Corporations Act 2001

CHAPTER 8A - ASIA REGION FUNDS PASSPORT  

PART 8A.4 - NOTIFIED FOREIGN PASSPORT FUNDS  

Division 1 - Becoming a notified foreign passport fund  

SECTION 1213B   REJECTING A NOTICE OF INTENTION  

Circumstances in which ASIC may reject a notice of intention

1213B(1)    
ASIC may, within the consideration period for the notice of intention, reject the notice if:

(a)    ASIC is of the opinion that one or more of the following has not been, is not being or is not likely to be complied with in relation to the fund:

(i) this Act (other than the Passport Rules for this jurisdiction);

(ii) the ASIC Act;

(iii) the law of the home economy for the fund, to the extent that the law is administered by the home regulator for the fund (including the Passport Rules for the home economy for the fund); or

(b)    ASIC is of the opinion that it is not in the public interest in this jurisdiction for the operator to offer interests in the passport fund in this jurisdiction; or

(c)    both of the following are satisfied:

(i) an exemption has been given, or a modification made, to the Passport Rules for the home economy for the passport fund that affects the fund or entities connected with the fund;

(ii) ASIC does not consent to the exemption or modification; or

(d)    the name of the passport fund in relation to which the operator has given notice is not available in this jurisdiction.

1213B(2)    
In determining its opinion in relation to a matter mentioned in subparagraph (1)(a)(iii) , ASIC must:

(a)    make a request, in writing, to the home regulator for the fund for the opinion of the home regulator on the matter; and

(b)    specify in the request the basis for ASIC ' s concerns about compliance with the law of the home economy; and

(c)    state a reasonable period during which ASIC will wait for a reply before acting; and

(d)    if the home regulator replies to the request within that period - give effect to the opinion of the home regulator on the matter.

1213B(3)    

In paragraph (1)(b) , public interest does not include any benefit in this jurisdiction that may arise from limiting competition for managed investment schemes, or CCIVs, operating principally in this jurisdiction.

1213B(4)    
Nothing in this section requires ASIC to conduct an assessment of the public interest in this jurisdiction in each case.

1213B(5)    
A name is not available to a foreign passport fund in this jurisdiction for the purposes of paragraph (1)(d) if:

(a)    the name is:

(i) identical (under rules set out in the regulations) to a name that is reserved or registered under this Act for another body; or

(ii) identical (under rules set out in the regulations) to a name of a managed investment scheme that is the subject of an application for registration that has been lodged under section 601EA but not yet determined; or

(iii) identical (under rules set out in the regulations) to a name of a foreign passport fund in relation to which a notice of intention under section 1213 has already been lodged; or

(iv) identical (under rules set out in the regulations) to a name that is held or registered on the Business Names Register in respect of another individual or body who is not the operator; or

(v) unacceptable for registration under the regulations; and

(b)    the operator of the fund has not notified ASIC and the home regulator for the fund in writing that it will adopt an available alternative name for the fund in this jurisdiction.

1213B(6)    
The Minister may consent in writing to a name being available to a foreign passport fund in this jurisdiction even if the name would not otherwise be available because of paragraph (5)(a) .

1213B(7)    
The Minister ' s consent may be given subject to conditions.

Circumstances in which ASIC must reject a notice of intention

1213B(8)    
ASIC must, within the consideration period for the notice of intention, reject the notice if:

(a)    the Minister has made a determination under subsection 1210B(1) that the operators of passport funds, or a class of passport funds, the home economy for which is specified in the determination, must not offer interests in the fund in this jurisdiction; and

(b)    the determination applies to the passport fund.

ASIC must notify operator of decision to reject

1213B(9)    
The notice of intention is rejected by ASIC giving the operator of the foreign passport fund notification in writing of the rejection.