This is a compilation of ASIC Corporations (Disclosing Entities) Instrument 2016/190 as in force on 5 January 2024. It includes any commenced amendment affecting the legislative instrument to that date.
This compilation was prepared by the Australian Securities and Investments Commission.
The notes at the end of this compilation (the endnotes) include information
about amending instruments and the amendment history of each amended provision.
This is the ASIC Corporations (Disclosing Entities) Instrument 2016/190.
3 Authority
This instrument is made under subsection 341(1) of the Corporations Act 2001.
4 Definitions
In this instrument:
Act means Corporations Act 2001.
disclosing entity:
(a) a retail CCIV is a disclosing entity in relation to a sub-fund of the retail CCIV if any securities referable (within the meaning of subsection 1232F(2) of the Act) to the sub-fund are ED securities; and
(b) otherwise, disclosing entity has the same meaning as in section 9 of the Act.
Part 2—Orders
5 Entities that stop being disclosing entities before the reporting deadline
Relief
(1) A company (the entity) or registered scheme (the entity) that is a disclosing entity at the end of its financial year (the relevant financial year) does not have to comply with the requirements of Chapter 2M of the Act to the extent that those requirements apply to the entity as a disclosing entity if the entity stops being a disclosing entity:
(a) in the case of a company—before the earlier of:
(i) the day 3 months after the end of the relevant financial year; and
(ii) if the company is required to have an AGM, 21 days before the date of the next AGM after the end of that year; and
(b) in the case of a scheme—before the day 3 months after the end of the relevant financial year.
(1A) A retail CCIV (the entity) that is a disclosing entity in relation to a sub-fund of the retail CCIV at the end of its financial year (the relevant financial year) does not have to comply with the requirements of Chapter 2M of the Act to the extent that those requirements apply to the entity as a disclosing entity in relation to the sub-fund, if the entity stops being a disclosing entity in relation to the sub-fund before the day 3 months after the end of the relevant financial year.
Where relief applies
(2) The relief in subsection (1) is available where:
(a) in the case of:
(i) a company or scheme—the entity complies with Chapter 2M of the Act as if it had not been a disclosing entity at the end of the relevant financial year; and
(ii) a retail CCIV—the retail CCIV complies with Chapter 2M of the Act in relation to the sub-fund as if it had not been a disclosing entity in relation to the sub-fund at the end of the relevant financial year; and
(b) the directors of the entity resolve before the earlier of the days in paragraph (1)(a) or the day in paragraph (1)(b) (as relevant) that there are no reasons to believe that the entity may become a disclosing entity (or in the case of a retail CCIV, a disclosing entity in relation to the sub-fund) before the end of the financial year immediately after the relevant financial year.
6 Disclosing entities with short first financial years
Relief
(1) None of the following (each an entity) has to comply with sections 302 or 306 of the Act for a half-year within the entity’s first financial year (the relevant financial year) where that year lasts for 8 months or less:
(a) a company that is a disclosing entity;
(b) a registered scheme that is a disclosing entity;
(c) a retail CCIV that is a disclosing entity in relation to a sub-fund of the retail CCIV.
Where relief applies
(2) The relief in subsection (1) is available where:
(a) either:
(i) the entity:
(A) is listed; and
Note 1: A retail CCIV will be listed if its single sub-fund is included in such an official list even if the retail CCIV is not so included (see the definition of listed in section 9 of the Act).
Note 2: Neither a retail CCIV that has more than one sub-fund nor such a sub-fund may be listed: see section 1222N of the Act.
(B) gives to the operator of each prescribed financial market in relation to which the entity is listed a notice which explains the effect of this section and states that the entity intends to rely on it; or
(ii) the entity:
(A) is unlisted; and
(B) gives to ASIC a notice which states that the entity intends to rely on this section; and
(b) in the case of:
(i) a company or scheme—the directors’ report of the entity for the relevant financial year explains the effect of this section and states that the entity relied on it; and
(ii) a retail CCIV—the directors’ report of the retail CCIV in relation to the sub-fund for the relevant financial year explains the effect of this section and states that the retail CCIV relied on it in relation to the sub-fund.
The notice referred to in sub-subparagraph (a)(i)(B) or (a)(ii)(B) must be given to the operator or ASIC (as relevant) on or before the deadline for lodging the reports which would have been required to be prepared by section 302 of the Act but for this section.
Endnotes
Endnote 1—Instrument history
Instrument number
Date of FRL registration
Date of commencement
Application, saving or transitional provisions
2016/190
25/8/2016 (see F2016L01328)
26/8/2016
2016/1182
15/12/2016 (see F2016L01957)
20/12/2016
-
2023/142
4/1/2024 (see F2024L00024)
5/1/2024
Endnote 2—Amendment history
Note: ad. = added or inserted am. = amended LA = Legislation Act 2003 rep. = repealed rs. = repealed and substituted