ASIC Corporations (Chapter 5C—Miscellaneous Provisions) Instrument 2017/125

The instrument relies on a small set of tightly defined concepts placed into the text. Those definitions and descriptions are the primary operational building blocks.

• Eligible Australian market. The term is used in s 5(6) and s 8(2) and is defined to mean only two financial market operators by name: Sydney Stock Exchange Limited ACN 080 399 220 and ASX Limited ACN 008 624 691. The instrument therefore limits the effect of its declarations to those two markets; no broader or open-ended market test is included.

• Listing rule consistency provision. The instrument defines, in s 5(6) and s 8(2), what a listing rule consistency provision must accomplish. The definition is functional and multi-part. If the scheme or CCIV is admitted to the official list of the eligible market, the constitution may include a provision that: (a) deprives the constitution of effect for acts prohibited by the market’s listing rules, (b) ensures nothing in the constitution prevents acts required by listing rules, (c) gives authority for acts required or prohibited by listing rules, (d) treats the constitution as containing any provision required by listing rules where it does not already contain it, (e) treats the constitution as not containing any provision listing rules require it not to contain where it does contain such a provision, and (f) if any provision of the constitution is or becomes inconsistent with the market’s listing rules, the constitution is taken not to contain that provision to the extent of the inconsistency (see s 5(5) and s 8(1)-(2)).

• Incorporation by reference "from time to time". In s 6 the instrument modifies section 601HB so that a compliance plan may incorporate provisions from another compliance plan "or from time to time". The instrument also makes the variation subject to the compliance plan containing a statement that the responsible entity will review appropriateness when any amendment is made to an incorporated part (s 6(2)). The change therefore both permits automatic updating by reference and requires a framework for review.

• Related bodies corporate and compliance committee membership. Section 7 modifies the application of s 601JB so that cross-references in subsection (3) include paragraph (4)(a) and subsection (4) treats a related body corporate similarly to the responsible entity for the purposes of the subsection (see s 7). The instrument therefore narrows or broadens who may be treated as entitled to certain references under the compliance committee rules.

• Application mechanics. Each declaration begins with the formula "Chapter 5C of the Act applies ... as if" followed by the precise insertion or modification. That formula is central. The instrument does not itself enact new criminal penalties or create standalone regulatory obligations; instead it tells how existing Chapter 5C provisions operate in the particular circumstances described.

Those concepts work together. The listing-rule-consistency mechanism ties constitutional contents to the particular, named markets’ listing rules; the compliance-plan incorporation mechanism permits dynamic updating of an adopted compliance plan part but conditions it on an express review commitment; and the compliance-committee modification changes which corporate entities are captured by particular compliance committee references. The instrument therefore creates legal levers that allow constitutions and compliance plans to follow external rules without repetitive constitutional amendment, provided the scheme meets the narrowly specified listing or incorporation conditions.

The instrument affects a limited and identifiable set of players in the Australian managed-funds and CCIV ecosystems. The parties who bear the immediate effects and compliance obligations are as follows.

• Responsible entities of registered schemes. The declarations in sections 5, 6 and 7 apply explicitly to responsible entities. Section 5 allows a registered scheme's constitution to include a listing rule consistency provision if the scheme is or proposes to be admitted to the official list of an eligible market. Section 6 modifies how compliance plans operate for a responsible entity by permitting incorporation by reference "from time to time" and conditioning that on an express review statement. Section 7 adjusts how s 601JB applies in relation to responsible entities. Practically, those responsible entities are the primary decision-makers and the actors who will draft and lodge constitutional amendments or compliance plans in reliance on this instrument.

• Registered schemes and their members. The constitutions of registered schemes are directly affected when they include a listing rule consistency provision. The instrument changes the legal effect of constitution provisions upon admission to an eligible market by subjecting certain constitutional provisions to listing rules (s 5). Scheme members will experience the legal outcomes of such provisions, although the instrument does not create separate member rights; it changes how constitutions operate in connection with listing rules.

• Members of compliance committees. Section 7 alters treatment of compliance committee membership in the application of s 601JB. The instrument’s changes will determine which persons may be treated as external members and how related bodies corporate are accounted for in compliance committee rules.

• Retail CCIVs and their corporate directors. Section 8 inserts section 1223J into Part 8B.3 as applied to all retail CCIVs, permitting retail CCIV constitutions (or sub-fund constitutions) to include the same form of listing rule consistency provision where the retail CCIV or its sub-fund is or proposes to be admitted to an eligible market. The instrument expressly names the corporate director as the party proposing to seek admission in the condition (see s 8(1)(a)). Therefore retail CCIV corporate directors must consider these provisions where listing is contemplated.

• Operators of the eligible Australian markets. The only market operators named are Sydney Stock Exchange Limited and ASX Limited. Those operators’ listing rules are imported into a scheme or CCIV’s constitutional effect once admission occurs. While the instrument does not change the market operators’ rules, it changes the point at which those rules operate over schemes’ constitutions. The two operators therefore gain a narrower indirect influence over constitution content for schemes and CCIVs that adopt the listing rule consistency provision.

• Other registered schemes whose compliance plans are sources of incorporated material. Where a compliance plan for one registered scheme incorporates parts of another scheme’s compliance plan, the second scheme is effectively supplying content that may be adopted "as amended from time to time" into the first scheme’s plan. That creates interdependence across schemes and means that changes to the supplying scheme’s plan have upstream effects where the necessary review statement is included (s 6(2)).

Parties not affected include financial markets other than the two named operators, unless those operators change their names or are otherwise the subject of new declarations. The instrument’s scope is precise and names specific corporate entities and statutory provisions, so effects do not flow broadly to unlisted markets or to structures outside registered schemes and retail CCIVs subject to the Chapters and Parts named.

The instrument establishes permissions and conditional duties rather than creating new standalone offences or penalty regimes. The key operational rights and duties derive from the text of the inserted or varied provisions.

Rights granted or authorised

• Right to include a listing-rule-consistency provision in a registered scheme constitution. Under the declaration in s 5, if the conditions in s 5(5)(a)-(b) are met, the constitution "may include" a listing rule consistency provision. The right is discretionary; schemes may choose to include this provision, and the instrument authorises its presence (s 5).

• Right for a compliance plan to incorporate another scheme’s plan "from time to time". Section 6 modifies s 601HB to allow parts of another compliance plan to be incorporated so that those parts can be read "as amended from time to time", subject to the condition in s 6(2) that the compliance plan contains the requisite review statement.

• Right for retail CCIVs and sub-funds to include listing-rule-consistency provisions. Section 8 provides the equivalent permission to retail CCIVs and sub-funds by inserting a new s 1223J. The permission is conditional on admission or proposal to seek admission to an eligible market (s 8(1)).

Duties and conditions that follow from the rights

• Conditional operation upon admission or proposed admission. The listing rule consistency provision takes legal effect "if the registered scheme is admitted to the official list" or "is proposing to seek such admission" (s 5(5)(a)-(b); s 8(1)(a)-(b)). The instrument therefore ties the constitutional mechanism to the factual state of being listed or proposed to be listed.

• Constitutional subordination to listing rules where provision applies. The listing rule consistency provision operates to the effect that the constitution is treated not to contain or to contain certain provisions as required by the listing rules, and to the extent of any inconsistency the constitution is taken not to contain the inconsistent provision (s 5(5)(a)-(f); s 8(2)(a)-(f)). In practice this means that once the condition is met, listing rules can operate as a source of authority, prohibition and deemed constitutional content.

• Review duty in relation to incorporated compliance plan parts. The declaration in s 6(2) only applies where the compliance plan (excluding any part incorporated by reference) contains a statement to the effect that the responsible entity will review the appropriateness of the compliance plan when any amendment is made to an incorporated part. That creates a duty of internal governance: the compliance plan must contain the statement and then the responsible entity must carry out the review when the incorporated content is amended.

• Adjusted reference for compliance-committee provisions. Section 7 modifies the application of s 601JB so that paragraph (4)(a) is included in the cross-reference and subsection (4) treats a related body corporate as equivalent to a responsible entity where the subsection requires it. The instrument therefore changes which parties have duties and rights under the compliance-committee regime, including who may be treated as a related body corporate for the purposes of those subsections.

Practically, those rights and duties shift decision-making power. If a constitution contains a listing rule consistency provision, listing rules of the eligible market can require acts, prohibit acts, and be deemed to alter the constitution in specific, enumerated ways (s 5(5)(a)-(f)). Responsible entities are therefore able to rely on the market’s listing rules to effect constitutional change without separate constitutional amendment in the precise circumstances the instrument authorises. The compliance plan mechanism creates a duty to review when adopted external material changes, placing a governance burden on the responsible entity to monitor and assess incorporated changes.

Note on enforcement. The instrument does not itself set out penalties for non-compliance with its provisions. It operates by changing the legal effect of certain statutory provisions; any enforcement or remedial action continues to derive from Chapter 5C of the Corporations Act and related enforcement mechanisms in that Act. The instrument’s text does not create new penalty sections or specify sanctions beyond the statutory framework it affects.

The instrument does not create new criminal offences, civil penalties, or an independent enforcement mechanism within its own text. Instead, it operates by instructing that Chapter 5C apply as if certain modifications had been made to specific sections of the Corporations Act. As such, enforcement and penalties, where relevant, will derive from the Corporations Act provisions that the declaration modifies or from other existing enforcement provisions in that Act.

Key points about enforcement and consequences under the existing framework

• No standalone penalty provisions in the instrument. The instrument itself contains no penalty clauses, infringement notices, or administrative sanctions. It is framed as a declaratory instrument that changes the application of statutory provisions (see s 5-8). Therefore any failure to comply with an obligation that flows from the modified operation of Chapter 5C would be dealt with under the Act’s existing enforcement mechanisms, not by a penalty in the instrument.

• Reliance on the Act’s enforcement architecture. Since the instrument modifies how Chapter 5C applies to responsible entities, registered schemes, compliance committees and retail CCIVs, any breaches of obligations that are created, changed or given effect by those statutory provisions will be addressed under the Act. For example, obligations in relation to compliance plans and compliance committees that are already subject to enforcement in the Act will remain so, but the instrument changes which documents and persons fall within those rules (see s 6 and s 7).

• Treatment of constitution provisions on admission. Where a constitution contains a listing rule consistency provision as permitted by s 5 or the inserted s 1223J, the constitution is taken to contain or not contain particular provisions in accordance with the market’s listing rules. If a party were to act contrary to that deemed constitutional effect, the dispute or enforcement issue would be a question of the constitution’s legal operation and any applicable statutory duties under the Corporations Act. The instrument itself does not prescribe or change remedies available to members, creditors or regulators for breach of constitution or statutory duties.

• ASIC’s role. The instrument is made by the Australian Securities and Investments Commission under the authority provided in the Act (s 3). ASIC’s general supervisory, regulatory and enforcement powers under the Corporations Act remain the mechanism by which compliance with the statutory framework,including the modified application introduced by this instrument,would be overseen and enforced. The instrument does not alter ASIC’s enforcement powers; it simply records how Chapter 5C is to apply in particular factual scenarios.

Implementation and administrative risks relevant to enforcement

• Proof of conditions. Where the operation of a listing-rule-consistency provision depends on admission to an eligible market or on proposing to seek admission, questions about fact and timing may arise in enforcement or disputes. Determining when the conditions in s 5(5)(a)-(b) or s 8(1)(a)-(b) are met is therefore potentially material to the application of the modified statutory provisions.

• Interaction with existing remedies. Because the instrument causes listing rules to be treated as modifying constitutions in specific ways, enforcement may involve both corporate law remedies (for breach of constitution or directors’ duties) and market regulation remedies (for breach of listing rules). The instrument does not merge the enforcement regimes; it changes the source of the constitutional content and therefore may create parallel lines of inquiry in enforcement actions.

In short, penalties and enforcement remain those available under the Corporations Act and associated market regulation. The instrument reconfigures which documents and rules have force in particular circumstances and therefore indirectly affects the locus and subject matter of enforcement without itself adding bespoke enforcement provisions.

This instrument is explicitly crafted to operate by reference to, and within, the Corporations Act 2001. It does not purport to amend the Act but directs Chapter 5C and Part 8B.3 to be read "as if" certain insertions or variations were in place. The main interactions are therefore with the specified provisions of the Corporations Act and with the listing rules of the two named market operators.

Direct statutory interactions

• Chapter 5C modifications. The instrument tells Chapter 5C to apply as if section 601GA had additional subsections inserted (s 5), as if s 601HB were varied (s 6), and as if s 601JB were varied (s 7). Those are direct textual interactions: the instrument changes the operative scope and content of those provisions for the persons to whom Chapter 5C applies.

• Insertion into Part 8B.3 for retail CCIVs. Section 8 instructs that Part 8B.3 of the Act apply to retail CCIVs as if new section 1223J were inserted. That places the listing-rule-consistency mechanism into the statutory regime governing retail CCIVs. The instrument therefore creates parity, for listed purposes, between registered schemes and retail CCIVs in relation to incorporating listing rules by reference.

• Compliance-plan cross-references. The instrument’s s 6 modifies the operation of s 601HB to allow incorporation of another scheme’s plan "from time to time". Since s 601HB is an existing statutory provision for compliance plans, this instrument alters the way compliance plans interact with external documents, creating an interaction between multiple schemes’ compliance plans.

Interaction with market rules

• Listing rules as external normative sources. The instrument expressly connects constitutions to the listing rules of the eligible Australian markets. The listing rules, which are external to the Corporations Act, become operationally significant within the constitution of a scheme or retail CCIV where the listing rule consistency provision is included and the scheme is admitted. The instrument allows listing rules to operate as if they were constitutional provisions to the extent specified (s 5(5)(d)-(f); s 8(2)(d)-(f)). This is an instance of statutory law recognising and giving effect to private rulebooks operated by market operators.

• Limits to the markets covered. The instrument’s definition of "eligible Australian market" is limited to the two named market operators. That means that listing rules of other markets, overseas exchanges or other Australian market operators are not included by this instrument. Any interaction between a constitution and listing rules of other markets would therefore require separate authorisation or different treatment.

Potential tensions and required determinations

• Priority and inconsistency. The instrument specifies the approach to inconsistency: "if any provision of the constitution is or becomes inconsistent with the listing rules of the market, the constitution is taken not to contain that provision to the extent of the inconsistency" (s 5(5)(f); s 8(2)(f)). That is a statutory rule of priority. It does not state how conflicts between different legal regimes (for example, statutory duty, constitution, and listing rules) are to be adjudicated in detail; those matters remain for courts or regulators applying the Act and other applicable law. The instrument therefore shifts the importance of listing rules in the constitutional priority chain where the conditions are met.

• Interaction with other statutory provisions. The instrument’s modifications affect the application of certain subsections of Chapter 5C and Part 8B.3, but the rest of the Corporations Act remains in force. For example, directors’ duties, continuous disclosure obligations, or other regime-specific requirements sit alongside the modified provisions. The instrument does not state that listing rules can override other statutory obligations; it restricts its effect to treating the constitution as containing or not containing provisions in accordance with listing rules. Any question about whether a listing-rule-mandated constitutional change conflicts with another statutory obligation would therefore require construction against the entire statutory framework.

• Administrative and corporate governance interplay. The instrument creates an operational dependency between constitutions, compliance plans and external market rules. That can create coordination challenges: a change in listing rules may be treated as modifying a constitution without a member vote or separate constitutional amendment, while the responsible entity remains bound to review incorporated compliance-plan parts. The interplay therefore requires governance processes to be aligned across statutory and market-rule sources.

In summary, the instrument integrates particular market rules into the constitutional and compliance-plan framework of registered schemes and retail CCIVs, but it does so within the existing statutory architecture rather than by creating a new parallel regime. The precise mechanics of interaction with other statutory duties remain governed by the Corporations Act and the existing enforcement and dispute-resolution processes in that Act.

The instrument includes an endnote recording instrument history and an amendment history. The compilation provided is up to 15 November 2022. The instrument’s recorded lifecycle is brief and specific.

Key dates and instruments (Endnote 1)

• Original instrument: ASIC Corporations (Chapter 5C,Miscellaneous Provisions) Instrument 2017/125 was registered on 4 July 2017 (see F2017L00874) and commenced on 5 July 2017. That is recorded in Endnote 1.

• Amendment: Instrument number 2022/0940 was registered on 14 November 2022 (F2022L01459) and the amendment commenced on 15 November 2022. The endnote does not provide detail in the body text on the content of the 2022 amendment, but the instrument compilation includes the material as in force on 15 November 2022.

Amendment history table (Endnote 2)

• The endnote records the specific provisions that were changed, added or repealed and how they were affected. The table shows:
  • Section 2 was repealed in consequence of s 48D of the Legislation Act being repealed (notation "rep. s48D LA").
  • Section 3 was amended by 2022/0940 (notation "am. 2022/0940").
  • Headings for sections 5, 6 and 7 were repealed and substituted by 2022/0940 (notation "rs. 2022/0940").
  • Section 8 was added by the 2022 amendment (notation "ad. 2022/0940").

Interpretation of the amendment history in the instrument

• The instrument’s content as compiled reflects both the original 2017 instrument and the 2022 amendment. The addition of section 8 and the described textual insertions probably stem from the 2022 amendment, although the endnote does not trace line-by-line changes within the compilation body. The amendment table makes clear which provisions were affected by 2022/0940 and which earlier legislative machinery changes (for example the Legislation Act amendment) required consequential textual edits.

• No repeal of the instrument as a whole is recorded in these endnotes. The instrument remained in force as compiled on 15 November 2022.

Practical significance of the amendment history

• Users relying on the instrument must take account of the 2022 amendment, which added the retail CCIV provision (s 8) and altered other headings and references. The endnotes in the compilation are the authoritative map for dates of commencement and amendment numbers.

• For regulatory and compliance work, the precise text in force at the relevant date is crucial. The compilation provides the operative language as at 15 November 2022, and the endnotes list the instruments and commencement dates to explain the provenance of those changes.

The instrument’s amendment history is therefore concise and documented in the endnotes. The compilation should be relied upon for current text as of its stated currency date.

The instrument itself contains no mention of judicial determinations, litigation, or precedent. The compilation and endnotes include administrative history and amendment references but do not list any cases that challenge or interpret the instrument. Therefore, based only on the instrument’s text and its endnotes, there is no recorded litigation history included in this document.

Practical consequences of the lack of recorded litigation

• Interpretation untested in courts. Because the compilation contains no references to court decisions, the particular constructions introduced by the instrument,such as the exact scope of a listing rule consistency provision, the conditions under which a constitution is "taken to contain" a listing-rule-provision, or the legal effect of a compliance plan part being incorporated "from time to time",may not have been authoritatively tested by judicial decisions recorded in this compilation.

• Reliance on statutory text and administrative guidance. In the absence of litigation precedents, responsible entities, registrars, corporate directors and advisers will need to rely on the plain text of the instrument, the underlying Corporations Act provisions it modifies, any relevant guidance from ASIC or market operators, and general principles of statutory construction and corporate law when assessing rights and obligations under the instrument.

• Risk allocation in transactions. Market participants contemplating constitutional amendments, listings, or incorporation-by-reference arrangements will face legal uncertainty of interpretation in areas where case law has not developed. That fosters a need for careful drafting to anticipate factual questions (for example, the meaning of "proposing to seek admission" and the timing of when listing rules will be treated as operative constitutionally).

• Potential for future litigation. The instrument creates new points of interaction between constitutions and market rules that could naturally generate disputes (for example, as to whether a constitution provision has been superseded by listing rules). If disputes arise, they will be resolved under the Act and other applicable law; any resulting decisions will then populate the litigation history for future reference.

In summary, the compilation includes no litigation history. Legal advisers and compliance officers should therefore treat the instrument’s provisions as matters of statutory interpretation and administrative application that may be subject to judicial clarification in future, and plan governance and transaction documents accordingly.

The instrument contains precise mechanisms that create practical pitfalls for the unwary. The following are concrete issues drawn from the instrument’s text that advisers and practitioners should note and address.

• Narrow definition of eligible market. The instrument limits the eligible Australian market to two named operators: Sydney Stock Exchange Limited and ASX Limited (s 5(6); s 8(2)). Any draft constitutional language that assumes a wider or open-ended category of markets will fail to track the instrument’s effect. If a scheme wishes to list on another market, this instrument provides no authorisation to include an equivalent listing-rule-consistency provision.

• Conditional effect tied to admission or proposal to seek admission. The listing-rule-consistency provision operates only where the scheme "is admitted to the official list" or "is proposing to seek such admission" (s 5(5)(a)-(b); s 8(1)(a)-(b)). That raises timing and fact questions: when does a proposal to seek admission become sufficient to trigger the permitted constitutional treatment, and when does admission occur for these purposes. Documents that rely on immediate constitutional change upon a stated intention should be precise about triggers and evidence of those triggers.

• Constitution deemed to contain or not contain provisions. The instrument’s definition of a listing-rule-consistency provision expressly treats the constitution as containing or not containing provisions as required by the listing rules (s 5(5)(d)-(e); s 8(2)(d)-(e)). This can be counterintuitive: a provision may be in a constitution on its face but treated as not contained if listing rules require that result. Advisers should beware that member expectations based on the constitution’s language may be displaced automatically upon listing.

• Extent of inconsistency. The instrument uses the phrase "to the extent of the inconsistency" (s 5(5)(f); s 8(2)(f)). That requires lawyers and governance officers to assess degrees of inconsistency between constitution provisions and listing rules rather than simply treating the relationship as binary. Determining the scope of inconsistency may be a dispute point and may require legal construction or regulatory consultation.

• Compliance-plan incorporation with review statement requirement. Section 6 permits incorporation "from time to time" but only where the compliance plan (excluding incorporated parts) contains a statement that the responsible entity will review the appropriateness of the compliance plan when the incorporated part is amended (s 6(2)). If a compliance plan lacks that statement, the declared variation does not apply. Practically, that means a responsible entity must ensure the compliance plan’s non-incorporated portion contains the required review commitment; otherwise the ease of automatic updating is not available.

• Interdependence across schemes. When a compliance plan incorporates parts of another scheme’s plan, changes in the supplying scheme’s plan will flow to the incorporating scheme provided the review mechanism is in place (s 6). That can create second-order impacts such as unintended governance changes, compliance-cost externalities, or mismatches between a scheme’s operational reality and a borrowed compliance-plan provision.

• Treatment of related bodies corporate in compliance committee rules. Section 7’s insertion means that subsection (4) of s 601JB will treat a related body corporate as if it were a responsible entity. That has implications for conflicts, independence assessments and the pool of persons eligible to serve on or be treated as related to compliance committees. Practitioners must check s 601JB as modified by this instrument to evaluate who is captured.

• Drafting precision required in constitutions. The instrument authorises a permitted form of provision but does not prescribe a model clause beyond the functional elements listed in the text. Poorly drafted listing-rule-consistency provisions may fail to capture the intended effect, may be ambiguous as to timing of operation or may grant overly broad authority to market rules. Clear, transaction-level drafting is therefore essential.

• No automatic exemption from other statutory obligations. The instrument does not state that listing rules override other statutory duties beyond the constitution itself. Parties should not assume that a deemed constitutional change exempts directors, responsible entities or corporate directors from other obligations under the Corporations Act or other statutes.

• Administrative proof in enforcement contexts. Because the instrument ties legal effect to factual states like "admitted" or "proposing to seek admission", parties must be ready to produce documentary or regulatory evidence of listing applications, acceptance letters and the dates of admission to demonstrate when the instrument’s effects took place.

• Retail CCIV specificities. Section 8 treats retail CCIVs and sub-funds similarly, but the operative clause includes the corporate director proposing to seek admission as a condition (s 8(1)(a)). Counsel must ensure that corporate directors understand the governance consequences and that the CCIV constitution is consistent with the new s 1223J drafting.

These practical "gotchas" derive directly from the instrument’s text. They highlight the operational and drafting hazards that arise from granting listing rules a constitutionally effective role and from allowing compliance plans to borrow external material dynamically.

Compliance under this instrument requires actions by responsible entities, corporate directors of retail CCIVs, compliance committees, and drafters of constitutions and compliance plans. The following steps are grounded in the instrument’s text and set out concrete, documentable measures.

1. Review constitutions for contemplated listing-rule-consistency provisions

• If a registered scheme or retail CCIV plans to seek admission to the Sydney Stock Exchange or ASX, consider whether to include a listing rule consistency provision as authorised by s 5 (registered schemes) or s 1223J inserted by s 8 (retail CCIVs). The permitted provision must include the functional elements listed in s 5(5)(a)-(f) or s 8(2)(a)-(f).

• Draft the provision to mirror the instrument’s six elements exactly or to achieve the same legal effects. Ensure the clause specifies the condition of admission or proposing to seek admission in a way that aligns with the factual realities of the listing timetable and regulatory process.

2. Ensure compliance plans contain the required review statement if relying on incorporation by reference

• If the responsible entity wishes to have parts of its compliance plan incorporate another scheme’s compliance plan "from time to time" (as authorised by s 6), ensure the non-incorporated portion of the compliance plan contains a clear statement that the responsible entity will review the appropriateness of its compliance plan whenever an amendment is made to an incorporated part. The declaration in s 6(2) only applies where that statement is present.

• Define a governance process and record-keeping protocol for conducting and documenting the required review when an incorporated part is amended. The review should assess whether the amended incorporated content remains appropriate in light of the scheme’s operations.

3. Amend compliance committee terms to align with the s 601JB variations

• Review existing compliance committee charters and appointment procedures in light of the modification in s 7. Specifically, check that references to subsection (4)(a) and to "responsible entity" in subsection (4) are understood to include a related body corporate where the instrument requires it. Update appointment forms and independence assessments to reflect the adjusted scope.

• Record any changes to committee membership eligibility and document conflict-of-interest assessments for related bodies corporate now brought into the operative text.

4. Liaise with market operators and document admission evidence

• Since the instrument’s effect turns on admission to an eligible market or a scheme proposing to seek admission (s 5(5)(a)-(b); s 8(1)(a)-(b)), retain copies of listing applications, correspondence with the market operator and the date of official admission. Those documents will be relevant for demonstrating when the listing-rule-consistency provision became operative.

• Coordinate constitutional amendments with advisers and market counsel to ensure timing and filing requirements with the market operator are synchronised.

5. Draft carefully to manage inconsistency scope

• Because the instrument provides that the constitution is "taken not to contain that provision to the extent of the inconsistency" (s 5(5)(f); s 8(2)(f)), draft the listing-rule-consistency provision to define triggers and scope. Where ambiguity might exist about the extent of inconsistency, include administrative mechanisms for resolving such questions, for example by specifying notice requirements to members or mechanisms to seek guidance from the market operator or ASIC.

6. Maintain audit trails and internal registers

• Create a register that records when constitution provisions are treated as altered by listing rules, when incorporated compliance-plan parts are amended, and when the responsible entity performs the required appropriateness review. This register will support compliance and provide evidence if a dispute or regulatory review occurs.

7. Train directors, corporate directors and staff

• Ensure directors, conformity officers, compliance personnel and the corporate director of a retail CCIV understand that listing rules may be treated as constitutionally operative under the specified conditions and that incorporated compliance-plan parts can update automatically if the review statement is in place. Training should cover what changes will occur and who is responsible for monitoring listing-rule amendments at the relevant market operator.

8. Legal review and member communication

• Seek legal advice to confirm that proposed listing-rule-consistency provisions achieve the precise legal effect intended and that the compliance-plan review statement is compliant with the instrument’s requirements. Consider communications to members explaining the practical effect of a listing-rule-consistency provision, including how member rights might be subject to listing rules upon admission.

9. Monitor the named eligible markets for changes

• Because the permitted constitutional effect depends on the listing rules of the two named market operators, monitor those operators’ rule changes. Even where a constitution is not yet listed, an adviser should be aware of pending or proposed listing-rule amendments that may affect future governance.

10. Document decision-making and resolutions

• If a responsible entity resolves to adopt the listing-rule-consistency provision or to incorporate another scheme’s compliance-plan parts, document board or corporate director resolutions that authorise those steps, including records of legal advice, market consultation and the reasons for adopting the measures.

These measures follow directly from the instrument’s text: the listing-rule-consistency permission (s 5; s 8), the compliance-plan review statement condition (s 6(2)), and the compliance-committee wording changes (s 7). Compliance thus requires drafting precision, internal governance processes to review and document changes, and liaison with market operators to establish the factual triggers that activate the instrument’s declared effects.