1213B(4)    
Nothing in this section requires ASIC to conduct an assessment of the public interest in this jurisdiction in each case.

1213B(5)    
A name is not available to a foreign passport fund in this jurisdiction for the purposes of paragraph (1)(d) if:

(a)    the name is:

(i) identical (under rules set out in the regulations) to a name that is reserved or registered under this Act for another body; or

(ii) identical (under rules set out in the regulations) to a name of a managed investment scheme that is the subject of an application for registration that has been lodged under section 601EA but not yet determined; or

(iii) identical (under rules set out in the regulations) to a name of a foreign passport fund in relation to which a notice of intention under section 1213 has already been lodged; or

(iv) identical (under rules set out in the regulations) to a name that is held or registered on the Business Names Register in respect of another individual or body who is not the operator; or

(v) unacceptable for registration under the regulations; and

(b)    the operator of the fund has not notified ASIC and the home regulator for the fund in writing that it will adopt an available alternative name for the fund in this jurisdiction.

1213B(6)    
The Minister may consent in writing to a name being available to a foreign passport fund in this jurisdiction even if the name would not otherwise be available because of paragraph (5)(a) .

1213B(7)    
The Minister ' s consent may be given subject to conditions.

Circumstances in which ASIC must reject a notice of intention

1213B(8)    
ASIC must, within the consideration period for the notice of intention, reject the notice if:

(a)    the Minister has made a determination under subsection 1210B(1) that the operators of passport funds, or a class of passport funds, the home economy for which is specified in the determination, must not offer interests in the fund in this jurisdiction; and

(b)    the determination applies to the passport fund.

ASIC must notify operator of decision to reject

1213B(9)    
The notice of intention is rejected by ASIC giving the operator of the foreign passport fund notification in writing of the rejection.

SECTION 1213C   NOTIFIED FOREIGN PASSPORT FUNDS - AUTHORITY TO OFFER INTERESTS IN THIS JURISDICTION  

1213C(1)    
A foreign passport fund becomes a notified foreign passport fund if:

(a) the operator of the fund has lodged a notice of intention to offer interests in the fund to persons in this jurisdiction with ASIC under section 1213 ; and

(b) the operator of the fund has not withdrawn the notice of intention under subsection 1213(3) ; and

(c) within the consideration period for the notice of intention, ASIC has not given the operator:

(i) notification under section 1213A that ASIC is of the opinion that information required under the prescribed form has not been provided; or

(ii) notification under section 1213B that the notice of intention has been rejected.

1213C(2)    
The foreign passport fund becomes a notified foreign passport fund on the first day after the end of the consideration period for the notice of intention.

1213C(3)    
The foreign passport fund ceases to be a notified foreign passport fund if it is removed as a notified foreign passport fund under Division 2 of Part 8A.7 .

1213C(4)    
A notified foreign passport fund may offer interests in the fund to persons in this jurisdiction.

SECTION 1213D   MEANING OF CONSIDERATION PERIOD  

1213D(1)    
The consideration period , for a notice of intention to offer interests in a foreign passport fund in this jurisdiction, is:

(a)    a period of 15 business days beginning on the day after the notice is lodged with ASIC; or

(b)    if ASIC and the operator agree that the period is to be extended under subsection (2) - the extended period.

1213D(2)    
ASIC and the operator of the foreign passport fund may agree, in writing, to one or more extensions of the consideration period. However, each extension must be for no more than 5 business days.

Division 2 - Treatment of notified foreign passport funds  

SECTION 1213E   NOTIFIED FOREIGN PASSPORT FUNDS TO BE TREATED AS MANAGED INVESTMENT SCHEMES  

1213E(1)    

A notified foreign passport fund is a managed investment scheme for the purposes of this Act, even if it would not otherwise be a managed investment scheme for the purposes of this Act because of the way in which that term is defined in section 9 .

Note: This subsection does not affect the other legal characteristics of a notified foreign passport fund for the purposes of this Act. For example, if a notified foreign passport fund is a body corporate, it remains a body corporate for the purposes of this Act.

1213E(2)    
The constituent document (as defined in the Passport Rules for this jurisdiction) for the notified foreign passport fund is taken to be the constitution of the fund as a managed investment scheme.

SECTION 1213F  

1213F   OPERATORS AND NOTIFIED FOREIGN PASSPORT FUNDS NOT TO BE TREATED AS COMPANIES ETC.  

To avoid doubt:

(a) neither the operator of a notified foreign passport fund nor the fund is to be treated as a company for the purposes of the corporations legislation, merely because the operator or the fund is registered as a foreign company under Division 2 of Part 5B.2 ; and

(b) a reference in the corporations legislation to a share does not include an interest in a notified foreign passport fund unless the fund is also a company.

SECTION 1213G   OFFENCES RELATING TO THE OPERATION OF NOTIFIED FOREIGN PASSPORT FUNDS  

1213G(1)    
This section applies if:

(a) one of the following persons engages in conduct that constitutes an alleged offence against this Act or the ASIC Act:

(i) a notified foreign passport fund;

(ii) the operator of a notified foreign passport fund;

(iii) a person with responsibilities in relation to a notified foreign passport fund; and

(b) the conduct occurs in relation to the operation of the fund; and

(c) the conduct occurs wholly in a foreign country; and

(d) the person who engages in the conduct is not:

(i) an Australian citizen; or

(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

(e) it is not otherwise a physical element of the offence that the conduct results, or is likely to result, in a person in this jurisdiction who has an interest in the fund suffering financial or other disadvantage.

1213G(2)    
It is a physical element of the offence that the conduct results, or is likely to result, in a person in this jurisdiction who has an interest in the fund suffering financial or other disadvantage.

1213G(3)    
In this section:

person with responsibilities in relation to a notified foreign passport fund
means a person (other than a regulator) who has functions or duties in relation to the fund under the Passport Rules for this jurisdiction.

Division 3 - Conduct of notified foreign passport funds in this jurisdiction  

SECTION 1213H  

1213H   NOTIFIED FOREIGN PASSPORT FUNDS MUST NOT ISSUE DEBENTURES IN THIS JURISDICTION  

The operator of a notified foreign passport fund commits an offence if the operator or the fund:

(a) makes an offer of debentures in this jurisdiction that needs disclosure to investors under Chapter 6D , or does not need disclosure to investors under Chapter 6D because of subsection 708(14) (disclosure document exclusion for debenture roll overs) or section 708A (sale offers that do not need disclosure); or

(b) makes an offer of debentures in this jurisdiction or elsewhere as consideration for the acquisition of securities under an off-market takeover bid.

Penalty: 60 penalty units.

Note: For rules about when an offer of debentures will need disclosure to investors under Chapter 6D , see sections 706 , 707 , 708 , 708AA and 708A .

Division 4 - Providing key information in relation to notified foreign passport funds  

Subdivision A - Obligations to provide information to members in this jurisdiction  

SECTION 1213J   CONSTITUTION - RIGHT TO OBTAIN A COPY  

Right to a copy of the consolidated constitution

1213J(1)    
The operator of a notified foreign passport fund commits an offence of strict liability if:

(a) a person makes an application to the operator in accordance with subsection (2) for a copy of the consolidated constitution of the fund; and

(b) the person is:

(i) an Australian member of the fund; or

(ii) a former member of the fund who acquired an interest in the fund in this jurisdiction, or is ordinarily resident in this jurisdiction; and

(c) the person pays the reasonable costs of the operator, up to a prescribed amount, in providing a copy of the consolidated constitution; and

(d) the operator fails, or refuses, to give the person a copy of the consolidated constitution in accordance with this section; and

(e) as a result, the person does not obtain a copy of the consolidated constitution of the fund in accordance with this section.

Penalty: 60 penalty units.

Application for a copy of the consolidated constitution

1213J(2)    
An application to the operator of a notified foreign passport fund is in accordance with this subsection if the application is in writing.

Manner in which the consolidated constitution must be provided

1213J(3)    
If, in the application, the applicant requests a paper copy of the consolidated constitution, the operator must post the applicant a copy of the consolidated constitution within 7 days after the application is made.

1213J(4)    
Otherwise, the operator must give the applicant a copy of the consolidated constitution electronically, within 7 days after the application is made.

1213J(5)    
ASIC may allow a longer period for the operator to give the applicant a copy of the consolidated constitution.

Language in which consolidated constitution must be provided

1213J(6)    
If, in the application, the applicant requests that the copy of the consolidated constitution be in an official language of the home economy of the fund (other than English), the copy of the consolidated constitution given to the applicant must be in that language.

1213J(7)    
Otherwise, the copy of the consolidated constitution given to the applicant must be in English.

Geographical jurisdiction

1213J(8)    
Section 15.1 of the Criminal Code (extended geographical jurisdiction - category A) applies to an offence against subsection (1) .

SECTION 1213K   REGISTER OF MEMBERS - RIGHT TO OBTAIN A COPY  

Right to a copy of the register of members of a fund

1213K(1)    
The operator of a notified foreign passport fund commits an offence of strict liability if:

(a) a person makes an application to the operator in accordance with subsection (2) for a copy of the register of members for the fund; and

(b) the person is:

(i) in this jurisdiction; or

(ii) an Australian member of the fund; or

(iii) a former member of the fund who acquired an interest in the fund in this jurisdiction, oris ordinarily resident in this jurisdiction; and

(c) the person pays the reasonable costs of the operator, up to a prescribed amount, in providing a copy of the register; and

(d) the operator fails, or refuses, to give the person a copy of the register in accordance with this section; and

(e) as a result, the person does not obtain a copy of the register of the fund in accordance with this section.

Penalty: 60 penalty units.

Application for a copy of the register

1213K(2)    
An application to the operator of a notified foreign passport fund is in accordance with this subsection if:

(a) the application is in writing; and

(b) the application states each purpose for which the applicant wishes to obtain a copy of the register; and

(c) none of those purposes is a prescribed purpose.

Manner in which register must be provided

1213K(3)    
If, in the application, the applicant requests a paper copy of the register, the operator must post the applicant a copy of the register within 7 days after the application is made.

1213K(4)    
Otherwise, the operator must give the applicant a copy of the register electronically, within 7 days after the application is made.

1213K(5)    
ASIC may allow a longer period for the operator to give the applicant a copy of the register.

Language in which register must be provided

1213K(6)    
If, in the application, the applicant requests that the copy of the register be in an official language of the home economy of the fund (other than English), the copy of the register given to the applicant must be in that language.

1213K(7)    
Otherwise, the copy of the register given to the applicant must be in English.

Geographical jurisdiction

1213K(8)    
Section 15.1 of the Criminal Code (extended geographical jurisdiction - category A) applies to an offence against subsection (1) .

SECTION 1213L   USE OF INFORMATION ON REGISTER OF MEMBERS  

Offence - using information obtained from the register to contact members

1213L(1)    
A person who obtains a copy of a register of members of a notified foreign passport fund under section 1213K must not:

(a) use information about a person (the other member ) obtained from the register to contact or send material to the person; or

(b) disclose information of that kind knowing that the information is likely to be used to contact or send material to the other member.

Penalty: 60 penalty units.

Note: An example of using information to send material to a person is putting a person ' s name and address on a mailing list for advertising material.

Exception

1213L(2)    
Subsection (1) does not apply if the use or disclosure of the information is:

(a) relevant to the holding of the interests recorded in the register or the exercise of the rights attaching to them; or

(b) approved by the operator of the fund.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

Offence - using information obtained from the register for a prescribed purpose

1213L(3)    
A person who obtains a copy of a register of members of a notified foreign passport fund under section 1213K must not:

(a) use information obtained from the register for any purpose prescribed by regulations made for the purposes of paragraph 1213K(2)(c) ; or

(b) disclose information of that kind knowing that the information is likely to be used for any such purpose.

Penalty: 60 penalty units.

Strict liability

1213L(4)    
An offence based on subsection (1) or (3) is an offence of strict liability.

Geographical jurisdiction

1213L(5)    
Section 15.1 of the Criminal Code (extended geographical jurisdiction - category A) applies to an offence against subsection (1) or (3) .

Liability to pay compensation

1213L(6)    
A person who contravenes subsection (1) or (3) is liable to compensate anyone else who suffers loss or damage because of the contravention.

Returning profits made by contravening subsection (1) or (3)

1213L(7)    
A person who makes a profit by contravening subsection (1) or (3) owes a debt to the fund. The amount of the debt is the amount of the profit.

1213L(8)    
If a person owes a debt under subsection (7) to the fund:

(a) the debt may be recovered by the operator of the fund as a debt due to it; and

(b) any amount paid or recovered in respect of the debt forms part of the property of the fund.

SECTION 1213M   REPORTS REQUIRED UNDER THE LAW OF THE HOME ECONOMY  

Right to a copy of reports

1213M(1)    
The operator of a notified foreign passport fund commits an offence of strict liability if:

(a) the operator or the fund is required under the law of the home economy for the fund to prepare a report (however described) in relation to the fund; and

(b) the operator or the fund makes the report available to members of the fund in the home economy without charge; and

(c) the operator does not give Australian members of the fund, in accordance with this section:

(i) a copy of the report; and

(ii) if a summary in English of all or part of the report is required under subsection (5) - a summary in English of all or that part of the report.

Penalty: 60 penalty units.

Manner in which report must be made available

1213M(2)    
The report must be given to Australian members of the fund within 7 days after the first day on which the report is made available to a member of the fund in the home economy without charge.

1213M(3)    
The report may be given to Australian members of the fund by:

(a) putting the report on the fund ' s website so that it is accessible to Australian members of the fund; and

(b) if members of the fund in the home economy are notified that the report is available on the fund ' s website, or notified how those members may access it - giving equivalent notice to Australian members of the fund.

1213M(4)    
The report must be given without charge.

English summary of the report

1213M(5)    
If all or part of the report is not in English, the operator must also give an Australian member of the fund a summary of the report, or that part of the report, in English in the same manner as the operator gives the report under subsections (2) , (3) and (4) .

Exception

1213M(6)    
Subsection (1) does not apply if the operator of the fund is required under another provision of this Act to lodge the report, or to give the report to Australian members of the fund.

Geographical jurisdiction

1213M(7)    
Section 15.1 of the Criminal Code (extended geographical jurisdiction - category A) applies to an offence against subsection (1) .

SECTION 1213N   ORDER FOR COPIES OF BOOKS OF A NOTIFIED FOREIGN PASSPORT FUND  

1213N(1)    
A person may apply to the Court for an order under subsection (2) if the person is:

(a) an Australian member of the fund; or

(b) a former member of the fund who acquired an interest in the fund in this jurisdiction, or is ordinarily resident in this jurisdiction.

1213N(2)    
On application by the member or former member, the Court may order the operator of the fund to give the member or former member an electronic copy of any or all of the following:

(a) all or a specified part of the books of the operator that relate to the fund;

(b) all or a specified part of the books of the fund;

(c) an English translation of all or a specified part of the books of the operator that relate to the fund;

(d) an English translation of all or a specified part of the books of the fund.

1213N(3)    
The Court may make the order only if it is satisfied that:

(a) the applicant is acting in good faith; and

(b) the books, or the specified part of the books, are to be obtained for a proper purpose.

1213N(4)    
The member or former member may make copies of the books, or the specified part of the books, unless the Court orders otherwise.

Subdivision B - Obligations to provide information to ASIC  

SECTION 1213P   REGISTER OF MEMBERS - ASIC MAY REQUIRE LODGMENT  

1213P(1)    
The operator of a notified foreign passport fund commits an offence of strict liability if:

(a) ASIC requires the operator of the fund to lodge a copy of the whole or a specified part of the register of members of the fund, in accordance with subsections (2) and (3) ; and

(b) the operator fails, or refuses, to lodge a copy of the register in accordance with this section.

Penalty: 60 penalty units.

Notice requiring operator to lodge register of members

1213P(2)    
ASIC may, by written notice given to the operator of a notified foreign passport fund, require the operator to lodge a copy of the whole or a specified part of the register of members of the fund.

1213P(3)    
ASIC may, in the notice, require the copy of the whole or the specified part of the register to be lodged in English.

Manner in which register must be lodged

1213P(4)    
The operator must lodge a copy of the register with ASIC electronically, within 7 days after being given notice to do so in accordance with subsections (2) and (3) .

1213P(5)    
ASIC may allow a longer period for the operator to lodge a copy of the register.

Language in which register must be provided

1213P(6)    
If, in the notice, ASIC requires a copy of the whole or a specified part of the register to be lodged in English, the operator must lodge the whole or that part of the register in English.

Geographical jurisdiction

1213P(7)    
Section 15.1 of the Criminal Code (extended geographical jurisdiction - category A) applies to an offence against subsection (1) .

SECTION 1213Q  

1213Q   DESTRUCTION OF RECORDS BY ASIC  

ASIC may destroy or otherwise dispose of any document that is lodged under, or for the purposes of, a provision of this Chapter or the Passport Rules for this jurisdiction if:

(a) ASIC is of the opinion that it is no longer necessary or desirable to retain it; and

(b) it has been in the possession of ASIC for such period as is specified in the regulations, either generally or in relation to a particular document or class of documents.