each fund that has been removed as a notified foreign passport fund:

(a) the details that were prescribed for the fund under subregulation (3) immediately before the fund was removed, except for the details that were prescribed under paragraph (3)(c);

(b) a statement that the fund has been removed;

(c) the date on which the fund was removed;

(d) a statement indicating which of the following the fund was removed under:

(i) Subdivision A of Division 2 of Part 8A.7 of the Act (voluntarily denotification);

(ii) Subdivision B of Division 2 of Part 8A.7 of the Act (denotification as a result of deregistration as a passport fund in the home economy for the fund).

Definitions

(5) In this regulation:

implementation reviewer , for a passport fund, has the same meaning as in the Passport Rules for this jurisdiction.

participating economy has the same meaning as in Chapter 8A of the Act.

review period , for a passport fund, has the meaning given by subsection 15(1) of the Passport Rules for this jurisdiction.

Part 8A.7 - Deregistration and denotification

8A.7.10 Authority

This Part is made under section 1216L of the Act.

8A.7.15 Continued application of Corporations legislation to deregistered Australian passport funds

(1) During the transition period for a fund that has been deregistered as an Australian passport fund, each of the following continues to apply in relation to the fund as if it were an Australian passport fund:

(a) Part 1.2A and any provisions of the Act dealing with disclosing entities;

(b) Chapters 2C, 2D, 2F, 2G, 2M, 2N and 2P;

(c) Chapters 6, 6A, 6B, 6C and 6CA;

(d) Chapter 7;

(e) Part 8A.1, Part 8A.2, section 1212B, Part 8A.5, Part 8A.6, Part 8A.7 and Part 8A.8;

(f) Chapter 9;

(g) the remaining provisions of the Corporations legislation, to the extent that they apply:

(i) in relation to a provision mentioned in paragraphs (a) to (f); or

(ii) in relation to compliance with or enforcement of a provision mentioned in paragraphs (a) to (f).

Note: A fund may be deregistered as an Australian passport fund under Division 1 of Part 8A.7 of the Act or under Division 2 of Part 5C.10 of the Act.

(2) In this regulation, the transition period for a fund that has been deregistered as an Australian passport fund is the period:

(a) beginning on the day on which the fund is deregistered as an Australian passport fund (see subsection 1216D(3) of the Act); and

(b) ending on the last day on which there are any protected members of the fund.

(3) A person is a protected member of a fund that has been deregistered as an Australian passport fund if the person became a member of the fund (whether in this jurisdiction or any host economy for the fund):

(a) after the fund became an Australian passport fund; or

(b) on the expectation that the fund would become an Australian passport fund.

(4) For the purposes of the definition of protected member in subregulation (3), ignore any member of the fund that:

(a) is, or has at any time been, the operator of the fund; or

(b) is a related party of an entity that is, or has at any time been, the operator of the fund.

(5) If a fund has been deregistered as an Australian passport fund, a reference to the operator in relation to the fund in:

(a) this regulation; or

(b) any provision of the Corporations legislation the application of which is continued under subregulation (1);

is a reference to the responsible entity for the registered scheme that constitutes the fund or, if the fund has ceased to be a registered scheme, the entity or entities that control the fund.

8A.7.20 Continued application of Corporations legislation to funds that have been removed as notified foreign passport funds

(1) During the transition period for a fund that has been removed as a notified foreign passport fund, each of the following continues to apply in relation to the fund as if it were a notified foreign passport fund:

(a) Part 1.2A and any provisions of the Act dealing with disclosing entities;

(b) Chapters 2C, 2D, 2F, 2G, 2M, 2N and 2P;

(c) Chapters 6, 6A, 6B, 6C and 6CA;

(d) Chapter 7;

(e) Part 8A.1, Part 8A.2, Divisions 2, 3 and 4 of Part 8A.4, Part 8A.5, Part 8A.6, Part 8A.7 and Part 8A.8;

(f) Chapter 9;

(g) the remaining provisions of the Corporations legislation, to the extent that they apply:

(i) in relation to a provision mentioned in paragraphs (a) to (f); or

(ii) in relation to compliance with or enforcement of a provision mentioned in paragraphs (a) to (f).

Note: A fund may be removed as a notified foreign passport fund under Division 2 of Part 8A.7 of the Act.

(2) In this regulation, the transition period for a fund that has been removed as a notified foreign passport fund is the period:

(a) beginning on the day on which the fund is removed as a notified foreign passport fund (see subsection 1216J(3)); and

(b) ending on the last day on which there are any protected members of the fund.

(3) A person is a protected member of a fund that has been removed as a notified foreign passport fund if the person became a member of the fund (whether in this jurisdiction or any other participating economy for the fund):

(a) after the fund became a notified foreign passport fund; or

(b) on the expectation that the fund would become a notified foreign passport fund.

(4) For the purposes of the definition of protected member in subregulation (3), ignore any member of the fund that:

(a) is, or has at any time been, the operator of the fund; or

(b) is a related party of an entity that is, or has at any time been, the operator of the fund.

(5) If a fund has been removed as a notified foreign passport fund, a reference to the operator in relation to the fund in:

(a) this regulation; or

(b) any provision of the Corporations legislation the application of which is continued under subregulation (1);

is a reference to the operator of the regulated CIS that constitutes the fund or, if the fund has ceased to be a regulated CIS, the entity or entities that control the fund.