Corporations Act 2001
CHAPTER 8A
-
ASIA REGION FUNDS PASSPORT
PART 8A.4
-
NOTIFIED FOREIGN PASSPORT FUNDS
History
Pt 8A.4 inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
Division 1
-
Becoming a notified foreign passport fund
History
Div 1 inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213
NOTICE OF INTENTION TO OFFER INTERESTS IN A FOREIGN PASSPORT FUND
1213(1)
The operator of a foreign passport fund may lodge with ASIC a notice of intention to offer interests in the fund to persons in this jurisdiction, provided the operator is a registered foreign company.
1213(2)
The notice must:
(a)
be in the prescribed form; and
(b)
include a copy of the Product Disclosure Statement that the operator of the foreign passport fund would be required to prepare if:
(i)
the operator were a regulated person required to give a Product Disclosure Statement to a retail client under subsection
1012B(3)
; and
(ii)
the fund were a notified foreign passport fund.
1213(3)
The operator of the foreign passport fund may withdraw the notice of intention by notice lodged in the prescribed form at any time during the consideration period for the notice.
1213(4)
ASIC may, by legislative instrument, determine that information that is lodged with ASIC under this section will not be available for inspection or copying from ASIC if it is of a kind specified in the determination.
History
S 1213 inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213A
ASIC MAY NOTIFY OPERATOR THAT NOTICE OF INTENTION LACKS INFORMATION REQUIRED
1213A(1)
ASIC may, within the consideration period for the notice of intention, notify the operator of the foreign passport fund that ASIC is of the opinion that information required under the prescribed form has not been provided.
1213A(2)
ASIC
'
s notification must be given in writing.
History
S 1213A inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213B
REJECTING A NOTICE OF INTENTION
Circumstances in which ASIC may reject a notice of intention
1213B(1)
ASIC may, within the consideration period for the notice of intention, reject the notice if:
(a)
ASIC is of the opinion that one or more of the following has not been, is not being or is not likely to be complied with in relation to the fund:
(i)
this Act (other than the Passport Rules for this jurisdiction);
(ii)
the ASIC Act;
(iii)
the law of the home economy for the fund, to the extent that the law is administered by the home regulator for the fund (including the Passport Rules for the home economy for the fund); or
(b)
ASIC is of the opinion that it is not in the public interest in this jurisdiction for the operator to offer interests in the passport fund in this jurisdiction; or
(c)
both of the following are satisfied:
(i)
an exemption has been given, or a modification made, to the Passport Rules for the home economy for the passport fund that affects the fund or entities connected with the fund;
(ii)
ASIC does not consent to the exemption or modification; or
(d)
the name of the passport fund in relation to which the operator has given notice is not available in this jurisdiction.
1213B(2)
In determining its opinion in relation to a matter mentioned in subparagraph
(1)(a)(iii)
, ASIC must:
(a)
make a request, in writing, to the home regulator for the fund for the opinion of the home regulator on the matter; and
(b)
specify in the request the basis for ASIC
'
s concerns about compliance with the law of the home economy; and
(c)
state a reasonable period during which ASIC will wait for a reply before acting; and
(d)
if the home regulator replies to the request within that period
-
give effect to the opinion of the home regulator on the matter.
1213B(3)
In paragraph
(1)(b)
,
public interest
does not include any benefit in this jurisdiction that may arise from limiting competition for managed investment schemes, or CCIVs, operating principally in this jurisdiction.
View history note
History
S 1213B(3) amended by No 8 of 2022, s 3, Sch 2[182] (effective 1 July 2022).
1213B(4)
Nothing in this section requires ASIC to conduct an assessment of the public interest in this jurisdiction in each case.
1213B(5)
A name is not available to a foreign passport fund in this jurisdiction for the purposes of paragraph
(1)(d)
if:
(a)
the name is:
(i)
identical (under rules set out in the regulations) to a name that is reserved or registered under this Act for another body; or
(ii)
identical (under rules set out in the regulations) to a name of a managed investment scheme that is the subject of an application for registration that has been lodged under section
601EA
but not yet determined; or
(iii)
identical (under rules set out in the regulations) to a name of a foreign passport fund in relation to which a notice of intention under section
1213
has already been lodged; or
(iv)
identical (under rules set out in the regulations) to a name that is held or registered on the Business Names Register in respect of another individual or body who is not the operator; or
(v)
unacceptable for registration under the regulations; and
(b)
the operator of the fund has not notified ASIC and the home regulator for the fund in writing that it will adopt an available alternative name for the fund in this jurisdiction.
[
CCH Note:
S 1213B(5) will be amended by No 69 of 2020, s 3, Sch 1[1220], by substituting
"
under the
Business Names Registration Act 2011
"
for
"
on the Business Names Register
"
in para (a)(iv) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
1213B(6)
The Minister may consent in writing to a name being available to a foreign passport fund in this jurisdiction even if the name would not otherwise be available because of paragraph
(5)(a)
.
1213B(7)
The Minister
'
s consent may be given subject to conditions.
Circumstances in which ASIC must reject a notice of intention
1213B(8)
ASIC must, within the consideration period for the notice of intention, reject the notice if:
(a)
the Minister has made a determination under subsection
1210B(1)
that the operators of passport funds, or a class of passport funds, the home economy for which is specified in the determination, must not offer interests in the fund in this jurisdiction; and
(b)
the determination applies to the passport fund.
ASIC must notify operator of decision to reject
1213B(9)
The notice of intention is rejected by ASIC giving the operator of the foreign passport fund notification in writing of the rejection.
History
S 1213B inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213C
NOTIFIED FOREIGN PASSPORT FUNDS
-
AUTHORITY TO OFFER INTERESTS IN THIS JURISDICTION
1213C(1)
A foreign passport fund becomes a
notified foreign passport fund
if:
(a)
the operator of the fund has lodged a notice of intention to offer interests in the fund to persons in this jurisdiction with ASIC under section
1213
; and
(b)
the operator of the fund has not withdrawn the notice of intention under subsection
1213(3)
; and
(c)
within the consideration period for the notice of intention, ASIC has not given the operator:
(i)
notification under section
1213A
that ASIC is of the opinion that information required under the prescribed form has not been provided; or
(ii)
notification under section
1213B
that the notice of intention has been rejected.
1213C(2)
The foreign passport fund becomes a
notified foreign passport fund
on the first day after the end of the consideration period for the notice of intention.
1213C(3)
The foreign passport fund ceases to be a
notified foreign passport fund
if it is removed as a notified foreign passport fund under Division
2
of Part
8A.7
.
1213C(4)
A notified foreign passport fund may offer interests in the fund to persons in this jurisdiction.
History
S 1213C inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213D
MEANING OF CONSIDERATION PERIOD
1213D(1)
The
consideration period
, for a notice of intention to offer interests in a foreign passport fund in this jurisdiction, is:
(a)
a period of 15 business days beginning on the day after the notice is lodged with ASIC; or
(b)
if ASIC and the operator agree that the period is to be extended under subsection
(2)
-
the extended period.
1213D(2)
ASIC and the operator of the foreign passport fund may agree, in writing, to one or more extensions of the consideration period. However, each extension must be for no more than 5 business days.
History
S 1213D inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
Division 2
-
Treatment of notified foreign passport funds
History
Div 2 inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213E
NOTIFIED FOREIGN PASSPORT FUNDS TO BE TREATED AS MANAGED INVESTMENT SCHEMES
1213E(1)
A notified foreign passport fund is a managed investment scheme for the purposes of this Act, even if it would not otherwise be a managed investment scheme for the purposes of this Act because of the way in which that term is defined in section
9
.
Note: This subsection does not affect the other legal characteristics of a notified foreign passport fund for the purposes of this Act. For example, if a notified foreign passport fund is a body corporate, it remains a body corporate for the purposes of this Act.
History
S 1213E(1) amended by No 76 of 2023, s 3, Sch 2
[
588] (effective 20 October 2023).
1213E(2)
The constituent document (as defined in the Passport Rules for this jurisdiction) for the notified foreign passport fund is taken to be the constitution of the fund as a managed investment scheme.
History
S 1213E inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213F
1213F
OPERATORS AND NOTIFIED FOREIGN PASSPORT FUNDS NOT TO BE TREATED AS COMPANIES ETC.
To avoid doubt:
(a)
neither the operator of a notified foreign passport fund nor the fund is to be treated as a company for the purposes of the corporations legislation, merely because the operator or the fund is registered as a foreign company under Division
2
of Part
5B.2
; and
(b)
a reference in the corporations legislation to a share does not include an interest in a notified foreign passport fund unless the fund is also a company.
History
S 1213F inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213G
OFFENCES RELATING TO THE OPERATION OF NOTIFIED FOREIGN PASSPORT FUNDS
1213G(1)
This section applies if:
(a)
one of the following persons engages in conduct that constitutes an alleged offence against this Act or the ASIC Act:
(i)
a notified foreign passport fund;
(ii)
the operator of a notified foreign passport fund;
(iii)
a person with responsibilities in relation to a notified foreign passport fund; and
(b)
the conduct occurs in relation to the operation of the fund; and
(c)
the conduct occurs wholly in a foreign country; and
(d)
the person who engages in the conduct is not:
(i)
an Australian citizen; or
(ii)
a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(e)
it is not otherwise a physical element of the offence that the conduct results, or is likely to result, in a person in this jurisdiction who has an interest in the fund suffering financial or other disadvantage.
1213G(2)
It is a physical element of the offence that the conduct results, or is likely to result, in a person in this jurisdiction who has an interest in the fund suffering financial or other disadvantage.
1213G(3)
In this section:
person with responsibilities in relation to a notified foreign passport fund
means a person (other than a regulator) who has functions or duties in relation to the fund under the Passport Rules for this jurisdiction.
History
S 1213G inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
Division 3
-
Conduct of notified foreign passport funds in this jurisdiction
History
Div 3 inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213H
1213H
NOTIFIED FOREIGN PASSPORT FUNDS MUST NOT ISSUE DEBENTURES IN THIS JURISDICTION
The operator of a notified foreign passport fund commits an offence if the operator or the fund:
(a)
makes an offer of debentures in this jurisdiction that needs disclosure to investors under Chapter
6D
, or does not need disclosure to investors under Chapter
6D
because of subsection
708(14)
(disclosure document exclusion for debenture roll overs) or section
708A
(sale offers that do not need disclosure); or
(b)
makes an offer of debentures in this jurisdiction or elsewhere as consideration for the acquisition of securities under an off-market takeover bid.
Penalty: 60 penalty units.
Note: For rules about when an offer of debentures will need disclosure to investors under Chapter
6D
, see sections
706
,
707
,
708
,
708AA
and
708A
.
History
S 1213H inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
Division 4
-
Providing key information in relation to notified foreign passport funds
History
Div 4 inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
Subdivision A
-
Obligations to provide information to members in this jurisdiction
History
Subdiv A inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213J
CONSTITUTION
-
RIGHT TO OBTAIN A COPY
Right to a copy of the consolidated constitution
1213J(1)
The operator of a notified foreign passport fund commits an offence of strict liability if:
(a)
a person makes an application to the operator in accordance with subsection
(2)
for a copy of the consolidated constitution of the fund; and
(b)
the person is:
(i)
an Australian member of the fund; or
(ii)
a former member of the fund who acquired an interest in the fund in this jurisdiction, or is ordinarily resident in this jurisdiction; and
(c)
the person pays the reasonable costs of the operator, up to a prescribed amount, in providing a copy of the consolidated constitution; and
(d)
the operator fails, or refuses, to give the person a copy of the consolidated constitution in accordance with this section; and
(e)
as a result, the person does not obtain a copy of the consolidated constitution of the fund in accordance with this section.
Penalty: 60 penalty units.
Application for a copy of the consolidated constitution
1213J(2)
An application to the operator of a notified foreign passport fund is in accordance with this subsection if the application is in writing.
Manner in which the consolidated constitution must be provided
1213J(3)
If, in the application, the applicant requests a paper copy of the consolidated constitution, the operator must post the applicant a copy of the consolidated constitution within 7 days after the application is made.
1213J(4)
Otherwise, the operator must give the applicant a copy of the consolidated constitution electronically, within 7 days after the application is made.
1213J(5)
ASIC may allow a longer period for the operator to give the applicant a copy of the consolidated constitution.
Language in which consolidated constitution must be provided
1213J(6)
If, in the application, the applicant requests that the copy of the consolidated constitution be in an official language of the home economy of the fund (other than English), the copy of the consolidated constitution given to the applicant must be in that language.
1213J(7)
Otherwise, the copy of the consolidated constitution given to the applicant must be in English.
Geographical jurisdiction
1213J(8)
Section 15.1 of the
Criminal Code
(extended geographical jurisdiction
-
category A) applies to an offence against subsection
(1)
.
History
S 1213J inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213K
REGISTER OF MEMBERS
-
RIGHT TO OBTAIN A COPY
Right to a copy of the register of members of a fund
1213K(1)
The operator of a notified foreign passport fund commits an offence of strict liability if:
(a)
a person makes an application to the operator in accordance with subsection
(2)
for a copy of the register of members for the fund; and
(b)
the person is:
(i)
in this jurisdiction; or
(ii)
an Australian member of the fund; or
(iii)
a former member of the fund who acquired an interest in the fund in this jurisdiction, oris ordinarily resident in this jurisdiction; and
(c)
the person pays the reasonable costs of the operator, up to a prescribed amount, in providing a copy of the register; and
(d)
the operator fails, or refuses, to give the person a copy of the register in accordance with this section; and
(e)
as a result, the person does not obtain a copy of the register of the fund in accordance with this section.
Penalty: 60 penalty units.
Application for a copy of the register
1213K(2)
An application to the operator of a notified foreign passport fund is in accordance with this subsection if:
(a)
the application is in writing; and
(b)
the application states each purpose for which the applicant wishes to obtain a copy of the register; and
(c)
none of those purposes is a prescribed purpose.
Manner in which register must be provided
1213K(3)
If, in the application, the applicant requests a paper copy of the register, the operator must post the applicant a copy of the register within 7 days after the application is made.
1213K(4)
Otherwise, the operator must give the applicant a copy of the register electronically, within 7 days after the application is made.
1213K(5)
ASIC may allow a longer period for the operator to give the applicant a copy of the register.
Language in which register must be provided
1213K(6)
If, in the application, the applicant requests that the copy of the register be in an official language of the home economy of the fund (other than English), the copy of the register given to the applicant must be in that language.
1213K(7)
Otherwise, the copy of the register given to the applicant must be in English.
Geographical jurisdiction
1213K(8)
Section 15.1 of the
Criminal Code
(extended geographical jurisdiction
-
category A) applies to an offence against subsection
(1)
.
History
S 1213K inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213L
USE OF INFORMATION ON REGISTER OF MEMBERS
Offence
-
using information obtained from the register to contact members
1213L(1)
A person who obtains a copy of a register of members of a notified foreign passport fund under section
1213K
must not:
(a)
use information about a person (the
other member
) obtained from the register to contact or send material to the person; or
(b)
disclose information of that kind knowing that the information is likely to be used to contact or send material to the other member.
Penalty: 60 penalty units.
Note: An example of using information to send material to a person is putting a person
'
s name and address on a mailing list for advertising material.
Exception
1213L(2)
Subsection
(1)
does not apply if the use or disclosure of the information is:
(a)
relevant to the holding of the interests recorded in the register or the exercise of the rights attaching to them; or
(b)
approved by the operator of the fund.
Note: A defendant bears an evidential burden in relation to the matter in subsection
(2)
(see subsection 13.3(3) of the
Criminal Code
).
Offence
-
using information obtained from the register for a prescribed purpose
1213L(3)
A person who obtains a copy of a register of members of a notified foreign passport fund under section
1213K
must not:
(a)
use information obtained from the register for any purpose prescribed by regulations made for the purposes of paragraph
1213K(2)(c)
; or
(b)
disclose information of that kind knowing that the information is likely to be used for any such purpose.
Penalty: 60 penalty units.
Strict liability
1213L(4)
An offence based on subsection
(1)
or
(3)
is an offence of strict liability.
Geographical jurisdiction
1213L(5)
Section 15.1 of the
Criminal Code
(extended geographical jurisdiction
-
category A) applies to an offence against subsection
(1)
or
(3)
.
Liability to pay compensation
1213L(6)
A person who contravenes subsection
(1)
or
(3)
is liable to compensate anyone else who suffers loss or damage because of the contravention.
Returning profits made by contravening subsection (1) or (3)
1213L(7)
A person who makes a profit by contravening subsection
(1)
or
(3)
owes a debt to the fund. The amount of the debt is the amount of the profit.
1213L(8)
If a person owes a debt under subsection
(7)
to the fund:
(a)
the debt may be recovered by the operator of the fund as a debt due to it; and
(b)
any amount paid or recovered in respect of the debt forms part of the property of the fund.
History
S 1213L inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213M
REPORTS REQUIRED UNDER THE LAW OF THE HOME ECONOMY
Right to a copy of reports
1213M(1)
The operator of a notified foreign passport fund commits an offence of strict liability if:
(a)
the operator or the fund is required under the law of the home economy for the fund to prepare a report (however described) in relation to the fund; and
(b)
the operator or the fund makes the report available to members of the fund in the home economy without charge; and
(c)
the operator does not give Australian members of the fund, in accordance with this section:
(i)
a copy of the report; and
(ii)
if a summary in English of all or part of the report is required under subsection
(5)
-
a summary in English of all or that part of the report.
Penalty: 60 penalty units.
Manner in which report must be made available
1213M(2)
The report must be given to Australian members of the fund within 7 days after the first day on which the report is made available to a member of the fund in the home economy without charge.
1213M(3)
The report may be given to Australian members of the fund by:
(a)
putting the report on the fund
'
s website so that it is accessible to Australian members of the fund; and
(b)
if members of the fund in the home economy are notified that the report is available on the fund
'
s website, or notified how those members may access it
-
giving equivalent notice to Australian members of the fund.
1213M(4)
The report must be given without charge.
English summary of the report
1213M(5)
If all or part of the report is not in English, the operator must also give an Australian member of the fund a summary of the report, or that part of the report, in English in the same manner as the operator gives the report under subsections
(2)
,
(3)
and
(4)
.
Exception
1213M(6)
Subsection
(1)
does not apply if the operator of the fund is required under another provision of this Act to lodge the report, or to give the report to Australian members of the fund.
Geographical jurisdiction
1213M(7)
Section 15.1 of the
Criminal Code
(extended geographical jurisdiction
-
category A) applies to an offence against subsection
(1)
.
History
S 1213M inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213N
ORDER FOR COPIES OF BOOKS OF A NOTIFIED FOREIGN PASSPORT FUND
1213N(1)
A person may apply to the Court for an order under subsection
(2)
if the person is:
(a)
an Australian member of the fund; or
(b)
a former member of the fund who acquired an interest in the fund in this jurisdiction, or is ordinarily resident in this jurisdiction.
1213N(2)
On application by the member or former member, the Court may order the operator of the fund to give the member or former member an electronic copy of any or all of the following:
(a)
all or a specified part of the books of the operator that relate to the fund;
(b)
all or a specified part of the books of the fund;
(c)
an English translation of all or a specified part of the books of the operator that relate to the fund;
(d)
an English translation of all or a specified part of the books of the fund.
1213N(3)
The Court may make the order only if it is satisfied that:
(a)
the applicant is acting in good faith; and
(b)
the books, or the specified part of the books, are to be obtained for a proper purpose.
1213N(4)
The member or former member may make copies of the books, or the specified part of the books, unless the Court orders otherwise.
History
S 1213N inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
Subdivision B
-
Obligations to provide information to ASIC
History
Subdiv B inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213P
REGISTER OF MEMBERS
-
ASIC MAY REQUIRE LODGMENT
1213P(1)
The operator of a notified foreign passport fund commits an offence of strict liability if:
(a)
ASIC requires the operator of the fund to lodge a copy of the whole or a specified part of the register of members of the fund, in accordance with subsections
(2)
and
(3)
; and
(b)
the operator fails, or refuses, to lodge a copy of the register in accordance with this section.
Penalty: 60 penalty units.
Notice requiring operator to lodge register of members
1213P(2)
ASIC may, by written notice given to the operator of a notified foreign passport fund, require the operator to lodge a copy of the whole or a specified part of the register of members of the fund.
1213P(3)
ASIC may, in the notice, require the copy of the whole or the specified part of the register to be lodged in English.
Manner in which register must be lodged
1213P(4)
The operator must lodge a copy of the register with ASIC electronically, within 7 days after being given notice to do so in accordance with subsections
(2)
and
(3)
.
1213P(5)
ASIC may allow a longer period for the operator to lodge a copy of the register.
Language in which register must be provided
1213P(6)
If, in the notice, ASIC requires a copy of the whole or a specified part of the register to be lodged in English, the operator must lodge the whole or that part of the register in English.
Geographical jurisdiction
1213P(7)
Section 15.1 of the
Criminal Code
(extended geographical jurisdiction
-
category A) applies to an offence against subsection
(1)
.
History
S 1213P inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).
SECTION 1213Q
1213Q
DESTRUCTION OF RECORDS BY ASIC
ASIC may destroy or otherwise dispose of any document that is lodged under, or for the purposes of, a provision of this Chapter or the Passport Rules for this jurisdiction if:
(a)
ASIC is of the opinion that it is no longer necessary or desirable to retain it; and
(b)
it has been in the possession of ASIC for such period as is specified in the regulations, either generally or in relation to a particular document or class of documents.
History
S 1213Q inserted by No 61 of 2018, s 3, Sch 1[1] (effective 18 September 2018).