Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024 (87 of 2024)

Schedule 2   Financial market infrastructure: new and enhanced regulatory powers

Part 13   Application and transitional provisions

Corporations Act 2001

142   In the appropriate position in Chapter 10

Insert:

Part 10.75 - Application and transitional provisions relating to Schedule 2 to the Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024

Division 1 - Definitions

1705 Definitions

In this Part:

amending Schedule means Schedule 2 to the Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024.

commencement time means the time this section commences.

Division 2 - Granting of Australian CS facility licences

1705A Application of amendments - applications for Australian CS facility licences

The amendments of section 824B made by Part 1 of the amending Schedule apply in relation to applications made under section 824A at or after the commencement time.

1705B Transitional - Australian CS facility licences in force before the commencement time

(1) This section applies to an Australian CS facility licence:

(a) granted under subsection 824B(1) as in force before the commencement time; and

(b) in force immediately before the commencement time.

(2) The licence continues in force (and may be dealt with) at and after the commencement time as if the licence had been granted under subsection 824B(1) as amended by Part 1 of the amending Schedule.

1705C Transitional - Australian CS facility licences in force before the commencement time for operating overseas clearing and settlement facilities

(1) This section applies to an Australian CS facility licence:

(a) granted under subsection 824B(2) as in force before the commencement time; and

(b) in force immediately before the commencement time.

(2) The licence continues in force (and may be dealt with) at and after the commencement time as if the licence had been granted under subsection 824B(2) as amended by Part 1 of the amending Schedule.

1705D Transitional - applications for an Australian CS facility licence undecided before the commencement time

(1) This section applies to an application for an Australian CS facility licence if:

(a) the application is lodged under section 824A as in force before the commencement time; and

(b) before the commencement time, the Minister had not made a decision under section 824B in relation to the application.

(2) This Act, as in force immediately before the commencement time, (the old Act ) continues to apply, at and after the commencement time, in relation to the application despite the amendments made by Part 1 of the amending Schedule.

(3) However, if at or after the commencement time, the Minister decides the application by granting a licence under section 824B of the old Act, the licence is taken to be (and may be dealt with as if it were) granted as follows:

(a) if the licence is granted under subsection 824B(1) of the old Act - as if the licence had been granted under subsection 824B(1) as amended by Part 1 of the amending Schedule;

(b) if the licence is granted under subsection 824B(2) of the old Act - as if the licence had been granted under subsection 824B(2) as amended by Part 1 of the amending Schedule.

Division 3 - Dealing with licences that are not being used etc.

1705E Application of amendments - suspension or cancellation of licences

For the purposes of section 797B, 826B, 905H, or 908BI as amended by Part 2 of the amending Schedule, it does not matter whether:

(a) a related act, omission or change happens; or

(b) a period starts;

before, at or after the commencement time.

Division 4 - Declared financial markets and widely held market bodies

Subdivision A - Declared financial markets

1705F Transitional - prescribed financial markets to be declared financial markets

(1) A reference in subsection 9D(1) to a financial market declared under subsection 9D(2) is taken to include a reference to a financial market that, immediately before the commencement time, was prescribed by the regulations for the purposes of the definition of prescribed financial market in section 9.

(2) Subsection (1) of this section ceases to have effect on the commencement of the first declaration made under subsection 9D(2).

1705G Translation of references to prescribed financial markets in instruments

(1) This section applies to an instrument (the affected instrument ), other than regulations, that:

(a) was made under:

(i) an Act; or

(ii) an instrument made under an Act; and

(b) was in force immediately before the commencement time.

(2) If:

(a) immediately before the commencement time, the affected instrument contained a reference to the expression in column 1 of an item of the following table; and

(b) the expression had the same meaning in the affected instrument as it had in this Act as in force immediately before the commencement time; and

(c) the reference to the expression remains in the affected instrument at the commencement time;

then, at and after the commencement time, the affected instrument applies as if the reference to the expression were instead a reference to the expression in column 2 of that item.

Subdivision B - Widely held market bodies

1705H Transitional - widely held market bodies

(1) A reference in paragraph 850A(2)(b) to a body corporate declared under subsection 850A(3) is taken to include a reference to a body corporate that, immediately before the commencement time, was specified for the purposes of paragraph 850A(b).

(2) Subsection (1) of this section ceases to have effect on the commencement of the first declaration made under subsection 850A(3).

1705J Application of amendments - preservation of voting power

(1) The amendments of section 851I made by Part 3 of the amending Schedule apply to a body corporate becoming a widely held market body at a time occurring at or after the commencement time.

(2) To avoid doubt, a reference to a body corporate becoming a widely held market body does not include a reference to a body corporate being a widely held market body at the commencement time because of section 1705H.

1705K Transitional - pre-commencement approvals granted for preservation of voting power

(1) This section applies to an approval to hold a particular percentage of voting power in a body corporate if the approval:

(a) was in force immediately before the commencement time; and

(b) was taken to be granted under section 851B because of the operation of section 851I as in force at that time.

(2) The approval continues in force (and may be dealt with) at and after the commencement time as if the approval were granted under section 851B because of the operation of section 851I as amended by Part 3 of the amending Schedule.

Division 5 - Approval for control of certain Australian licensees

1705L Transitional - preservation of voting power in controlled Australian financial bodies

(1) This section applies to a person if:

(a) at the commencement time, the person holds a particular percentage of voting power in a controlled Australian financial body; and

(b) that percentage is more than 20%.

(2) The person is taken to be granted, at the commencement time, an approval under subsection 852DH(1) to have that percentage of voting power in the body.

Note: ASIC can impose conditions on the approval: see section 852DL.

(3) The approval:

(a) comes into force at the commencement time; and

(b) remains in force indefinitely (unless varied under section 852DM or revoked under section 852DN).

(4) ASIC is taken to have complied with its obligations under Division 1A of Part 7.4 for the granting of the approval.

Example: ASIC is taken to have given the notice required by section 852DH.

1705M Application of amendments - market licensees and CS facility licensees

The amendments made by Division 2 of Part 5 of the amending Schedule apply in relation to changes in voting power that occur at or after the commencement time.

Division 6 - Limits on certain market licences and CS facility licences

1705N Transitional - exemptions (Part 7.2)

Exemption of particular financial market

(1) Subsections (2) to (4) apply to an exemption of a particular financial market:

(a) given under subsection 791C(1); and

(b) in force immediately before the commencement time.

(2) The exemption continues in force (and may be dealt with) at and after the commencement time as if the exemption had been given under subsection 791C(1) as amended by Part 6 of the amending Schedule.

(3) To avoid doubt, a condition specified in the exemption is taken to be specified for the purposes of paragraph 791C(2)(a) as inserted by that Part.

(4) For the purposes of paragraph 791C(2)(b), the exemption is taken to be expressed to apply indefinitely.

Exemption of classes of financial markets

(5) Subsections (6) to (8) apply to an exemption of a class of financial markets:

(a) given under subsection 791C(1); and

(b) in force immediately before the commencement time.

(6) The exemption continues in force (and may be dealt with) at and after the commencement time as if the exemption had been given under subsection 791C(7) as amended by Part 6 of the amending Schedule.

(7) To avoid doubt, a condition specified in the exemption is taken to be specified for the purposes of paragraph 791C(8)(a) as amended by that Part.

(8) For the purposes of paragraph 791C(8)(b), the exemption is taken to be expressed to apply indefinitely.

1705P Transitional - exemptions (Part 7.3)

Exemption of particular clearing and settlement facility

(1) Subsections (2) to (4) apply to an exemption of a particular clearing and settlement facility:

(a) given under subsection 820C(1); and

(b) in force immediately before the commencement time.

(2) The exemption continues in force (and may be dealt with) at and after the commencement time as if the exemption had been given under subsection 820C(1) as amended by Part 6 of the amending Schedule.

(3) To avoid doubt, a condition specified in the exemption is taken to be specified for the purposes of paragraph 820C(2)(a) as inserted by that Part.

(4) For the purposes of paragraph 820C(2)(b), the exemption is taken to be expressed to apply indefinitely.

Exemption of classes of clearing and settlement facilities

(5) Subsections (6) to (8) apply to an exemption of a class of clearing and settlement facilities:

(a) given under subsection 820C(1); and

(b) in force immediately before the commencement time.

(6) The exemption continues in force (and may be dealt with) at and after the commencement time as if the exemption had been given under subsection 820C(7) as amended by Part 6 of the amending Schedule.

(7) To avoid doubt, a condition specified in the exemption is taken to be specified for the purposes of paragraph 820C(8)(a) as amended by that Part.

(8) For the purposes of paragraph 820C(8)(b), the exemption is taken to be expressed to apply indefinitely.

Division 7 - Rule-making

1705Q Application of amendments

(1) To avoid doubt, paragraphs 793B(2)(aa) and 822B(2)(aa) apply in relation to operating rules that are in force at or after the commencement time, whether the operating rules were made before, at or after the commencement time.

(2) To avoid doubt, the amendment of subsection 827D(2A) made by Part 7 of the amending Schedule applies in relation to standards:

(a) made under subsection 827D(1); and

(b) in force at or after the commencement time;

whether the standards were made before, at or after the commencement time.

Division 8 - Streamlining some of ASIC's existing directions powers

1705R Application of amendments

The amendments made by Part 8 of the amending Schedule do not apply in relation to a direction given under subsection 794D(2), 798J(2), 823D(2) or 904G(2) before the commencement time.

Division 9 - Enhancing regulator powers for CS facility licensees

1705S Transitional - directions power to reduce systemic risk

(1) The amendments made by Division 1 of Part 9 of the amending Schedule do not apply in relation to a direction given under section 823E before the commencement time.

(2) The amendment of subparagraph 1101B(1)(a)(iii) made by Division 1 of Part 9 of the amending Schedule does not apply in relation to:

(a) an application made by ASIC under subsection 1101B(1) before the commencement time; or

(b) an order made by the Court before the commencement time.