ASIC Corporations (Foreign Licensees and ADIs) Instrument 2026/121

This instrument rests on three interlocking concepts: exemption by legislative instrument under powers in the Corporations Act, substitute informational compliance, and narrow carve‑outs for cross‑border banking hedging activities.

Exemption by legislative instrument: The instrument is made under specific enabling paragraphs of the Act, paragraphs 926A(2)(a) and 992B(1)(a) (s 3). Those paragraphs are the source of ASIC’s power to grant relief by instruments. The relief is framed as not an absolute removal of obligations but as an exemption "to the extent" that the Act would otherwise impose particular requirements (s 7(1)). That framing limits the scope of the relief to the named provisions.

Substitute informational compliance: In place of the full domestic financial record‑keeping and reporting regime specified in Division 6 of Part 7.8 and related provisions, a foreign licensee relying on the s 7 exemption must lodge certified copies of specified financial statements and an auditor’s statement at least annually and at intervals of not more than 15 months (s 7(2)(a)‑(b)). The prescribed documents are a balance sheet, cash flow statement and profit and loss statement made up to the end of the last financial year, prepared in the form required by the foreign licensee’s place of origin, plus an auditor’s written views including an assertion that the audit met the home jurisdiction’s requirements (s 7(2)). The instrument expressly notes equivalence with subsection 601CK(1) compliance where that subsection applies (note after s 7(2)). The instrument also notes that because of the exemptions granted, extra regulations for sections 989B and 989C are not required (note after s 7(1)).

Narrow carve‑outs for foreign ADI dealings: Section 8 provides a tightly drawn licensing relief for foreign ADIs dealing in derivatives and foreign exchange contracts. The dealing must be for hedging a financial risk arising in the ordinary course of the foreign ADI’s banking business, entered into on the ADI’s own behalf, with the counterparty being a wholesale client, and must not involve making a market. In addition, the foreign ADI must not already hold an Australian financial services licence covering the service (s 8(a)‑(f)). The instrument clarifies an interaction with ASIC Corporations (Miscellaneous Technical Relief) Instrument 2026/115, which makes modifications to paragraphs 911A(2)(a) and 911B(1) of the Act to extend application where services are provided on behalf of a person exempt under s 926A (note after s 8).

Key definitional linkages: The instrument relies on the meaning of "foreign ADI" as given in section 5 of the Banking Act 1959 (s 6 definition). It also specifies that the exemptions relate to particular named sections and subdivisions within the Corporations Act (s 7(1)). The instrument’s amendments and repeal of the earlier 2016 instrument are explicit (Schedule 1). The instrument is time limited and will cease automatically on 1 April 2031 unless reissued or amended earlier (s 9).

Taken together, the main concepts show a policy design that trades specific statutory obligations for a more limited, defined reporting and licensing carve‑out. The exemptions operate by reference to the named provisions in the Corporations Act and by imposing alternative documentary filings and condition checks rather than continuing the full domestic statutory compliance pathway.

Primary persons and entities affected

• Foreign companies that hold an Australian financial services licence. The instrument applies directly to a "foreign company (the foreign licensee) which holds an Australian financial services licence" and governs the extent to which they are relieved from specified record‑keeping and financial reporting obligations in the Act (s 7(1)). These are entities incorporated or formed outside Australia but carrying on financial services business that is licensed in Australia.

• Foreign authorised deposit‑taking institutions, defined by reference to section 5 of the Banking Act 1959. The instrument uses the term "foreign ADI" as defined by that Act (s 6 definition) and provides both a specific listing among the s 7 exemptions (s 7(1)(c)) and a separate licensing relief for foreign ADIs under s 8.

Secondary affected parties and stakeholders

• Auditors of foreign licensees. The s 7(2)(b) condition requires the foreign licensee to lodge a certified copy of a document setting out the views of the licensee’s auditor, including a statement that the auditor reasonably believes the documents were audited in accordance with the home jurisdiction’s requirements. Auditors therefore have a role mandated by the instrument in certifying the documents and giving the specific view required by s 7(2)(b).

• Wholesale clients and counterparties. Section 8(e) conditions the s 8 licensing relief on the counterparty being a wholesale client. Entities that act as counterparties to foreign ADIs’ dealing transactions will therefore influence whether the ADI may rely on the exemption. The instrument does not redefine "wholesale client" but deploys the concept as a statutory threshold.

• Australian financial services licence holders. The instrument removes the AFSL requirement under subsection 911A(1) for certain foreign ADI hedging dealings (s 8). That change changes the regulatory baseline for cross‑border competition in the specific transaction types described. Domestic AFSL holders that otherwise provide similar services may find that some foreign ADIs can enter or continue to transact without an AFSL (s 8).

• The Australian Securities and Investments Commission. ASIC is the repository for the required certified documents under s 7(2) and the regulator making the instrument under its delegated powers (s 3). ASIC also interacts with the parallel instrument 2026/115 that affects the operation of paragraphs 911A(2)(a) and 911B(1) (note after s 8).

Geographical and jurisdictional scope

• The instrument is expressly targeted at entities incorporated or formed outside Australia that operate under an Australian financial services licence or are foreign ADIs; the reporting replacement allows home jurisdiction financial statements and home jurisdiction audits to substitute for certain Australian statutory record‑keeping (s 7(2)(a)‑(b)). The foreign licence holder must reasonably believe that the form and particulars are those required by its place of origin (s 7(2)(a)).

Timing and duration of impact

• The instrument commences the day after registration and remains in force until its repeal at the start of 1 April 2031 (ss 2 and 9). Any entity planning to rely on the exemptions must factor in the instrument’s expiry and any requirement to revert to the full domestic regime thereafter unless replaced or extended.

Who decides and who pays

• Decisions on whether an entity may rely on the exemption are factually testable by reference to the instrument’s conditions. The entity decides to rely on the exemption but must lodge certified documents with ASIC at prescribed intervals (s 7(2)). Costs will shift from ongoing domestic record‑keeping as prescribed by the Act to the tasks of preparing and lodging the specified annual documents and obtaining the auditor’s written views; foreign ADIs that rely on the s 8 exemption avoid the AFSL application and maintenance costs for the specified transactions but must ensure that all s 8 conditions are met continuously.

Who bears legal risk

• Foreign licensees and foreign ADIs that rely on the instrument bear the legal and compliance risk of qualification for the exemption and of maintaining the required filings. The instrument does not itself set out enforcement mechanisms or penalties; the Act remains the underlying legal framework (s 3 authority). Therefore, risk of failing to satisfy the instrument’s filing or condition requirements rests with the foreign entity relying on the relief.

Statutory relief and the conditional duties that replace it

Rights established by the instrument

• A foreign company that holds an Australian financial services licence is entitled to relief from the specific obligations listed in s 7(1), namely from certain record‑keeping and reporting obligations in the Corporations Act (s 7(1)(a)‑(c)). The right is not an absolute immunity; it takes effect only "to the extent" those provisions would require compliance as described.

• A foreign ADI is entitled to relief from subsection 911A(1) of the Act (the AFSL requirement) for the provision of a financial service in circumstances that satisfy all of the conditions listed in s 8(a)‑(f). The relief is explicitly confined to the circumstances in s 8.

Duties imposed by the instrument as conditions of relief

• Annual certified lodgement duty. A foreign licensee that relies on the s 7 exemption must lodge with ASIC at least once in every calendar year and at intervals of not more than 15 months a certified copy of its balance sheet, cash flow statement and profit and loss statement made up to the end of its last financial year, in the form and with the particulars it reasonably believes are required by its place of origin (s 7(2)(a)). That is a continuing periodic duty tied to the financial year.

• Auditor statement duty. Alongside those documents, the foreign licensee must lodge a certified copy of a document setting out the auditor’s views about those documents, including a statement that the auditor reasonably believes the documents were audited in accordance with the home jurisdiction’s audit requirements (s 7(2)(b)). This imposes a filing duty on the licensee and an evidentiary burden that an auditor must support the documents with a specific assertion.

• Factual condition duties for foreign ADIs. A foreign ADI seeking the s 8 relief must ensure each of the factual conditions is satisfied. These duties include:

  • The service must be limited to dealing in derivatives and/or dealing in foreign exchange contracts (s 8(a)(i)‑(ii)).
  • The service must not involve making a market (s 8(b)).
  • Dealing must be entered into for the purpose of managing a financial risk arising in the ordinary course of the foreign ADI’s banking business (s 8(c)).
  • Dealing must be entered into on the foreign ADI’s own behalf (s 8(d)).
  • The counterparty must be a wholesale client (s 8(e)).
  • The foreign ADI must not hold an Australian financial services licence covering the provision of the service (s 8(f)).

Interplay with other statutory duties

• The instrument notes that where the licensee is subject to subsection 601CK(1) of the Act, compliance with that subsection will also result in paragraph 7(2)(a) being satisfied (note after s 7(2)). This creates an alternative route to satisfying the annual reporting duty under s 7(2)(a) by compliance with the Act’s subsection 601CK(1) where applicable.

• The instrument’s exemptions are limited "to the extent" described, so other parts of the Act remain in force. The rights and duties created by the instrument are therefore to be read as modifying, not supplanting, the larger statutory framework.

Administration and ASIC’s role

• ASIC is both the maker (the instrument is made by a delegate of ASIC, s 3) and the recipient of the required certified documents (s 7(2)). The obligation to lodge certified documents with ASIC places an administrative duty on the foreign licensee and gives ASIC an ongoing source of financial information on which it can act under the Act.

Consequences of losing qualifying facts

• The instrument is explicit that the exemptions apply only when the listed conditions are met. If the conditions cease to be satisfied , for example the counterparty is not a wholesale client or the foreign ADI begins to make a market , the relief would no longer apply and the entity would be obliged to comply with the relevant provisions of the Act from that point. The instrument does not provide for staged wind‑down or transitional compliance within the instrument text; the duty is to remain within the conditions.

Document form and certification standards

• The financial documents to be lodged must be "certified copy" and in the form and containing particulars that the licensee reasonably believes are required by the law in its place of origin (s 7(2)(a)). The auditor’s statement must assert that the auditor reasonably believes the documents were audited in accordance with the home jurisdiction’s requirements (s 7(2)(b)). These are standards expressed in the terms of the licensee’s reasonable belief and the auditor’s reasonable belief, rather than a prescriptive Australian standard. The instrument therefore outsources judgment on compliance to the licensee and its auditor regarding compliance with home jurisdiction requirements.

Instrument’s silence on new penalties

• The legislative instrument does not create new criminal or civil penalties and does not itself specify enforcement mechanisms or sanction regimes (the instrument text contains no penalty provisions). It operates by granting exemptions under powers in the Act (s 3), so enforcement of compliance with the remaining statutory regime, and consequences for non‑compliance, will be matters governed by the Corporations Act and other applicable law. The instrument therefore changes regulatory obligations but does not itself describe fines, criminal offences, or administrative sanctions.

Enforcement implications from the Act

• Because the instrument modifies the operation of specific sections of the Corporations Act, the enforcement framework remains that of the Act for conduct that continues to be regulated by the Act. The instrument does not add or remove ASIC’s enforcement powers; ASIC retains its statutory powers under the Act to take action in relation to breaches of the Act or contraventions of conditions that remain operative. The instrument is made under paragraphs 926A(2)(a) and 992B(1)(a) , powers that derive from the Act , and therefore administrative enforcement remains anchored in the broader Act.

Compliance reporting as an enforcement lever

• The instrument’s requirement that foreign licensees lodge certified financial statements and an auditor’s statement with ASIC at least annually (s 7(2)) creates an information‑flow obligation which ASIC can use as a compliance monitoring tool. Failure to lodge the certified copies as required would be a failure to satisfy the instrument’s conditions, and in consequence the exemptions would not apply. The instrument itself does not specify the administrative step ASIC may take on a failure to lodge, but the absence of the required documentation removes the licence holder’s entitlement to the specified relief and returns the entity to the Act’s full obligations, which may attract the Act’s compliance and enforcement mechanisms.

Uncertainty and implementation risk

• The instrument leaves open a degree of enforcement uncertainty because it does not detail the consequences of failing to meet a condition, the procedural steps ASIC may take when the conditions are not met, or whether ASIC will issue notices or directions before treating an entity as non‑compliant. Those matters will be determined under the Act and ASIC’s exercise of its statutory powers, rather than under the instrument.

Practical enforcement levers for ASIC

• By design, the instrument gives ASIC documentary leverage: certified annual financials and auditor statements are the touchpoints for monitoring foreign licensees that rely on the relief (s 7(2)). ASIC can use the presence or absence of those documents to assess whether a licensee remains within the instrument’s scope. For foreign ADIs using the s 8 relief, verification that the dealing meets each factual condition , particularly that the counterparty is a wholesale client and that transactions are entered into on the ADI’s own behalf for bona fide hedging , is an evidentiary issue that may require ASIC inquiries or market surveillance. The instrument does not articulate those procedures; the enforcement path is therefore through ASIC’s ordinary powers under the Corporations Act.

Direct statutory linkages in the instrument

• Corporations Act 2001. The instrument explicitly modifies and grants exemptions from specified provisions of the Corporations Act. Its authority is grounded in paragraphs 926A(2)(a) and 992B(1)(a) of the Act (s 3). The exemptions in s 7 relate directly to paragraph 988A(1)(b), section 988B, paragraph 988D(a), section 988E, sections in Subdivisions C and D of Division 6 of Part 7.8, and regulations made for s 988F (s 7(1)(a)‑(c)). The s 8 relief interacts with subsection 911A(1) and with paragraphs 911A(2)(a) and subsection 911B(1) as modified by another ASIC instrument (note after s 8).

• Banking Act 1959. The term "foreign ADI" used in this instrument is defined by section 5 of the Banking Act 1959. The instrument does not restate the definition but refers to it by cross‑reference (s 6 definition). Thus classification under the Banking Act determines which entities can seek the s 8 relief and which protections in s 7 apply specifically to foreign ADIs (s 7(1)(c); s 6).

• ASIC Corporations (Miscellaneous Technical Relief) Instrument 2026/115. The instrument records a specific interaction: Instrument 2026/115 modifies paragraph 911A(2)(a) and subsection 911B(1) of the Act to extend their application to situations where a person provides financial services on behalf of another person exempt from holding an AFSL under section 926A of the Act (note after s 8). This cross‑instrument note signals that s 8 must be read in the context of other contemporaneous ASIC relief‑making activity.

Substitution for domestic requirements by reference to home jurisdiction law

• Section 7(2) replaces the Australian statutory form and particulars requirement for record‑keeping with an obligation to lodge documents prepared "in such form and containing such particulars which [the licensee] reasonably believes is required to be prepared by the law for the time being applicable to that foreign licensee in its place of origin" (s 7(2)(a)). The auditor’s statement must likewise be cast against the home jurisdiction’s audit requirements (s 7(2)(b)). The instrument therefore substitutes home jurisdiction financial reporting and auditing standards for specified Australian statutory record‑keeping and audit standards for the purposes of the named exemptions.

Interaction with regulations and other Act provisions

• The instrument notes that where it exempts a foreign licensee from specified provisions, attendant regulations for certain other sections (specifically for sections 989B and 989C) are not required because of the exemptions (note after s 7(1)). This indicates the instrument’s exemptions have secondary consequences for the operation of regulations that would otherwise attach to the Act’s record and reporting regime.

• The instrument also signals that compliance with subsection 601CK(1) will satisfy paragraph 7(2)(a) for a licensee subject to that subsection (note after s 7(2)). This creates a link between the instrument and other recordkeeping/financial reporting duties in the Act.

Practical jurisdictional interactions

• The instrument’s design accepts audited home jurisdiction financial statements and audits as the primary compliance documents for ASIC’s monitoring function for foreign licensees using the relief (s 7(2)). That mechanism reduces duplication of cross‑border compliance but relies on the equivalence of home jurisdiction standards. The instrument does not set out a process for assessing equivalence; it relies on the licensee’s and the auditor’s reasonable beliefs about compliance with the home law.

Limits of interaction

• The instrument does not purport to alter other laws outside the Corporations Act and the Banking Act definition linkage. It is a domestic instrument that changes the application of specific provisions in the Corporations Act and the interaction with certain regulations. Enforcement, sanctions, licensing obligations outside the delineated exemptions, and other statutory regimes remain governed by their own statutory texts and enforcement mechanisms.

Instrument creation and date

• The instrument is dated 24 March 2026 and is made by Kate Metz, a delegate of ASIC, as set out at the head of the instrument. Section 2 provides the commencement rule, which is the day after the instrument is registered on the Federal Register of Legislation (s 2). The instrument is therefore operable from that commencement point until its repeal on the date specified in s 9.

Repeals and replacements

• Schedule 1 of this instrument contains an express repeal: it repeals the entirety of ASIC Corporations (Foreign Licensees and ADIs) Instrument 2016/186 (Schedule 1, item 1). The instrument therefore removes the prior 2016 instrument from the statute book and substitutes its own relief framework in place of that earlier instrument.

Time‑limited nature

• Section 9 expressly repeals this instrument at the start of 1 April 2031. The instrument therefore has a fixed sunset, after which the instrument ceases to have effect unless reissued, replaced or extended under the relevant powers in the Corporations Act. This built‑in expiry creates a known end point for the relief.

No further amendments recorded in the source

• The instrument’s text as provided contains no further amendments, variations or schedules besides the repeal of the 2016 instrument (Schedule 1). It contains a Simplified outline (s 5), definitions (s 6), the two core relief provisions (ss 7 and 8), and the repeal disposition (s 9). No subsequent variations, saving provisions or transitional arrangements are included in the source text beyond the note that compliance with subsection 601CK(1) will satisfy the s 7(2)(a) requirement where applicable (note after s 7(2)).

Implications for affected entities to monitor

• Because the instrument replaces an earlier instrument from 2016 and has a set expiry date, entities relying on the relief should monitor whether ASIC issues another instrument, reissues these exemptions, or allows a transition plan as the expiry approaches. The instrument itself does not specify transitional arrangements beyond its repeal provision (s 9).

Instrument text contains no litigation references

• The legislative instrument contains no references to judicial decisions, no annotations citing cases, and no description of judicial interpretation or litigation outcomes. The instrument does not mention any litigation history related to its provisions, the 2016 instrument it repeals, or the subject matter of the exemptions.

Litigation‑relevant features to note from the text

• Because the instrument creates exemptions that rely on factual predicates and reasonable‑belief statements by licensees and auditors (ss 7(2) and 8), those predicates could be the subject matter of disputes in enforcement or court proceedings. For example, whether a counterparty qualifies as a "wholesale client" under the Act or whether a dealing is "entered into for the purpose of managing a financial risk that arises in the ordinary course of the foreign ADI’s banking business" (s 8(c)‑(e)) are fact‑intensive determinations that could be litigated under the Act’s broader enforcement framework. However, the instrument itself does not report or identify any litigation involving these questions.

• Similarly, the instrument’s reliance on the licensee’s and the auditor’s "reasonable belief" about home jurisdiction requirements (s 7(2)(a)‑(b)) introduces questions about the standard of reasonableness that could be litigated in disputes under the Act. The instrument does not define the standard beyond the statutory phrasing.

Absence of precedent in the source document

• Because the source text does not provide cases or litigation history, practitioners must rely on the statutory text and on the broader enforcement and interpretation mechanisms of the Corporations Act when assessing legal risk. The instrument itself does not record any settled interpretation or judicial guidance.

Timing traps for the annual lodgement requirement

• The s 7(2) filing frequency is framed as "at least once in every calendar year and at intervals of not more than 15 months" (s 7(2)). This creates two overlapping timing requirements. Entities must ensure filings occur within every calendar year and that no interval between lodgements exceeds 15 months. Operationally this can produce timing traps around financial year ends and differing home jurisdiction accounting cycles. Missing either the calendar year minimum or the 15‑month maximum will fail the filing condition and remove entitlement to the exemption.

Form and certification requirements keyed to home law

• The financial statements must be in the form and contain particulars the licensee "reasonably believes is required to be prepared by the law for the time being applicable to that foreign licensee in its place of origin" (s 7(2)(a)). The instrument tolerates a degree of subjectivity by reference to the licensee’s reasonable belief and the auditor’s reasonable belief about audit compliance (s 7(2)(b)). However, the practical risk is that ASIC may challenge whether the statements meet Australian supervisory needs or whether the auditor’s statement adequately evidences audit equivalence. The instrument does not provide an objective equivalence test or a pre‑clearance mechanism.

Auditor’s statement content and liability

• The auditor must provide a document setting out views about the financial statements including that the auditor reasonably believes the documents were audited in accordance with the requirements applicable in the place of origin (s 7(2)(b)). Auditors and their firms should note that the instrument requires an express view on compliance with home jurisdiction audit requirements. The instrument does not stipulate language; auditor liability and professional obligations will arise under the auditor’s governing professional and legal obligations.

Scope limits for foreign ADIs: narrow factual conditions

• The s 8 relief is narrow. It applies only where the dealing is limited to dealing in derivatives and/or foreign exchange contracts, is not market‑making, is for hedging an ordinary course banking business risk, entered into on the ADI’s own behalf, with the counterparty a wholesale client, and where the ADI does not hold an AFSL covering the service (s 8(a)‑(f)). A single failure to satisfy any of those factual conditions disqualifies the transaction or activity from the exemption. Firms must establish rigorous front office, middle office and client documentation to evidence that each transaction qualifies.

Market‑making and own‑account distinctions

• The instrument bars reliance on the relief for activities that "involve the making of a market" (s 8(b)) and requires the dealing to be entered into on the ADI’s own behalf (s 8(d)). Some trading arrangements may blur these lines. A foreign ADI that occasionally quotes or acts in a manner that could be characterised as making a market will need to treat that as disqualifying. The instrument does not define "making a market" for this purpose; absence of a definition increases interpretive risk.

Counterparty wholesale client status

• Section 8(e) requires that the counterparty be a person as a wholesale client. Whether a counterparty meets the statutory tests for a wholesale client is a frequently litigated and regulatory question in securities regulation. The instrument does not alter the statutory definition. Reliance on the exemption therefore requires contemporaneous, documented evidence that counterparties satisfy the wholesale client definition applicable under the Act.

Licence overlap trap

• Section 8(f) conditions the relief on the foreign ADI not holding an Australian financial services licence covering the provision of the service. If a foreign ADI later obtains, or is deemed to hold, an AFSL for the relevant service, the relief will no longer be available. Entities must monitor their licensing status and any operational changes that might inadvertently produce an AFSL obligation.

Interaction with s 601CK(1)

• The instrument notes that in cases where subsection 601CK(1) applies, compliance with that subsection will also satisfy paragraph 7(2)(a). Practitioners relying on this cross‑reference must be clear that s 601CK(1) coverage is not universal; the instrument’s note only applies where the licensee is subject to that subsection. Misapplying the note could result in failure to lodge the required certified copies.

Sunset and renewal risk

• The instrument ceases to operate at the start of 1 April 2031 (s 9). Entities that plan long‑term operations should prepare for the expiry date and for the possibility that the relief will not be renewed or replaced with identical terms. The instrument contains no transitional arrangements at repeal.

No new penalties but enforcement risk remains

• The instrument does not supply its own penalty regime. However, removing specified obligations does not remove ASIC’s broader enforcement reach under the Act. Entities failing to comply with the instrument’s conditions risk losing the exemptions and becoming liable to comply with the full statutory regime. The instrument does not set out ASIC’s procedural approach to such failures.

Repeal of the 2016 instrument

• The Schedule 1 repeal removes ASIC Corporations (Foreign Licensees and ADIs) Instrument 2016/186 in full. Entities familiar with the 2016 instrument should not assume continuity of terms; the 2026 instrument replaces it and may contain meaningful drafting differences that affect qualification and compliance. The instrument does not set out a comparison or transitional concession for differences.

Checklist for foreign licensees seeking relief under s 7

1. Confirm foreign licensee status. Verify that the entity is a foreign company that holds an Australian financial services licence and that the obligations from which relief is desired are those specified in s 7(1)(a)‑(c).

2. Prepare home jurisdiction financial statements. Ensure the balance sheet, cash flow statement and profit and loss statement are prepared up to the end of the last financial year and are in the form and contain particulars that you reasonably believe are required by the law of the place of origin (s 7(2)(a)).

3. Obtain auditor’s views and certification. Procure a certified auditor statement that sets out the auditor’s views about those documents and includes a statement that the auditor reasonably believes the documents were audited in accordance with the requirements applicable in the place of origin (s 7(2)(b)).

4. Certify and lodge with ASIC. Lodge certified copies of the three financial statements and the auditor’s document with ASIC at least once in every calendar year and such that no interval between lodgements exceeds 15 months (s 7(2)(a)‑(b)). Maintain records of lodgement dates to ensure compliance with both the calendar‑year and 15‑month interval requirements.

5. Consider subsection 601CK(1). If the licensee is subject to subsection 601CK(1), confirm whether compliance with that subsection satisfies paragraph 7(2)(a) as noted in the instrument, and ensure the relevant filings under 601CK(1) are up to date (note after s 7(2)).

6. Maintain contemporaneous evidence. Keep documentation, board minutes and internal compliance attestations showing reliance on the exemption, the basis for the licensee’s reasonable belief about home law requirements, and the auditor’s certification to support ASIC queries.

Checklist for foreign ADIs seeking relief under s 8

1. Confirm "foreign ADI" status. Verify classification under section 5 of the Banking Act 1959 to confirm eligibility under s 8 (s 6 definition).

2. Limit the service to qualifying dealing types. Ensure that the activity consists only of dealing in derivatives and/or dealing in foreign exchange contracts (s 8(a)).

3. Avoid market‑making activities. Ensure that the dealing arrangement does not involve making a market for derivatives or foreign exchange contracts (s 8(b)). Document trading policies and examples showing the absence of market‑making behaviour.

4. Document hedging purpose and banking nexus. Maintain contemporaneous documentation evidencing that each dealing is entered into for the purpose of managing a financial risk arising in the ordinary course of the foreign ADI’s banking business (s 8(c)). This will typically require risk management policies, treasury documentation and trade level documentation tying the trades to identified risk exposures.

5. Ensure own‑account dealing. Ensure that dealings are entered into on the foreign ADI’s own behalf (s 8(d)). Document any agency or client instructions to avoid ambiguity.

6. Verify counterparty status. Obtain and retain evidence that each counterparty is a wholesale client (s 8(e)). This may include signed client status certificates, due diligence records and advice from counsel on the application of the wholesale client tests in specific circumstances.

7. Confirm no AFSL covering the service. Confirm that the foreign ADI does not hold an Australian financial services licence covering the provision of the service in question (s 8(f)). If the ADI holds an AFSL for overlapping services, the exemption will not be available.

8. Monitor ancillary ASIC instruments. Be aware of the operation of ASIC Corporations (Miscellaneous Technical Relief) Instrument 2026/115 as it modifies how paragraphs 911A(2)(a) and 911B(1) operate where services are provided on behalf of persons exempt under s 926A (note after s 8). Consider whether that instrument affects the circumstances in which the ADI operates.

Ongoing compliance and governance

• Implement compliance procedures and an audit trail. Because the exemptions rest on factual predicates and reasonable beliefs, maintain contemporaneous documentary evidence to demonstrate continuing compliance with the instrument’s conditions. This includes trade records, counterparty classifications, auditor statements, board approvals, and lodgement receipts from ASIC.

• Calendar and reporting controls. Establish a reporting calendar that triggers lodgements to ASIC under s 7(2) and internal reviews of whether the factual conditions for s 8 continue to be met. Monitor the 15‑month maximum interval closely.

• Prepare for sunset. Plan for the instrument’s repeal at the start of 1 April 2031. If continued relief is required beyond that date, pursue engagement with ASIC or alternate compliance strategies to ensure readiness to revert to the full domestic regime if the instrument is not extended or replaced (s 9).

• Liaise with auditors early. Discuss with auditors the specific auditor statement required by s 7(2)(b) and ensure auditors are comfortable in providing the requested statement about audit compliance under home law. Where auditors are domiciled outside Australia, confirm their legal and professional frameworks permit issuance of the statement ASIC will receive.

• Engage counsel on borderline facts. For issues such as whether an activity constitutes market‑making, whether a counterparty is a wholesale client, or whether a trade is for hedging an "ordinary course" banking risk, seek legal advice and document the reasoning used to rely on the instrument. The instrument itself places the factual onus on the licensee and the auditor.

Recordkeeping and evidentiary posture

• Even though s 7 provides relief from certain statutory record‑keeping obligations, maintain internal records that document the basis for relief reliance, as ASIC may request clarifying or supplementary information under the Corporations Act’s general information‑gathering powers, which continue to exist independent of this instrument. The instrument does not relieve the licensee of responding to ASIC inquiries under the Act.

By following these steps, a foreign licensee or a foreign ADI can structure operational and compliance processes to fit the specific exemptions in this instrument. The instrument’s conditional structure means that disciplined documentation, auditor cooperation, and calendar controls are core operational necessities to preserve the relief.