{"id":"F2017L01254","name":"ASIC Corporations (Mortgage Investment Schemes) Instrument 2017/857","slug":"asic-corporations-mortgage-investment-schemes-instrument-2017-857","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":97163,"registerId":"commonwealth-F2017L01254-current","compilationNumber":null,"startDate":"2026-04-02","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"ASIC Corporations (Mortgage Investment Schemes) Instrument 2017/857","content":"![Commonwealth Coat of Arms and ASIC logo](image.001.png)\n\nASIC Corporations (Mortgage Investment Schemes) Instrument 2017/857\n\nAbout this compilation\n\nCompilation No. 1\n\nThis is a compilation of ASIC Corporations (Mortgage Investment Schemes) Instrument 2017/857 as in force on 5 October 2021. It includes any commenced amendment affecting the legislative instrument to that date.\n\nThis compilation was prepared by the Australian Securities and Investments Commission.\n\nThe notes at the end of this compilation (the endnotes) include information\n\nabout amending instruments and the amendment history of each amended provision.\n\nContents\n\n[Part 1—Preliminary](#_Toc84944484)\n\n[1 Name of legislative instrument](#_Toc84944485)\n\n[3 Authority](#_Toc84944486)\n\n[4 Definitions](#_Toc84944487)\n\n[Part 2—Exemptions](#_Toc84944488)\n\n[5 Mortgage investment schemes with no more than 20 investors](#_Toc84944489)\n\n[6 Registering a scheme in relation to individual mortgage loans](#_Toc84944490)\n\n[7 Small industry-supervised mortgage investment schemes](#_Toc84944491)\n\n[Part 3—Declaration](#_Toc84944492)\n\n[8 Withdrawal rights for registered mortgage investment schemes](#_Toc84944493)\n\n[Endnotes](#_Toc84944494)\n\n[Endnote 1—Instrument history](#_Toc84944495)\n\n[Endnote 2—Amendment history](#_Toc84944496)\n\nPart 1—Preliminary\n\n1 Name of legislative instrument\n\nThis is the ASIC Corporations (Mortgage Investment Schemes) Instrument 2017/857.\n\n3 Authority\n\nThis instrument is made under subsections 601QA(1), 926A(2), 992B(1) and 1020F(1) of the Corporations Act 2001.\n\n4 Definitions\n\nIn this instrument:\n\nAct means the Corporations Act 2001.\n\nmortgage investment scheme means a managed investment scheme that has, or is likely to have, at least 50% of non-cash assets invested in mortgage loans, and 100% of assets invested in mortgage loans or in an account with an Australian ADI.\n\nmortgage loan means a loan secured by a mortgage over real property.\n\nPart 2—Exemptions\n\n5 Mortgage investment schemes with no more than 20 investors\n\nRegistration relief\n\n(1) An operator of a mortgage investment scheme does not have to comply with subsection 601ED(5) of the Act in relation to the operation of the scheme.\n\nLicensing relief\n\n(2) An operator of a mortgage investment scheme does not have to comply with the requirement in subsection 911A(1) of the Act to hold an Australian financial services licence covering the provision of financial services in relation to interests in the scheme.\n\n> Note: ASIC Corporations (Miscellaneous Technical Relief) Instrument 2015/1115 provides relief from subsections 911A(1) and 911B(1) of the Act to a person who provides financial services on behalf of a person who does not need an Australian financial services licence because of an exemption under section 926A of the Act.\n\n(3) A person (other than a person to whom subsection (2) applies) does not have to comply with the requirement in subsection 911A(1) of the Act to hold an Australian financial services licence covering the provision of financial services in relation to interests in a mortgage investment scheme in relation to which paragraphs (7)(a) to 7(c) appear to be satisfied except where the person is aware, or ought reasonably to be aware, that those paragraphs are not satisfied in relation to the scheme.\n\nHawking relief\n\n(4) An operator of a mortgage investment scheme does not have to comply with section 992A of the Act in relation to an offer of an interest in the scheme to a person in the course of, or because of, an unsolicited contact with the person.\n\nFinancial product disclosure relief\n\n(5) An operator of a mortgage investment scheme does not have to comply with Part 7.9 of the Act in relation to any of the following:\n\n(a) a recommendation to acquire an interest in the scheme;\n\n(b) an offer to issue or sell an interest in the scheme;\n\n(c) the issue or sale of an interest in the scheme.\n\n(6) A person (other than a person to whom subsection (5) applies) does not have to comply with Part 7.9 of the Act in relation to either of the following:\n\n(a) a recommendation to acquire an interest in a mortgage investment scheme;\n\n(b) an offer to arrange the issue of an interest in a mortgage investment scheme;\n\nin relation to which paragraphs (7)(a) to (7)(c) appear to be satisfied except where the person is aware, or ought reasonably to be aware, that those paragraphs are not satisfied in relation to the scheme.\n\nWhere exemptions apply\n\n(7) The exemptions in subsections (1), (2), (4), and (5) are only available where all of the following are satisfied:\n\n(a) the scheme, together with any other managed investment scheme operated by the operator or by an associate of the operator that has assets invested in mortgage loans, has no more than 20 members; and\n\n(b) the operator, and any associate of the operator, does not operate a mortgage investment scheme registered under section 601EB of the Act; and\n\n(c) except for the scheme, together with any other managed investment scheme referred to in paragraph (a), or any managed investment scheme that forms part of those schemes, the operator is not in the business of promoting managed investment schemes.\n\n6 Registering a scheme in relation to individual mortgage loans\n\nRegistration relief\n\nAn operator of a mortgage investment scheme registered under section 601EB of the Act does not have to comply with subsection 601ED(5) of the Act to the extent that it would require the operator to register a scheme in relation to each mortgage loan in relation to which the scheme operates.\n\n> Note: See also the declaration relating to withdrawal rights in section 8 of this instrument.\n\n7 Small industry-supervised mortgage investment schemes\n\nTransitional continuation of relief given by ASIC Class Order \\[CO 02/238\\]\n\n(1) The exemption set out in ASIC Class Order \\[CO 02/238\\] in the paragraph under the heading “4 Small industry-supervised schemes” as in force immediately before its repeal, continues to apply by force of this subsection, in the circumstances and on the conditions specified in relation to the exemption.\n\n(2) Subsection (1) has effect for a period of 1 year commencing on the day this instrument commences.\n\nPart 3—Declaration\n\n8 Withdrawal rights for registered mortgage investment schemes\n\nChapter 5C of the Act applies to all persons in relation to a mortgage investment scheme in respect of which the operator has relied on the exemption in section 6 as if subsection 601GA(4) and Part 5C.6 were modified or varied as follows:\n\n(a) after “members” (wherever appearing, other than at the end of subsection 601GA(4), in paragraph 601KB(2)(b), in subsection 601KB(4) and in section 601KE), inserting:\n\n(i) in subsection 601KB(1) (wherever appearing) and in the formula in section 601KD:\n\n“who have an interest in the particular mortgage loan”; and\n\n(ii) otherwise, “who have an interest in a particular mortgage loan”;\n\n(b) in paragraph 601KB(2)(b), after “members of the scheme” and “members of a particular class”, inserting “who have an interest in the particular mortgage loan”;\n\n(c) in subsection 601KA(3), after “member” , inserting “who has an interest in a particular mortgage loan”;\n\n(d) in the formula in section 601KD, after “member”, inserting “who has an interest in the particular mortgage loan”;\n\n(e) after “withdraw from the scheme” (wherever appearing) and “withdraw, wholly or partly, from the scheme” (in subsection 601KB(1)), inserting “in relation to the particular mortgage loan”;\n\n(f) after “scheme is liquid” (wherever appearing), inserting\n\n(i) in subsection 601KA(4), “in relation to a particular mortgage loan”; and\n\n(ii) otherwise, “in relation to the particular mortgage loan”;\n\n(g) after “scheme is not liquid” (wherever appearing) and “scheme that is not liquid” (wherever appearing), inserting:\n\n(i) in subsection 601KB(1) and sections 601KC, 601KD and 601KE, “in relation to a particular mortgage loan”; and\n\n(ii) otherwise, “in relation to the particular mortgage loan”;\n\n(h) in subsection 601KA(4), after “liquid assets”, inserting “in relation to the particular mortgage loan”;\n\n(i) in subsections 601KA(5) and (6), after “liquid assets” and “liquid asset”, inserting “in relation to a particular mortgage loan”;\n\n(j) in subsection 601KA(4), after “scheme property”, inserting “in relation to the particular mortgage loan”.\n\n  \n\nEndnotes\n\nEndnote 1—Instrument history\n\n| Instrument number | Date of FRL registration    | Date of commencement | Application, saving or transitional provisions |\n| ----------------- | --------------------------- | -------------------- | ---------------------------------------------- |\n| 2017/857          | 26/9/2021 (see F2017L01254) | 27/9/2017            |                                                |\n| 2021/799          | 22/9/2021 (see F2021L01310) | 5/10/2021            | -                                              |\n\nEndnote 2—Amendment history\n\n> Note: ad. = added or inserted am. = amended LA = Legislation Act 2003 rep. = repealed rs. = repealed and substituted\n\n| Provision affected | How affected |\n| ------------------ | ------------ |\n| Section 2          | rep. s48D LA |\n| Subsection 5(4)    | am. 2021/799 |","sortOrder":0}],"analysis":{"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":true,"description":"The compilation records an amendment (Instrument 2021/799) affecting subsection 5(4). The instrument therefore differs from the original 2017 text; the amendment history in the endnotes shows the scope of the exemptions was altered and the compilation reflects those changes."},"complexity_factors":["Multiple cross‑references to the Corporations Act (notably ss 601ED, 601EB, 601GA, 911A, 992A and Part 7.9) requiring reading the Act alongside this instrument.","Conditional exemptions tied to factual tests (e.g. scheme + related schemes must have no more than 20 members — s5(7)(a)).","Different types of relief grouped together (registration, licensing, hawking, disclosure) creating interaction effects for operators — ss 5(1)–(6).","Modifying withdrawal‑rights language across many Act provisions (s8 inserts “in relation to the particular mortgage loan” into multiple subsections), requiring re‑interpretation of members’ rights and trustee obligations.","Transitional continuation of an earlier ASIC class order (CO 02/238) for a limited period, introducing temporal complexity (s7(1)–(2)).","Delegated/operative choices by scheme operators (who must decide to rely on exemptions) create compliance‑burden trade‑offs and possible reliance risk (see ss 5 and 6).","Interaction with ASIC’s other relief instruments (note after s5(2)) and amendment history recorded in endnotes, so applicability depends on current compilation."],"plain_english_summary":"This instrument gives exemptions and technical modifications for “mortgage investment schemes” (funds that invest mainly in mortgage loans). It lets small schemes (no more than 20 investors) and certain registered schemes avoid full registration, licensing, hawking and product disclosure obligations (see s5–6), and it changes how withdrawal rights work by applying them “in relation to a particular mortgage loan” (s8). Scheme operators decide whether to rely on the relief and thereby reduce compliance costs; investors face altered withdrawal mechanics and potential impacts on liquidity."},"flash_summary_failed":{"failed":true,"reason":"Unauthenticated. Configure AI_GATEWAY_API_KEY or use a provider module. Learn more: https://ai-sdk.dev/unauthenticated-ai-gateway","source":"analysis-cron"},"kimi_summary":{"content_quality":"ok","complexity_score":4,"scope_assessment":{"changed":false,"description":"The instrument appears consistent with its original intent to provide targeted relief for small mortgage investment schemes. The 2021 amendment (Instrument 2021/799) was minor — only amending subsection 5(4) regarding hawking relief. The scope remains focused on small-scale schemes (≤20 investors) and individual loan structures, without significant expansion beyond the original regulatory relief purpose."},"complexity_factors":["Multiple cross-references to the Corporations Act 2001 (sections 601ED, 911A, 992A, Part 7.9, Chapter 5C, etc.) requiring familiarity with the primary legislation","Conditional logic with nested requirements — exemptions in section 5 depend on three cumulative conditions in subsection (7), plus awareness tests in subsections (3) and (6)","Complex modification of existing legislation in section 8, which rewrites multiple provisions of the Corporations Act by inserting specific phrases throughout Chapter 5C and Part 5C.6","Interaction between sections — section 6 exemption triggers modified withdrawal rights in section 8","Transitional provision in section 7 referencing a repealed Class Order [CO 02/238]","Defined terms with specific thresholds (50% and 100% asset tests in the definition of 'mortgage investment scheme')"," carve-outs for associates and related schemes in the 20-member test"],"plain_english_summary":"This instrument creates regulatory exemptions for small mortgage investment schemes (generally those with 20 or fewer investors, or registered schemes operating individual mortgage loans), letting operators avoid certain Corporations Act requirements.  \n\nIt cuts red tape—making small pooled mortgage lending cheaper and simpler—but reduces investor protections by removing usual disclosure and licensing safeguards and limiting withdrawal rights linked to specific loans."}},"importantCases":[],"_links":{"self":"/api/acts/asic-corporations-mortgage-investment-schemes-instrument-2017-857","history":"/api/acts/asic-corporations-mortgage-investment-schemes-instrument-2017-857/history","analysis":"/api/acts/asic-corporations-mortgage-investment-schemes-instrument-2017-857/analysis","conflicts":"/api/acts/asic-corporations-mortgage-investment-schemes-instrument-2017-857/conflicts","importantCases":"/api/acts/asic-corporations-mortgage-investment-schemes-instrument-2017-857/important-cases","documents":"/api/acts/asic-corporations-mortgage-investment-schemes-instrument-2017-857/documents"}}