Corporations Act 2001

CHAPTER 10 - TRANSITIONAL PROVISIONS  

PART 10.2 - TRANSITIONAL PROVISIONS RELATING TO THE FINANCIAL SERVICES REFORM ACT 2001  

Division 1 - Transitional provisions relating to the phasing-in of the new financial services regime  

Subdivision C - Treatment of existing clearing and settlement facilities  

SECTION 1425   OBLIGATION OF MINISTER TO GRANT LICENCES COVERING MAIN EXISTING FACILITIES  

1425(1)   [ Application]  

This section applies to each clearing and settlement facility being operated immediately before the FSR commencement in relation to which either of the following paragraphs applies:

(a) the facility was being operated by the body corporate that was, for the purposes of the old Corporations Act, the securities clearing house;

(b) the facility was being operated by a body corporate in relation to which an approval (the section 1131 approval ) under section 1131 of the old Corporations Act was in force at that time.

1425(2)   [ Obligation to grant licence]  

Subject to subsections (3) and (4), the Minister must, in relation to each clearing and settlement facility to which this section applies, grant the operator of the facility a licence, and impose conditions on that licence, in accordance with the following requirements:

(a) the licence must be described as an Australian CS facility licence;

(b) the licence must be granted subject to the following conditions:

(i) a condition specifying the facility as the facility that the licence authorises the licensee to operate;

(ii) a condition specifying, as the classes of financial products in respect of which the facility can provide services, the classes that are appropriate for the facility under subsection (5);

(iii) in the case of a facility to which paragraph (1)(b) applies - a condition to the effect that the licence only covers the facility providing services for the market or markets that were covered by the section 1131 approval.

1425(3)   [ Time for grant]  

Subject to subsection (6), a licence that subsection (2) requires to be granted must be granted on, or as soon as practicable after, the FSR commencement. If it is granted after the FSR commencement, it, and the conditions subject to which it is granted, are taken to have had effect from that commencement.

1425(4)   [ More than one licence in same document; more than one facility covered]  

Sections 824D (more than one licence in the same document) and 824E (more than one CS facility covered by the same licence) of the amended Corporations Act apply in relation to the granting of licences, and licences granted, under this section as if the licences were, or were being, granted under section 824B of that Act. If, pursuant to section 824E, a single licence is granted under this section in respect of several separate facilities, paragraph (2)(b) of this section must be complied with separately in the licence document in relation to each of those facilities.

1425(5)   [ ``appropriate'' classes of financial products]  

For the purposes of subparagraph (2)(b)(ii), the classes of financial products that are appropriate for a facility to which this section applies are as follows:

(a) for a facility described in paragraph (1)(a) - securities, within the meaning of section 92 of the old Corporations Act as applying for the purposes of Part 7.2 of the old Corporations Act, and agreements of a kind to which section 92A of the old Corporations Act applied immediately before the FSR commencement (or would have applied after the FSR commencement if that section, and any associated provisions, had continued to have effect);

(b) for a facility described in paragraph (1)(b) - futures contracts, within the meaning of section 72 of the old Corporations Act, and agreements of a kind to which section 72A of the old Corporations Act applied immediately before the FSR commencement (or would have applied after the FSR commencement if that section, and any associated provisions, had continued to have effect).

1425(6)   [ Grant of licence prior to FSR commencement]  

Despite anything in subsection (3), the Minister may, under this section, grant a licence, and impose conditions on the licence, at any time during the period starting on the commencement of this section and ending on the FSR commencement on the basis that matters known to the Minister in relation to the clearing and settlement facility concerned will continue to be the case up to the FSR commencement. If the Minister does so:

(a) the licence and conditions come into effect on the FSR commencement, and not before; and

(b) the Minister may vary or revoke the licence, or any of the conditions, before the FSR commencement if the Minister considers it appropriate to do so having regard to the provisions of this section concerning the granting of licences and the imposition of conditions; and

(c) the licence and conditions do not come into effect on the FSR commencement if, immediately before the FSR commencement, the facility is not a clearing and settlement facility to which this section applies.

1425(7)   [ Notice to operator of market]  

If the Minister grants a licence under this section, the Minister must give the operator of the clearing and settlement facility written notice of:

(a) the grant of the licence, and the conditions imposed on the licence; and

(b) any subsequent revocation or variation under subsection (6) of the licence or conditions.

1425(8)   [ Notice must contain statement]  

A notice advising of the grant of a licence under this section must contain a statement to the effect that the licence and conditions will not take effect until the FSR commencement, or will be taken to have had effect from the FSR commencement, as the case requires.