Corporations Act 2001

CHAPTER 5C - MANAGED INVESTMENT SCHEMES  

PART 5C.1 - REGISTRATION OF MANAGED INVESTMENT SCHEMES  

SECTION 601EA   APPLYING FOR REGISTRATION  

601EA(1)    
To register a managed investment scheme, a person must lodge an application with ASIC.

601EA(2)    
The application must state:

(a)    the name, and the address of the registered office, of the proposed responsible entity; and

(b)    the name and address of a person who has consented to be the auditor of the compliance plan.

601EA(3)    
The applicant must have the consent referred to in paragraph (2)(b) when the application is lodged. After the scheme is registered, the applicant must give the consent to the responsible entity. The responsible entity must keep the consent.

601EA(4)    
The following must be lodged with the application:

(a)    a copy of the scheme ' s constitution;

(b)    a copy of the scheme ' s compliance plan;

(c)    a statement signed by the directors of the proposed responsible entity that:

(i) the scheme ' s constitution complies with sections 601GA and 601GB ; and

(ii) the scheme ' s compliance plan complies with section 601HA .

Note: Section 601HC requires that the copy of the compliance plan be signed by the directors of the responsible entity.

SECTION 601EB   REGISTRATION OF MANAGED INVESTMENT SCHEME  

601EB(1)    
ASIC must register the scheme within 14 days of lodgment of the application, unless it appears to ASIC that:

(c)    the application does not comply with section 601EA ; or

(d)    the proposed responsible entity does not meet the requirements of section 601FA ; or

(e)    the scheme ' s constitution does not meet the requirements of sections 601GA and 601GB ; or

(f)    the scheme ' s compliance plan does not meet the requirements of section 601HA ; or

(g)    the copy of the compliance plan lodged with the application is not signed as required by section 601HC ; or

(h)    arrangements are not in place that will satisfy the requirements of section 601HG in relation to audit of compliance with the plan.

601EB(2)    
If ASIC registers the scheme, ASIC must give it an ARSN.

601EB(3)    
ASIC must keep a record of the registration of the scheme.

601EB(4)    
For the purpose of determining whether subsection (1) is satisfied in relation to the scheme:

(a)    references in Parts 5C.3 , 5C.4 and 5C.5 to a registered scheme are taken to include a reference to the scheme; and

(b)    references in those Parts to the responsible entity of a registered scheme are taken to include a reference to the proposed responsible entity of the scheme.

SECTION 601EC  

601EC   ALL DOCUMENTS ETC. LODGED WITH ASIC ASIC TO BEAR ARSN OR ABN  

After a managed investment scheme is registered, all documents relating to the scheme that are lodged with ASIC must set out:

(a)    the scheme ' s ARSN; or

(b)    if the last 9 digits of the scheme ' s ARSN are the same, and in the same order, as the last 9 digits of its ABN - the scheme ' s ABN.

Note: In any case where the scheme ' s ARSN would be used, the scheme ' s ABN may be used instead if section 1344 is satisfied.

SECTION 601ED  WHEN A MANAGED INVESTMENT SCHEME MUST BE REGISTERED  

601ED(1)    

Subject to subsections (2) and (2A) , a managed investment scheme must be registered under section 601EB if:

(a)    it has more than 20 members; or

(b)    it was promoted by a person, or an associate of a person, who was, when the scheme was promoted, in the business of promoting managed investment schemes; or

(c)    a determination under subsection (3) is in force in relation to the scheme and the total number of members of all of the schemes to which the determination relates exceeds 20.

601ED(2)    

A managed investment scheme does not have to be registered if all the issues of interests in the scheme that have been made would not have required the giving of a Product Disclosure Statement under Division 2 of Part 7.9 if the scheme had been registered when the issues were made.

601ED(2A)    

A notified foreign passport fund does not have to be registered.

601ED(3)    
ASIC may, in writing, determine that a number of managed investment schemes are closely related and that each of them has to be registered at any time when the total number of members of all of the schemes exceeds 20. ASIC must give written notice of the determination to the operator of each of the schemes.

601ED(4)    
For the purpose of this section, when working out how many members a scheme has:

(a)    joint holders of an interest in the scheme count as a single member; and

(b)    an interest in the scheme held on trust for a beneficiary is taken to be held by the beneficiary (rather than the trustee) if:

(i) the beneficiary is presently entitled to a share of the trust estate or of the income of the trust estate; or

(ii) the beneficiary is, individually or together with other beneficiaries, in a position to control the trustee.

601ED(5)    
A person must not operate in this jurisdiction a managed investment scheme that this section requires to be registered under section 601EB unless the scheme is so registered.

Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .

601ED(6)    
For the purpose of subsection (5) , a person is not operating a scheme merely because:

(a)    they are acting as an agent or employee of another person; or

(b)    they are taking steps to wind up the scheme or remedy a defect that led to the scheme being deregistered.

601ED(7)    
A person who would otherwise contravene subsection (5) because an interest in a scheme is held in trust for 2 or more beneficiaries (see paragraph (4)(b) ) does not contravene that subsection if they prove that they did not know, and had no reason to suspect, that the interest was held in that way.

Note: In criminal proceedings, a defendant in the prosecution of an offence under subsection (5) bears an evidential burden in relation to the matter in subsection (7) . See subsection 13.3(3) of the Criminal Code .

601ED(8)    

A person contravenes this subsection if the person contravenes subsection (5) .

Note: This subsection is a civil penalty provision (see section 1317E ).

SECTION 601EE   UNREGISTERED SCHEMES MAY BE WOUND UP  

601EE(1)    
If a person operates a managed investment scheme in contravention of subsection 601ED(5) , the following may apply to the Court to have the scheme wound up:

(a)    ASIC;

(b)    the person operating the scheme;

(c)    a member of the scheme.

601EE(2)    
The Court may make any orders it considers appropriate for the winding up of the scheme.