{"id":"F2017L00202","name":"ASIC Corporations (Registered Schemes and CCIVs—Differential Fees) Instrument 2017/40","slug":"asic-corporations-registered-schemes-and-ccivs-differential-fees-instrument-2017-40","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":95888,"registerId":"commonwealth-F2017L00202-current","compilationNumber":null,"startDate":"2026-04-02","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"ASIC Corporations (Registered Schemes and CCIVs—Differential Fees) Instrument 2017/40","content":"![Commonwealth Coat of Arms and ASIC logo](image.001.png)\n\nASIC Corporations (Registered Schemes and CCIVs—Differential Fees) Instrument 2017/40\n\nAbout this compilation\n\nCompilation No. 1\n\nThis is a compilation of ASIC Corporations (Registered Schemes and CCIVs—Differential Fees) Instrument 2017/40 as in force on 15 November 2022. 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](#_Toc121220045)\n\n[1 Name of legislative instrument](#_Toc121220046)\n\n[3 Authority](#_Toc121220047)\n\n[4 Definitions](#_Toc121220048)\n\n[Part 2—Exemption](#_Toc121220049)\n\n[5 Registered schemes - differential fees](#_Toc121220050)\n\n[6 Conditions](#_Toc121220051)\n\n[7 CCIVs – differential fees](#_Toc121220052)\n\n[8 Conditions](#_Toc121220053)\n\n[Endnotes](#_Toc121220054)\n\n[Endnote 1—Instrument history](#_Toc121220055)\n\n[Endnote 2—Amendment history](#_Toc121220056)\n\nPart 1—Preliminary\n\n1 Name of legislative instrument\n\nThis is the ASIC Corporations (Registered Schemes and CCIVs—Differential Fees) Instrument 2017/40.\n\n3 Authority\n\nThis instrument is made under subsections 601QA(1) and 1243(2) of the Corporations Act 2001.\n\n4 Definitions\n\nIn this instrument:\n\nAct means the Corporations Act 2001.\n\nassociated person, in relation to a member, means:\n\n(a) a spouse, parent, child, brother or sister of the member; or\n\n(b) a company which has no member other than the member or a person mentioned in paragraph (a); or\n\n(c) a regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 which has no member other than the member or a person mentioned in paragraph (a); or\n\n(d) a trust which has no beneficiary other than the member or a person mentioned in paragraph (a) or (b); or\n\n(e) an entity controlled by the member or a person mentioned in paragraph (a) or (b), and includes an entity jointly controlled by the member and a person mentioned in paragraph (a) or (b).\n\ndifferential fee arrangement:\n\n(a) in relation to a registered scheme, means an arrangement for the charging, rebating or waiving of fees, including entry, exit and periodic fees, by the responsible entity to members of the scheme on a basis that differs from that applying to other members who hold interests of the same class; and\n\n(b) in relation to a CCIV, means an arrangement for the charging, rebating or waiving of fees, including entry, exit and periodic fees, by the corporate director of the CCIV or the CCIV, as the case may be, to members of a sub-fund of the CCIV on a basis that differs from that applying to other members of the sub-fund who hold shares of the same class referable to that sub-fund.\n\nemployee member:\n\n(a) in relation to a scheme, means a member of the scheme who is also an employee of the responsible entity of the scheme or a related body corporate; and\n\n(b) in relation to a CCIV, means a member of the CCIV who is also an employee of:\n\n(i) the corporate director of the CCIV; or\n\n(ii) a related body corporate of the corporate director.\n\nwholesale client has the meaning given by section 761G of the Act.\n\nPart 2—Exemption\n\n5 Registered schemes - differential fees\n\n(1) A responsible entity of a registered scheme does not have to comply with paragraph 601FC(1)(d) of the Act to the extent it would otherwise prohibit the responsible entity from administering a differential fee arrangement.\n\nCharacteristics of the member or of their investment\n\n(2) This instrument applies to a differential fee arrangement in relation to a registered scheme under which the fees that may be charged, rebated or waived by the responsible entity to members of the scheme differ based on any of the following criteria:\n\n(a) the total value of, or the number of, interests held by the member, or by the member and associated persons, in one or more of the following:\n\n(i) the scheme;\n\n(ii) other managed investment schemes operated by the responsible entity or a related body corporate;\n\n(iii) other financial products issued by the responsible entity or a related body corporate;\n\n(b) the total period of time during which the member, or the member and associated persons, has held interests in one or more of the following:\n\n(i) the scheme;\n\n(ii) other managed investment schemes operated by the responsible entity or a related body corporate;\n\n(iii) other financial products issued by the responsible entity or a related body corporate;\n\n(c) the member being an employee of the responsible entity or a related body corporate in circumstances where the number of votes that may be cast on a resolution of the scheme’s members by employee members is no more than 5% of the total votes that may be cast by the scheme’s members;\n\n(d) the member having acquired their interests under a switching facility that involved the member first withdrawing from a managed investment scheme operated by the responsible entity or a related body corporate; or\n\n(e) savings to the scheme resulting, or reasonably expected by the responsible entity to result, from the lower cost of servicing a member of the scheme because of particular characteristics of that member or of their investment, where the amount of the benefit by way of lower fees charged to that member, or the rebate or waiver of fees provided to that member, is no greater than a reasonable estimate of the amount of the saving or expected saving.\n\nIndividual negotiation with wholesale clients\n\n(3) This instrument also applies to a differential fee arrangement in relation to a registered scheme under which the fees that may be charged, rebated or waived by the responsible entity to a member that is a wholesale client differs from that applying to other members based on individual negotiation between the responsible entity and the member.\n\n6 Conditions\n\n(1) The responsible entity must ensure that:\n\n(a) where a differential fee arrangement of a kind referred to in subsection 5(2) is in place or is to be offered—a statement of the basis on which the differential fee will be calculated and which specifies the fees that members will have to bear; and\n\n(b) where a differential fee arrangement of a kind referred to in subsection 5(3) is in place or is to be offered—a statement of that fact,\n\nis or has been disclosed in a clear, concise and effective manner:\n\n(c) to existing members of the scheme by no later than the date of the first communication by the responsible entity to all members after the date when the differential fee arrangement is first offered; and\n\n(d) in any Product Disclosure Statement required by the Act in relation to interests in the scheme that is in use during the period in which the differential fee arrangement is offered.\n\n(2) The responsible entity must ensure that any differential fee arrangements do not adversely affect the fees paid or to be paid by any member of the scheme who is not entitled to the benefit of those fee arrangements.\n\n(3) The responsible entity must ensure that where a differential fee arrangement of a kind referred to subsection 5(2) is in place or is to be offered, the arrangement is applied without discrimination to all members who satisfy the criteria necessary to receive the benefit of the arrangement.\n\n7 CCIVs – differential fees\n\n    (1) A corporate director of a CCIV does not have to comply with paragraphs 1224D(2)(b) or (3)(b) of the Act, as the case may be, to the extent they would otherwise prohibit the corporate director or the CCIV from administering a differential fee arrangement.\n\nCharacteristics of the member or of their investment\n\n    (2) This instrument applies to a differential fee arrangement in relation to a CCIV under which the fees that may be charged, rebated or waived by the corporate director or the CCIV to members of a sub-fund of the CCIV differ based on any of the following criteria:\n\n(a) the total value of, or the number of, shares held by the member, or by the member and associated persons, in one or more of the following:\n\n    (i) the CCIV (in respect of the sub-fund);\n    (ii) other CCIVs operated by the corporate director or a related body corporate of the corporate director;\n    (iii) other financial products issued by the corporate director or a related body corporate of the corporate director;\n\n(b) the total period of time during which the member, or the member and associated persons, has held shares in one or more of the following:\n\n    (i) the CCIV (in respect of the sub-fund);\n    (ii) other CCIVs operated by the corporate director or a related body corporate of the corporate director;\n    (iii) other financial products issued by the corporate director or a related body corporate of the corporate director;\n\n(c) the member being an employee of the corporate director or a related body corporate of the corporate director in circumstances where the number of votes that may be cast on a resolution of the members of the sub-fund of the CCIV by employee members is no more than 5% of the total votes that may be cast by the members of the sub-fund of the CCIV;\n\n(d) the member having acquired their shares under a switching facility that involved the member first withdrawing from:\n\n    (i) another sub-fund of the CCIV; or\n    (ii) another CCIV operated by the corporate director or a related body corporate of the corporate director; or\n\n(e) savings to the CCIV resulting, or reasonably expected by the corporate director to result, from the lower cost of servicing a member of the CCIV because of particular characteristics of that member or of their investment, where the amount of the benefit by way of lower fees charged to that member, or the rebate or waiver of fees provided to that member, is no greater than a reasonable estimate of the amount of the saving or expected saving.\n\nIndividual negotiation with wholesale clients\n\n    (3) This instrument also applies to a differential fee arrangement in relation to a CCIV under which the fees that may be charged, rebated or waived by the corporate director or a CCIV to a member that is a wholesale client differs from that applying to other members based on individual negotiation between the corporate director and the member.\n\n8 Conditions\n\n      (1) The corporate director must ensure that:\n\n    (a) where a differential fee arrangement of a kind referred to in subsection 7(2) is in place or is to be offered—a statement of the basis on which the differential fee will be calculated and which specifies the fees that members will have to bear; and\n\n    (b) where a differential fee arrangement of a kind referred to in subsection 7(3) is in place or is to be offered—a statement of that fact,\n\nis or has been disclosed in a clear, concise and effective manner:\n\n    (c) to existing members of the sub-fund of the CCIV by no later than the date of the first communication by the corporate director to all members of the sub-fund after the date when the differential fee arrangement is first offered; and\n\n    (d) in any Product Disclosure Statement required by the Act in relation to shares in the CCIV that is in use during the period in which the differential fee arrangement is offered.\n\n      (2) The corporate director must ensure that any differential fee arrangements do not adversely affect the fees paid or to be paid by any member of the sub-fund of the CCIV who is not entitled to the benefit of those fee arrangements.\n\n      (3) The corporate director must ensure that where a differential fee arrangement of a kind referred to in subsection 7(2) is in place or is to be offered, the arrangement is applied without discrimination to all members of the sub-fund of the CCIV who satisfy the criteria necessary to receive the benefit of the arrangement.\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| 2017/40           | 10/03/2017 (see F2017L00202) | 11/03/2017           |                                                |\n| 2022/0940         | 14/11/2022 (see F2022L01459) | 15/11/2022           | -                                              |\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 1                                              | am. 2022/0940 |\n| Section 2                                              | rep. s48D LA  |\n| Section 3                                              | am. 2022/0940 |\n| Section 4 (definition of differential fee arrangement) | rs. 2022/0940 |\n| Section 4 (definition of employee member)              | rs. 2022/0940 |\n| Section 5 (heading)                                    | rs. 2022/0940 |\n| Subsection 5(2)                                        | am. 2022/0940 |\n| Subsection 5(3)                                        | am. 2022/0940 |\n| Section 7                                              | ad. 2022/0940 |\n| Section 8                                              | ad. 2022/0940 |","sortOrder":0}],"analysis":{"kimi_summary":{"content_quality":"ok","complexity_score":4,"scope_assessment":{"changed":true,"description":"Originally enacted in 2017 covering only registered schemes, the instrument was significantly expanded in November 2022 to include CCIVs (Corporate Collective Investment Vehicles). CCIVs were a new legislative framework introduced to the Corporations Act, and this instrument was amended to create an equivalent fee differential regime for them. The scope effectively doubled to cover two distinct investment vehicle types with parallel but not identical regulatory requirements."},"complexity_factors":["Mirrored structure: The instrument essentially duplicates its provisions for registered schemes (sections 5-6) and CCIVs (sections 7-8), creating parallel but slightly different regimes","Cross-references to primary legislation: Relies on external definitions from the Corporations Act 2001 (sections 601FC, 761G, 1224D, etc.) without reproducing them","Nested conditions in subsections 5(2) and 7(2): Five separate criteria (a)-(e) with internal qualifiers, including percentage caps (5% voting limit for employees) and reasonableness tests","Complex defined term 'associated person' with five cascading categories (spouse/family, single-member companies, super funds, trusts, controlled entities)","Temporal and notification requirements: Specific deadlines for disclosure ('no later than the date of the first communication... after the date when the differential fee arrangement is first offered')","2022 amendments added CCIV provisions, expanding scope from registered schemes only to cover both vehicle types"],"plain_english_summary":"This instrument lets fund managers (responsible entities and CCIV corporate directors) lawfully charge different fees to different investors in the same fund — e.g., big, long‑term, staff or wholesale investors — by creating exemptions to the Corporations Act’s equal‑treatment rule.\n\nIt matters because it enables discounts and bespoke pricing while requiring clear PDS disclosure, preventing cost shifting to other members, and ensuring objective, open eligibility for discounted rates."},"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":true,"description":"Yes. The Instrument has been expanded since its original form. The 2022 amendments added parallel provisions for CCIVs (new ss7–8) and updated the definitions and permitted bases for differential fees (see amendment history in the endnotes). That broadened scope from addressing registered schemes only to covering CCIV sub‑funds and clarified/extended the permissible bases for differential fees — notably: joint treatment of holdings with associated persons, explicit inclusion of switching facilities, a savings‑based discount test (fees not exceeding a reasonable estimate of servicing savings), and explicit treatment of individually negotiated fees with wholesale clients (see amended ss4, 5 and new ss7–8). These changes materially increased the types of vehicles and fee arrangements captured by the instrument and expanded operational obligations for affected entities."},"complexity_factors":["One short instrument (8 sections) — limited length","4 defined terms in s4 plus references to 'wholesale client' (cross‑ref to s761G)","Parallel structure: duplicate provisions for registered schemes (ss5–6) and CCIVs (ss7–8) — increases reading effort","Five alternative allowed bases in each of ss5(2)/7(2) with nested subclauses (a)–(e)","Cross‑references to the Corporations Act (paras 601FC(1)(d), 1224D(2)(b)/(3)(b), and s761G)","Qualitative requirement: “no greater than a reasonable estimate” (s5(2)(e)/s7(2)(e)) creates interpretive uncertainty","Disclosure timing condition (first communication after offering) requires operational coordination (s6(1)(c)/s8(1)(c))","Recent amendments added CCIVs and adjusted definitions (amendment history) — increases scope and tracking of changes"],"plain_english_summary":"**What this instrument does (mechanically)**\n\n- It gives an exemption from particular anti-discrimination provisions of the Corporations Act so that managers of managed investment schemes (responsible entities) and corporate directors of corporate collective investment vehicles (CCIVs) can operate differential fee arrangements — that is, charge, rebate or waive entry/exit/periodic fees on a different basis for some investors than for others (see s5 and s7).  The exemption is subject to conditions (see s6 and s8).\n\n**Who it affects**\n\n- Responsible entities of registered schemes (s5–6).\n- Corporate directors of CCIVs and the CCIVs themselves (s7–8).\n- Members/investors in those schemes or CCIV sub‑funds, including retail investors and wholesale clients (definitions and s5(3)/7(3)).\n\n**When different fees are permitted (the allowed bases)**\n\nThe instrument permits differential fees where the fee variation is based on any of the following (registered schemes at s5(2); CCIVs at s7(2)):\n\n- The size of the investor’s holding (total value or number of interests/shares), including holdings of the investor and associated persons, across the scheme/CCIV, related schemes/CCIVs or other financial products from the same group (s5(2)(a)/s7(2)(a)).\n- The length of time the investor (or the investor together with associated persons) has held interests/shares in the scheme/CCIV or related products (s5(2)(b)/s7(2)(b)).\n- The investor being an employee of the responsible entity/corporate director (employee member), provided employee voting on member resolutions is capped at no more than 5% of total votes (s5(2)(c)/s7(2)(c); definitions in s4).\n- The investor having acquired interests/shares via a switching facility that involved first withdrawing from a related managed investment scheme or sub‑fund (s5(2)(d)/s7(2)(d)).\n- Fee differences that reflect actual or reasonably expected savings to the scheme/CCIV from lower servicing costs for particular investors — but the fee reduction (or rebate/waiver) must not exceed a reasonable estimate of that saving (s5(2)(e)/s7(2)(e)).\n\nIt also permits individually negotiated different fees for members who are wholesale clients, where the fee differs because of that negotiation (s5(3)/s7(3)).\n\n**Key conditions attached to the exemption**\n\n- Disclosure: where a qualifying differential arrangement exists or will be offered, the responsible entity or corporate director must disclose either (a) the basis and the specific fees to be borne by members (for the criteria in s5(2)/s7(2)), or (b) that individual negotiation with wholesale clients will occur (for s5(3)/s7(3)). That disclosure must be made clearly to existing members at or before the first general communication after the arrangement is first offered and included in any relevant Product Disclosure Statement in use while the arrangement is offered (s6(1)/s8(1)).\n- No adverse effect: differential fee arrangements must not adversely affect fees paid (or to be paid) by members who are not entitled to the benefit of those arrangements (s6(2)/s8(2)).\n- Non‑discriminatory application: where the arrangement is based on the objective criteria in s5(2)/s7(2), it must be applied without discrimination to all members who meet those criteria (s6(3)/s8(3)).\n\n**Why it matters (claimed purpose and practical consequences)**\n\n- The instrument is framed as an exemption to let scheme managers and CCIV directors offer volume/loyalty/employee/negotiated discounts or rebates where they can be reasonably justified (see s5–7). The stated bases are narrowly described so the exemption covers common commercial discounting mechanisms: scale, tenure, employee participation, switching concessions, cost‑to‑serve savings, and bespoke wholesale negotiations.\n\n- Who pays: investors who do not meet the qualifying criteria continue to pay the standard fees; investors who qualify pay lower fees or receive rebates/waivers permitted by the arrangement (s5–8). The responsible entity or corporate director effectively decides who qualifies under the criteria and negotiates or sets the discount levels, subject to the instrument’s disclosure/non‑adverse/non‑discrimination conditions.\n\n- Effects on private firms and markets: the instrument legally enables product differentiation and individually negotiated pricing. That can support competitive pricing for large, long‑holding or wholesale customers, encourage investor retention or switching within the same group, and allow market participants to pass on measurable servicing savings as discounts (s5(2)(a)–(e), s7(2)(a)–(e)).\n\n**Costs, incentives and trade‑offs to watch (mechanisms, not judgement)**\n\n- Administrative and compliance costs: responsible entities/corporate directors must document and disclose fee bases, estimate and justify “reasonable” cost savings when using s5(2)(e)/s7(2)(e), and apply arrangements consistently across qualifying members (s6(1), s6(3), s8(1), s8(3)). That requires systems to track holdings (including associated persons), tenure, switching history, and to prepare PDS updates.\n\n- Implementation risk and ambiguity: the requirement that a fee benefit be “no greater than a reasonable estimate” of servicing savings introduces discretionary judgment. Firms must make defensible estimates and retain records; otherwise ASIC enforcement risk may rise (s5(2)(e)/s7(2)(e)).\n\n- Potential gaming and avoidance: the instrument reduces but does not eliminate avenues for strategic structuring because it treats holdings of associated persons together (definition of associated person in s4). However, the need to identify control/relationships across accounts imposes a monitoring burden.\n\n- Concentrated benefits and substitution effects: the reward (lower fees) flows to investors who meet the criteria (often larger or wholesale clients). This can shift investor behaviour toward products that offer discounts (switching facilities are explicitly covered, s5(2)(d)/s7(2)(d)).\n\n- Limits on influence: employee discounts are permitted only where employee members’ votes on member resolutions remain at or below 5% of total member votes, which constrains employee‑led governance influence (s5(2)(c)/s7(2)(c)).\n\n- Minimal bureaucratic discretion in operation: the instrument operates as a statutory carve‑out with specified conditions. ASIC’s role is enforcement under the Corporations Act rather than ongoing rule‑making discretion in the instrument itself (instrument made under ss 601QA(1) and 1243(2) of the Act: s3).\n\n**Practical compliance checklist for affected entities (high level)**\n\n- Identify which fee differentials you intend to offer and which allowed basis (s5(2)/s7(2) or negotiated wholesale s5(3)/s7(3)) applies.\n- Maintain records that justify any savings‑based discount as a reasonable estimate (s5(2)(e)/s7(2)(e)).\n- Ensure automated checks capture holdings across associated persons (definition in s4).\n- Update PDS and communicate the basis of any differential fees to existing members at the next general communication after the arrangement is first offered (s6(1)/s8(1)).\n- Apply arrangements consistently and ensure non‑benefitting members are not adversely affected (s6(2)/s8(2), s6(3)/s8(3)).\n\n(Primary provisions: definitions at s4; registered schemes exemption and permitted bases at ss5–6; CCIV exemption and permitted bases at ss7–8; authority at s3.)"},"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"}},"importantCases":[],"_links":{"self":"/api/acts/asic-corporations-registered-schemes-and-ccivs-differential-fees-instrument-2017-40","history":"/api/acts/asic-corporations-registered-schemes-and-ccivs-differential-fees-instrument-2017-40/history","analysis":"/api/acts/asic-corporations-registered-schemes-and-ccivs-differential-fees-instrument-2017-40/analysis","conflicts":"/api/acts/asic-corporations-registered-schemes-and-ccivs-differential-fees-instrument-2017-40/conflicts","importantCases":"/api/acts/asic-corporations-registered-schemes-and-ccivs-differential-fees-instrument-2017-40/important-cases","documents":"/api/acts/asic-corporations-registered-schemes-and-ccivs-differential-fees-instrument-2017-40/documents"}}