ASIC Market Integrity Rules (Securities Markets) Class Waiver 2018/304

The waiver builds on and modifies specific reporting and public disclosure duties contained in the Rules. The instrument places heavy reliance on the defined structure and vocabulary of the Rules by declaring that capitalised terms used in the instrument carry the same meaning as in the Rules (s 4(1)). Therefore the starting point for interpretation is the Rules themselves. The waiver, however, supplies its own definition of Received Aggregation Information (s 4(2)) and creates a conditional exception to Rule obligations where Orders are received via an Aggregator and the Market Participant cannot reasonably identify the underlying Crossing System or Market Participant.

Key concepts in the instrument are:

• Market Participant. The instrument consistently speaks of a Market Participant that operates a Crossing System. The instrument does not redefine this term; under s 4(1) the meaning from the Rules applies.

• Crossing System, Crossing System Initial Report and Crossing System Monthly Report. The instrument presumes the existing Rules framework that requires a Crossing System Initial Report under Rule 5A.1.1 and periodic Crossing System Monthly Reports under Rule 5A.1.2. The waiver explicitly modifies the content obligations of those reports in the limited circumstances described. The instrument does not itself reproduce the full content requirements of Rule 5A.1.1 or 5A.1.2; it only disapplies a narrow element of those rules and prescribes substitute content for that element.

• Aggregator. The instrument uses the term Aggregator without defining it within the instrument. Because s 4(1) declares capitalised terms have the same meaning as in the Rules, any precise technical meaning of Aggregator for the purpose of applying the waiver must be taken from the Rules. What the instrument does supply is the requirement that the legal name of the Aggregator be provided in the Crossing System Initial Report (s 6(1)(a)(i)) and that a statement be included that Orders may be executed or matched with Orders received via the Aggregator (s 6(1)(a)(ii)).

• Received Aggregation Information. The instrument defines this term narrowly (s 4(2)). It is the particular set of fields that would normally be required under subrule 5A.2.1(2) item 5, column 3 , namely the code identifying the other Crossing System, the legal name of the Market Participant operating that other Crossing System, and a statement that Orders are received from the other Crossing System or Market Participant. The waiver relieves a Market Participant from the obligation to provide those particular items in circumstances where the Market Participant is not reasonably able to identify the underlying Crossing System/Market Participant due to the presence of an Aggregator (s 5(1)-(3)).

• Publicly Available Crossing System Information and Rules 5A.2.1 and 5A.2.2. The instrument requires that the substitute Aggregator-focused information the Market Participant must make public be treated for the purposes of Rules 5A.2.1 and 5A.2.2 as if it were Publicly Available Crossing System Information (s 6(2)(b)). The detail and consequences of that treatment depend on the text and obligations of Rules 5A.2.1 and 5A.2.2, which are not reproduced in the waiver. The instrument therefore imports obligations by reference: compliance with those rules is triggered for the substitute information.

• Extent and condition of relief. The waiver operates "to the extent" the Rules require description of Received Aggregation Information in the Crossing System Initial Report or making it publicly available (s 5(1)-(2)). The waiver is conditional. The relief applies only where the Market Participant "is not reasonably able to identify" the other Crossing System or Market Participant because the Orders are received via an Aggregator (s 5(3)). The instrument further conditions the waiver on the alternative information and publication obligations in s 6.

These concepts create a carefully circumscribed alternative reporting regime for the narrow circumstance where a Market Participant cannot reasonably identify upstream crossing systems or market participants because orders arrive via an intermediary Aggregator. The instrument does not displace any other obligations in the Rules, nor does it alter the definitions in the Rules except in respect of the one defined term Received Aggregation Information it introduces.

Primary affected entities

• Market Participants operating a Crossing System. The waiver explicitly targets Market Participants that operate a Crossing System and that may be required under the Rules to describe Received Aggregation Information in a Crossing System Initial Report and to make that information publicly available. The relief applies only to those Market Participants, and only in the circumstances described in s 5(3).

• Aggregators. Although the instrument does not alter obligations that directly bind Aggregators, it requires that the legal name of any Aggregator be disclosed by the Market Participant in the Crossing System Initial Report (s 6(1)(a)(i)) and that that information be made publicly available (s 6(2)(a)). Thus Aggregators will have an indirect exposure: their legal name will be publicised by Market Participants in relation to the Crossing System. The instrument does not impose any disclosure obligation on Aggregators directly.

Secondary affected parties

• Users of the public disclosure. Third parties who rely on the Publicly Available Crossing System Information required by Rule 5A.2.1 will see a substitution: where the waiver applies, they will not be provided with the underlying Received Aggregation Information (the identifying code and legal name of the upstream Crossing System/Market Participant), but will instead receive the Aggregator name, a statement that orders may be matched via that Aggregator, and a unique code for each Crossing System run by the Aggregator (s 6(2)(a)-(b)). This changes the granularity of information available to participants, researchers, journalists and compliance personnel who consult public disclosures.

• ASIC. The instrument prescribes what must be lodged with ASIC as a Crossing System Initial Report (s 6(1)(a)), and triggers monthly reporting treatment for changes (s 6(1)(b)). ASIC is a recipient of the Crossing System Initial Report and Crossing System Monthly Reports under the Rules; the waiver alters what ASIC will receive in the specified circumstances.

Who bears costs and obligations

• The Market Participant bears the immediate cost and compliance burden: preparing and lodging the Crossing System Initial Report with the substituted Aggregator-focused fields where the waiver is relied upon; ensuring the Aggregator name and Crossing System codes are published on a publicly accessible, free website; and treating changes during a calendar month to that information as reportable via Crossing System Monthly Reports (s 6). Market Participants must also comply with Rules 5A.2.1 and 5A.2.2 as if the Aggregator-focused information were Publicly Available Crossing System Information (s 6(2)(b)), so any costs arising from those Rules attach to the Market Participant.

• Parties seeking the more granular Received Aggregation Information (the identity and codes of the originating Crossing Systems/Market Participants) will not receive that information from the Market Participant when the Market Participant is not reasonably able to identify those upstream systems because orders arrive via an Aggregator. The gap in information therefore imposes an informational cost on those external users.

Decisions and discretion

• Deciding whether the waiver can be relied on. The Market Participant is the actor that determines whether it is "not reasonably able to identify" the other Crossing System or Market Participant because of an Aggregator (s 5(3)). That determination triggers the ability to rely on the waiver. The instrument itself does not specify a review or appeal mechanism for disputes about that determination; any administrative enforcement or dispute resolution would flow from the Rules and ASIC practice.

• Ongoing duty to update. The Market Participant must treat changes to the substituted information during a calendar month as reportable under Rule 5A.1.2 (s 6(1)(b)), which creates an ongoing decision and operational process for recognising and reporting changes.

In short, the waiver changes who holds the compliance burden (the Market Participant) and shifts the locus of identifiable public information from the underlying Crossing System/Market Participant to the Aggregator-level identifiers and statements.

Duties created or altered by the instrument

• Duty not to describe Received Aggregation Information where aggregated. The core effect is a conditional exemption: a Market Participant "does not have to comply" with subrule 5A.1.1(1) to the extent that subrule requires description of Received Aggregation Information in a Crossing System Initial Report (s 5(1)), and "does not have to comply" with subrule 5A.2.1(1) to the extent it requires making Received Aggregation Information publicly available free of charge (s 5(2)), but only where the Market Participant is not reasonably able to identify the other Crossing System/Market Participant because Orders are received via an Aggregator (s 5(3)). The wording "does not have to comply" creates a temporary, conditional relaxation of those specific obligations.

• Replacement disclosure obligations in the Crossing System Initial Report. It is a condition of the relief that the Market Participant must include, in the Crossing System Initial Report lodged with ASIC under Rule 5A.1.1, the following three items: (i) the legal name of the Aggregator; (ii) a statement that Orders in the Market Participant’s Crossing System may be executed or matched with Orders received via the Aggregator; and (iii) a unique code identifying each Crossing System operated by the Aggregator (s 6(1)(a)(i)-(iii)). The instrument thereby substitutes these items for the specific Received Aggregation Information that the waiver allows the Market Participant to withhold.

• Monthly reporting of changes. For the purposes of Rule 5A.1.2 (the Crossing System Monthly Report requirement), the instrument requires the Market Participant to treat any change during a calendar month to the information provided in compliance with s 6(1)(a) as: (i) a change required to be set out in a Crossing System Monthly Report; and (ii) if the Market Participant would not otherwise be required to prepare and provide a Crossing System Monthly Report for that month, the change nonetheless requires preparation and provision to ASIC of a Crossing System Monthly Report (s 6(1)(b)). This imposes an affirmative reporting duty tied to changes in the substitute Aggregator information.

• Public availability of Aggregator information. Where the waiver is relied upon, it is a condition that the Market Participant must make available the Aggregator legal name, the statement about Orders via the Aggregator, and the unique code(s) on a website that is publicly accessible and free of charge (s 6(2)(a)). Further, the Market Participant must comply with Rules 5A.2.1 and 5A.2.2 as if that information were Publicly Available Crossing System Information (s 6(2)(b)), which imports additional obligations from the Rules regarding public disclosure format, timing, or other operational requirements that those rules specify.

Rights and limits created by the instrument

• Conditional right to withhold Received Aggregation Information. Where the Market Participant cannot reasonably identify the underlying Crossing System/Market Participant because Orders are received via an Aggregator, the Market Participant has the right to refrain from providing the three items that constitute Received Aggregation Information in both the Crossing System Initial Report and public website disclosure obligations under subrules 5A.1.1(1) and 5A.2.1(1) respectively (s 5(1)-(3)). That right is strictly conditional on the factual inability to identify and on satisfying the substitute reporting and publication conditions in s 6.

• No blanket exemption. The instrument states the waiver applies "to the extent" those subrules require description of Received Aggregation Information (s 5(1)-(2)). It does not exempt other content obligations in those subrules or other Rules obligations. The Market Participant must still comply with all other reporting and disclosure elements required by the Rules. The instrument does not modify other regulatory duties, such as conduct obligations, record-keeping duties under the Rules, or other statutory obligations.

• Effectiveness linked to compliance with conditions. The waiver is conditional. The instrument itself contains a note emphasising that the conditions must be complied with for the waiver to be effective, referencing subrule 1.2.1(2) of the Rules (s 6 note). Consequently, the Market Participant cannot lawfully rely on the waiver if it fails to meet the conditions set out in s 6.

Operational implications built into duties

• Identification of Aggregator and unique codes. The instrument requires a unique code for each Crossing System operated by the Aggregator (s 6(1)(a)(iii)). The instrument does not prescribe the format of the unique code; the Market Participant must provide whatever code satisfies the existing Rules' expectations or the market practice for unique identification, while also recognising the importation of Rules 5A.2.1 and 5A.2.2 for public information (s 6(2)(b)).

• Triggering of Crossing System Monthly Reports for changes. The instrument expands the circumstances in which a Crossing System Monthly Report must be prepared and lodged by making any change to the substituted Aggregator information during a calendar month a reportable change, even where the Market Participant would not otherwise have had to produce a monthly report for that month (s 6(1)(b)). That creates an administrative duty to monitor changes to the Aggregator information continuously.

In sum, the instrument substitutes a narrower set of Aggregator-focused disclosures for the Received Aggregation Information in specific circumstances, while imposing ongoing reporting duties and public disclosure obligations for the substitute information. The waiver is conditional and limited in scope; it does not extinguish the broader reporting framework in the Rules.

The waiver instrument itself does not create new civil or criminal penalties, nor does it specify enforcement mechanisms or sanctions within its text. It is a legislative instrument exercising ASIC's power under subrule 1.2.1(1) of the Rules to grant a class waiver from specified obligations (s 3). The instrument should be read in the context of the Rules, which govern the broader compliance and enforcement regime. The instrument contains a specific note that "The conditions imposed on a waiver must be complied with in order for the waiver to be effective: subrule 1.2.1(2) of the Rules" (s 6 note). That note demonstrates a direct legal link between compliance with the waiver's conditions and the waiver's legal effect.

Consequences of non-compliance with the waiver conditions

• Loss of waiver effect. The immediate legal consequence embedded in the instrument is that failure to comply with the conditions in s 6 means the waiver will not be effective for that Market Participant to the extent of the non-compliance. The waiver operates by relieving specified obligations under the Rules only where the conditions are satisfied; if conditions are not satisfied, the underlying Rules obligations continue to apply.

• Exposure under the Rules. Because the waiver alters obligations that are otherwise contained in the Rules, Market Participants who do not meet the waiver conditions but nonetheless withhold Received Aggregation Information may be exposed to the compliance and enforcement mechanisms specified in the Rules. The waiver itself does not reproduce those mechanisms; the Market Participant must consult the Rules to determine sanctions, administrative penalties, or other enforcement steps applicable to breaches of the Rules. The waiver provides no safe harbour from Rule-based enforcement where its conditions are not met.

Enforcement actors

• ASIC. The instrument is made by a delegate of the Australian Securities and Investments Commission under the Rules (s 3). ASIC is therefore the regulator that will receive Crossing System Initial Reports and Crossing System Monthly Reports as required by the Rules and the waiver (s 6(1)(a)-(b)). Any enforcement or review of compliance with the Rules, or of the correct reliance on this waiver, would be conducted by ASIC pursuant to the statutory powers and processes established elsewhere in the Rules and the Corporations Act regime. The waiver does not itself set out ASIC enforcement steps.

Practical enforcement implications

• Determination of "not reasonably able to identify". The statutory threshold for relying on the waiver is that the Market Participant "is not reasonably able to identify" the other Crossing System or Market Participant because Orders are received via an Aggregator (s 5(3)). Whether a Market Participant's professional judgement that it is "not reasonably able to identify" will be accepted by ASIC (or by a court or tribunal if that question is litigated) will depend on evidence about the communications, systems and contractual arrangements with the Aggregator and other parties. The waiver contains no statutory guidance or tests on what facts meet that threshold; such assessment and any dispute about it would be governed by general legal principles and the Rules' enforcement framework.

• Reporting obligations as a compliance lever. The instrument places affirmative reporting obligations on Market Participants who rely on the waiver, including the requirement to make specified information publicly available and to treat changes as reportable under Rule 5A.1.2 (s 6(1)-(2)). Those reporting duties create monitoring points that ASIC can use to verify whether the Market Participant remains within the scope of the waiver and continues to meet the stated conditions.

Because the waiver imports the Rules by reference and conditions the waiver on meeting its prescribed duties, a Market Participant that incorrectly relies on the waiver risks being in breach of the underlying Rules. The waiver does not itself create new penalty types; rather, it changes the applicability of existing obligations under the Rules and leaves enforcement and penalties to the regime those Rules establish.

This instrument functions as a class waiver under the ASIC Market Integrity Rules (Securities Markets) 2017, and therefore its primary legal interactions are with the Rules themselves. The instrument repeatedly cross-references specific subrules of the Rules and imports definitions from the Rules by express provision.

Direct interactions with the Rules

• Authority and legal basis. The waiver is made under subrule 1.2.1(1) of the Rules (s 3). That subrule provides ASIC with the power to grant waivers; the waiver is an exercise of that power.

• Modified application of Rules 5A.1.1 and 5A.2.1. The waiver disapplies (in part) the application of subrules 5A.1.1(1) and 5A.2.1(1) (s 5(1)-(2)). Because the waiver is expressed to operate "to the extent" those Rules require description of Received Aggregation Information, the remainder of the content obligations in Rules 5A.1.1 and 5A.2.1 continue to apply. The instrument therefore acts as a targeted carve-out within the broader Rules architecture.

• Interaction with Rule 5A.1.2. The waiver interacts expressly with Rule 5A.1.2 by requiring any change during a calendar month to the substituted Aggregator information to be treated as a reportable change for the Crossing System Monthly Report requirement, and to trigger the lodgement of a monthly report where one would not otherwise have been required (s 6(1)(b)). This expands the circumstances in which a Monthly Report must be prepared and lodged under the Rules.

• Interaction with Rules 5A.2.1 and 5A.2.2. The waiver requires the Market Participant to comply with those rules as if the Aggregator information were Publicly Available Crossing System Information (s 6(2)(b)). That requirement imports whatever format, timing and other public information obligations Rules 5A.2.1 and 5A.2.2 impose. The substance of those obligations is not reproduced in the waiver, so implementers must consult the Rules to understand the precise obligations triggered.

Relationship to other statutory instruments and legislation

• No amendment to substantive legislation. The waiver is a legislative instrument that modifies the application of the Rules by waiver; it does not amend the Rules directly, nor does it change substantive law outside the Rules. Any enforcement or interaction with the Corporations Act or other legislation is mediated through the Rules and ASIC's statutory powers. The instrument does not purport to abrogate or change obligations under other Acts or subordinate instruments.

• Importation of definitions. Section 4(1) states that capitalised terms have the same meaning as in the Rules unless a contrary intention appears. This means that the waiver relies on the Rules for key definitional content, including terms such as Market Participant, Crossing System, Aggregator and Publicly Available Crossing System Information. Where the waiver supplies its own definition, as it does for Received Aggregation Information (s 4(2)), that definition is to be read as supplementing the Rules.

Consequential operational interactions

• Information substitution changes market-facing disclosures. The waiver changes the granularity of publicly available information by allowing Market Participants to substitute Aggregator-level identifiers for the underlying Received Aggregation Information in certain cases. This has interactional consequences for market participants, compliance officers and journalists who rely on the public data published under Rules 5A.2.1 and 5A.2.2.

• Reporting cadence and triggers. By forcing changes to the Aggregator information to be treated as reportable under Rule 5A.1.2 (s 6(1)(b)), the waiver interacts with the Rules' reporting cadence and record-supply expectations. That interaction may produce more frequent monthly report filings in some cases, even where the Market Participant would not otherwise be required to produce a monthly report for that month.

Limits of the instrument’s reach

• No effect on obligations outside the Rules. The waiver is narrowly targeted at specific elements of the Rules; it does not purport to relieve obligations under other laws or instruments. Any interaction with other regulatory regimes must be established through those regimes themselves.

In practical terms, the waiver should be read and applied in tandem with the Rules it modifies. The instrument imports the Rules' definitions and obligations by reference, and it intentionally leaves substantive enforcement and the precise mandates in Rules 5A.1.1, 5A.1.2, 5A.2.1 and 5A.2.2 to be consulted directly for full compliance.

The instrument itself records a single date and making authority. The instrument header records the maker as Anthony Graham, delegate of the Australian Securities and Investments Commission, and records the date 26 April 2018. Section 1 supplies the instrument's name: "ASIC Market Integrity Rules (Securities Markets) Class Waiver 2018/304" (s 1). Section 2 fixes the commencement as the day after registration on the Federal Register of Legislation.

The text of the instrument as provided contains no amending provisions and does not list any subsequent amendments, revocations, or expiry dates. There is no schedule of modifications or transitional provisions included in the instrument's text. The instrument is a discrete class waiver created under subrule 1.2.1(1) of the Rules (s 3), and its operation is conditioned by the Rules themselves.

Administrative details recorded in the instrument

• Instrument name and number. The instrument is titled and numbered as indicated in s 1 and in the header.

• Commencement. The instrument commences the day after registration on the Federal Register of Legislation (s 2). The instrument itself does not include a specific expiry date or sunset clause within its text.

• Authority. The legal authority for the instrument is subrule 1.2.1(1) of the Rules (s 3). There is no indication within the instrument text that its authority has been amended or that this instrument supersedes an earlier waiver; the instrument is presented as a self-contained class waiver.

What is absent from the instrument’s amendment record

• No recorded amendments. The instrument text as provided does not record any later amendments, variations, revocations, or an instrument history. It does not state that it is a replacement for an earlier waiver or that it will be reviewed or revoked at a particular time.

• No transitional or saving provisions. The instrument contains no transitional arrangements for existing Crossing System Initial Reports or for Aggregator disclosures made prior to commencement. The instrument also does not specify retrospective application.

Practical implication of the absence of amendment history in the instrument

• Users must consult external registers. To confirm whether the instrument has been subsequently amended, revoked or superseded after the date recorded on the instrument, practitioners must consult the Federal Register of Legislation or ASIC publications. The instrument itself provides the commencement and date but not a continuing amendment log. Section 2 expressly points users to the Federal Register of Legislation (note under s 2) as the place to access the register.

In short, the instrument records a single making date and commencement mechanism and contains no internal amendment history. Any subsequent changes would be recorded externally on the legislative register or in later ASIC instruments, not within this instrument.

The instrument as supplied contains no citation to judgments, cases, disputes, or litigation that interpret, apply, challenge, or arise from this waiver. It names no cases. The instrument does not record any judicial or administrative decisions about its validity or operation. The text provides no examples of enforcement outcomes or adjudications concerning disputes about whether a Market Participant was "reasonably able to identify" an upstream Crossing System or Market Participant where Orders were received via an Aggregator.

Implication for practitioners

• No on-instrument precedent. There is no litigation or precedent recorded within this instrument to guide interpretations of key thresholds in the waiver, such as what factual circumstances satisfy "not reasonably able to identify". Absent authoritative decisions, questions about interpretation must be resolved through the Rules' general interpretive principles, administrative practice, or, if necessary, litigation or administrative review.

• Need to consult broader sources. Practitioners seeking guidance on how regulators have applied this waiver or how courts have interpreted similar "reasonableness" thresholds must consult external sources: ASIC guidance notes, ASIC enforcement or compliance reports, decisions of tribunals and courts on analogous provisions in the Rules or in other regulatory instruments, and any administrative law decisions involving ASIC waivers more broadly. None of those sources are reproduced or referenced in the instrument itself.

• Record-keeping and evidence. Because there is no litigation history recorded, Market Participants should be aware that, if a dispute arises, courts or tribunals will examine the facts and evidence concerning the Market Participant’s ability to identify upstream Crossing Systems/Market Participants. The instrument does not set out evidentiary standards; the lack of litigation guidance in the instrument increases the importance of contemporaneous documentation and clarity about the factual basis for reliance on the waiver.

In summary, the instrument contains no litigation history. Any interpretation or enforcement questions that require judicial input are not resolved within the instrument, and practitioners will need to rely on other legal materials and ASIC practice to assess likely outcomes in disputed cases.

Several practical and interpretive pitfalls arise directly from the text of the waiver. These are matters that market operators, compliance officers and counsel should treat as points of attention because the instrument’s operation depends on factual assessments and cross-references to the Rules.

1. “Not reasonably able to identify” is a fact-sensitive threshold (s 5(3)). The waiver depends on a Market Participant’s determination that it cannot reasonably identify the other Crossing System or Market Participant because Orders are received via an Aggregator. The instrument contains no definition or benchmark for "reasonable". That creates potential uncertainty and dispute. Market Participants should be aware that the regulator may scrutinise the factual basis for that conclusion. The waiver does not state what documentation, system logs or contractual terms suffice to demonstrate the inability to identify upstream sources.

2. Waiver is strictly conditional and limited in scope (s 5(1)-(3), s 6). The instrument relieves only the specific requirements to describe Received Aggregation Information in the Crossing System Initial Report and to make that Received Aggregation Information publicly available under subrules 5A.1.1(1) and 5A.2.1(1). It does not relieve any other reporting or disclosure obligation in the Rules. Market Participants must avoid assuming a broader exemption exists.

3. Substituted information is still required to be made public and reported (s 6(1)(a)-(b), s 6(2)(a)-(b)). The instrument requires disclosure of the Aggregator legal name, a statement about Orders via the Aggregator, and unique codes for each Crossing System operated by the Aggregator. These items must be lodged with ASIC (Initial Report) and made publicly available free of charge. The public disclosure must also be treated as Publicly Available Crossing System Information for the purposes of Rules 5A.2.1 and 5A.2.2. Market Participants should not interpret the waiver as reducing public transparency; rather, it shifts the locus of transparency.

4. Monthly reporting triggers may increase administrative burden (s 6(1)(b)). The instrument requires that any change during a calendar month to the substituted Aggregator information be treated as a change required to be set out in a Crossing System Monthly Report and, if no such report would otherwise be required, as a change requiring preparation and lodgement of a Crossing System Monthly Report. This expansion of report triggers can produce additional monthly filings and related compliance overhead.

5. The instrument imports obligations by reference to portions of the Rules not reproduced in the waiver (s 4(1), s 6(2)(b)). The waiver requires compliance with Rules 5A.2.1 and 5A.2.2 as if the Aggregator information were Publicly Available Crossing System Information. Because those Rules are not included in the waiver, implementers must read the Rules to determine the precise content, format, timing and other obligations that apply. Failure to do so could result in inadvertent non-compliance.

6. The definition of Received Aggregation Information is narrow and specific (s 4(2)). The waiver allows withholding of three narrowly defined items that constitute Received Aggregation Information: (a) a code identifying the other Crossing System, (b) the legal name of the Market Participant that operates the other Crossing System, and (c) a statement that Orders are received from that Crossing System/Market Participant. Market Participants should not assume the waiver permits withholding of other information or metadata that the Rules might otherwise require.

7. Aggregator legal name is required, but not additional Aggregator details (s 6(1)(a)(i)). The instrument mandates the legal name of the Aggregator be provided, but does not require, for example, disclosure of the Aggregator’s ownership structure, domicile or contractual terms. Where stakeholders require further detail, they will need to obtain it by other means.

8. “Unique code” remains unspecified (s 6(1)(a)(iii)). The instrument requires provision of a unique code for each Crossing System operated by the Aggregator but does not prescribe format or governance for those codes. Market Participants should consult the Rules and market conventions to choose codes that will satisfy the public information requirements under Rules 5A.2.1 and 5A.2.2.

9. The waiver does not change obligations owed to other regulators or statutes. The instrument only alters the application of specific elements of the Rules; it does not relieve obligations under other legislative instruments or common law duties. Market Participants must ensure parallel obligations are met.

10. No express record-keeping or retention period in the instrument. The waiver does not specify documentary requirements to support a Market Participant’s legal conclusion that it is not reasonably able to identify the upstream Crossing System/Market Participant. Although not mandated in the waiver, absence of a prescribed retention regime increases the practical importance of maintaining contemporaneous records to support a reliance decision in the event of regulatory inquiry.

Each of these items arises from precise reading of the instrument and from the textual gaps the instrument leaves open to the Rules or to operational practice. Market Participants and advisers should therefore analyse interaction with the Rules, document reliance decisions, and ensure that substituted public disclosures are formatted and updated in accordance with Rules 5A.2.1 and 5A.2.2.

The instrument prescribes a limited set of affirmative steps that a Market Participant must take to rely on the waiver and to ensure the waiver remains effective. The following is a compliance checklist strictly drawn from the instrument’s text, with references to the relevant provisions.

1. Confirm applicability of the waiver (s 5(3); s 4(1)). Determine whether you are a Market Participant operating a Crossing System and whether Orders in your Crossing System may be executed or matched with Orders received via an Aggregator from another Crossing System or Market Participant. Under s 4(1) capitalised terms have the same meaning as in the Rules; ensure your factual assessment uses the definitions from the Rules. The waiver applies only where you are "not reasonably able to identify" the other Crossing System or Market Participant because the Orders are received via an Aggregator (s 5(3)). This factual threshold must be assessed before relying on the waiver.

2. Identify the precise information you would otherwise need to provide (s 4(2), s 5(1)-(2)). The waiver relieves you only of the obligation to describe Received Aggregation Information in the Crossing System Initial Report and to make that Received Aggregation Information publicly available under subrules 5A.1.1(1) and 5A.2.1(1). Received Aggregation Information is defined as: (a) a code identifying the other Crossing System; (b) the legal name of the Market Participant operating the other Crossing System; and (c) for each identified Crossing System/Market Participant, a statement that Orders are received from them (s 4(2)). Confirm that those are the items you would otherwise need to supply under the Rules.

3. Prepare the Crossing System Initial Report with the substitute items (s 6(1)(a)). If relying on the waiver, include the following in the Crossing System Initial Report lodged with ASIC under Rule 5A.1.1: (i) the legal name of the Aggregator, (ii) a statement that Orders in your Crossing System may be executed or matched with Orders received via the Aggregator, and (iii) a unique code identifying each Crossing System operated by the Aggregator (s 6(1)(a)(i)-(iii)).

4. Monitor changes and treat them as reportable (s 6(1)(b)). For the purposes of Rule 5A.1.2 you must treat any change during a calendar month to the information provided in compliance with s 6(1)(a) as a change required to be set out in a Crossing System Monthly Report (s 6(1)(b)(i)). If you would not otherwise be required to prepare and provide a Crossing System Monthly Report in relation to that calendar month, you must nonetheless prepare and lodge one for that month (s 6(1)(b)(ii)). Implement operational procedures to detect and report any such changes within the required timeframe under the Rules.

5. Publish the substitute information on a public website free of charge (s 6(2)(a)). Make the legal name of the Aggregator, the statement that Orders may be executed or matched via the Aggregator, and the unique code(s) publicly accessible on a website free of charge. Confirm that the publicisation meets the format and accessibility expectations of Rules 5A.2.1 and 5A.2.2 by treating this information as Publicly Available Crossing System Information (s 6(2)(b)).

6. Comply with Rules 5A.2.1 and 5A.2.2 for the substitute information (s 6(2)(b)). The instrument requires compliance with those rules as if the Aggregator information were Publicly Available Crossing System Information. Consult Rules 5A.2.1 and 5A.2.2 to determine precise requirements for presentation, timing, updates, and other obligations. Ensure the public website presentation aligns with those Rules.

7. Ensure internal decision-making on “not reasonably able to identify” is defensible. While the instrument does not prescribe evidence standards, the waiver’s effect turns on a factual assessment. Maintain contemporaneous records explaining why the Market Participant is not reasonably able to identify the upstream Crossing System or Market Participant because Orders are received via an Aggregator. Those records will support the legal basis for relying on the waiver and will be relevant if ASIC queries the reliance.

8. Do not omit other required Rule disclosures. The waiver operates only "to the extent" that Rules 5A.1.1(1) and 5A.2.1(1) require description or publicisation of Received Aggregation Information (s 5(1)-(2)). Ensure that all other content obligations in those subrules and elsewhere in the Rules remain satisfied.

9. Review Aggregator identifiers and codes. The instrument requires a unique code for each Crossing System operated by the Aggregator (s 6(1)(a)(iii)). Use a consistent, documented approach to assign or adopt unique codes that are intelligible and durable for public users and for ASIC. Confirm whether market conventions or the Rules provide sequencing or formatting guidance for such codes.

10. Update policies and public pages promptly. Because changes to the Aggregator information can trigger Monthly Report lodgement obligations even when a monthly report would not otherwise be required (s 6(1)(b)), ensure that public-facing pages and internal reporting systems are linked to avoid delays. Implement a workflow that captures changes, updates the public website, and triggers any required Crossing System Monthly Report within the timescale required by the Rules.

11. Consult the Rules for timing and procedural detail. The waiver imports and operates alongside Rules 5A.1.1, 5A.1.2, 5A.2.1 and 5A.2.2. For timing of lodgements, format of public disclosures, and other procedural obligations, consult those Rules directly. The waiver does not replicate their procedural specificity.

12. Keep external stakeholders informed. The waiver changes the granularity of public data. If counterparties, clients or other market users rely on the previously required Received Aggregation Information, communicate the change in public disclosure and where the substitute Aggregator information will appear on the public website.

Following these steps will align a Market Participant’s actions with the waiver’s textual conditions. Because the waiver operates by modifying specific requirements in the Rules, the operative compliance task is to ensure that the substituted Aggregator disclosures are prepared, lodged with ASIC and made publicly available exactly as the instrument specifies, and that the factual threshold for reliance is supportable.