Corporations Act 2001

CHAPTER 5C - MANAGED INVESTMENT SCHEMES  

PART 5C.10 - DEREGISTRATION  

Division 1 - Registered schemes that are not Australian passport funds  

SECTION 601PAA  

601PAA   APPLICATION OF THIS DIVISION  

This Division applies to a registered scheme that is not an Australian passport fund.

SECTION 601PA   DEREGISTRATION - VOLUNTARY  

Responsible entity may apply for deregistration

601PA(1)    

The responsible entity of the registered scheme may lodge an application for deregistration of the scheme with ASIC.

601PA(2)    
The responsible entity may only apply if:

(a)    the scheme:

(i) has 20 or less members (calculated in accordance with subsection 601ED(4) ) and all the members agree that the scheme should be deregistered; and

(ii) is not required to be registered by paragraph 601ED(1)(b) or (c) ; or

(b)    

because of subsection 601ED(2) (exemption based on Division 2 of Part 7.9 not applying), the scheme is not required to be registered and all the members agree that the scheme should be deregistered; or

(c)    the scheme is not a managed investment scheme.

601PA(3)    
If ASIC is satisfied that the application complies with subsections (1) and (2) , it must give notice of the proposed deregistration:

(a)    on the national database; and

(b)    in the Gazette .

When 2 months have passed since the Gazette notice, ASIC may deregister the scheme.

601PA(4)    
ASIC must give notice of the deregistration to the applicant.

SECTION 601PB   DEREGISTRATION BY ASIC  

601PB(1)    
ASIC may decide to deregister the registered scheme if:

(a)    the scheme does not have a responsible entity that meets the requirements of section 601FA ; or

(b)    the scheme does not have a constitution that meets the requirements of sections 601GA and 601GB ; or

(c)    the scheme does not have a compliance plan that meets the requirements of section 601HA ; or

(d)    the scheme ' s property is not being:

(i) clearly identified as the scheme ' s property; and

(ii) held separately from property of the responsible entity and property of any other scheme;

in accordance with the scheme ' s compliance plan; or

(e)    

the following conditions are satisfied:

(i) the response to a return of particulars given to the responsible entity of the scheme is at least 6 months late; and

(ii) no other documents have been lodged by or on behalf of the scheme in the last 18 months; and

(iii) ASIC has no reason to believe that the scheme is being operated; or

(ea)    

the scheme ' s review fee in respect of a review date has not been paid in full at least 12 months after the due date for payment; or

(f)    the scheme has been wound up.

Deregistration procedure

601PB(2)    
If ASIC decides to deregister a scheme under this section, it must give notice of the proposed deregistration:

(a)    to the scheme ' s responsible entity; and

(b)    to any other person who is winding up the scheme; and

(c)    on the national database; and

(d)    in the Gazette .

If the notice is given under paragraph (1)(a) , (b) , (c) or (d) , the notice must specify the period at the end of which ASIC proposes to deregister the scheme.

601PB(3)    
ASIC may deregister the scheme:

(a)    if paragraph (1)(a) , (b) , (c) or (d) applies - at the end of the period set out in the Gazette notice; or

(b)    if paragraph (1)(e) or (f) applies - when 2 months have passed since the Gazette notice.

601PB(4)    
ASIC does not have to give a person notice under subsection (2) if ASIC does not have the necessary information about the person ' s address.

601PB(5)    
ASIC must give notice of the deregistration to everyone who was notified of the proposed deregistration under paragraph (2)(a) or (b) .

Division 2 - Registered schemes that are Australian passport funds  

SECTION 601PBA  

601PBA   APPLICATION OF THIS DIVISION  

This Division applies to a registered scheme that is an Australian passport fund (the fund ).

SECTION 601PBB   DEREGISTRATION - VOLUNTARY  

Application

601PBB(1)    
The operator of the fund may lodge an application with ASIC for deregistration of the fund as a registered scheme.

Note: The responsible entity of a registered scheme that is an Australian passport fund is also the operator of the fund. In this Division, the responsible entity is referred to as the operator.

601PBB(2)    
The application must be in the prescribed form.

ASIC to deregister

601PBB(3)    
On an application under subsection (1) , ASIC must deregister the fund as a registered scheme if:

(a)   the fund satisfies one of the criteria mentioned in paragraphs 601PA(2)(a) , (b) and (c) (usual grounds on which a registered scheme can be voluntarily deregistered); and

(b)    there are no members of the fund who became members (whether in this jurisdiction or any host economy for the fund) after the fund became an Australian passport fund; and

(c)    there are no members of the fund who became members (whether in this jurisdiction or any host economy for the fund) on the expectation that the fund would become an Australian passport fund.

601PBB(4)    
For the purposes of subsection (3) , ignore any member of the fund that:

(a)    is, or has at any time been, the operator of the fund; or

(b)    is a related party of an entity that is, or has at any time been, the operator of the fund.

Note: See section 1216B for the circumstances in which a person becomes a member of a fund on the expectation that it would become an Australian passport fund.

SECTION 601PBC   DEREGISTRATION - INITIATED BY ASIC  

601PBC(1)    
ASIC may decide to deregister the fund as a registered scheme if:

(a)    the fund does not have a responsible entity that meets the requirements of section 601FA ; or

(b)    the fund does not have a constitution that meets the requirements of sections 601GA and 601GB ; or

(c)    the fund does not have a compliance plan that meets the requirements of section 601HA ; or

(d)    the fund ' s property is not being:

(i) clearly identified as the fund ' s property; and

(ii) held separately from property of the operator and property of any other scheme;

in accordance with the fund ' s compliance plan; or

(e)    the following conditions are satisfied:

(i) the response to a return of particulars given to the operator of the fund is at least 6 months late;

(ii) no other documents have been lodged by or on behalf of the fund in the last 18 months;

(iii) ASIC has no reason to believe that the fund is being operated; or

(f)    the fund ' s review fee in respect of a review date has not been paid in full at least 12 months after the due date for payment; or

(g)    the fund has been wound up.

601PBC(2)    
However, ASIC must not decide to deregister an Australian passport fund if ASIC is of the opinion that to do so would not be in the interests of:

(a)    members of the fund who became members (whether in this jurisdiction or any host economy for the fund) after the fund became an Australian passport fund; and

(b)    members of the fund who became members (whether in this jurisdiction or any host economy for the fund) on the expectation that the fund would become an Australian passport fund.

601PBC(3)    
For the purposes of subsection (2) , ignore any member of the fund that:

(a)    is, or has at any time been, the operator of the fund; or

(b)    is a related party of an entity that is, or has at any time been, the operator of the fund.

Note: See section 1216B for the circumstances in which a person becomes a member of a fund on the expectation that it would become an Australian passport fund.

601PBC(4)    
Before deciding to deregister the fund as a registered scheme, ASIC must give the operator written notice that requires the operator to show cause, at a hearing before a specified person, why the fund should not be deregistered as a registered scheme.

601PBC(5)    
The notice must specify:

(a)    the grounds on which it is proposed to deregister the fund as a registered scheme; and

(b)    a reasonable time and place at which the hearing is to be held.

However, if the operator consents, the person conducting the hearing may fix a different time or place.

601PBC(6)    
The person conducting the hearing must:

(a)    give the operator an opportunity to be heard at the hearing; and

(b)    give ASIC:

(i) a report about the hearing; and

(ii) a recommendation about the grounds in the notice on which it is proposed to deregister the fund as a registered scheme.

601PBC(7)    
After considering the report and recommendation, ASIC may:

(a)    decide to take no further action in relation to the matter and give written advice of that decision to the operator; or

(b)    deregister the fund as a registered scheme.

601PBC(8)    
Neither of the following is a legislative instrument:

(a)    a notice under subsection (4) ;

(b)    a report under subsection (6) (if it is in writing).

SECTION 601PBD   NOTICES RELATING TO DEREGISTRATION PROCESS  

Notice before deregistration

601PBD(1)    
If ASIC proposes to deregister a registered scheme that is an Australian passport fund under subsection 601PBB(3) or paragraph 601PBC(7)(b) , ASIC must give written notice setting out the date on which ASIC proposes to deregister the registered scheme:

(a)    to the operator; and

(b)    to each host regulator for the Australian passport fund.

601PBD(2)    
The notice must be given at least 5 business days before the fund is deregistered as a registered scheme.

Notice of deregistration

601PBD(3)    
If ASIC deregisters a registered scheme that is an Australian passport fund under subsection 601PBB(3) or paragraph 601PBC(7)(b) , ASIC must give written notice that the fund has been deregistered as a registered scheme and the date on which it has been deregistered:

(a)    to the operator; and

(b)    to each host regulator for the Australian passport fund.

601PBD(4)    
The notice must be given within 5 business days after the fund is deregistered as a registered scheme.

SECTION 601PBE   CONSEQUENCES OF DEREGISTRATION ON STATUS AS AN AUSTRALIAN PASSPORT FUND  

601PBE(1)    
A scheme ceases to be an Australian passport fund at the same time as it ceases to be a registered scheme.

601PBE(2)    
ASIC must annotate the Register of Passport Funds to indicate that the scheme is no longer a registered scheme or an Australian passport fund, or cause that annotation to be made on the Register.

SECTION 601PC   REINSTATEMENT  

601PC(1)    
ASIC may reinstate the registration of a managed investment scheme if ASIC is satisfied that the scheme should not have been deregistered or if the defect that led to the scheme being deregistered has been remedied.

601PC(2)    
The Court may make an order that ASIC reinstate the registration of a managed investment scheme if:

(a)    an application for reinstatement is made to the Court by:

(i) a person aggrieved by the deregistration; or

(ii) a person who was winding up the scheme; and

(b)    the Court is satisfied that it is just that the scheme's registration be reinstated.

601PC(3)    
The Court may give any directions it thinks just for putting the scheme and other people in the same position, as far as possible, as if the scheme had not been deregistered.

ASIC to give notice of reinstatement

601PC(4)    
ASIC must give notice of a reinstatement in the Gazette . If ASIC exercises its power under subsection (1) in response to an application by a person, ASIC must also give notice of the reinstatement to the applicant.

601PC(5)    
The reinstatement of the registration of a managed investment scheme as a registered scheme does not result in the scheme becoming an Australian passport fund, even if the scheme was an Australian passport fund immediately before its deregistration.