ASIC Corporations (Asia Region Funds Passport) Instrument 2019/75

Passport fund is defined by reference to section 1210 of the Corporations Act. Broadly, it is a collective investment scheme that is registered or authorised under the Asia Region Funds Passport framework, which allows fund operators in participating economies to offer interests across borders with reduced regulatory duplication. The framework is based on mutual recognition of regulatory standards. Passport Rules are defined by section 1211A of the Act and comprise the detailed operational requirements that a passport fund must comply with, covering portfolio allocation, asset types, leverage, delegation, valuation, and so on. The instrument gives these terms the same meaning as in the Act. For the purposes of the schedules, expressions defined in the Passport Rules carry the same meaning in the instrument, unless the contrary intention appears. This ensures that terms such as “single entity limits”, “group entity limits”, “global exposure limit”, and “compliance control” are interpreted consistently with the broader regulatory framework. The determination itself is a form of delegated legislative instrument that restricts public access to information. It does not create new duties on fund operators beyond those already in the Act and Passport Rules, but it affects the consequences of lodging information: operators can reasonably expect that the listed categories will not be publicly displayed. The two schedules function as exemptions lists. Schedule 1 covers Australian passport funds and runs to 88 items grouped under topics such as proposed fund details, portfolio allocation limits, compliance controls, delegation, financial resources, track record, and breach history. Schedule 2 covers foreign passport funds and comprises 23 items, including operator details, distributor authorisation reasons, fund and operator compliance history, complaints controls, and marketing controls. The instrument does not define “inspection or copying” but presumably it refers to the right of any person to search ASIC’s register or physically inspect documents lodged. The effect is to remove those items from the register or place them behind a restricted access barrier. The instrument is silent on how long the restriction lasts, but it likely persists as long as the documents are held by ASIC. It also does not address whether the restriction can be lifted by court order or by consent of the operator. The concept of a “determination” under sections 1212(4) and 1213(4) is a specific power given to ASIC to decide that certain information should not be publicly available. This tool allows flexibility to protect sensitive information without requiring a legislative amendment for each category. The instrument’s structure is simple: Part 1 contains preliminary matters (name, commencement, authority, definitions). Part 2 contains the operative determination (section 5). The schedules are integral to the determination; without them, section 5 would have no content.

The primary affected parties are operators of Australian passport funds who lodge applications under section 1212, and operators of foreign passport funds who lodge notices under section 1213. For Australian operators, the instrument means that the very detailed information listed in Schedule 1 - which includes compliance control descriptions, delegation arrangements, breach history, financial resources controls, and portfolio allocation compliance plans - will not be publicly available. This reduces the risk that competitors or investors could mine ASIC’s register for operational intelligence. It also reduces the potential for strategic litigation or regulatory scrutiny based on disclosed compliance weaknesses, although ASIC itself retains full access. For foreign operators, similarly, the information in Schedule 2 - such as the operator’s local agent details, fund name consent evidence, compliance with home economy laws, and complaints controls - will not be accessible to Australian investors or competitors. This may encourage foreign funds to enter the Australian market with less fear that their internal compliance processes will become public. Australian investors in passport funds are indirectly affected: they cannot inspect these details from ASIC. They must rely on other disclosure documents (e.g., product disclosure statements) to assess the fund’s compliance posture. However, the instrument does not remove any duty to disclose material information to investors under other laws. Competitors of passport fund operators lose the ability to scrutinise these filings for competitive intelligence. ASIC itself must implement procedures to segregate the listed information from public access. This imposes an administrative burden on ASIC to ensure that the exempt categories are correctly identified and not inadvertently published. Legal and compliance advisers need to know which items are confidential so they can advise clients on the implications of lodging sensitive information. Third party service providers such as auditors, compliance committee members, and delegates are referenced in the schedules (e.g., items 31-34 about auditor details) and their identities are shielded from public view. This may protect individuals from unwanted attention. Regulators in other passport economies may have access through information-sharing arrangements, but the instrument does not address that. The instrument does not affect investors’ rights to obtain information directly from the fund under the operating provisions of the Passport Rules. It only affects access via ASIC’s register.

The instrument imposes a duty on ASIC not to make the listed information available for inspection or copying. This duty is absolute in the sense that the instrument says the information “will not be available”. ASIC must therefore design its document management systems to exclude these categories from public search results and physical access. There is no discretion to release the information except perhaps under a court order or if another law overrides. The instrument creates a right for the lodging party that the specific information they provide on those topics will not be publicly accessible. This is not a right to have the information kept secret from ASIC (it is still lodged) nor a right to prevent ASIC from using it internally or sharing it with other regulators under permitted arrangements. It is a qualified right against public inspection. The instrument does not impose any duty on the lodging party to mark the information as confidential; the protection applies automatically to information that falls within the described categories, regardless of whether the operator expressly requests confidentiality. However, in practice, operators should identify which parts of their lodgments correspond to the schedule items to avoid inadvertent disclosure of non-exempt information that may be mixed in the same document. The instrument does not alter the operator’s existing duties under the Corporations Act or Passport Rules to lodge complete and accurate information. If an operator omits required information because they mistakenly believe it is covered by the confidentiality, they could face penalties for non-compliance. The instrument also does not affect the right of ASIC to use the information in enforcement actions, or to disclose it to other Australian or foreign regulators if authorised by law. The schedules themselves contain items that require operators to disclose details of compliance controls, breaches, and exemptions. By listing these as non-available, the instrument recognises that such information is sensitive. However, the instrument does not create a right for the operator to withdraw the information or to be notified if someone tries to access it. The general public has a right to access non-exempt information lodged with ASIC. The instrument implicitly restricts that right for the scheduled items. Third parties cannot compel ASIC to disclose the exempted information under the usual access provisions of the Corporations Act. They may still seek it through other legal processes, but the instrument would be a strong ground for ASIC to refuse. The instrument is silent on whether the protection survives if the information becomes publicly known through other means. Once information is in the public domain, ASIC may have less basis to withhold it, but the instrument does not address that scenario.

This instrument does not create any penalties, offences, or civil penalties of its own. It is a determination that restricts access to information, not a provision imposing obligations on regulated entities. Consequently, there is no direct enforcement action under the instrument. However, breaches of the instrument by ASIC could potentially give rise to administrative law remedies. If ASIC makes available information that the instrument says must not be available, a person aggrieved could seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 or an injunction to prevent further disclosure. A court might order ASIC to remove the information from public access. If the disclosure causes damage, a claim for compensation might be possible, though that would not be under this instrument. Operators have no additional exposure from the instrument; it does not create any new offence relating to false or misleading information. The ordinary enforcement provisions of the Corporations Act continue to apply to the underlying lodgments. For example, knowingly providing false information to ASIC under section 1212 or 1213 attracts penalties under Part 9.4 of the Act. The instrument does not change the standard of liability. Misuse of confidential information by ASIC officers could be dealt with under the Public Service Act 1999 or criminal law, but not under this instrument. For foreign operators, the instrument does not affect the enforcement powers of their home regulator. The instrument is essentially a procedural administrative direction to ASIC. It is enforceable as a legislative instrument, meaning ASIC must comply or risk the instrument being treated as not followed. In the unlikely event that ASIC deliberately contravenes the instrument, a person could seek a declaration or an order compelling compliance. But given ASIC’s role in making the instrument, such contravention is improbable. The instrument does not provide for any internal review mechanism or ASIC complaint process specific to confidentiality. An operator who discovers that their exempted information has been made public should first raise the issue with ASIC, then consider legal avenues if the matter is not resolved. Because the instrument is a legislative instrument, if it is not complied with, the disclosure would be ultra vires the determination. That could be significant if a third party attempts to rely on information obtained from ASIC in breach of the instrument. Overall, the enforcement dimension is limited; the real impact is on information rights rather than on penalty exposure.

The instrument operates within the framework of the Corporations Act 2001, specifically sections 1212 and 1213. Those sections set out the requirement to lodge information for passport fund registration and foreign fund notice. Subsection 1212(4) provides that ASIC may determine that information lodged under that section is not available for inspection or copying. Subsection 1213(4) does the same for notices under that section. The instrument is the mechanism for making that determination. It does not affect any other provision of the Act. For example, the general access provisions in Part 9.4AAA (inspection of documents) are displaced for the specified categories. The instrument may also interact with privacy laws, such as the Privacy Act 1988. Schedule 1 includes information about individuals (items 36-39: directors, CEO, compliance committee members; items 41-42: relevant parties). By keeping this information out of public view, the instrument reduces the risk of a privacy breach from ASIC’s register. However, the instrument does not itself impose privacy obligations; those come from separate legislation. The Freedom of Information Act 1982 (FOI Act) generally applies to documents held by ASIC. The instrument does not mention FOI. Under section 22 of the FOI Act, documents may be exempt if another enactment prohibits disclosure. The instrument is a legislative instrument that prohibits ASIC from making the listed information available for inspection or copying. That prohibition is likely to be treated as a prohibition on disclosure for FOI purposes, meaning the listed documents would be exempt under section 22 (or possibly 38) of the FOI Act. Practitioners should be aware that an FOI request for the scheduled information would likely be refused, citing this instrument. The instrument interacts with the Passport Rules as the substantive regulatory code. The schedules refer repeatedly to specific rules (e.g., sections 30, 31, 33-39, 41, 43-53 of the Passport Rules). By exempting information about compliance with those rules, the instrument acknowledges the sensitivity of revealing to the public how an operator is meeting (or failing to meet) those standards. The instrument does not modify the Passport Rules themselves. It also interacts with ASIC’s general confidentiality powers under section 127 of the ASIC Act, which allows ASIC to give written undertakings about confidentiality. This instrument is a more formal and blanket approach. The instrument does not affect the cross-border information sharing provisions in the Corporations Act or the Asia Region Funds Passport memorandum of understanding. ASIC may still share the exempted information with foreign regulators under those arrangements. Finally, the instrument may interact with state and territory fair trading laws if an operator uses the confidentiality to hide information that would otherwise be required to be disclosed to investors under those laws. But generally, those laws do not override a federal legislative instrument. The interaction with competition law is indirect: by reducing transparency, the instrument could reduce competitive pressure to improve compliance, but that is a policy trade-off, not a legal interaction.

The instrument was made on 31 January 2019 and commenced on the later of 1 February 2019 or the day it was registered on the Federal Register of Legislation. Based on the source text provided, there is no indication of any subsequent amendment. The instrument appears in its original form. It is a standalone legislative instrument that has not been repealed or superseded by a later instrument on this specific topic. However, the broader Asia Region Funds Passport framework has evolved over time, with amendments to the Passport Rules and the Corporations Act. Any changes to the underlying Act or Passport Rules could affect the accuracy of the schedule references. For example, if a section of the Passport Rules referenced in Schedule 1 is renumbered or repealed, the instrument’s operation might become ambiguous. ASIC has not issued an amending instrument that updates the section numbers in the schedules. Users should verify that the references to sections 30, 31, 33-39, etc., of the Passport Rules still correspond to current provisions. The instrument’s authority under subsections 1212(4) and 1213(4) remains valid. The instrument has a note stating that the register may be accessed at www.legislation.gov.au for current versions. Since the instrument is a legislative instrument, it is subject to periodic review by ASIC under the Legislation Act 2003. The instrument may have been reviewed but no amendment resulted. Practitioners should check the Federal Register for any registered amendments, sunsetting information, or repeal. As of the date of the source text (presumably 2019), there is no amendment history. Any later changes would be reflected in new versions on the register. This instrument is an important example of ASIC using its determination power to craft a tailored confidentiality regime. It has not been amended likely because the categories of information remain relevant and the balance between transparency and commercial sensitivity has not shifted enough to warrant changes. Nonetheless, the instrument could be amended in the future to add or remove categories if ASIC determines that the public interest requires it.

The source text provides no information about any litigation involving this instrument. Because the instrument is a relatively obscure procedural determination, it is unlikely to have been directly litigated. Companies that are subject to ASIC surveillance might challenge ASIC’s decision to withhold or disclose information, but that would likely be under the FOI Act or administrative law, not a direct challenge to the instrument itself. The instrument has a strong legal foundation under the Act, and it is not controversial. There is no record of a court considering the validity of this particular instrument. Challenges to similar ASIC determinations exist in other contexts (e.g., financial services licensing exemptions) but not for this instrument. The instrument is narrow; any litigation would more likely concern the underlying substantive obligations under the Passport Rules rather than the confidentiality determination. If a third party sought judicial review of ASIC’s refusal to provide access to information that the third party believes is not covered by the schedules, the court would need to interpret the schedules. That could generate case law on the scope of items like “Details about each compliance control”. But no such case is known. The instrument has been in effect since 2019 without apparent litigation. This indicates that the industry accepts the confidentiality boundaries as clear and reasonable. Alternatively, it could mean that operators have not sought to enforce their rights under the instrument, or that disputes have been resolved informally. The absence of litigation should not be taken as an indication that the instrument is unimportant; rather, it suggests that the instrument is functioning as intended without causing friction. If the instrument were to be challenged, likely grounds would include that ASIC exceeded its power under subsections 1212(4) and 1213(4) by exempting categories that are not reasonably related to the purposes of those sections, or that the instrument is unreasonable or procedurally invalid. However, given the breadth of the enabling power, such a challenge would be difficult. The instrument is not a disallowable instrument? It is a legislative instrument and subject to parliamentary scrutiny, but that does not generate litigation. For now, the litigation history is a blank page. Practitioners should monitor the Federal Register and case law databases for any developments.

The instrument’s confidentiality is not absolute. It only applies to “inspection or copying from ASIC”. It does not prevent ASIC from using the information in enforcement proceedings, where the information may become public as evidence in court. It does not prevent the operator itself from voluntarily disclosing the same information, which might then become publicly available through other channels. Once the information is in the public domain, ASIC may have no reason to continue withholding it, but the instrument still technically says it will not be available from ASIC. That could create an absurd situation where ASIC maintains a secret file on information that is widely known. The instrument does not address mixed documents. If a single document contains both exempt and non-exempt information, ASIC must decide whether to make the entire document unavailable or to redact. The instrument does not give ASIC a power to redact; it simply says the listed information will not be available. A broad reading would require ASIC to make the entire document unavailable if it contains any exempt information, which could be overly broad. ASIC’s practice likely involves redaction, but that is not authorised by the instrument and could be challenged. The schedules contain ambiguous or open-ended phrases such as “Details about each compliance control” (items 52, 54, 57, etc.). The precise boundary of what constitutes a “compliance control” is left to interpretation. Operators may err on the side of disclosing more, but if they inadvertently leave out details, the protection might not apply. Conversely, if they include too much detail that could be considered commercially sensitive, the instrument protects it all. The instrument’s definitions rely on the Passport Rules, which may be amended without corresponding changes to this instrument. If a section of the Passport Rules referenced in the schedules is repealed, the corresponding item in the schedule becomes a dead letter. Operators should not assume that a schedule item still protects information if the underlying rule no longer exists. The instrument does not cover all possible confidential information that an operator might wish to protect. For example, the specific investment strategy details, trade secrets, or client lists are not listed in the schedules. Those would remain publicly accessible if lodged. The instrument is not a blanket confidentiality order. It is a determination, not a contract. ASIC could amend or repeal it at any time, exposing previously protected information to public access. There is no vested right to ongoing confidentiality. Operators should plan for the possibility that the protection could be removed. The instrument does not affect the rights of investors to request information directly from the fund under the Passport Rules or under general law. The confidentiality only applies to ASIC’s register. If an operator relies on the instrument to deny information to an investor, they would be incorrect. The instrument does not address the potential conflict with ASIC’s own public interest disclosure obligations. For example, if ASIC believes that withholding a particular compliance control detail could mislead investors, it might be tempted to release it despite the instrument. That would be a breach of the instrument unless there is overriding legal authority. The instrument does not include a sunset clause. Unless it is repealed or amended, it remains in force indefinitely. This is unusual for legislative instruments, which are typically subject to automatic repeal after 10 years under the Legislation Act 2003 if not reviewed. However, that process is general and not specific to this instrument.

For operators lodging information under section 1212 or 1213, compliance with this instrument is largely passive: the operator does not need to take any positive action to claim confidentiality. The instrument applies automatically to information that falls within the schedule categories. However, operators should take practical steps to ensure that the benefit of confidentiality is not lost. First, identify clearly which parts of the application or notice correspond to each schedule item. For Australian passport fund applications, refer to items 1-88 in Schedule 1. For foreign passport fund notices, refer to items 1-23 in Schedule 2. Operators should structure their lodgment documents to separate exempt information from non-exempt information. Mixing them in the same file or paragraph may make it difficult for ASIC to apply the exemption without redacting the entire document. Ideally, each schedule item should be addressed in a separate section or attachment, clearly labelled. Second, keep records of what was lodged and where each schedule item is located. This helps if a dispute arises about whether ASIC correctly withheld information. Third, do not assume that information not listed in the schedules will be protected. If an operator wants additional categories kept confidential, they should seek a separate confidentiality determination or rely on ASIC’s general confidentiality power under section 127 of the ASIC Act. The instrument does not preclude ASIC making a different arrangement for other information, but that would be outside the instrument. Fourth, monitor any amendments to the Passport Rules. If the Rules change, the schedule references may become obsolete. Operators should check whether the relevant obligations still exist and whether the instrument still covers the information. Fifth, review the instrument periodically for any amendments or sunsetting notices. ASIC may issue a replacement instrument or a variation. Operators should subscribe to updates from ASIC’s website. For ASIC, compliance involves system design to automatically restrict access to the specified categories. This likely requires coding within ASIC’s document management systems to flag documents that contain the exempt categories and prevent public viewing. ASIC should also train staff to recognise the categories so that if a manual access request is made, they know to refuse it. ASIC should develop internal policies for handling mixed documents, including redaction procedures. If a third party disputes the refusal, ASIC should be prepared to justify it by reference to the instrument and the schedules. For legal advisers, the key compliance step is to educate clients about which information is protected and which is not. Advise them to keep sensitive information outside the lodgment if possible (i.e., not required by the Act or Passport Rules) because the instrument only covers required lodgments. If an operator is unsure whether an item falls within the schedules, they should seek a private ruling from ASIC or err on the side of assuming it is protected. However, if they withhold information that is required to be lodged, they risk non-compliance with the Act, which is a more serious problem than unwanted public access. The instrument does not reduce the duty to disclose everything required. For investors or third parties who want to access lodged information, compliance means understanding that certain categories are off-limits from ASIC. They must seek that information directly from the fund operator under other legal avenues, such as the product disclosure statement or a request under the fund’s constitution. They cannot use the instrument as a basis to demand the information from ASIC. If they believe ASIC has incorrectly withheld non-exempt information, they can challenge the refusal under the FOI Act or through ASIC’s internal review processes. The instrument itself does not provide a complaint mechanism, but ASIC’s general complaints handling processes apply. Overall, compliance with this instrument is straightforward: it does not require any filings, certifications, or fees. It is a procedural safeguard that automatically applies. The main burden is for operators to be aware of its existence and to not inadvertently waive confidentiality by separately publishing the same information. But even that would not waive the ASIC restriction; it would just render the restriction meaningless.