CHAPTER 7
-
FINANCIAL SERVICES AND MARKETS
Note: This Chapter applies to a CCIV in a modified form: see Division
4
of Part
8B.7
.
History
Ch 7 amended by No 8 of 2022, s 3, Sch 2[165] (effective 1 July 2022).
Ch 7 inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
As Act No 122 of 2001 repealed Ch 7 and 8 the history notes for Ch 7 use
"
inserted
"
and references to the former provisions have been removed.
PART 7.2
-
LICENSING OF FINANCIAL MARKETS
Division 1
-
Preliminary
SECTION 790A
790A
MEANING OF CLEARING AND SETTLEMENT ARRANGEMENTS
Clearing and settlement arrangements
for a transaction effected through a financial market are arrangements for the clearing and settlement of those transactions. The arrangements may be part of the market
'
s operating rules or be separate from those operating rules.
History
S 790A substituted by No 76 of 2023, s 3, Sch 2[354] (effective 20 October 2023).
Division 2
-
Requirement to be licensed
SECTION 791A
NEED FOR A LICENCE
791A(1)
A person must only operate, or hold out that the person operates, a financial market in this jurisdiction if:
(a)
the person has an Australian market licence that authorises the person to operate the market in this jurisdiction; or
(b)
the market is exempt from the operation of this Part.
Note 1: A market licensee may also provide financial services incidental to the operation of the market: see paragraph
911A(2)
(d).
Note 2: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
791A(2)
For the purposes of an offence based on subsection (1), strict liability applies to paragraph (1)(b).
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
791A(3)
A person contravenes this subsection if the person contravenes subsection (1).
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 791A(3) inserted by No 17 of 2019, s 3, Sch 1[39] (effective 13 March 2019).
History
S 791A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 791B
791B
OTHER PROHIBITIONS ON HOLDING OUT
A person must not hold out:
(a)
that the person has an Australian market licence; or
(b)
that the operation of a financial market by the person in this jurisdiction is authorised by an Australian market licence; or
(c)
that a financial market is exempt from the operation of this Part; or
(d)
that the person is a participant in a licensed market;
if that is not the case.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
History
S 791B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 791C
EXEMPTIONS BY MINISTER
791C(1)
The Minister may exempt a particular financial market, or a class of financial market, from all or specified provisions of this Part. An exemption may be unconditional, or subject to conditions specified in the exemption.
Note: The provisions of this Part include regulations made for the purposes of this Part (see section
761H
).
791C(2)
The Minister may, at any time:
(a)
vary an exemption to:
(i)
impose conditions, or additional conditions, on the exemption; or
(ii)
vary or revoke any of the conditions on the exemption; or
(b)
revoke an exemption.
791C(3)
However, the Minister may only take action under subsection (2) after:
(a)
giving notice, and an opportunity to make submissions on the proposed action, to the operator of each financial market known by the Minister to be covered by the exemption; and
(b)
if the exemption covers a class of financial markets
-
a notice has been published on ASIC
'
s website allowing a reasonable period within which the operator of each financial market covered by the exemption may make submissions on the proposed action, and that period has ended.
791C(4)
If an exemption is expressed to apply in relation to a class of financial markets (whether or not it is also expressed to apply in relation to one or more financial markets otherwise than by reference to membership of a class), then the exemption, and any variation or revocation of the exemption, is a legislative instrument.
791C(5)
If subsection (4) does not apply to an exemption, then the exemption, and any variation or revocation of the exemption, must be in writing and the Minister must publish notice of it in the Gazette.
History
S 791C substituted by No 17 of 2017, s 3, Sch 3
[
1] (effective 29 March 2017).
[
CCH Note:
No 17 of 2017, s 3, Sch 3
[
2] contained the following saving provision (effective 29 March 2017):
2 Saving of exemptions
If, immediately before the commencement of this item, an exemption is in force under section 791C of the
Corporations Act 2001
, that exemption has effect after that commencement as if it had been made in accordance with section 791C as substituted by item 1.
]
SECTION 791D
MEANING OF OPERATED IN THIS JURISDICTION
-
FINANCIAL MARKET
791D(1)
A financial market is taken to be
operated in this jurisdiction
if it is operated by a body corporate that is registered under Chapter
2A
.
History
S 791D(1) amended by No 76 of 2023, s 3, Sch 2[356] and
[
357] (effective 20 October 2023).
791D(2)
Subsection
(1)
does not limit the circumstancesin which a financial market is
operated in this jurisdiction
.
History
S 791D(2) amended by No 76 of 2023, s 3, Sch 2[357] and
[
358] (effective 20 October 2023).
S 791D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 3
-
Regulation of market licensees
Subdivision A
-
Licensee's obligations
SECTION 792A
GENERAL OBLIGATIONS
792A(1)
A market licensee must:
(a)
to the extent that it is reasonably practicable to do so, do all things necessary to ensure that the market is a fair, orderly and transparent market; and
(b)
comply with the conditions on the licence; and
(c)
have adequate arrangements (which may involve the appointment of an independent person or related entity) for operating the market, including arrangements for:
(i)
handling conflicts between the commercial interests of the licensee and the need for the licensee to ensure that the market operates in the way mentioned in paragraph (a); and
(ii)
monitoring and enforcing compliance with the market
'
s operating rules; and
(d)
have sufficient resources (including financial, technological and human resources) to operate the market properly; and
(e)
if section
881A
requires there to be compensation arrangements in relation to the market that are approved in accordance with Division
3
of Part
7.5
-
ensure that there are such approved compensation arrangements in relation to the market; and
(f)
if the licensee is a foreign body corporate
-
be registered under Division
2
of Part
5B.2
; and
(g)
if the licence was granted under subsection
795B(2)
(overseas markets)
-
both:
(i)
remain authorised to operate a financial market in the foreign country in which the licensee
'
s principal place of business is located; and
(ii)
get the Minister
'
s approval under section
792H
before that principal place of business becomes located in any other foreign country; and
(h)
if the licensee, or a holding company of the licensee, is a widely held market body
-
take all reasonable steps to ensure that an unacceptable control situation does not exist in relation to the body; and
(i)
take all reasonable steps to ensure that no disqualified individual becomes, or remains, involved in the licensee (see Division
2
of Part
7.4
).
History
S 792A(1) amended by No 76 of 2023, s 3, Sch 2[159] and
[
160] (effective 20 October 2023).
S 792A(1) amended by No 17 of 2019, s 3, Sch 1
[
40] (effective 13 March 2019).
792A(2)
A person contravenes this subsection if the person contravenes paragraph
(1)(a)
,
(c)
,
(d)
,
(e)
,
(f)
,
(g)
,
(h)
or
(i)
.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 792A(2) inserted by No 17 of 2019, s 3, Sch 1
[
41] (effective 13 March 2019).
History
S 792A amended by No 26 of 2010, Sch 1[7]
-
[
9].
S 792A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 792B
OBLIGATION TO NOTIFY ASIC OF CERTAIN MATTERS
792B(1)
A market licensee must give written notice to ASIC, as soon as practicable, if it becomes aware that it may no longer be able to meet, or has breached, an obligation under section
792A
. If ASIC considers it appropriate to do so, ASIC may give the Minister advice about the matter.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 792B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
792B(2)
A market licensee must give written notice to ASIC, as soon as practicable, as required by the following paragraphs:
(a)
if the licensee provides a new class of financial service incidental to the operation of the market, the licensee must give notice that includes details of the new class;
(b)
if the licensee takes any kind of disciplinary action against a participant in the market, the licensee must give notice that includes:
(i)
the participant
'
s name; and
(ii)
the reason for and nature of the action taken;
(c)
if the licensee has reason to suspect that a person has committed, is committing, or is about to commit a significant contravention of the market
'
s operating rules or this Act, the licensee must give notice that includes:
(i)
the person
'
s name; and
(ii)
details of the contravention or impending contravention; and
(iii)
the licensee
'
s reasons for that belief.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 792B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
792B(3)
If a market licensee becomes aware of:
(a)
a matter that the licensee considers has adversely affected, is adversely affecting, or may adversely affect the ability of a participant in the market, who is a financial services licensee, to meet the participant
'
s obligations as a financial services licensee; or
(b)
a matter, concerning a participant in the market who is a financial services licensee, that is of a kind prescribed by regulations made for the purposes of this paragraph;
the market licensee must give a written report to ASIC on the matter and send a copy of it to the participant.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 792B(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
792B(4)
A market licensee whose licence was granted under
subsection 795B(2)
(overseas markets) must, as soon as practicable, give written notice to ASIC if:
(a)
the licensee ceases to be authorised to operate a financial market in the foreign country in which the licensee
'
s principal place of business is located; or
(b)
there is a significant change to the regulatory regime applying in relation to the market in the foreign country in which the licensee
'
s principal place of business is located.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
History
S 792B(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
792B(5)
As soon as practicable after:
(a)
a person becomes or ceases to be a director, secretary or senior manager of a market licensee or of a holding company of a market licensee (including when a person changes from one of those positions to another); or
(b)
a market licensee becomes aware that a person has come to have, or has ceased to have, more than 15% of the voting power in the licensee or in a holding company of the licensee;
the licensee must give written notice of this to ASIC. The notice must include such other information about the matter as is prescribed by regulations made for the purposes of this subsection.
Note 1: To the extent that the licensee is required to give the notice and information under any other provision of this Act, the licensee may comply with this subsection by doing so. It need not provide the same information twice.
Note 2: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
[
CCH Note:
S 792B(5) will be amended by No 69 of 2020, s 3, Sch 1[1127] and
[
1128], by omitting
"
Note 1
"
and substituting
"
Note
"
for
"
Note 2
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 792B(5) amended by No 103 of 2004, s 3, Sch 9
[
63].
S 792B(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
S 792B(6) will be inserted by No 69 of 2020, s 3, Sch 1[1129] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 792B(6) will read:
792B(6)
However, to the extent that the licensee is required to give the notice and information, to ASIC or the Registrar, under any other provision of this Act, the licensee may comply with subsection
(5)
by giving the notice and information under that other provision.]
792B(7)
A person contravenes this subsection if the person contravenes subsection
(1)
,
(2)
,
(3)
,
(4)
or
(5)
.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 792B(7) inserted by No 17 of 2019, s 3, Sch 1[42] (effective 13 March 2019).
SECTION 792C
GIVING ASIC INFORMATION ABOUT A LISTED DISCLOSING ENTITY
[
CCH Note:
S 792C heading will be amended by No 69 of 2020, s 3, Sch 1
[
1130], by omitting
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
792C(1)
If a market licensee makes information about a listed disclosing entity available to participants in the market (whether or not the licensee also makes the information available to anyone else), the licensee must give ASIC the same information as soon as practicable.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
[
CCH Note:
S 792C(1) will be amended by No 69 of 2020, s 3, Sch 1[1131], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
792C(2)
However, the licensee is not required to give ASIC any information of a kind that is excluded by the regulations.
[
CCH Note:
S 792C(2) will be amended by No 69 of 2020, s 3, Sch 1[1131], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
792C(3)
ASIC may require the information to be given in a particular form.
[
CCH Note:
S 792C(3) will be substituted by No 69 of 2020, s 3, Sch 1[1132] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 792C(3) will read:
792C(3)
The giving of the information must meet any requirements of the data standards.]
History
S 792C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 792D
OBLIGATION TO ASSIST ASIC
792D(1)
[
Assistance to ASIC]
A market licensee must give such assistance to ASIC, or a person authorised by ASIC, as ASIC or the authorised person reasonably requests in relation to the performance of ASIC's functions.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
792D(2)
[
Type of assistance]
Such assistance may include showing ASIC the licensee's books or giving ASIC other information.
History
S 792D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 792E
792E
OBLIGATION TO GIVE ASIC ACCESS TO MARKET FACILITIES
A market licensee must give a person authorised by ASIC such reasonable access to the market's facilities as the person requests for any of the purposes of this Chapter.
Note: Failure to comply with this section is an offence (see
subsection 1311(1)
).
History
S 792E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 792F
ANNUAL REPORT
792F(1)
[
Annual report]
A market licensee must, within 3 months after the end of its financial year, give ASIC an annual report on the extent to which the licensee complied with its obligations as a market licensee under this Chapter.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
792F(2)
[
Content of annual report]
The licensee must ensure that the annual report is accompanied by any information and statements prescribed by regulations made for the purposes of this subsection.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
792F(3)
[
Audit report]
The licensee must also ensure that the annual report is accompanied by any audit report that the Minister requires under subsection (4).
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
792F(4)
[
Minister may require audit report]
The Minister may, by giving written notice to a market licensee, require the licensee to obtain an audit report on the annual report and on any information or statements accompanying it. The Minister must nominate to prepare the audit report:
(a)
ASIC; or
(b)
a specified person or body that is suitably qualified.
792F(5)
[
Report to Minister]
ASIC must give the annual report and accompanying material to the Minister.
History
S 792F inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 792G
OBLIGATIONS TO NOTIFY PEOPLE ABOUT CLEARING AND SETTLEMENT ARRANGEMENTS IN CERTAIN CIRCUMSTANCES
792G(1)
[
Notice of no CS facilities]
If, in relation to a category of transactions, being all transactions or a class of transactions effected through a licensed market, the market licensee:
(a)
does not have any clearing and settlement arrangements for transactions in that category; or
(b)
has clearing and settlement arrangements for transactions in that category, but they are not arrangements with the operator of a clearing and settlement facility for the clearing and settlement of such transactions through the facility;
the market licensee must, before a person becomes a participant in the market, give the person written advice:
(c)
if paragraph (a) applies
-
that the licensee does not have any clearing and settlement arrangements for transactions in that category, and that it is the responsibility of the parties to such transactions to make their own arrangements for the clearing and settlement of such transactions; or
(d)
if paragraph (b) applies
-
setting out particulars of the clearing and settlement arrangements for transactions in that category.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
792G(2)
[
Notice of impending cessation]
Within a reasonable time before a market licensee ceases, in relation to a category of transactions, being all transactions or a class of transactions effected through a licensed market, to have clearing and settlement arrangements (the
terminating arrangements
) with the operator of a particular clearing and settlement facility for the clearing and settlement of such transactions through the facility, the market licensee must give the participants in the market written advice:
(a)
if the terminating arrangements are not being replaced by any other clearing and settlement arrangements
-
that the licensee will no longer have clearing and settlement arrangements for that category of transactions, and that it will be the responsibility of the parties to such transactions to make their own arrangements for the clearing and settlement of such transactions; or
(b)
if the terminating arrangements are being replaced by new clearing and settlement arrangements
-
setting out particulars of the new arrangements.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
History
S 792G inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 792H
CHANGE OF COUNTRY BY FOREIGN LICENSEE
792H(1)
[
Ministerial approval for change of location of foreign licensee]
In the case of a licence granted under
subsection 795B(2)
, the Minister may approve the location of the licensee's principal place of business in a new country only if:
(a)
the new country is not Australia; and
(b)
the operation of the market in that country will be subject to requirements and supervision that are sufficiently equivalent, in relation to the degree of investor protection and market integrity they achieve, to the requirements and supervision to which financial markets are subject under this Act in relation to those matters.
792H(2)
[
Effect where place of business becomes Australia]
If, in relation to a licence granted under
subsection 795B(2)
, the licensee's principal place of business changes to become a place in Australia:
(a)
the licence ceases to be in force from the time of the change; and
(b)
if the licensee wishes the market to continue to be licensed, the licensee may apply for the grant of a new licence under
subsection 795B(1)
; and
(c)
the application must be assessed in accordance with
Subdivision A
of
Division 4
, subject to such modifications (if any) of that Subdivision as are set out in regulations made for the purposes of this paragraph.
792H(3)
[
Application in advance]
An application referred to in paragraph (2)(b) may be made in advance of the change of location of the principal place of business, and a decision on the application may bemade before that time. However, any licence granted pursuant to the application does not come into force until the change occurs.
History
S 792H inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 792I
792I
MAKING INFORMATION ABOUT COMPENSATION ARRANGEMENTS PUBLICLY AVAILABLE
A market licensee must take reasonable steps to ensure that information about the compensation arrangements that are in place under
Part 7.5
is available to the public free of charge.
Note: Failure to comply with this section is an offence (see
subsection 1311(1)
).
History
S 792I inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
Subdivision B
-
The market's operating rules and procedures
SECTION 793A
CONTENT OF THE OPERATING RULES AND PROCEDURES
793A(1)
[
Operating rules of licensed market]
The operating rules of a licensed market must deal with the matters prescribed by regulations made for the purposes of this subsection.
793A(2)
[
Written procedures]
The regulations may also prescribe matters in respect of which a licensed market must have written procedures.
793A(3)
[
Exclusion]
However, subsections (1) and (2) do not apply if the licensee is also authorised to operate the market in the foreign country in which its principal place of business is located and the licence was granted under
subsection 795B(2)
(overseas markets).
793A(4)
[
ASIC determination on exclusion]
In a subsection (3) case, ASIC may determine, by giving written notice to the licensee, matters in respect of which the licensed market must have written procedures.
History
S 793A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 793B
LEGAL EFFECT OF OPERATING RULES
793B(1)
The operating rules (other than listing rules) of a licensed market have effect as a contract under seal:
(a)
between the licensee and each participant in the market; and
(b)
between a participant and each other participant;
under which each of those persons agrees to observe the operating rules to the extent that they apply to the person and to engage in conduct that the person is required by the operating rules to engage in.
History
S 793B(1) renumbered from s 793B by No 26 of 2010, Sch 1[10].
Former s 793B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
793B(2)
However, if there is an inconsistency between the operating rules of a financial market, and any of the following other rules:
(a)
the market integrity rules;
(b)
the derivative transaction rules;
(c)
the derivative trade repository rules;
(d)
the client money reporting rules;
those other rules prevail over the operating rules to the extent of the inconsistency.
Note 1: If there is an inconsistency between the market integrity rules and the derivative transaction rules or the derivative trade repository rules, the market integrity rules prevail: see subsection
798H(3)
.
Note 2: If there is an inconsistency between the derivative transaction rules and the derivative trade repository rules, the derivative transaction rules prevail: see subsection
901E(2)
.
Note 3: If there is an inconsistency between the market integrity rules, the derivative transaction rules or the derivative trade repository rules and the client money reporting rules, the market integrity rules, the derivative transaction rules or the derivative trade repository rules prevail: see subsection
981M(2)
.
History
S 793B(2) amended by No 25 of 2017, s 3, Sch 5[7] and
[
8] (effective 4 April 2018).
S 793B(2) substituted by No 178 of 2012, s 3, Sch 1, Pt 1[19] (effective 3 January 2013).
S 793B(2) inserted by No 26 of 2010, Sch 1[11].
793B(3)
Subsection (2) does not apply in relation to a financial market the operator of which is licensed under subsection
795B(2)
(overseas markets).
History
S 793B(3) inserted by No 26 of 2010, Sch 1[11].
SECTION 793C
ENFORCEMENT OF OPERATING RULES
793C(1)
If a person who is under an obligation to comply with or enforce any of a licensed market
'
s operating rules fails to meet that obligation, an application to the Court may be made by:
(a)
ASIC; or
(b)
the licensee; or
(c)
the operator of a clearing and settlement facility with which the licensee has clearing and settlement arrangements; or
(d)
a person aggrieved by the failure.
793C(2)
After giving an opportunity to be heard to the applicant and the person against whom the order is sought, the Court may make an order giving directions to:
(a)
the person against whom the order is sought; or
(b)
if that person is a body corporate (other than a notified foreign passport fund)
-
the directors of the body corporate;
about compliance with, or enforcement of, the operating rules.
History
S 793C(2) amended by No 61 of 2018, s 3, Sch 2[213] (effective 18 September 2018).
793C(3)
For the purposes of this section, a body corporate (other than a notified foreign passport fund) that is, with its agreement, consent or acquiescence, included in the official list of a licensed market, or an associate of such a body corporate, is taken to be under an obligation to comply with the operating rules of that market to the extent to which those rules purport to apply to the body corporate or associate.
History
S 793C(3) amended by No 61 of 2018, s 3, Sch 2[214] and
[
215] (effective 18 September 2018).
793C(4)
For the purposes of this section, if a disclosing entity that is an undertaking to which interests in a registered scheme relate is, with the responsible entity
'
s agreement, consent or acquiescence, included in the official list of a licensed market, the responsible entity, or an associate of the responsible entity, is taken to be under an obligation to comply with the operating rules of that market to the extent to which those rules purport to apply to the responsible entity or associate.
History
S 793C(4) amended by No 61 of 2018, s 3, Sch 2[216] (effective 18 September 2018).
793C(4A)
For the purposes of this section, if a disclosing entity that is an undertaking to which interests in a notified foreign passport fund relate is, with the agreement, consent or acquiescence of the operator of the fund, included in the official list of a licensed market, the operator of the fund, or an associate of the operator, is taken to be under an obligation to comply with the operating rules of that market to the extent to which those rules purport to apply to the operator or associate.
History
S 793C(4A) inserted by No 61 of 2018, s 3, Sch 2[217] (effective 18 September 2018).
793C(4B)
For the purposes of this section, if:
(a)
subsection
(3)
does not apply to a CCIV; and
(b)
a sub-fund of the CCIV is, with the agreement, consent or acquiescence of the CCIV, included in the official list of a licensed market;
the CCIV, or an associate of the CCIV, is taken to be under an obligation to comply with the operating rules of that market to the extent to which those rules purport to apply to the CCIV or associate.
Note: Subsection
(3)
may apply to a CCIV instead of this subsection if the CCIV, and not a sub-fund, is included in the official list of a licensed market.
History
S 793C(4B) inserted by No 69 of 2023, s 3, Sch 4[72] (effective 15 September 2023).
793C(5)
For the purposes of this section, if a body corporate fails to comply with or enforce provisions of the operating rules of a licensed market, a person who holds financial products of the body corporate that are able to be traded on the market is taken to be a person aggrieved by the failure.
793C(6)
There may be other circumstances in which a person may be aggrieved by a failure for the purposes of this section.
History
S 793C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 793D
CHANGING THE OPERATING RULES
Licensed markets other than subsection 795B(2) markets
793D(1)
As soon as practicable after a change is made to the operating rules of a licensed market, other than a market licensed under subsection
795B(2)
(overseas markets), the licensee must lodge with ASIC in a prescribed form written notice of the change. The notice must:
(a)
set out the text of the change; and
(b)
specify the date on which the change was made; and
(c)
contain an explanation of the purpose of the change.
History
S 793D(1) amended by No 76 of 2023, s 3, Sch 2[359] (effective 20 October 2023).
793D(2)
If no notice is lodged as required by subsection
(1)
with ASIC within 21 days after the change is made, the change ceases to have effect at the end of that period.
Subsection 795B(2) markets
793D(3)
As soon as practicable after a change is made to the operating rules of a market the operation of which is licensed under subsection
795B(2)
(overseas markets), the licensee must lodge with ASIC in a prescribed form written notice of the change. The notice must:
(a)
set out the text of the change; and
(b)
specify the date on which the change was made; and
(c)
contain an explanation of the purpose of the change.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 793D(3) amended by No 76 of 2023, s 3, Sch 2[359] (effective 20 October 2023).
S 793D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 793E
DISALLOWANCE OF CHANGES TO OPERATING RULES
793E(1)
This section does not apply in respect of an Australian market licence granted under subsection
795B(2)
(overseas markets).
793E(2)
As soon as practicable after receiving a notice under section
793D
from a market licensee, ASIC must send a copy of the notice to the Minister.
793E(3)
Within 28 days after ASIC receives the notice from the licensee, the Minister may disallow all or a specified part of the change to the operating rules.
793E(4)
In deciding whether to do so, the Minister must have regard to the consistency of the change with the licensee
'
s obligations under this Part (including in particular the obligation mentioned in paragraph
792A(1)(a)
).
Note: The Minister must also have regard to the matters in section
798A
.
History
S 793E(4) amended by No 17 of 2019, s 3, Sch 1
[
43] (effective 13 March 2019).
793E(5)
As soon as practicable after all or a part of a change is disallowed, ASIC must give notice of the disallowance to the licensee. The change ceases to have effect, to the extent of the disallowance, when the licensee receives the notice.
History
S 793E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision C
-
Powers of the Minister and ASIC
SECTION 794A
MINISTER'S POWER TO GIVE DIRECTIONS
794A(1)
[
Ministerial direction to comply]
If the Minister considers that a market licensee is not complying with its obligations as a market licensee under this Chapter, the Minister may give the licensee a written direction to do specified things that the Minister believes will promote compliance by the licensee with those obligations.
794A(2)
[
Obligation to comply]
The licensee must comply with the direction.
794A(3)
[
Failure to comply]
If the licensee fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that the licensee comply with the direction.
794A(4)
[
Variation or revocation of direction]
The Minister may vary or revoke a direction at any time by giving written notice to the licensee.
History
S 794A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 794B
MINISTER'S POWER TO REQUIRE SPECIAL REPORT
794B(1)
[
Power to require special report]
The Minister may give a market licensee a written notice requiring the licensee to give ASIC a special report on specified matters. ASIC must give the report to the Minister.
794B(2)
[
Audit report on special report]
The notice may also require the licensee to give ASIC an audit report on the special report. The Minister must nominate to prepare the audit report:
(a)
ASIC; or
(b)
a specified person or body that is suitably qualified.
794B(3)
[
Deadline]
The licensee must give the special report, and audit report (if any), to ASIC within the time required by the notice.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
History
S 794B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 794C
ASIC ASSESSMENT OF LICENSEE
'
S COMPLIANCE
History
S 794C heading substituted by No 59 of 2013, s 3, Sch 1, Pt 2
[
10].
794C(1)
ASIC may do an assessment of how well a market licensee is complying with any or all of its obligations as a market licensee under this Chapter. In doing the assessment, ASIC may take account of any information and reports that it thinks appropriate, including information and reports from an overseas regulatory authority.
History
S 794C(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
794C(2)
If the market licensee is prescribed by the regulations for the purpose of this subsection, ASIC must, in respect of the obligation in paragraph
792A(1)(c)
, do such an assessment at least once a year.
History
S 794C(2) amended by No 17 of 2019, s 3, Sch 1
[
44] (effective 13 March 2019).
S 794C(2) substituted by No 59 of 2013, s 3, Sch 1, Pt 2
[
11].
S 794C(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
794C(3)
As soon as practicable after doing an assessment under this section, ASIC must give a written report on the assessment to the licensee and to the Minister.
History
S 794C(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
794C(4)
If an assessment, or part of an assessment, relates to any other person
'
s affairs to a material extent, ASIC may, at the person
'
s request or of its own motion, give the person a copy of the written report on the assessment or the relevant part of the report.
History
S 794C(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
794C(5)
If an assessment, or part of an assessment, relates to a serious contravention of a law of the Commonwealth or of a State or Territory, ASIC may give a copy of the written report on the assessment, or the relevant part of the report, to:
(a)
the Australian Federal Police; or
(b)
the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC (within the meaning of the
Australian Crime Commission Act 2002
); or
(c)
the Director of Public Prosecutions; or
(d)
an agency prescribed by regulations made for the purposes of this paragraph.
History
S 794C(5) amended by No 41 of 2003, s 3, Sch 2
[
1D].
S 794C(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
794C(6)
Either the Minister or ASIC may cause the written report on an assessment, or part of the report on an assessment, to be printed and published.
History
S 794C(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 794D
ASIC'S POWER TO GIVE DIRECTIONS
794D(1)
[
Power to give directions to market licensee]
If ASIC is of the opinion that it is necessary, or in the public interest, to protect people dealing in a financial product or class of financial products by:
(a)
giving a direction to a market licensee to suspend dealings in the financial product or class of financial products; or
(b)
giving some other direction in relation to those dealings;
ASIC may give written advice to the licensee of that opinion and the reasons for it.
Example:
Under paragraph (b), ASIC could give a direction to limit the kinds of dealings that are allowed in the financial product or class of financial products or to require a participant in the market to act in a specified manner in relation to dealings in the financial product or class of financial products.
794D(2)
[
Further direction]
If, after receiving ASIC's advice and reasons, the licensee does not take:
(a)
in the case of a proposed direction to suspend dealings in the financial products
-
action to prevent such dealings; or
(b)
in any other case
-
such other action as in ASIC's view is adequate to address the situation raised in the advice;
and ASIC still considers that it is appropriate to give the direction to the licensee, ASIC may give the licensee the written direction with a statement setting out its reasons for making the direction.
794D(3)
[
Compliance with direction]
The direction has effect for the period specified in it (which may be up to 21 days). During that period, the licensee must comply with the direction and must not allow any dealings to take place contrary to it.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
794D(4)
[
Enforcement of direction]
If the licensee fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that the licensee comply with the direction.
794D(5)
[
Notice to CS facility operator and Minister]
As soon as practicable after making or varying (see subsection (7)) a direction, ASIC must:
(a)
give a copy of the direction or variation to the operator of each clearing and settlement facility with which the market licensee has clearing and settlement arrangements for transactions effected through the market; and
(b)
give a written report to the Minister setting out ASIC's reasons for making the direction or variation; and
(c)
give a copy of the report to the licensee.
794D(6)
[
Referral to Minister]
If, at any time after the licensee receives ASIC's advice under subsection (1), the licensee requests in writing that ASIC refer the matter to the Minister, ASIC must do so immediately. In that event, the Minister may, if he or sheconsiders it appropriate, require ASIC not to make, or to revoke, the direction. ASIC must immediately comply with such a requirement.
794D(7)
[
Variation of direction]
ASIC may vary a direction by giving written notice to the licensee if ASIC is of the opinion that the variation is necessary, or in the public interest, to protect people dealing in a financial product or class of financial products.
794D(8)
[
Revocation of direction]
ASIC may revoke a direction by giving written notice to the licensee. ASIC must also give written notice of the revocation to the operator of each clearing and settlement facility with which the market licensee has clearing and settlement arrangements for transactions effected through the market.
History
S 794D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 794E
ADDITIONAL DIRECTIONS TO CLEARING AND SETTLEMENT FACILITIES
794E(1)
[
Power to give directions to CS facility operator]
If ASIC gives a direction under
section 794D
, it may also give a written direction to the operator of each clearing and settlement facility with which the market licensee has clearing and settlement arrangements for transactions effected through the market:
(a)
prohibiting the operator from acting in a manner inconsistent with the
section 794D
direction; and
(b)
requiring the operator to do all that the operator is reasonably capable of doing to give effect to the
section 794D
direction.
794E(2)
[
Compliance with direction]
The operator must comply with the direction given to it under this section.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
794E(3)
[
Enforcement of direction]
If the operator fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that the operator comply with the direction.
History
S 794E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
Division 4
-
The Australian market licence
Subdivision A
-
How to get a licence
SECTION 795A
HOW TO APPLY FOR A LICENCE
795A(1)
A body corporate may apply for an Australian market licence by lodging with ASIC in a prescribed form an application that:
(a)
includes the information required by regulations made for the purposes of this paragraph; and
(b)
is accompanied by the documents (if any) required by regulations made for the purposes of this paragraph; and
(c)
complies with the requirements of section
881B
(relating to compensation arrangements).
Note: For fees in respect of lodging applications, see Part
9.10
.
History
S 795A(1) amended by No 76 of 2023, s 3, Sch 2[360] (effective 20 October 2023).
795A(2)
ASIC must, within a reasonable time, give the application to the Minister with advice about the application.
History
S 795A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 795B
WHEN A LICENCE MAY BE GRANTED
General
795B(1)
The Minister may grant an applicant an Australian market licence if the Minister is satisfied that:
(a)
the application was made in accordance with section
795A
; and
(b)
the applicant will comply with the obligations that will apply if the licence is granted; and
(c)
the applicant has adequate operating rules, and procedures, (see Subdivision
B
of Division
3
) to ensure, as far as is reasonably practicable, that the market will operate as mentioned in paragraph
792A(1)(a)
; and
(d)
the applicant has adequate arrangements (which may involve the appointment of an independent person or related entity) for operating the market, including arrangements for:
(i)
handling conflicts between the commercial interests of the licensee and the need for the licensee to ensure that the market operates in the way mentioned in paragraph
792A(1)(a)
; and
(ii)
monitoring and enforcing compliance with the market
'
s operating rules; and
(e)
the applicant has adequate clearing and settlement arrangements for transactions effected through the market, if the Minister considers that the applicant should have such arrangements; and
(f)
neither subsection
881D(2)
nor
882A(2)
(relating to compensation arrangements) requires the Minister to reject the application; and
(g)
no unacceptable control situation (see Division
1
of Part
7.4
) is likely to result if the licence is granted; and
(h)
no disqualified individual appears to be involved in the applicant (see Division
2
of Part
7.4
).
This subsection has effect subject to subsections (3) and (4).
Note: The Minister must also have regard to the matters in section
798A
in deciding whether to grant a licence.
History
S 795B(1) amended by No 17 of 2019, s 3, Sch 1
[
45] and
[
46] (effective 13 March 2019).
S 795B(1) amended by No 26 of 2010, Sch 1[12] and
[
13].
Alternative criteria for granting licence for overseas market
795B(2)
If an applicant is authorised to operate a financial market in the foreign country in which its principal place of business is located, the Minister may grant the applicant an Australian market licence authorising the applicant to operate the same market in this jurisdiction. The Minister must be satisfied that:
(a)
the application was made in accordance with section
795A
; and
(b)
the applicant will comply with the obligations that will apply if the licence is granted; and
(c)
the operation of the market in that country is subject to requirements and supervision that are sufficiently equivalent, in relation to the degree of investor protection and market integrity they achieve, to the requirements and supervision to which financial markets are subject under this Act in relation to those matters; and
(d)
the applicant undertakes to cooperate with ASIC by sharing information and in other appropriate ways; and
(e)
no unacceptable control situation (see Division
1
of Part
7.4
) is likely to result if the licence is granted; and
(f)
no disqualified individual appears to be involved in the applicant (see Division
2
of Part
7.4
); and
(g)
any other requirements that are prescribed by regulations made for the purposes of this paragraph are satisfied.
This subsection has effect subject to subsections (3) and (4).
Note: The Minister must also have regard to the matters in section
798A
in deciding whether to grant a licence.
Foreign bodies
795B(3)
If the applicant is a foreign body corporate, the Minister:
(a)
must not grant the applicant a licence unless the applicant is registered under Division
2
of Part
5B.2
; and
(b)
may otherwise grant a licence under either subsection (1) or (2) (if the relevant criteria are satisfied).
Disqualified individuals
795B(4)
The Minister must not grant the applicant a licence unless:
(a)
ASIC has notified the Minister that, as far as ASIC is aware, no disqualified individual is involved in the applicant (see Division
2
of Part
7.4
); or
(b)
42 days have passed since the application was made and ASIC has not given a notice under subsection
853D(2)
to the applicant within that 42 days.
History
S 795B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 795C
795C
PUBLICATION OF NOTICE OF LICENCE GRANT
If the Minister grants an Australian market licence, the Minister must publish a notice in the
Gazette
stating:
(a)
the name of the licensee; and
(b)
when the licence was granted; and
(c)
the conditions on the licence.
History
S 795C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 795D
795D
MORE THAN ONE LICENCE IN THE SAME DOCUMENT
If the Minister grants a person 2 or more of the following:
(a)
an Australian market licence;
(b)
an Australian CS facility licence;
they may be included in the same document.
History
S 795D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 795E
MORE THAN ONE MARKET COVERED BY THE SAME LICENCE
795E(1)
The same Australian market licence may authorise the licensee to operate 2 or more financial markets.
795E(2)
In that case, a reference to the market to which an Australian market licence relates is taken instead to be a reference to each of those financial markets severally.
History
S 795E(2) amended by No 76 of 2023, s 3, Sch 2[361] (effective 20 October 2023).
795E(3)
Before varying the conditions on an Australian market licence so as to add another market that the licensee is authorised to operate, the Minister must be satisfied of the matters listed in subsection
795B(1)
or
(2)
(as appropriate) in relation to the market.
795E(4)
An Australian market licence that authorises the licensee to operate 2 or more financial markets may be suspended or cancelled under Subdivision
C
in respect of one or some of those markets only, as if the licensee held a separate licence for each of the markets.
History
S 795E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision B
-
The conditions on the licence
SECTION 796A
THE CONDITIONS ON THE LICENCE
796A(1)
The Minister may, at any time:
(a)
impose conditions, or additional conditions, on an Australian market licence; or
(b)
vary or revoke conditions imposed on such a licence;
by giving written notice to the licensee. The Minister must also publish a notice in the
Gazette
with details of the action and when it took effect.
Note: As well as the requirements in this section, the Minister must also have regard to the matters in
section 798A
.
796A(2)
The Minister may do so:
(a)
on his or her own initiative, subject to subsection
(3)
; or
(b)
if the licensee lodges with ASIC in a prescribed form an application for the Minister to do so, which is accompanied by the prescribed documents, if any.
Note: For fees in respect of lodging applications, see Part
9.10
.
History
S 796A(2) amended by No 76 of 2023, s 3, Sch 2[362] (effective 20 October 2023).
796A(3)
The Minister may only impose conditions or additional conditions, or vary the conditions, on the licence on his or her own initiative if:
(a)
he or she considers it appropriate to do so having regard to:
(i)
the licensee's obligations as a market licensee under this Chapter; and
(ii)
any change in market operations or the conditions in which the market is operating; and
(b)
the Minister gives the licensee written notice of the proposed action and an opportunity to make a submission before it takes effect.
This subsection does not apply to the Minister imposing conditions when a licence is granted.
796A(4)
The Minister must ensure that each Australian market licence is subject to conditions that specify:
(a)
the particular market that the licensee is authorised to operate; and
(b)
the class or classes of financial products that can be dealt with on the market; and
(c)
if the Minister considers that the licensee should have clearing and settlement arrangements for transactions effected through the market
-
the type of clearing and settlement arrangements that are adequate.
Note: If compensation arrangements in relation to the market are approved under Division
3
of Part
7.5
, there must also be conditions as required by subsection
882A(4)
or paragraph
882B(4)(b)
.
[
CCH Note:
The next subsection is s 796A(6).]
796A(6)
ASIC must give the Minister any application and documents lodged under subsection
(2)
.
History
S 796A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision C
-
When a licence can be varied, suspended or cancelled
SECTION 797A
VARYING LICENCES
797A(1)
The Minister may vary an Australian market licence to take account of a change in the licensee's name if the licensee lodges with ASIC in a prescribed form an application for the variation, accompanied by the prescribed documents, if any.
Note 1: The conditions on the licence can be varied under section
796A
.
Note 2: For fees in respect of lodging applications, see Part
9.10
.
History
S 797A(1) amended by No 76 of 2023, s 3, Sch 2[363] (effective 20 October 2023).
797A(2)
The Minister must give written notice of the variation to the licensee.
797A(3)
ASIC must give the Minister any application and documents lodged under subsection
(1)
.
History
S 797A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 797B
797B
IMMEDIATE SUSPENSION OR CANCELLATION
The Minister may, by giving written notice to a market licensee, suspend the licence for a specified period, or cancel it, if:
(a)
the licensee ceases to carry on the business of operating the market; or
(b)
the licensee becomes a Chapter 5 body corporate; or
(c)
the licensee asks the Minister to do so; or
(d)
in the case of a licence granted under subsection
795B(2)
(overseas markets):
(i)
the licensee ceases to be authorised to operate a financial market in the foreign country in which the licensee
'
s principal place of business is located; or
(ii)
there is a change to the regulatory regime applying in relation to the market to which the licence relates in the country in which the licensee
'
s principal place of business is located, and, because of that change, the Minister is no longer satisfied as mentioned in paragraph
795B(2)
(c); or
(e)
in the case of a licensee that is a leviable entity (within the meaning of the
ASIC Supervisory Cost Recovery Levy Act 2017
)
-
the following have not been paid in full at least 12 months after the due date for payment:
(i)
an amount of levy (if any) payable in respect of the licensee;
(ii)
an amount of late payment penalty payable (if any) in relation to the levy;
(iii)
an amount of shortfall penalty payable (if any) in relation to the levy.
History
S 797B amended by No 45 of 2017, s 3, Sch 1[8] (effective 1 July 2017).
S 797B amended by No 11 of 2016, s 3, Sch 2[209] (effective 1 March 2017).
S 797B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 797C
SUSPENSION OR CANCELLATION FOLLOWING HEARING AND REPORT
797C(1)
[
Ministerial power to issue show cause notice]
If the Minister considers that a market licensee has breached, or is in breach of, one or more of its obligations as a market licensee under this Chapter, the Minister may give the licensee a written notice that requires the licensee to show cause, at a hearing before a specified person, why the licence should not be suspended or cancelled.
797C(2)
[
Contents of show cause notice]
The notice must specify:
(a)
the grounds on which it is proposed to suspend or cancel the licence; and
(b)
a reasonable time and place at which the hearing is to be held.
However, if the licensee consents, the person conducting the hearing may fix a different time or place.
797C(3)
[
Conduct of hearing]
The person conducting the hearing must:
(a)
give the licensee an opportunity to be heard at the hearing; and
(b)
give the Minister:
(i)
a report about the hearing; and
(ii)
a recommendation about the grounds in the notice on which it is proposed to suspend or cancel the licence.
797C(4)
[
Ministerial power to cancel or suspend licence]
After considering the report and recommendation, the Minister may:
(a)
decide to take no further action in relation to the matter and give written advice of that decision to the licensee; or
(b)
suspend the licence for a specified period, or cancel the licence, by giving written notice to the licensee.
Note: The Minister must also have regard to the matters in
section 798A
.
History
S 797C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 797D
EFFECT OF SUSPENSION
797D(1)
[
Effect of suspension]
A person whose Australian market licence is suspended is taken not to hold that licence while it is suspended.
797D(2)
[
Exemption]
However, the Minister may specify in the written notice to the licensee that subsection (1) does not apply for specified purposes.
History
S 797D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 797E
797E
VARIATION OR REVOCATION OF SUSPENSION
The Minister may at any time vary or revoke a suspension of an Australian market licence by giving written notice to the licensee.
History
S 797E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 797F
PUBLICATION OF NOTICE OF LICENCE SUSPENSION OR CANCELLATION
797F(1)
[
Notice of suspension or cancellation]
If the Minister:
(a)
suspends, or varies or revokes a suspension of, an Australian market licence; or
(b)
cancels an Australian market licence;
the Minister must publish a notice in the
Gazette
to that effect.
797F(2)
[
Contents of notice]
The notice must state when the action took effect.
History
S 797F inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 797G
797G
SUSPENSION AND CANCELLATION ONLY IN ACCORDANCE WITH THIS SUBDIVISION
An Australian market licence cannot be varied, suspended or cancelled otherwise than in accordance with this Subdivision.
Note: The conditions on the licence can be varied under
section 796A
.
History
S 797G inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
Division 5
-
Other matters
SECTION 798A
MATTERS TO BE TAKEN INTO ACCOUNT BY THE MINISTER
798A(1)
[
Ministerial criteria for decision-making]
The Minister must have regard to certain matters in deciding whether to:
(a)
grant an applicant an Australian market licence under
section 795B
; or
(b)
impose, vary or revoke conditions on such a licence under
section 796A
; or
(c)
suspend or cancel such a licence under
section 797C
; or
(d)
disallow a change to the operating rules of a licensed market under
section 793E
.
798A(2)
[
Relevant criteria]
These are the matters the Minister must have regard to:
(a)
the structure, or proposed structure, of the market;
(b)
the nature of the activities conducted, or proposed to be conducted, on the market;
(c)
the size, or proposed size, of the market;
(d)
the nature of the financial products dealt with, or proposed to be dealt with, on the market;
(e)
the participants, or proposed participants, in the market and:
(i)
whether those participants, in effecting transactions through the market, are, or will be, providing financial services to other persons; and
(ii)
whether those participants acquire or dispose, or will acquire or dispose, of financial products through the market as retail clients or as wholesale clients; and
(iii)
whether those participants are also, or will also be, participants in any other financial markets;
(f)
the technology used, or proposed to be used, in the operation of the market;
(g)
whether it would be in the public interest to take the action referred to in subsection (1);
(h)
any relevant advice received from ASIC.
The Minister may also have regard to any other matter that the Minister considers relevant.
798A(3)
[
Additional criteria]
If the Minister is deciding whether to take the action referred to in paragraph (1)(a), (b) or (c) in respect of an Australian market licence granted under
subsection 795B(2)
(overseas markets), the Minister must also have regard to:
(a)
the criteria that the licensee or applicant satisfied to obtain an authorisation to operate the same market in the foreign country in which their principal place of business is located; and
(b)
the obligations they must continue to satisfy to keep the authorisation; and
(c)
the level of supervision to which the operation of the market in that country is subject; and
(d)
whether adequate arrangements exist for cooperation between ASIC and the authority that is responsible for that supervision.
History
S 798A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 798B
798B
ASIC MAY GIVE ADVICE TO MINISTER
ASIC may give advice to the Minister in relation to:
(a)
any matter in respect of which the Minister has a discretion under this Part; or
(b)
any other matter concerning financial markets.
Note: In some cases, the Minister must have regard to ASIC's advice: see paragraph
798A(2)
(h).
History
S 798B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 798C
MARKET LICENSEE OR RELATED BODY CORPORATE ETC. LISTING ON MARKET
798C(1)
Any of the following kinds of entity, scheme or fund (the
listed entity
) may be included in a market
'
s official list:
(a)
the market licensee for the market;
(b)
a related body corporate of the market licensee;
(c)
a registered scheme whose responsible entity is a related body corporate of the market licensee;
(ca)
a notified foreign passport fund whose operator is a related body corporate of the market licensee;
(d)
a trust whose trustee is a related body corporate of the market licensee.
Note: There are certain matters that must be included in the market
'
s listing rules before such an entity, scheme or fund is included in the official list (see subsection (4)).
History
S 798C(1) amended by No 61 of 2018, s 3, Sch 2[218]
-
[
221] (effective 18 September 2018).
798C(2)
In such a case, the financial products of the listed entity may be traded on the market, if either or both the listed entity and the market licensee have entered into such arrangements as ASIC requires:
(a)
for dealing with possible conflicts of interest that might arise from the listed entity
'
s financial products being able to be traded on the market; and
(b)
for the purposes of ensuring the integrity of trading in the listed entity
'
s financial products.
Note: For fees in respect of ASIC performing functions under such arrangements, see Part
9.10
.
798C(3)
The listed entity, and the market licensee (if applicable), with whom ASIC has entered into arrangements for the purposes of subsection (2) must comply with the arrangements.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
798C(4)
Before, and at all times while, the listed entity is included in the market
'
s official list, the market
'
s listing rules must provide for ASIC, instead of the market licensee, to make decisions and to take action (or to require the market licensee to take action on ASIC
'
s behalf) in relation to these matters, and matters related to these matters:
(a)
the admission of the listed entity to the market
'
s official list; and
(b)
the removal of the listed entity from that list; and
(c)
allowing, stopping or suspending the trading on the market of the listed entity
'
s financial products.
Note: For fees in respect of ASIC performing this function, see Part
9.10
.
798C(5)
ASIC has the powers and functions that are provided for it in any listing rules or arrangements made for the purposes of this section.
798C(6)
The products of an entity, scheme or fund referred to in subsection (1) must not be traded on the market licensee
'
s market otherwise than as allowed by this section.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 798C(6) amended by No 61 of 2018, s 3, Sch 2[222] (effective 18 September 2018).
798C(7)
This section does not apply if the licence of the market licensee was granted under subsection
795B(2)
(overseas markets). Instead, the law of the country in which the market licensee
'
s principal place of business is located applies for all purposes connected with the inclusion of the listed entity in the market
'
s official list.
History
S 798C substituted by No 101 of 2007, s 3, Sch 1, Pt 1
[
101].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
239] contained the following savings provision (which was effective 28 June 2007):
Saving provision for item 101
The amendment made by item 101 of this Schedule does not affect the continuity of:
(a) any arrangement entered into for the purposes of section 798C of the Corporations Act 2001; or
(b) any market listing rules made for the purposes of section 798C of the Corporations Act 2001;
that are in force immediately before that item commences.]
SECTION 798D
EXEMPTIONS AND MODIFICATIONS FOR SELF-LISTING LICENSEES OR RELATED BODIES CORPORATE ETC.
798D(1)
ASIC may:
(a)
exempt an entity, scheme or fund referred to in subsection
798C(1)
whose financial products are able to be traded on the market from a modifiable provision (see subsection (7)); or
(b)
declare that a modifiable provision applies to an entity, scheme or fund referred to in subsection
798C(1)
whose financial products are able to be traded on the market as if specified provisions were omitted, modified or varied as specified in the declaration.
History
S 798D(1) amended by No 61 of 2018, s 3, Sch 2[223] (effective 18 September 2018).
S 798D(1) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
102].
S 798D(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
798D(2)
An exemption or declaration must be in writing and ASIC must publish notice of it in the
Gazette
.
History
S 798D(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
798D(3)
An exemption may apply unconditionally or subject to specified conditions.
History
S 798D(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
798D(4)
If an exemption is granted subject to specified conditions, the entity, scheme or fund must comply with those conditions.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
History
S 798D(4) amended by No 61 of 2018, s 3, Sch 2[224] (effective 18 September 2018).
S 798D(4) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
103].
S 798D(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
798D(5)
If an exemption is granted subject to specified conditions, the Court may, on ASIC's application, order the entity, scheme or fund to comply with one or more of those conditions in a specified way.
History
S 798D(5) amended by No 61 of 2018, s 3, Sch 2[224] (effective 18 September 2018).
S 798D(5) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
104].
S 798D(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
798D(6)
If conduct (including an omission) of a person would not have constituted an offence if:
(a)
a particular condition had not been imposed on an exemption under paragraph (1)(a); or
(b)
a particular declaration under paragraph (1)(b) had not been made;
that conduct does not constitute an offence unless, before the conduct occurred (in addition to complying with the gazettal requirement of subsection (2)), ASIC gave written notice setting out the text of the condition or the declaration to the person. In a prosecution for an offence to which this subsection applies, the prosecution must prove that this additional notification requirement was complied with before the conduct occurred.
History
S 798D(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
798D(7)
In this section:
modifiable provision
means:
(a)
section 205G
and any of the provisions of Chapter
6
,
6A
,
6B
,
6C
,
6CA
or
7
; or
(b)
regulations made for the purposes of that section or any of those provisions.
History
S 798D(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 798DA
MARKET LICENSEE, RELATED BODY CORPORATE ETC. OR COMPETITOR PARTICIPATING IN MARKET
798DA(1)
[
Application]
This section applies if any of the following is a participant (the
participant
) in a market:
(a)
the market licensee;
(b)
a related body corporate of the market licensee;
(c)
a partnership if a partner in the partnership is a related entity of the market licensee;
(d)
an entity if:
(i)
the entity conducts, or participates in, a business that is in competition with a business conducted by the market licensee, or by a related body corporate of the market licensee; and
(ii)
the entity requests that ASIC make decisions and take action in relation to the matters referred to in subsection (2).
798DA(2)
[
Regulation of participant]
Before, and at all times while, the participant is participating in the market, the market
'
s operating rules must provide for ASIC, instead of the market licensee, to make decisions and to take action (or to require the market licensee to take action on ASIC
'
s behalf) in relation to these matters, and matters related to these matters:
(a)
the admission of the participant to the market; and
(b)
the expulsion and suspension of the participant from the market; and
(c)
the disciplining of the participant; and
(d)
the participant
'
s compliance with the operating rules or this Act, including:
(i)
the method of determining whether the participant has complied with those rules or this Act; and
(ii)
any action (including the imposition of a fine or penalty) to be taken in respect of contraventions of those rules or this Act.
Note: For fees in respect of ASIC performing this function, see Part
9.10
.
798DA(3)
[
Powers and functions of ASIC]
ASIC has the powers and functions that are provided for it in any operating rules made for the purposes of this section.
798DA(4)
[
Prohibition on market licensee]
A participant referred to in subsection (1) must not participate in the market licensee
'
s market otherwise than as allowed by this section.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
798DA(5)
[
Limitation on application]
This section does not apply if the licence of the market licensee was granted under subsection
795B(2)
(overseas markets). Instead, the law of the country in which the market licensee
'
s principal place of business is located applies for all purposes connected with the participation of the participant in the market.
798DA(6)
[
Prohibition on participation in own market]
To avoid doubt, subsection (1) does not authorise a market licensee to participate in its own market.
History
S 798DA inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
105] (effective 28 June 2007).
SECTION 798E
OTHER POTENTIAL CONFLICT SITUATIONS
798E(1)
The regulations may make provision in relation to the rules and procedures that are to apply inthe case of conflicts, or potential conflicts, between the commercial interests of the licensee and the need for the licensee to ensure that the market operates in the way mentioned in paragraph
792A(1)(a)
.
History
S 798E(1) amended by No 17 of 2019, s 3, Sch 1
[
47] (effective 13 March 2019).
798E(2)
In particular, such regulations may deal with the following:
(a)
identifying when such a conflict, or potential conflict, is taken to arise;
(b)
empowering ASIC, instead of the licensee, to make decisions and to take action under the market
'
s operating rules in relation to such a conflict or potential conflict;
(c)
empowering ASIC to require the licensee to take action under the market
'
s operating rules (whether or not on ASIC
'
s behalf) in relation to such a conflict or potential conflict.
Note: For fees in respect of ASIC performing this function, see Part
9.10
.
798E(3)
Subsection (2) does not limit the generality of subsection (1).
History
S 798E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].