ASIC Market Integrity Rules (Securities Markets) Class Waiver 2025/512

The instrument uses a small number of defined concepts to delimit the waiver. Operators and Participants are terms taken directly from the Rules and therefore retain the Rules’ meanings by the instrument’s express saving clause (s 4(1)). The instrument then introduces the following main concepts and definitions that determine when the waiver is engaged: Business Continuity Plans, Carriage Service, Communications Service, Critical Business Services, Energy Service, Operator Waived Rules, Outsourcing Arrangement, Partially Exempt Outsourcing Arrangement, Participant Waived Rules, Rules and Service Provider (s 4).

Business Continuity Plans and Critical Business Services are not defined afresh in the instrument; rather the instrument imports their meanings from specific Rules provisions (Business Continuity Plans: Rule 8A.5.1 for Operators and Rule 8B.4.1 for Participants; Critical Business Services: Rule 8A.1.2 for Operators and Rule 8B.1.2 for Participants). The instrument therefore relies on the Rules’ substantive definitions while not reproducing them. Carriage Service and Communications Service are given substantive definitions within the instrument. A Carriage Service is defined in functional terms as a service for carrying communications by means of guided and/or unguided electromagnetic energy (s 4). A Communications Service means either supplying a Carriage Service or owning or operating assets that are used in connection with the supply of a Carriage Service (s 4). Energy Service is defined by reference to types of energy-related activity: production, transmission, distribution or supply of electricity; production, processing, transmission, distribution or supply of gas; and production, processing, transmission, distribution or supply of liquid fuel (s 4).

Crucially, the instrument defines a Partially Exempt Outsourcing Arrangement as an Outsourcing Arrangement only because the Service Provider provides one or both of the Communications Service and Energy Service categories (s 4). The concept of an Outsourcing Arrangement and Service Provider are imported from the Rules (s 4), which means the Rules’ meanings for these terms control application of the waiver.

The Operator Waived Rules and Participant Waived Rules are listed as specific subparagraphs and paragraphs within Rule 8A.3.3(1) and Rule 8B.2.3(1), together with a cross-reference to subrules 8A.3.3(3) and 8B.2.3(3) as to how they apply in relation to paragraph (1)(a) of each provision (s 4). The instrument does not restate the content of those waived provisions in full. The instrument therefore creates a surgical carve-out from identified parts of the Rules while leaving the broader definition and structure of the Rules intact. The waiver is a rules-level, class-based statutory instrument; it is not framed as a direction, approval, or licence to any specific entity.

Finally, the instrument is time-limited by an explicit repeal provision: the instrument is repealed at the start of 30 July 2030 (s 7). The instrument also specifies commencement as the day after registration on the Federal Register of Legislation (s 2), which is relevant to the temporal operation of the waiver. The instrument’s authority is recorded as subrule 1.2.1(1) of the Rules and it is made by an ASIC delegate (s 3), rather than by the Commission sitting as a full collegiate decision-maker.

The instrument directly affects two categories of regulated entities under the Rules: Operators and Participants. Those terms are not redefined by the instrument; the instrument expressly saves the meanings given by the Rules (s 4(1)). Entities that are Operators under Rule 8A.1.2 and Participants under Rule 8B.1.2 will therefore be the primary subjects and may rely on the waiver where the factual conditions are met (ss 5-6).

Within those groups, the operational subpopulation affected are those Operators and Participants who have Outsourcing Arrangements with Service Providers and where the Outsourcing Arrangement is a Partially Exempt Outsourcing Arrangement as defined in the instrument (s 4: Partially Exempt Outsourcing Arrangement). Concretely, that means the instrument applies only where the Outsourcing Arrangement exists because the Service Provider provides one or both of the instrument’s enumerated services: Communications Service and Energy Service (s 4). If an Outsourcing Arrangement includes or is driven by other services beyond Communications or Energy, the Partially Exempt category is not triggered and the waiver does not apply.

Service Providers are indirectly affected because an Operator’s or Participant’s decision to rely on the waiver will change the set of compliance steps and contractual requirements that the Operator or Participant must enforce with respect to those Service Providers. The instrument does not alter the legal status or obligations of Service Providers directly; rather it adjusts which regulatory provisions the Operator or Participant is required to observe when dealing with service providers who only supply Communications or Energy Services as the basis for an Outsourcing Arrangement (ss 5-6).

Regulatory decision-makers and compliance teams are affected in their oversight functions. The instrument was made by an ASIC delegate under subrule 1.2.1(1) of the Rules (s 3), which indicates a delegated administrative action rather than a primary statute. The instrument contains no process for prior notification to ASIC or for ASIC approval before relying on the waiver; accordingly, the decision to claim the waiver rests with Operators and Participants unless other obligations in the Rules require notification (the text of the instrument is silent on any notification requirement) (ss 5-6). Therefore the immediate cost-bearers for determining eligibility and documenting the reliance position are the regulated entities themselves.

Organisationally, this means compliance, legal, procurement, and operational teams within Operators and Participants must screen outsourcing contracts to determine whether the instrument applies. Records and rationale must be maintained to show that an Outsourcing Arrangement is a Partially Exempt Outsourcing Arrangement as defined (s 4). The instrument also affects auditors, internal or external, and counterparties who may need to understand whether the reduced Rule compliance obligations apply to a particular contract. Finally, the instrument’s temporal limit (repeal on 30 July 2030, s 7) imposes a planning horizon for affected entities to reassess arrangements and compliance approaches before that date.

The instrument creates a specific right to not comply with specified provisions of Chapters 8A and 8B of the Rules for qualifying Outsourcing Arrangements. For Operators, s 5 states that an Operator does not have to comply with the Operator Waived Rules in relation to a Partially Exempt Outsourcing Arrangement. For Participants, s 6 states that a Participant does not have to comply with the Participant Waived Rules in relation to a Partially Exempt Outsourcing Arrangement. These provisions operate as regulatory entitlements to depart from the identified Rule clauses in the specified factual circumstances.

At the same time, the instrument preserves key duties that continue to bind Operators and Participants. The instrument’s Notes for ss 5 and 6 explicitly draw attention to the continued operation of other provisions of Chapter 8A and Chapter 8B. For example, an Operator must still comply with the other provisions of Chapter 8A in relation to the Partially Exempt Outsourcing Arrangement; the instrument cites paragraph 8A.3.3(1)(e) and subrule 8A.3.3(2) as examples of provisions that remain applicable (s 5 Note). The corresponding Note for Participants cites paragraph 8B.2.3(1)(e) and subrule 8B.2.3(2) as examples (s 6 Note). Both notes state the general duty to have adequate arrangements to ensure compliance with the Act and the Rules in a manner appropriate for the Outsourcing Arrangement.

Operationally, that combination produces the following duty-right structure. Right: when the Outsourcing Arrangement is a Partially Exempt Outsourcing Arrangement as defined, certain enumerated subparagraphs and paragraphs of Rules 8A.3.3(1) and 8B.2.3(1), and corresponding subrules to the extent described, need not be complied with (s 5; s 6; s 4 definitions of Operator Waived Rules and Participant Waived Rules). Duty: notwithstanding that reduction, Operators and Participants retain the overarching duty to ensure compliance with the Act and the Rules, and they remain bound by other parts of Chapters 8A and 8B (s 5 Note; s 6 Note). The instrument therefore reduces regulatory obligations in a targeted way, but does not excuse the duty to maintain adequate arrangements for legal and regulatory compliance.

The instrument imposes a burden of factual analysis and classification as a practical duty. Entities must determine whether an Outsourcing Arrangement is an Outsourcing Arrangement only because the Service Provider provides Communications or Energy Services (s 4). Where multiple services are provided under the same arrangement, the defined threshold is conjunctive: the arrangement is only Partially Exempt if the Outsourcing Arrangement is an Outsourcing Arrangement in relation to the Operator or Participant only because the Service Provider provides one or both of the two enumerated categories (s 4 definition). That factual assessment is a continuing compliance duty if the Operator or Participant intends to rely on the waiver.

The instrument does not set out procedural requirements for invoking the waiver, such as notification of reliance, record-keeping formats, or pre-approval. The absence of such procedural prescription means that the practical duty of proof, documentation and readiness to demonstrate that the Partially Exempt test is met falls on the relevant regulated entity. The instrument’s temporal duty structure is also clear: the right to non-compliance is only available while the instrument is in force; the instrument ceases to exist at the start of 30 July 2030 unless extended or replaced (s 7).

The instrument itself does not create or specify new penalties or enforcement mechanisms. It is a class waiver from specified Rule provisions and does not, on its face, alter the existing enforcement architecture that applies to breaches of the Rules or of the Act mentioned in the instrument’s Notes (ss 5-6). The instrument records that it is made under authority in the Rules (s 3), but it does not add regulatory sanctions, civil penalties, or criminal penalties beyond those already provided by the Act and the Rules, nor does it purport to allocate new sanctioning powers to ASIC.

Enforcement consequences arise indirectly because the waiver changes the compliance baseline for particular activities. Where an Operator or Participant legitimately meets the instrument’s criteria and therefore does not have to comply with the identified waived Rule provisions (s 5; s 6), enforcement action for failing to comply with those specific waived provisions should not be available, since the instrument removes the obligation in the stated circumstances. Conversely, the instrument preserves other Rule obligations and the duty to ensure compliance with the Act and the Rules (s 5 Note; s 6 Note). Failure to comply with those preserved obligations continues to expose an Operator or Participant to whatever enforcement measures the Act and the Rules provide.

The instrument does not specify a mechanism for dispute resolution between ASIC and a regulated entity regarding whether a particular Outsourcing Arrangement is a Partially Exempt Outsourcing Arrangement. The text is silent on any required notification or approval process for claiming the waiver (ss 5-6). Consequently, an Operator or Participant claiming the benefit of the waiver would retain the practical risk that ASIC or another enforcement body could challenge the factual basis for the waiver in any compliance or enforcement inquiry, and that remedies or penalties for non-compliance with preserved obligations would remain available. The instrument also does not state how retrospective enforcement would be treated in cases where a regulator later contests an entity’s reliance on the waiver.

Because the instrument is a legislative instrument that modifies the operation of specified Rules for a defined period, enforcement will effectively follow the pre-existing enforcement architecture of the Act and the Rules. The instrument does not create additional reporting obligations or special inspector powers, nor does it purport to immunise conduct from the Act itself, which the Notes explicitly preserve as an obligation to ensure compliance with the Act and the Rules (s 5 Note; s 6 Note).

The instrument is made under subrule 1.2.1(1) of the Rules (s 3). It therefore occupies a subordinate legislative position relative to the Rules in the regulatory architecture established by the Rules and the enabling Act cited generically in the instrument’s Notes as "the Act". The instrument repeatedly cross-refers to the Rules and to the Act in the context of preserved obligations, specifically citing paragraph 8A.3.3(1)(e) and subrule 8A.3.3(2) for Operators, and paragraph 8B.2.3(1)(e) and subrule 8B.2.3(2) for Participants (ss 5-6 Notes). Those cross-references indicate that the instrument is intended to operate within the legal framework of the Rules and the Act, not to displace or override them.

The instrument’s interaction with the Rules is two-fold: it excises specific subparagraphs and paragraphs from the compliance matrix for qualifying outsourcing arrangements (by listing Operator Waived Rules and Participant Waived Rules) while explicitly preserving other obligations in the same chapters. Because Business Continuity Plans, Outsourcing Arrangements, Service Provider, Critical Business Services and other core terms are defined by the Rules and are imported by the instrument (s 4), the substantive legal meaning of those concepts continues to be set by the Rules. The effect is that the instrument modifies the compliance obligations of the Rules by reference, but it does not change the underlying definitions and conceptual boundaries in the Rules.

The instrument’s definition of Communications Service and Energy Service determines the reach of the waiver for the purposes of the Rules. Those definitions are internally contained within the instrument (s 4). Where a particular activity falls within those definitions, the interaction is that the Rules’ specified obligations identified as waived cease to apply for the duration of the instrument, but all other applicable law, including other provisions of the Rules and the Act, remains in force (ss 5-6 Notes). The instrument is therefore not a stand-alone regulatory regime; rather it is a targeted adjustment to how the Rules apply to certain outsourcing configurations.

The instrument does not reference any other statutes, regulations, or instruments by name. The Notes repeatedly refer to "the Act" without naming it, and the instrument does not specify any interaction or priority rule between this instrument and other legislative instruments beyond its making under the Rules (ss 3, 5-6 Notes). The instrument’s repeal date (s 7) means that its modifying effect is temporal; entities should expect the full operation of the Rules to apply again after the repeal date unless the instrument is re-made or replaced.

Finally, because the instrument is made by an ASIC delegate (s 3), it operates as a regulatory instrument under the Rules’ delegation framework. The text does not provide a process by which the instrument itself might be amended, extended, or subject to administrative review outside the usual legislative instrument processes. The instrument therefore interacts with the broader legal framework principally by selectively disapplying certain Rule provisions for a defined set of factual circumstances while preserving the rest of the regulatory architecture.

The instrument text as provided contains no record of prior amendments. It records its date as 14 August 2025 and specifies commencement as the day after registration on the Federal Register of Legislation (s 2). It also records the authority under which it is made, being subrule 1.2.1(1) of the Rules and the making official (s 3). The only temporal modification within the instrument itself is the built‑in termination or repeal date at the start of 30 July 2030 (s 7), which is an explicit time-limited design feature rather than an amendment.

Because the instrument is a legislative instrument registered on the Federal Register of Legislation (s 2), any formal historical changes, revocations, or amendments to it would normally appear in the register’s version history. The instrument does not provide any transitional or savings clauses other than the operative waiver effect during the period of validity up to the repeal date. It does not specify mechanisms for amendment or extension within its own text.

For operational planning, the important amendment-history fact in the instrument is the explicit temporality. The instrument is not framed as open‑ended. It will cease to have legal effect at the start of 30 July 2030 unless further action is taken to extend, replace, or re‑enact its provisions. The presence of a fixed repeal date functions as the instrument’s own temporal amendment: the instrument’s effect expires on that date unless otherwise modified. The instrument’s text does not contain a sunset review mechanism, an automatic extension clause, or a mid-course reporting requirement.

No other amendments or historical changes are recorded in the document provided. If an entity is relying on the waiver, it should therefore monitor the Federal Register of Legislation for any subsequent legislative instruments that amend, extend, or repeal this instrument prior to 30 July 2030, since the instrument itself sets only its start and end dates and does not chart out an amendment pathway (ss 2, 7).

The instrument contains no mention of cases, prior rulings, or any litigation history. It does not cite or reproduce any judicial findings. The text is a standalone legislative instrument that amends the operation of certain parts of the Rules by providing a class waiver; it does not include or reference litigation outcomes or adjudicative materials.

Practically, the omission of any litigation references means that the instrument itself does not provide guidance on how courts or tribunals have interpreted similar waivers or the particular Rule provisions that are being waived. The instrument’s silence on adjudicative history is therefore an absence of legal precedent within the text. Entities deciding whether to rely on the waiver must base their assessment on the instrument’s text and on the underlying Rules’ definitions as incorporated by reference (s 4), not on any interpretive guidance supplied by the instrument.

Because the instrument does not set out a notification or approval regime for claiming the waiver (ss 5-6), disputes about whether a particular Outsourcing Arrangement qualifies as a Partially Exempt Outsourcing Arrangement would most likely arise in regulatory compliance processes or enforcement proceedings under the Act and the Rules rather than by reference to any special adjudicative mechanism created by the instrument. The instrument does not prescribe how such disputes are to be resolved and does not provide a dispute-resolution pathway specific to the waiver. Any litigation about the waiver’s application would therefore be litigated within the usual jurisdictional and procedural frameworks that govern enforcement of the Rules and the Act, subject to the particular facts and pleadings in any enforcement action.

Given that the instrument is time-limited and narrow in scope, and the text does not authorise or direct particular litigation outcomes, there is no internal litigation history to report. Any matters that do proceed to dispute or litigation would be external to the instrument and would need to be located in public records or court files outside the instrument text provided.

The instrument contains several points where practical misunderstanding or misapplication is likely if an Operator or Participant does not analyse the text carefully.

1. Narrow scope of Partially Exempt Outsourcing Arrangement. The waiver applies only where an Outsourcing Arrangement is an Outsourcing Arrangement solely because the Service Provider provides a Communications Service or an Energy Service (s 4). If the same contract or arrangement involves other outsourced functions, the Partially Exempt category does not apply. Entities cannot assume that outsourcing any communications or energy element automatically brings the entire outsourcing contract within the waiver.

2. Waiver identifies Rule citations, not subject matter. The Operator Waived Rules and Participant Waived Rules are specified by reference to precise subparagraphs and paragraphs in Rule 8A.3.3(1) and Rule 8B.2.3(1) (s 4). The instrument does not reproduce those Rules’ text. Users must read the Rules themselves to understand what substantive obligations have been removed. Failure to do so could lead to an incorrect belief that certain obligations have been removed when in fact they remain.

3. Preserved obligations. The instrument explicitly preserves the duty to have adequate arrangements to ensure compliance with the Act and the Rules appropriate for the Outsourcing Arrangement (s 5 Note; s 6 Note). That means that although certain subparagraphs are waived, the general compliance duty persists. Entities cannot rely on the waiver as a blanket licence to reduce oversight or fail to maintain Business Continuity Plans where those remain required by other parts of the Rules.

4. Factual classification burden. The instrument places the onus on Operators and Participants to determine whether an arrangement qualifies as Partially Exempt. The instrument contains no notification or approval process for claiming the waiver (ss 5-6). That absence is a practical "gotcha": relying on the waiver without contemporaneous documentation of the factual basis increases the risk of later challenge.

5. Contract drafting and scope. Outsourcing arrangements can be bundled. A Service Provider may supply communications and energy services together with other services. Where bundled services exist, the operator needs to assess whether the Outsourcing Arrangement is an Outsourcing Arrangement only because of communications or energy. Contractual drafting that separates services into distinct contractual documents may alter the classification. The instrument does not address or regulate commercial contract structuring, so contract drafting changes may be used to bring arrangements inside or keep them outside the Partially Exempt category. That commercial effect is implicit in the instrument’s definitions (s 4).

6. Temporal limitation. The instrument expires at the start of 30 July 2030 (s 7). Entities relying on the waiver must plan for the return to the full Rule obligations after that date unless the waiver is replaced or extended. Treating the waiver as permanent would be a compliance mistake.

7. No change to definitions in the Rules. Several key terms that determine the legal posture of the arrangement are adopted from the Rules and are not redefined in the instrument (s 4(1)). Operators and Participants must therefore consult the Rules to determine phrases such as Outsourcing Arrangement, Service Provider, Business Continuity Plans and Critical Business Services. A gotcha would be to try to rely solely on the instrument’s wording without cross-referencing the Rules.

8. Ambiguity about retrospective conduct. The instrument does not state whether reliance can be applied retrospectively to conduct occurring before commencement. The commencement clause (s 2) establishes timing for future effect, but it does not expressly validate or invalidate retrospective reliance for past non-compliance with waived provisions. Absent an explicit transitional provision, entities should be cautious in assuming retrospective application.

9. No express protection from related enforcement. The instrument removes specific Rule obligations in specified circumstances, but it does not alter whatever obligations the Act imposes, which the instrument notes must still be complied with (s 5 Note; s 6 Note). Operators and Participants should not assume the waiver protects them from enforcement actions under the Act.

10. Delegated instrument-maker. The instrument is made by an ASIC delegate under the Rules (s 3). That delegated status may be relevant for administrative-law challenges or questions of procedural fairness, but the instrument itself provides no administrative process for contesting or clarifying classification decisions under it.

The instrument requires a disciplined compliance and documentation approach because it creates a narrow waiver, leaves broader obligations intact, and provides no notification or approval mechanism. The following steps are practical and strictly derived from the instrument’s text and structure.

1. Map your Outsourcing Arrangements to the definitions. Identify all current Outsourcing Arrangements where your entity is an Operator or a Participant as those terms are used in the Rules (s 4(1)). For each arrangement, determine whether the Service Provider supplies a Communications Service (as defined in the instrument: supplying a Carriage Service or owning or operating assets used in connection with a Carriage Service) or an Energy Service (as defined: activities concerning electricity, gas or liquid fuel production, processing, transmission, distribution or supply) (s 4). Only where the arrangement is an Outsourcing Arrangement solely because of those services does the Partially Exempt test potentially apply.

2. Document the factual basis for reliance. Because the instrument does not prescribe notification to ASIC or any approval process (ss 5-6), document contemporaneously why a particular Outsourcing Arrangement meets the Partially Exempt definition. Keep records that identify which element of the contract makes it an Outsourcing Arrangement and why other services, if any, do not change the classification (s 4). Records should include contract schedules, statements of work, technical descriptions of services, and internal legal and operational memos supporting the classification.

3. Cross-reference the Rules. The waiver is defined by reference to specific Rule citations (s 4). Obtain and review the full text of the relevant Rule provisions (including the waived subparagraphs and the preserved paragraphs cited in the Notes). Ensure you understand precisely what obligations are removed and which remain. The instrument’s Notes expressly reference paragraph 8A.3.3(1)(e) and subrule 8A.3.3(2) and their Chapter 8B equivalents as continued obligations (s 5 Note; s 6 Note). Ensure compliance programmes remain aligned with those provisions.

4. Maintain Business Continuity Plans and other preserved arrangements. The instrument imports Business Continuity Plans and Critical Business Services from the Rules (s 4). The Notes remind Operators and Participants that adequate arrangements to ensure compliance with the Act and the Rules must still be in place (s 5 Note; s 6 Note). Continue to maintain and test Business Continuity Plans and critical services arrangements to the standard required by the Rules even where some specific subparagraphs are waived.

5. Update procurement and contract templates. Reflect the compliance analysis in outsourcing procurement, contract language, service-level agreements and governance documentation. If the waiver is to be relied upon, require Service Providers to provide the technical and operational information necessary to assess whether the arrangement is a Partially Exempt Outsourcing Arrangement (s 4). Where possible, include clauses requiring cooperation with the Operator’s or Participant’s regulatory compliance needs and the retention of necessary records.

6. Monitor regulatory developments and the repeal date. The instrument is repealed at the start of 30 July 2030 (s 7). Maintain a regulatory timeline and contingency plan for the position post‑repeal. Decide whether contracts and governance frameworks will be reworked ahead of the repeal date to ensure continuity of compliance or to allow a transition back to the full set of Rules.

7. Prepare for challenge. Because the instrument does not require ASIC notification, be prepared for an enforcement inquiry or challenge to the classification. Maintain an evidentiary file that shows the analysis leading to reliance on the waiver, including any external advice sought. Preserve communications with Service Providers that confirm the scope of services supplied.

8. Train compliance and operational staff. Ensure that legal, compliance, procurement and operations teams understand the narrow scope of the Partially Exempt test, the preserved obligations, and the business processes required to document reliance (s 4; ss 5-6 Notes). Avoid treating the waiver as a universal exemption.

9. Consider contract unbundling carefully. If the commercial benefit of the waiver is to be realised, consider whether unbundling services into discrete outsourcing contracts changes the applicability of the waiver. Any commercial reorganisation should be documented and justified on substance because the instrument predicates the waiver on the actual nature of the Outsourcing Arrangement (s 4). The instrument does not provide guidance on anti-avoidance measures; therefore, ensure that contractual restructures reflect real operational separations and not merely form.

10. Review internal controls and audit trails. Update audit checklists to include the classification test, the evidence trail, and the monitoring of Services Providers’ performance in relation to Communications and Energy Services. Maintain internal periodic reviews to ensure that any changes in service scope or in the service provider’s operations do not unintentionally cause loss of eligibility for the waiver.

These steps follow directly from the text of the instrument and the cross-references it contains. They recognise the instrument’s limited carve-out approach: targeted relief for arrangements that meet a precise definition, combined with an ongoing duty to ensure compliance with the Act and the remainder of the Rules (s 5 Note; s 6 Note).