CHAPTER 7
-
FINANCIAL SERVICES AND MARKETS
Note: This Chapter applies to a CCIV in a modified form: see Division
4
of Part
8B.7
.
History
Ch 7 amended by No 8 of 2022, s 3, Sch 2[165] (effective 1 July 2022).
Ch 7 inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
As Act No 122 of 2001 repealed Ch 7 and 8 the history notes for Ch 7 use
"
inserted
"
and references to the former provisions have been removed.
PART 7.3
-
LICENSING OF CLEARING AND SETTLEMENT FACILITIES
Division 1
-
Requirement to be licensed
SECTION 820A
NEED FOR A LICENCE
820A(1)
A person must only operate, or hold out that the person operates, a clearing and settlement facility in this jurisdiction if:
(a)
the person has an Australian CS facility licence that authorises the person to operate the facility in this jurisdiction; or
(b)
the facility is exempt from the operation of this Part.
Note 1: A CS facility licensee may also provide financial services incidental to the operation of the facility: see paragraph
911A(2)(d)
.
Note 2: Failure to comply with this subsection is an offence: see subsection
1311(1)
.
820A(2)
For the purposes of an offence based on subsection (1), strict liability applies to paragraph (1)(b).
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
820A(3)
A person contravenes this subsection if the person contravenes subsection (1).
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 820A(3) inserted by No 17 of 2019, s 3, Sch 1[50] (effective 13 March 2019).
History
S 820A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 820B
820B
OTHER PROHIBITIONS ON HOLDING OUT
A person must not hold out:
(a)
that the person has an Australian CS facility licence; or
(b)
that the operation of a clearing and settlement facility by the person in this jurisdiction is authorised by an Australian CS facility licence; or
(c)
that a clearing and settlement facility is exempt from the operation of this Part;
if that is not the case.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 820B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 820C
EXEMPTIONS BY MINISTER
820C(1)
The Minister may exempt a particular clearing and settlement facility, or class of clearing and settlement facilities, from all or specified provisions of this Part. An exemption may be unconditional, or subject to conditions specified in the exemption.
Note: The provisions of this Part include regulations made for the purposes of this Part (see section
761H
).
820C(2)
The Minister may, at any time:
(a)
vary an exemption to:
(i)
impose conditions, or additional conditions, on the exemption; or
(ii)
vary or revoke any of the conditions on the exemption; or
(b)
revoke an exemption.
820C(3)
However, the Minister may only take action under subsection (2) after:
(a)
giving notice, and an opportunity to make submissions on the proposed action, to the operator of each clearing and settlement facility known by the Minister to be covered by the exemption; and
(b)
if the exemption covers a class of clearing and settlement facilities
-
a notice has been published on ASIC
'
s website allowing a reasonable period within which the operator of each clearing and settlement facility covered by the exemption may make submissions on the proposed action, and that period has ended.
820C(4)
If an exemption is expressed to apply in relation to a class of clearing and settlement facilities (whether or not it is also expressed to apply in relation to one or more clearing and settlement facilities otherwise than by reference to membership of a class), then the exemption, and any variation or revocation of the exemption, is a legislative instrument.
820C(5)
If subsection (4) does not apply to an exemption, then the exemption, and any variation or revocation of the exemption, must be in writing and the Minister must publish notice of it in the Gazette.
History
S 820C inserted by No 17 of 2017, s 3, Sch 3
[
4].
[
CCH Note:
No 17 of 2017, s 3, Sch 3
[
5] contained the following saving provision (effective 29 March 2017):
5 Saving of exemptions
If, immediately before the commencement of this item, an exemption is in force under section 820C of the
Corporations Act 2001
, that exemption has effect after that commencement as if it had been made in accordance with section 820C as substituted by item 4.]
SECTION 820D
MEANING OF OPERATED IN THIS JURISDICTION
-
CLEARING AND SETTLEMENT FACILITY
820D(1)
A clearing and settlement facility is taken to be
operated in this jurisdiction
if it is operated by a body corporate that is registered under Chapter
2A
.
History
S 820D(1) amended by No 76 of 2023, s 3, Sch 2[365] and
[
366] (effective 20 October 2023).
820D(2)
Subsection
(1)
does not limit the circumstances in which a clearing and settlement facility is
operated in this jurisdiction
.
History
S 820D(2) amended by No 76 of 2023, s 3, Sch 2[366] and
[
367] (effective 20 October 2023).
S 820D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 2
-
Regulation of CS facility licensees
Subdivision A
-
Licensee
'
s obligations
SECTION 821A
GENERAL OBLIGATIONS
821A(1)
A CS facility licensee must:
(aa)
to the extent that it is reasonably practicable to do so:
(i)
comply with standards determined under section
827D
; and
(ii)
do all other things necessary to reduce systemic risk; and
(a)
to the extent that it is reasonably practicable to do so, do all things necessary to ensure that the facility
'
s services are provided in a fair and effective way; and
(b)
comply with the conditions on the licence; and
(c)
have adequate arrangements (whether they involve a self-regulatory structure or the appointment of an independent person or related entity) for supervising the facility, including arrangements for:
(i)
handling conflicts between the commercial interests of the licensee and the need for the licensee to ensure that the facility
'
s services are provided in a fair and effective way; and
(ii)
enforcing compliance with the facility
'
s operating rules; and
(d)
have sufficient resources (including financial, technological and human resources) to operate the facility properly and for the required supervisory arrangements to be provided; and
(e)
if the licensee is a foreign body corporate
-
be registered under Division
2
of Part
5B.2
; and
(f)
if the licence was granted under subsection
824B(2)
(overseas clearing and settlement facilities)
-
both:
(i)
remain authorised to operate a clearing and settlement facility in the foreign country in which the licensee
'
s principal place of business is located; and
(ii)
get the Minister
'
s approval under section
821F
before that principal place of business becomes located in any other foreign country; and
(g)
if the licensee, or a holding company of the licensee, is a widely held market body
-
take all reasonable steps to ensure that an unacceptable control situation does not exist in relation to the body; and
(h)
take all reasonable steps to ensure that no disqualified individual becomes, or remains, involved in the licensee (see Division
2
of Part
7.4
).
History
S 821A(1) amended by No 76 of 2023, s 3, Sch 2[161] and
[
162] (effective 20 October 2023).
S 821A(1) amended by No 17 of 2019, s 3, Sch 1
[
51] (effective 13 March 2019).
821A(2)
A person contravenes this subsection if the person contravenes paragraph
(1)(aa)
,
(a)
,
(c)
,
(d)
,
(e)
,
(f)
,
(g)
or
(h)
.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 821A(2) inserted by No 17 of 2019, s 3, Sch 1
[
52] (effective 13 March 2019).
History
S 821A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 821B
OBLIGATION TO NOTIFY ASIC OF CERTAIN MATTERS
821B(1)
A CS facility licensee must give written notice to ASIC, as soon as practicable, if it becomes aware that it may no longer be able to meet, or has breached, an obligation under section
821A
. If ASIC considers it appropriate to do so, ASIC may give the Minister advice about the matter.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 821B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
821B(2)
A CS facility licensee must give written notice to ASIC, as soon as practicable, as required by the following paragraphs:
(a)
if the licensee provides a new class of financial service incidental to the operation of the facility, the licensee must give notice that includes details of the new class;
(b)
if the licensee takes any kind of disciplinary action against a participant in the facility, the licensee must give notice that includes:
(i)
the participant
'
s name; and
(ii)
the reason for and nature of the action taken;
(c)
if the licensee has reason to suspect that a person has committed, is committing, or is about to commit a significant contravention of the facility
'
s operating rules or this Act, the licensee must give notice that includes:
(i)
the person
'
s name; and
(ii)
details of the contravention or impending contravention; and
(iii)
the licensee
'
s reasons for that belief.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 821B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
821B(3)
A CS facility licensee whose licence was granted under subsection
824B(2)
(overseas clearing and settlement facilities) must, as soon as practicable, give written notice to ASIC if:
(a)
the licensee ceases to be authorised to operate a clearing and settlement facility in the foreign country in which the licensee
'
s principal place of business is located; or
(b)
there is a significant change to the regulatory regime applying in relation to the facility in the foreign country in which the licensee
'
s principal place of business is located.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 821B(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
821B(4)
As soon as practicable after:
(a)
a person becomes or ceases to be a director, secretary or senior manager of a CS facility licensee or of a holding company of a CS facility licensee (including when a person changes from one of those positions to another); or
(b)
a CS facility licensee becomes aware that a person has come to have, or has ceased to have, more than 15% of the voting power in the licensee or in a holding company of the licensee;
the licensee must give written notice of this to ASIC. The notice must include such other information about the matter as is prescribed by regulations made for the purposes of this subsection.
Note 1: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
Note 2: To the extent that the licensee is required to give the notice and information under any other provision of this Act, the licensee may comply with this subsection by doing so. It need not provide the same information twice.
[
CCH Note:
S 821B(4) will be amended by No 69 of 2020, s 3, Sch 1[1133] and
[
1134], by substituting
"
Note
"
for
"
Note 1
"
and omitting Note 2, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 821B(4) amended by No 103 of 2004, s 3, Sch 9
[
64].
S 821B(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
S 821B(5) will be inserted by No 69 of 2020, s 3, Sch 1[1135] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 821B(5) will read:
821B(5)
However, to the extent that the licensee is required to give the notice and information, to ASIC or the Registrar, under any other provision of this Act, the licensee may comply with subsection
(4)
by giving the notice and information under that other provision.]
821B(6)
A person contravenes this subsection if the person contravenes subsection
(1)
,
(2)
,
(3)
or
(4)
.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 821B(6) inserted by No 17 of 2019, s 3, Sch 1
[
53] (effective 13 March 2019).
SECTION 821BA
OBLIGATION TO NOTIFY RESERVE BANK OF CERTAIN MATTERS
821BA(1)
A CS facility licensee must give written notice to the Reserve Bank of Australia (the
Reserve Bank
), as soon as practicable, if:
(a)
the licensee becomes aware that it has failed to comply with standards determined under section
827D
, or is likely to fail to comply with such standards; or
(b)
the licensee becomes aware that it may no longer be able to meet, or has breached, its obligation under subparagraph
821A(1)(aa)(ii)
.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 821BA(1) amended by No 17 of 2019, s 3, Sch 1
[
54] (effective 13 March 2019).
821BA(2)
If the Reserve Bank considers it appropriate to do so, the Reserve Bank may give the Minister advice about the matter.
History
S 821BA inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 821C
OBLIGATION TO ASSIST
ASIC
821C(1)
A CS facility licensee must give such assistance to ASIC, or a person authorised by ASIC, as ASIC or the authorised person reasonably requests in relation to the performance of ASIC
'
s functions.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
821C(2)
Such assistance may include showing ASIC the licensee
'
s books or giving ASIC other information.
Reserve Bank
821C(3)
A CS facility licensee must give such assistance to the Reserve Bank of Australia (the
Reserve Bank
), or a person authorised by the Reserve Bank, as the Reserve Bank or the authorised person reasonably requests in relation to the performance of the Reserve Bank
'
s functions under this Part.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
821C(4)
Such assistance may include showing the Reserve Bank the licensee
'
s books or giving the Reserve Bank other information.
History
S 821C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 821D
821D
OBLIGATION TO GIVE ASIC ACCESS TO THE FACILITY
A CS facility licensee must give a person authorised by ASIC such reasonable access to the facility as the person requests for any of the purposes of this Chapter.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 821D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 821E
ANNUAL REPORT
821E(1)
A CS facility licensee must, within 3 months after the end of its financial year, give ASIC an annual report on the extent to which the licensee complied with its obligations as a CS facility licensee under this Chapter.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
821E(2)
The licensee must ensure that the annual report is accompanied by any information and statements prescribed by regulations made for the purposes of this subsection.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
821E(3)
The licensee must also ensure that the annual report is accompanied by any audit report that the Minister requires under subsection (4).
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
821E(4)
The Minister may, by giving written notice to a CS facility licensee, require the licensee to obtain an audit report on the annual report and on any information or statements accompanying it. The Minister must nominate to prepare the audit report:
(a)
ASIC; or
(b)
a specified person or body that is suitably qualified.
821E(5)
ASIC must give the annual report and accompanying material to the Minister.
History
S 821E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 821F
CHANGE OF COUNTRY BY FOREIGN LICENSEE
821F(1)
In the case of a licence granted under
subsection 824B(2)
, the Minister may approve the location of the licensee's principal place of business in a new country only if:
(a)
the new country is not Australia; and
(b)
the operation of the facility in that country will be subject to requirements and supervision that are sufficiently equivalent, in relation to the degree of protection from systemic risk and the level of effectiveness and fairness of services they achieve, to the requirements and supervision to which clearing and settlement facilities are subject under this Act in relation to those matters.
821F(2)
If, in relation to a licence granted under
subsection 824B(2)
, the licensee's principal place of business changes to become a place in Australia:
(a)
the licence ceases to be in force from the time of the change; and
(b)
if the licensee wishes the facility to continue to be licensed, the licensee may apply for the grant of a new licence under
subsection 824B(1)
; and
(c)
the application must be assessed in accordance with
Subdivision A
of
Division 3
, subject to such modifications (if any) of that Subdivision as are set out in regulations made for the purposes of this paragraph.
821F(3)
An application referred to in paragraph (2)(b) may be made in advance of the change of location of the principal place of business, and a decision on the application may be made before that time. However, any licence granted pursuant to the application does not come into force until the change occurs.
History
S 821F inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision B
-
The facility'
s operating rules and procedures
SECTION 822A
CONTENT OF THE OPERATING RULES AND PROCEDURES
822A(1)
The operating rules of a licensed CS facility must deal with the matters prescribed by regulations made for the purposes of this subsection, and the matters specified in the CS services rules for the purposes of this subsection.
History
S 822A(1) amended by No 75 of 2023, s 3, Sch 3[3] (effective 21 September 2023).
822A(2)
The regulations may also prescribe matters in respect of which a licensed CS facility must have written procedures.
822A(3)
However, subsections
(1)
and
(2)
do not apply if the licensee is also authorised to operate the facility in the foreign country in which its principal place of business is located and the licence was granted under subsection
824B(2)
(overseas clearing and settlement facilities).
822A(4)
In a subsection
(3)
case, ASIC may determine, by giving written notice to the licensee, matters in respect of which the licensed CS facility must have written procedures.
History
S 822A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 822B
LEGAL EFFECT OF OPERATING RULES
822B(1)
The operating rules of a licensed CS facility have effect as a contract under seal:
(a)
between the licensee and each issuer of financial products in respect of which the facility provides its services; and
(b)
between the licensee and each participant in the facility; and
(c)
between each issuer of financial products in respect of which the facility provides its services and each participant in the facility; and
(d)
between a participant in the facility and each other participant in the facility;
under which each of those persons agrees to observe the operating rules to the extent that they apply to the person and to engage in conduct that the person is required by the operating rules to engage in.
History
S 822B(1) renumbered from s 822B by No 178 of 2012, s 3, Sch 1, Pt 1[21] (effective 3 January 2013).
822B(2)
However, if there is an inconsistency between the operating rules of a licensed CS facility and any of the following other rules:
(a)
the derivative transaction rules;
(b)
the derivative trade repository rules;
(c)
the client money reporting rules;
(d)
the CS services rules;
those other rules prevail over the operating rules to the extent of the inconsistency.
Note 1: If there is an inconsistency between the derivative transaction rules and the derivative trade repository rules, the derivative transaction rules prevail: see subsection
901E(2)
.
Note 2: If there is an inconsistency between the derivative transaction rules or the derivative trade repository rules and the client money reporting rules, the derivative transaction rules or the derivative trade repository rules prevail: see subsection
981M(2)
.
History
S 822B(2) amended by No 75 of 2023, s 3, Sch 3[4] (effective 21 September 2023).
S 822B(2) amended by No 25 of 2017, s 3, Sch 5[9]
-
[
11] (effective 4 April 2018).
S 822B(2) inserted by No 178 of 2012, s 3, Sch 1, Pt 1
[
22].
S 822B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 822C
ENFORCEMENT OF OPERATING RULES
822C(1)
If a person who is under an obligation to comply with or enforce any of a licensed CS facility's operating rules fails to meet that obligation, an application to the Court may be made by:
(a)
ASIC; or
(b)
the licensee; or
(c)
the operator of a financial market with which the facility has arrangements to provide services for transactions effected through the market; or
(d)
a person aggrieved by the failure.
822C(2)
After giving an opportunity to be heard to the applicant and the person against whom the order is sought, the Court may make an order giving directions to:
(a)
the person against whom the order is sought; or
(b)
if that person is a body corporate
-
the directors of the body corporate;
about compliance with, or enforcement of, the operating rules.
History
S 822C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 822D
CHANGING THE OPERATING RULES
Licensed CS facilities other than subsection 824B(2) facilities
822D(1)
As soon as practicable after a change is made to the operating rules of a licensed CS facility, other than a facility licensed under subsection
824B(2)
(overseas clearing and settlement facilities), the licensee must lodge with ASIC in a prescribed form written notice of the change. The notice must:
(a)
set out the text of the change; and
(b)
specify the date on which the change was made; and
(c)
contain an explanation of the purpose of the change.
History
S 822D(1) amended by No 76 of 2023, s 3, Sch 2[368] (effective 20 October 2023).
822D(2)
If no notice is lodged with ASIC, as required by subsection
(1)
, within 21 days after the change is made, the change ceases to have effect at the end of that period.
Subsection 824B(2) facilities
822D(3)
As soon as practicable after a change is made to the operating rules of a clearing and settlement facility the operation of which is licensed under subsection
824B(2)
(overseas clearing and settlement facilities), the licensee must lodge with ASIC in a prescribed form written notice of the change. The notice must:
(a)
set out the text of the change; and
(b)
specify the date on which the change was made; and
(c)
contain an explanation of the purpose of the change.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 822D(3) amended by No 76 of 2023, s 3, Sch 2[368] (effective 20 October 2023).
S 822D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 822E
DISALLOWANCE OF CHANGES TO OPERATING RULES
822E(1)
This section does not apply in respect of an Australian CS facility licence granted under subsection
824B(2)
(overseas clearing and settlement facilities).
822E(2)
As soon as practicable after receiving a notice under section
822D
from a CS facility licensee, ASIC must send a copy of the notice to the Minister.
822E(3)
Within 28 days after ASIC receives the notice from the licensee, the Minister may disallow all or a specified part of the change to the operating rules.
822E(4)
In deciding whether to do so, the Minister must have regard to the consistency of the change with the licensee's obligations under this Part (including in particular the obligations mentioned in paragraphs
821A(1)(aa)
and (a)), and the matters specified in the CS services rules for the purposes of this subsection.
Note: The Minister must also have regard to the matters in section
827A
.
History
S 822E(4) amended by No 75 of 2023, s 3, Sch 3[5] (effective 21 September 2023).
S 822E(4) amended by No 17 of 2019, s 3, Sch 1
[
55] (effective 13 March 2019).
822E(5)
As soon as practicable after all or a part of a change is disallowed, ASIC must give notice of the disallowance to the licensee. The change ceases to have effect, to the extent of the disallowance, when the licensee receives the notice.
History
S 822E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision C
-
Powers of the Minister, ASIC and the Reserve Bank in relation to licensees
SECTION 823A
MINISTER'S POWER TO GIVE DIRECTIONS
823A(1)
If the Minister considers that a CS facility licensee is not complying with its obligations as a CS facility licensee under this Chapter, the Minister may give the licensee a written direction to do specified things that the Minister believes will promote compliance by the licensee with those obligations.
823A(2)
The licensee must comply with the direction.
823A(3)
If the licensee fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that the licensee comply with the direction.
823A(4)
The Minister may vary or revoke a direction at any time by giving written notice to the licensee.
History
S 823A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 823B
MINISTER'S POWER TO REQUIRE SPECIAL REPORT
823B(1)
The Minister may give a CS facility licensee a written notice requiring the licensee to give ASIC a special report on specified matters. ASIC must give the report to the Minister.
823B(2)
The notice may also require the licensee to give ASIC an audit report on the special report. The Minister must nominate to prepare the report:
(a)
ASIC; or
(b)
a specified person or body that is suitably qualified.
823B(3)
The licensee must give the special report, and audit report (if any), to ASIC within the time required by the notice.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 823B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 823C
ASIC ASSESSMENT OF LICENSEE
'
S COMPLIANCE
History
S 823C heading substituted by No 59 of 2013, s 3, Sch 1, Pt 2
[
12].
823C(1)
ASIC may do an assessment of how well a CS facility licensee is complying with its obligations as a CS facility licensee under this Chapter (other than its obligation under paragraph
821A(1)(aa)
). In doing the assessment, ASIC may take account of any information and reports that it thinks appropriate, including information and reports from an overseas regulatory authority.
History
S 823C(1) amended by No 17 of 2019, s 3, Sch 1
[
56] (effective 13 March 2019).
S 823C(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
823C(2)
If the CS facility licensee is prescribed by the regulations for the purpose of this subsection, ASIC must, in respect of the obligation in paragraph
821A(1)(c)
, do such an assessment at least once a year.
History
S 823C(2) amended by No 17 of 2019, s 3, Sch 1
[
57] (effective 13 March 2019).
S 823C(2) substituted by No 59 of 2013, s 3, Sch 1, Pt 2
[
13].
S 823C(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
823C(3)
As soon as practicable after doing an assessment under this section, ASIC must give a written report on the assessment to the Minister and a copy of the written report to the Reserve Bank of Australia.
History
S 823C(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
823C(4)
If an assessment, or part of an assessment, relates to any other person
'
s affairs to a material extent, ASIC may, at the person
'
s request or of its own motion, give the person a copy of the written report on the assessment or the relevant part of the report.
History
S 823C(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
823C(5)
If an assessment, or part of an assessment, relates to a serious contravention of a law of the Commonwealth or of a State or Territory, ASIC may give a copy of the written report on the assessment, or the relevant part of the report, to:
(a)
the Australian Federal Police; or
(b)
the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC (within the meaning of the
Australian Crime Commission Act 2002
); or
(c)
the Director of Public Prosecutions; or
(d)
an agency prescribed by regulations made for the purposes of this paragraph.
History
S 823C(5) amended by No 41 of 2003, s 3, Sch 2
[
1E].
S 823C(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
823C(6)
Either the Minister or ASIC may cause the written report on an assessment, or part of the report on an assessment, to be printed and published.
History
S 823C(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 823CA
RESERVE BANK ASSESSMENT OF LICENSEE
'
S COMPLIANCE
History
S 823CA heading substituted by No 59 of 2013, s 3, Sch 1, Pt 2
[
14].
823CA(1)
The Reserve Bank of Australia (the
Reserve Bank
) may do an assessment of how well a CS facility licensee is complying with its obligation under paragraph
821A(1)(aa)
. In doing the assessment, the Reserve Bank may take account of any information and reports that it thinks appropriate, including information and reports from an overseas regulatory authority.
History
S 823CA(1) amended by No 17 of 2019, s 3, Sch 1
[
58] (effective 13 March 2019).
S 823CA(1) substituted by No 59 of 2013, s 3, Sch 1, Pt 2
[
15].
S 823CA(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
823CA(1A)
If the CS facility licensee is prescribed by the regulations for the purpose of this subsection, the Reserve Bank must do such an assessment at least once a year.
History
S 823CA(1A) inserted by No 59 of 2013, s 3, Sch 1, Pt 2
[
15].
823CA(2)
As soon as practicable after doing an assessment under this section, the Reserve Bank must give a written report on the assessment to the Minister and a copy of the written report to ASIC.
History
S 823CA(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
823CA(3)
If an assessment, or part of an assessment, relates to any other person
'
s affairs to a material extent, the Reserve Bank may, at the person
'
s request or of its own motion, give the person a copy of the written report on the assessment or the relevant part of the report.
History
S 823CA(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
823CA(4)
If an assessment, or part of an assessment, relates to a serious contravention of a law of the Commonwealth or of a State or Territory, the Reserve Bank may give a copy of the written report on the assessment, or the relevant part of the report, to:
(a)
the Australian Federal Police; or
(b)
the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC (within the meaning of the
Australian Crime Commission Act 2002
); or
(c)
the Director of Public Prosecutions; or
(d)
an agency prescribed by regulations made for the purposes of this paragraph.
History
S 823CA(4) amended by No 41 of 2003, s 3, Sch 2
[
1F].
S 823CA(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
823CA(5)
Either the Minister or the Reserve Bank may cause the written report on an assessment, or part of the report on an assessment, to be printed and published.
History
S 823CA(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 823D
DIRECTIONS POWER
-
PROTECTING DEALINGS IN FINANCIAL PRODUCTS AND ENSURING FAIR AND EFFECTIVE PROVISION OF SERVICES BY CS FACILITIES
823D(1)
If ASIC:
(a)
considers that it is necessary, or in the public interest, to protect people dealing in a financial product or class of financial products; or
(b)
considers that a CS facility licensee has not done all things reasonably practicable to ensure the facility
'
s services are provided in a fair and effective way;
ASIC may give the licensee written advice that it intends to give the licensee a specified direction under this section. The advice must include the reasons for ASIC
'
s intention to give the direction.
823D(2)
As soon as practicable after giving the advice to the licensee, ASIC must give notice of the advice to the operator of each financial market with which the facility has arrangements to provide services for transactions effected through the market.
823D(3)
For the purpose of remedying the matter mentioned in subsection (1), ASIC may give the following directions to the licensee under this section:
(a)
a direction not to provide the licensee
'
s services in relation to any transactions, of which the licensee receives notice after the direction takes effect, that relate to a specified financial product or class of financial products;
(b)
any other direction concerning dealings with transactions that relate to a specified financial product or class of financial products.
823D(4)
If, after receiving ASIC
'
s advice and reasons:
(a)
the licensee does not take steps that in ASIC
'
s view are adequate to address the situation; and
(b)
ASIC still considers that it is appropriate to give the direction to the licensee;
ASIC may give the licensee the direction, in writing, with a statement setting out the reasons for giving the direction.
823D(5)
The direction has effect until the earlier of the following times:
(a)
the time ASIC revokes the direction in accordance with subsection (10);
(b)
the end of the period (which may be up to 21 days) specified in the direction as the period during which the direction is effective ends.
While the direction has effect, the licensee must comply with the direction and must not provide any services contrary to it.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
823D(6)
If the licensee fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that the licensee comply with the direction.
823D(7)
As soon as practicable after making or varying (see subsection (9)) a direction, ASIC must:
(a)
give a copy of the direction or variation to:
(i)
if the direction relates to a specified financial product
-
the issuer of that product; and
(ii)
each of the operators mentioned in subsection (2); and
(b)
give a written report to the Minister setting out ASIC
'
s reasons for making the direction or variation; and
(c)
give a copy of the report to the licensee.
823D(8)
If, at any time after the licensee receives ASIC
'
s advice under subsection (1), the licensee requests in writing that ASIC refer the matter to the Minister, ASIC must do so immediately. In that event, the Minister may, if he or she considers it appropriate, require ASIC not to make, or to revoke, the direction. ASIC must immediately comply with such a requirement.
823D(9)
ASIC may vary a direction by giving written notice to the licensee.
823D(10)
ASIC may revoke a direction by giving written notice to the licensee. ASIC must also give written notice of the revocation to each of the operators mentioned in subsection (2).
History
S 823D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 823E
DIRECTIONS POWER
-
REDUCTION OF SYSTEMIC RISK
823E(1)
If ASIC considers that a CS facility licensee has not done all things reasonably practicable to reduce systemic risk in the provision of the facility's services, ASIC may give the licensee a direction, in writing, to take:
(a)
specified measures to comply with the whole or a part of a standard determined under
section 827D
; or
(b)
any other action that ASIC considers will reduce systemic risk in the provision of the facility's services.
823E(2)
The direction may deal with the time by which, or period during which, it is to be complied with. The time or period must be reasonable.
823E(3)
The licensee must comply with the direction.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
823E(3A)
If the licensee fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that the licensee comply with the direction.
823E(4)
ASIC may vary the direction by giving written notice to the licensee.
823E(5)
The direction has effect until ASIC revokes it by giving written notice to the licensee.
823E(6)
ASIC may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.
823E(7)
Before giving, varying or revoking the direction, ASIC must consult the Reserve Bank of Australia. However, a failure to consult the Reserve Bank of Australia does not invalidate the direction, variation or revocation.
823E(8)
The Reserve Bank of Australia may at any time request ASIC to make a direction under this section. However, ASIC is not required to comply with the request.
History
S 823E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 3
-
The Australian CS facility licence
Subdivision A
-
How to get a licence
SECTION 824A
HOW TO APPLY FOR A LICENCE
824A(1)
A body corporate may apply for an Australian CS facility licence by lodging with ASIC in a prescribed form an application that:
(a)
includes the information required by regulations made for the purposes of this paragraph; and
(b)
is accompanied by the documents (if any) required by regulations made for the purposes of this paragraph.
Note: For fees in respect of lodging applications, see Part
9.10
.
History
S 824A(1) amended by No 76 of 2023, s 3, Sch 2[369] (effective 20 October 2023).
824A(2)
ASIC must, within a reasonable time, give the application to the Minister with advice about the application.
History
S 824A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 824B
WHEN A LICENCE MAY BE GRANTED
General
824B(1)
The Minister may grant an applicant an Australian CS facility licence if the Minister is satisfied that:
(a)
the application was made in accordance with
section 824A
; and
(b)
the applicant will comply with the obligations that will apply if the licence is granted; and
(c)
the applicant has adequate operating rules, and procedures, (see
Subdivision B
of
Division 2
) for the facility to ensure, as far as is reasonably practicable, that systemic risk is reduced and the facility is operated in a fair and effective way; and
(d)
the applicant has adequate arrangements (whether they involve a self-regulatory structure or the appointment of an independent person or related entity) for supervising the facility, including arrangements for:
(i)
handling conflicts between the commercial interests of the licensee and the need for the licensee to reduce systemic risk and ensure that the facility's services are provided in a fair and effective way; and
(ii)
enforcing compliance with the facility's operating rules; and
(e)
no unacceptable control situation (see
Division 1
of
Part 7.4
) is likely to result if the licence is granted; and
(f)
no disqualified individual appears to be involved in the applicant (see
Division 2
of
Part 7.4
).
This subsection has effect subject to subsections (3) and (4).
Note: The Minister must also have regard to the matters in
section 827A
in deciding whether to grant a licence.
Alternative criteria for granting licence to overseas clearing and settlement facility
824B(2)
If an applicant is authorised to operate a clearing and settlement facility in the foreign country in which its principal place of business is located, the Minister may grant the applicant an Australian CS facility licence authorising the applicant to operate the same facility in this jurisdiction. The Minister must be satisfied that:
(a)
the application was made in accordance with
section 824A
; and
(b)
the applicant will comply with the obligations that will apply if the licence is granted; and
(c)
the operation of the facility in that country is subject to requirements and supervision that are sufficiently equivalent, in relation to the degree of protection from systemic risk and the level of effectiveness and fairness of services they achieve, to the requirements and supervision to which clearing and settlement facilities are subject under this Act in relation to those matters; and
(d)
the applicant undertakes to cooperate with ASIC and the Reserve Bank of Australia by sharing information and in other ways; and
(e)
no unacceptable control situation (see
Division 1
of
Part 7.4
) is likely to result if the licence is granted; and
(f)
no disqualified individual appears to be involved in the applicant (see
Division 2
of
Part 7.4
); and
(g)
any other requirements that are prescribed by regulations made for the purposes of this subsection are satisfied.
This subsection has effect subject to subsections (3) and (4).
Note: The Minister must also have regard to the matters in section
827A
in deciding whether to grant a licence.
Foreign bodies
824B(3)
If the applicant is a foreign body corporate, the Minister:
(a)
must not grant the applicant a licence unless the applicant is registered under
Division 2
of Part
5B.2
; and
(b)
may otherwise grant a licence under either subsection (1) or (2) (subject to the relevant criteria being satisfied).
Disqualified individuals
824B(4)
The Minister must not grant the applicant a licence unless:
(a)
ASIC has notified the Minister that, as far as ASIC is aware, no disqualified individual is involved in the applicant (see
Division 2
of
Part 7.4
); or
(b)
42 days have passed since the application was made and ASIC has not given a notice under
subsection 853D(2)
to the applicant within that 42 days.
History
S 824B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 824C
824C
PUBLICATION OF NOTICE OF LICENCE GRANT
If the Minister grants an Australian CS facility licence, the Minister must publish a notice in the
Gazette
stating:
(a)
the name of the licensee; and
(b)
the date on which the licence was granted; and
(c)
the conditions on the licence.
History
S 824C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 824D
824D
MORE THAN ONE LICENCE IN THE SAME DOCUMENT
If the Minister grants a person 2 or more of the following:
(a)
an Australian CS facility licence;
(b)
an Australian market licence;
they may be included in the same document.
History
S 824D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 824E
MORE THAN ONE CS FACILITY COVERED BY THE SAME LICENCE
824E(1)
The same Australian CS facility licence may authorise the licensee to operate 2 or more clearing and settlement facilities.
824E(2)
In that case, a reference to the clearing and settlement facility to which an Australian CS facility licence relates is taken instead to be a reference to each of those facilities severally.
History
S 824E(2) amended by No 76 of 2023, s 3, Sch 2[370] (effective 20 October 2023).
824E(3)
Before varying the conditions on an Australian CS facility licence so as to add another facility that the licensee is authorised to operate, the Minister must be satisfied of the matters listed in
subsection 824B(1)
or
(2)
(as appropriate) in relation to the facility.
824E(4)
An Australian CS facility licence that authorises the licensee to operate 2 or more clearing and settlement facilities may be suspended or cancelled under Subdivision
C
in respect of one or some of those facilities only, as if the licensee held a separate licence for each of the facilities.
History
S 824E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision B
-
The conditions on the licence
SECTION 825A
THE CONDITIONS ON THE LICENCE
825A(1)
The Minister may, at any time:
(a)
impose conditions, or additional conditions, on an Australian CS facility licence; or
(b)
vary or revoke conditions imposed on such a licence;
by giving written notice to the licensee. The Minister must also publish a notice in the
Gazette
with details of the action and when it took effect.
Note: As well as the requirements in this section, the Minister must also have regard to the matters in section
827A
.
825A(2)
The Minister may do so:
(a)
on the Minister
'
s own initiative, subject to subsection
(3)
; or
(b)
if the licensee lodges with ASIC in a prescribed form an application for the Minister to do so, which is accompanied by the documents, if any, required by regulations made for the purposes of this paragraph.
Note: For fees in respect of lodging applications, see Part
9.10
.
History
S 825A(2) amended by No 76 of 2023, s 3, Sch 2[371] (effective 20 October 2023).
825A(3)
The Minister may only impose conditions or additional conditions, or vary the conditions, on the licence on his or her own initiative if:
(a)
he or she considers it appropriate to do so having regard to:
(i)
the licensee
'
s obligations as a CS facility licensee under this Chapter; and
(ii)
any change in the facility
'
s operations or the conditions in which the facility is operating; and
(b)
the Minister gives the licensee written notice of the proposed action and an opportunity to make a submission before it takes effect.
This subsection does not apply to the Minister imposing conditions when a licence is granted.
825A(4)
The Minister must ensure that each Australian CS facility licence is subject to conditions that specify:
(a)
the particular facility that the licensee is authorised to operate; and
(b)
the class or classes of financial products in respect of which the facility can provide services.
825A(5)
ASIC must give the Minister any application and documents lodged under subsection
(2)
.
History
S 825A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision C
-
When a licence can be varied, suspended or cancelled
SECTION 826A
VARYING LICENCES
826A(1)
The Minister may vary an Australian CS facility licence to take account of a change in the licensee's name if the licensee lodges with ASIC in a prescribed form an application for the variation, accompanied by the documents, if any, required by regulations made for the purposes of this subsection.
Note 1: The conditions on the licence can be varied under section
825A
.
Note 2: For fees in respect of lodging applications, see Part
9.10
.
History
S 826A(1) amended by No 76 of 2023, s 3, Sch 2[372] (effective 20 October 2023).
826A(2)
The Minister must give written notice of the variation to the licensee.
826A(3)
ASIC must give the Minister any application and documents lodged under subsection
(1)
.
History
S 826A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 826B
826B
IMMEDIATE SUSPENSION OR CANCELLATION
The Minister may, by giving written notice to a CS facility licensee, suspend the licence for a specified period, or cancel it, if:
(a)
the licensee ceases to carry on the business of operating the facility; or
(b)
the licensee becomes a Chapter 5 body corporate; or
(c)
the licensee asks the Minister to do so; or
(d)
in the case of a licence granted under subsection
824B(2)
(overseas clearing and settlement facilities):
(i)
the licensee ceases to be authorised to operate a clearing and settlement facility in the foreign country in which the licensee
'
s principal place of business is located; or
(ii)
there is a change to the regulatory regime applying in relation to the facility to which the licence relates in the country in which the licensee
'
s principal place of business is located, and, because of that change, the Minister is no longer satisfied as mentioned in paragraph
824B(2)(c)
; or
(e)
in the case of a licensee that is a leviable entity (within the meaning of the
ASIC Supervisory Cost Recovery Levy Act 2017
)
-
the following have not been paid in full at least 12 months after the due date for payment:
(i)
an amount of levy (if any) payable in respect of the licensee;
(ii)
the amount of late payment penalty payable (if any) in relation to the levy;
(iii)
the amount of shortfall penalty payable (if any) in relation to the levy.
History
S 826B amended by No 45 of 2017, s 3, Sch 1[9].
S 826B amended by No 11 of 2016, s 3, Sch 2[210].
S 826B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 826C
SUSPENSION OR CANCELLATION FOLLOWING HEARING AND REPORT
826C(1)
If the Minister considers that a CS facility licensee has breached one or more of its obligations as a CS facility licensee under this Chapter, the Minister may give the licensee a written notice that requires the licensee to show cause, at a hearing before a specified person, why the licence should not be suspended or cancelled.
826C(2)
The notice must specify:
(a)
the grounds on which it is proposed to suspend or cancel the licence; and
(b)
a reasonable time and place at which the hearing is to be held.
However, if the licensee consents, the person conducting the hearing may fix a different time or place.
826C(3)
The person conducting the hearing must:
(a)
give the licensee an opportunity to be heard at the hearing; and
(b)
give the Minister:
(i)
a report about the hearing; and
(ii)
a recommendation about the grounds in the notice on which it is proposed to suspend or cancel the licence.
826C(4)
After considering the report and recommendation, the Minister may:
(a)
decide to take no further action in relation to the matter and give written advice of that decision to the licensee; or
(b)
suspend the licence for a specified period, or cancel the licence, by giving written notice to the licensee.
Note: The Minister must have regard to the matters in section
827A
.
History
S 826C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 826D
EFFECT OF SUSPENSION
826D(1)
A person whoseAustralian CS facility licence is suspended is taken not to hold that licence while it is suspended.
826D(2)
However, the Minister may specify in the written notice to the licensee that subsection (1) does not apply for specified purposes.
History
S 826D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 826E
826E
VARIATION OR REVOCATION OF SUSPENSION
The Minister may at any time vary or revoke a suspension of an Australian CS facility licence by giving written notice to the licensee.
History
S 826E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 826F
PUBLICATION OF NOTICE OF LICENCE SUSPENSION OR CANCELLATION
826F(1)
If the Minister:
(a)
suspends, or varies or revokes a suspension of, an Australian CS facility licence; or
(b)
cancels an Australian CS facility licence;
the Minister must publish a notice in the
Gazette
to that effect.
826F(2)
The notice must state when the action took effect.
History
S 826F inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 826G
826G
SUSPENSION AND CANCELLATION ONLY IN ACCORDANCE WITH THIS SUBDIVISION
An Australian CS facility licence cannot be varied, suspended or cancelled otherwise than in accordance with this Subdivision.
Note: The conditions on the licence can be varied under section
825A
.
History
S 826G inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 4
-
Other matters
SECTION 827A
MATTERS TO BE TAKEN INTO ACCOUNT BY THE MINISTER
827A(1)
The Minister must have regard to certain matters in deciding whether to:
(a)
grant an applicant an Australian CS facility licence under section
824B
; or
(b)
impose, vary or revoke conditions on such a licence under section
825A
; or
(c)
suspend or cancel such a licence under section
826C
; or
(d)
disallow a change to the operating rules of a licensed CS facility under section
822E
.
827A(2)
These are the matters the Minister must have regard to:
(a)
the structure, or proposed structure, of the facility;
(b)
the nature of the services provided, or proposed to be provided, by the facility;
(c)
the size, or proposed size, of the facility;
(d)
the nature of the financial products in respect of which the facility provides services or proposes to provide services;
(e)
the participants, or proposed participants, in the facility and whether those participants:
(i)
in using the facility's services, are, or will be, providing financial services to other persons; or
(ii)
use, or will use, the facility's services in respect of financial products they acquire or dispose of as retail clients or as wholesale clients; or
(iii)
are, or will be, participants in a financial market, or other clearing and settlement facilities, as well;
(f)
the technology used, or proposed to be used, in the operation of the facility;
(g)
whether it would be in the public interest to take the action referred to in subsection (1);
(h)
any relevant advice received from ASIC, the ACCC or the Reserve Bank of Australia.
The Minister may also have regard to any other matter that the Minister considers relevant.
History
S 827A(2) amended by No 75 of 2023, s 3, Sch 3[6] (effective 21 September 2023).
827A(3)
If the Minister is deciding whether to take the action mentioned in paragraph (1)(a), (b) or (c) in respect of an Australian CS facility licence granted under subsection
824B(2)
(overseas clearing and settlement facilities), the Minister must also have regard to:
(a)
the criteria that the licensee or applicant satisfied to obtain an authorisation to operate the same facility in the foreign country in which their principal place of business is located; and
(b)
the obligations they must continue to satisfy to keep the authorisation; and
(c)
the level of supervision to which the facility is subject in that country; and
(d)
whether adequate arrangements exist for cooperation between ASIC, the Reserve Bank of Australia and the authority, or authorities, that are responsible for that supervision.
History
S 827A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 827B
827B
ASIC MAY GIVE ADVICE TO MINISTER
ASIC may give advice to the Minister in relation to:
(a)
any matter in respect of which the Minister has a discretion under this Part; or
(b)
any other matter concerning clearing and settlement facilities.
Note: In some cases, the Minister must have regard to ASIC
'
s advice: see paragraph
827A(2)(h)
.
History
S 827B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 827C
827C
RESERVE BANK MAY GIVE ADVICE TO MINISTER
The Reserve Bank of Australia may give advice to the Minister in relation to any matter concerning clearing and settlement facilities.
Note: In some cases, the Minister must have regard to the Reserve Bank
'
s advice: see paragraph
827A(2)(h)
.
History
S 827C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 827D
RESERVE BANK MAY DETERMINE FINANCIAL STABILITY STANDARDS
827D(1)
The Reserve Bank of Australia (the
Reserve Bank
) may, in writing, determine standards for the purposes of ensuring that CS facility licensees conduct their affairs in a way that causes or promotes overall stability in the Australian financial system.
827D(2)
The standards are to be complied with by:
(a)
all CS facility licensees; or
(b)
a specified class of CS facility licensees, in the case of a standard that is expressed to apply only in relation to that class.
827D(2A)
If there is an inconsistency between the standards and the CS services rules, the derivative transaction rules or the derivative trade repository rules, the standards prevail to the extent of the inconsistency.
History
S 827D(2A) amended by No 75 of 2023, s 3, Sch 3[7] (effective 21 September 2023).
S 827D(2A) inserted by No 178 of 2012, s 3, Sch 1, Pt 1[23] (effective 3 January 2013).
827D(3)
Before the Reserve Bank determines a standard, it must consult with:
(a)
the CS facility licensees that will be required to comply with the standard; and
(b)
ASIC.
827D(4)
A standard may impose different requirements to be complied with in different situations or in respect of different activities.
827D(5)
A standard:
(a)
comes into force:
(i)
unless subparagraph (ii) applies
-
on the day on which the determination of the standard is made; or
(ii)
if that determination specifies a later day as the day on which the standard comes into force
-
on the day so specified; and
(b)
continues in force until it is revoked.
827D(6)
The Reserve Bank may vary a standard in writing. Before it does so, it must consult with:
(a)
the CS facility licensees that will be required to comply with the standard if it is varied as proposed; and
(b)
ASIC.
827D(7)
If the Reserve Bank determines or varies a standard, it must, as soon as practicable:
(a)
cause a notice advising of the determination of the standard, or of the variation of the standard, and summarising the purpose and effect of the standard or variation, to be published in the
Gazette
; and
(b)
make the text of the notice available on the internet; and
(c)
give a copy of the standard, or of the variation, to the following:
(i)
each CS facility licensee to which the standard applies;
(ii)
the Minister;
(iii)
ASIC.
History
S 827D(7) amended by No 5 of 2011, s 3, Sch 1
[
40].
827D(8)
The Reserve Bank may revoke a standard in writing. Before it does so, it must consult with ASIC.
827D(9)
If the Reserve Bank revokes a standard, it must, as soon as practicable:
(a)
cause a notice advising of the revocation of the standard to be published in the
Gazette
; and
(b)
make the text of the notice available on the internet; and
(c)
give notice of the revocation of the standard to the following:
(i)
each CS facility licensee to which the standard applied;
(ii)
the Minister;
(iii)
ASIC.
History
S 827D(9) amended by No 5 of 2011, s 3, Sch 1
[
40].
827D(10)
The Reserve Bank must take reasonable steps to ensure that copies of the current text of the standards are available for inspection and purchase.
History
S 827D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].