Corporations Act 2001
CHAPTER 8A
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ASIA REGION FUNDS PASSPORT
PART 8A.6
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STOP ORDERS
SECTION 1215
STOP ORDER
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AUSTRALIAN PASSPORT FUNDS
ASIC may make stop orders
1215(1)
ASIC may, by written instrument, order the operator of an Australian passport fund to do one or more of the following:
(a) cease to offer, or not to begin offering, interests in the fund to persons in this jurisdiction either indefinitely or for a period specified in the order;
(b) cease to offer, or not to begin offering, interests in the fund to persons in another participating economy either indefinitely or for a period specified in the order;
(c) take other action specified in the order;
(d) cease to take other action specified in the order.
1215(2)
A stop order may include a statement that specified conduct engaged in contrary to the order will be regarded as not complying with the requirements of a specified provision of this Act.
Basis on which stop orders may be made
1215(3)
However, ASIC may only make a stop order under this section if ASIC is of the opinion that:
(a) one or more of the following has not been, is not being or is not likely to be complied with in relation to the fund (whether in this jurisdiction or in any other place):
(b) if the order is made under paragraph (1)(c) - taking the action specified in the order is reasonably necessary to ensure that an order made under paragraph (1)(a) or (b) is complied with; or
(c) if the order is made under paragraph (1)(d) - not taking the action specified in the order is reasonably necessary to ensure that an order made under paragraph (1)(a) or (b) is complied with.
Hearing before stop order made
1215(4)
Before making a stop order, ASIC must:
(a) hold a hearing; and
(b) give a reasonable opportunity to any interested people to make oral or written submissions to ASIC on whether an order should be made.
ASIC must give notice if stop order made
1215(5)
If ASIC makes a stop order under this section, ASIC must give the operator of the fund a copy of the order as soon as reasonably practicable after it is made.
SECTION 1215A
STOP ORDER
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NOTIFIED FOREIGN PASSPORT FUND
ASIC may make stop orders
1215A(1)
ASIC may, by written instrument, order the operator of a notified foreign passport fund to do one or more of the following:
(a) cease to offer, or not to begin offering, interests in the fund to persons in this jurisdiction either indefinitely or for a period specified in the order;
(b) take other action specified in the order;
(c) cease to take other action specified in the order.
1215A(2)
A stop order may include a statement that specified conduct engaged in contrary to the order will be regarded as not complying with the requirements of a specified provision of this Act.
Basis on which stop orders may be made
1215A(3)
However, ASIC may only make a stop order under this section if:
(a) subsections (4) and (7) are satisfied; or
(b) the operator of the fund has ceased to be a registered foreign company; or
(c) the operator of the fund has not had a local agent for more than 21 days; or
(d) both of the following are satisfied:
(e) if the order is made under paragraph (1)(b) - taking the action specified in the order is reasonably necessary to ensure that an order made under paragraph (1)(a) is complied with; or
(f) if the order is made under paragraph (1)(c) - not taking the action specified in the order is reasonably necessary to ensure that an order made under paragraph (1)(a) is complied with.
1215A(4)
For the purposes of paragraph (3)(a), this subsection is satisfied if ASIC is of the opinion that one or more of the following has not been, is not being or is not likely to be complied with in relation to the fund (whether in this jurisdiction or in any other place):
(a) this Act (including the Passport Rules for this jurisdiction);
(b) the ASIC Act;
(c) the law of the home economy for the fund, to the extent that the law is administered by the home regulator for the fund (including the Passport Rules for the home economy of the fund).
1215A(5)
In determining its opinion in relation to compliance with the Passport Rules for this jurisdiction, as mentioned in paragraph (4)(a), ASIC must make a request, in writing, to the home regulator for the fund for the opinion of the home regulator on the interpretation of any provision of the Passport Rules for the home economy that is equivalent to a provision of the Passport Rules for this jurisdiction under consideration by ASIC.
1215A(6)
In determining its opinion in relation to a matter mentioned in paragraph (4)(c), ASIC must:
(a) make a request, in writing, to the home regulator for the fund for the opinion of the home regulator on the matter; and
(b) specify in the request the basis for ASIC ' s concerns about compliance with the law of the home economy; and
(c) state a reasonable period during which ASIC will wait for a reply before acting; and
(d) if the home regulator replies to the request within that period - give effect to the opinion of the home regulator on the matter.
1215A(7)
For the purposes of paragraph (3)(a), this subsection is satisfied if ASIC is of the opinion that the stop order is necessary, having regard to:
(a) the impact on the members and prospective members of the fund of the failure, or potential failure, to comply with a law mentioned in subsection (4) ; and
(b) any action taken, or that may be taken, by the home regulator for the fund.
Hearings before certain stop orders made
1215A(8)
Before making a stop order on the basis of subsections (4) and (7) , ASIC must:
(a) hold a hearing; and
(b) give a reasonable opportunity to any interested people to make oral or written submissions to ASIC on whether an order should be made.
ASIC must give notice if stop order made
1215A(9)
If ASIC makes a stop order under this section, ASIC must give the operator of the fund a copy of the order as soon as reasonably practicable after it is made.
SECTION 1215B
INTERIM STOP ORDERS
1215B(1)
ASIC may make an interim stop order, if ASIC is of the opinion that:
(a) any delay in making a stop order under section 1215 or 1215A would be prejudicial to the public interest; and
(b) either:
1215B(2)
An interim stop order under subsection (1) :
(a) may be made without holding a hearing, or during a hearing; and
(b) must be in writing; and
(c) lasts:
1215B(3)
If ASIC makes an interim stop order, ASIC must give the operator of the fund a copy of the order as soon as reasonably practicable after it is made.
SECTION 1215C
REVOCATION OF STOP ORDER MADE UNDER SECTION 1215 OR 1215A
1215C(1)
The operator of an Australian passport fund may make an application to ASIC, in accordance with this section, to have a stop order that is in force in relation to the fund revoked on the basis that there are no longer grounds for the order under subsection 1215(3) .
1215C(2)
The operator of a notified foreign passport fund may make an application to ASIC, in accordance with this section, to have a stop order that is in force in relation to the fund revoked on the basis that there are no longer grounds for the order under subsection 1215A(3) .
1215C(3)
An application under subsection (1) or (2) must:
(a) be in the prescribed form; and
(b) without limiting paragraph (a), set out the basis on which the operator of the fund believes that there are no longer grounds for the stop order.
1215C(4)
ASIC must:
(a) revoke a stop order made under section 1215 in relation to an Australian passport fund if:
(b) revoke a stop order made under section 1215A in relation to a notified foreign passport fund if:
1215C(5)
Nothing in this section limits the circumstances in which ASIC may revoke or vary a stop order made under section 1215 or 1215A .
SECTION 1215D
COMPLIANCE WITH STOP ORDERS
1215D(1)
This section applies if:
(a) ASIC gives the operator of an Australian passport fund a copy of a stop order under subsection 1215(5) or an interim stop order under subsection 1215B(3) ; or
(b) ASIC gives the operator of a notified foreign passport fund a stop order under subsection 1215A(9) or an interim stop order under subsection 1215B(3) .
1215D(2)
The operator must not contravene the order.
1215D(3)
The operator must take reasonable steps to ensure that any other person who might engage in conduct that is contrary to the order, is aware of the order.
1215D(4)
A person who is aware of the order must not engage in conduct that is contrary to the order.
View history note
Hide history noteASIC may make stop orders
1215(1)
ASIC may, by written instrument, order the operator of an Australian passport fund to do one or more of the following:
(a) cease to offer, or not to begin offering, interests in the fund to persons in this jurisdiction either indefinitely or for a period specified in the order;
(b) cease to offer, or not to begin offering, interests in the fund to persons in another participating economy either indefinitely or for a period specified in the order;
(c) take other action specified in the order;
(d) cease to take other action specified in the order.
The order is a stop order .
1215(2)
A stop order may include a statement that specified conduct engaged in contrary to the order will be regarded as not complying with the requirements of a specified provision of this Act.
Basis on which stop orders may be made
1215(3)
However, ASIC may only make a stop order under this section if ASIC is of the opinion that:
(a) one or more of the following has not been, is not being or is not likely to be complied with in relation to the fund (whether in this jurisdiction or in any other place):
(i) this Act (including the Passport Rules for this jurisdiction);
(ii) the ASIC Act; or
(b) if the order is made under paragraph (1)(c) - taking the action specified in the order is reasonably necessary to ensure that an order made under paragraph (1)(a) or (b) is complied with; or
(c) if the order is made under paragraph (1)(d) - not taking the action specified in the order is reasonably necessary to ensure that an order made under paragraph (1)(a) or (b) is complied with.
Hearing before stop order made
1215(4)
Before making a stop order, ASIC must:
(a) hold a hearing; and
(b) give a reasonable opportunity to any interested people to make oral or written submissions to ASIC on whether an order should be made.
ASIC must give notice if stop order made
1215(5)
If ASIC makes a stop order under this section, ASIC must give the operator of the fund a copy of the order as soon as reasonably practicable after it is made.
ASIC may make stop orders
1215A(1)
ASIC may, by written instrument, order the operator of a notified foreign passport fund to do one or more of the following:
(a) cease to offer, or not to begin offering, interests in the fund to persons in this jurisdiction either indefinitely or for a period specified in the order;
(b) take other action specified in the order;
(c) cease to take other action specified in the order.
The order is a stop order .
1215A(2)
A stop order may include a statement that specified conduct engaged in contrary to the order will be regarded as not complying with the requirements of a specified provision of this Act.
Basis on which stop orders may be made
1215A(3)
However, ASIC may only make a stop order under this section if:
(a) subsections (4) and (7) are satisfied; or
(b) the operator of the fund has ceased to be a registered foreign company; or
(c) the operator of the fund has not had a local agent for more than 21 days; or
(d) both of the following are satisfied:
(i) 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;
(ii) the determination applies to the passport fund;
(e) if the order is made under paragraph (1)(b) - taking the action specified in the order is reasonably necessary to ensure that an order made under paragraph (1)(a) is complied with; or
(f) if the order is made under paragraph (1)(c) - not taking the action specified in the order is reasonably necessary to ensure that an order made under paragraph (1)(a) is complied with.
1215A(4)
For the purposes of paragraph (3)(a), this subsection is satisfied if ASIC is of the opinion that one or more of the following has not been, is not being or is not likely to be complied with in relation to the fund (whether in this jurisdiction or in any other place):
(a) this Act (including the Passport Rules for this jurisdiction);
(b) the ASIC Act;
(c) the law of the home economy for the fund, to the extent that the law is administered by the home regulator for the fund (including the Passport Rules for the home economy of the fund).
1215A(5)
In determining its opinion in relation to compliance with the Passport Rules for this jurisdiction, as mentioned in paragraph (4)(a), ASIC must make a request, in writing, to the home regulator for the fund for the opinion of the home regulator on the interpretation of any provision of the Passport Rules for the home economy that is equivalent to a provision of the Passport Rules for this jurisdiction under consideration by ASIC.
1215A(6)
In determining its opinion in relation to a matter mentioned in paragraph (4)(c), ASIC must:
(a) make a request, in writing, to the home regulator for the fund for the opinion of the home regulator on the matter; and
(b) specify in the request the basis for ASIC ' s concerns about compliance with the law of the home economy; and
(c) state a reasonable period during which ASIC will wait for a reply before acting; and
(d) if the home regulator replies to the request within that period - give effect to the opinion of the home regulator on the matter.
1215A(7)
For the purposes of paragraph (3)(a), this subsection is satisfied if ASIC is of the opinion that the stop order is necessary, having regard to:
(a) the impact on the members and prospective members of the fund of the failure, or potential failure, to comply with a law mentioned in subsection (4) ; and
(b) any action taken, or that may be taken, by the home regulator for the fund.
Hearings before certain stop orders made
1215A(8)
Before making a stop order on the basis of subsections (4) and (7) , ASIC must:
(a) hold a hearing; and
(b) give a reasonable opportunity to any interested people to make oral or written submissions to ASIC on whether an order should be made.
ASIC must give notice if stop order made
1215A(9)
If ASIC makes a stop order under this section, ASIC must give the operator of the fund a copy of the order as soon as reasonably practicable after it is made.
ASIC may make an interim stop order, if ASIC is of the opinion that:
(a) any delay in making a stop order under section 1215 or 1215A would be prejudicial to the public interest; and
(b) either:
(i) in the case of an order that is to be made in relation to an Australian passport fund - one or more of the circumstances mentioned in subsection 1215(3) exists; or
(ii) in the case of an order that is to be made in relation to a notified foreign passport fund - one or more of the circumstances mentioned in subsection 1215A(3) exists.
1215B(2)
An interim stop order under subsection (1) :
(a) may be made without holding a hearing, or during a hearing; and
(b) must be in writing; and
(c) lasts:
(i) if the stop order is made during a hearing - until ASIC makes a stop order after the conclusion of the hearing, or the interim stop order is revoked; and
(ii) otherwise - for 21 days after the day on which it is made, unless sooner revoked.
1215B(3)
If ASIC makes an interim stop order, ASIC must give the operator of the fund a copy of the order as soon as reasonably practicable after it is made.
The operator of an Australian passport fund may make an application to ASIC, in accordance with this section, to have a stop order that is in force in relation to the fund revoked on the basis that there are no longer grounds for the order under subsection 1215(3) .
1215C(2)
The operator of a notified foreign passport fund may make an application to ASIC, in accordance with this section, to have a stop order that is in force in relation to the fund revoked on the basis that there are no longer grounds for the order under subsection 1215A(3) .
1215C(3)
An application under subsection (1) or (2) must:
(a) be in the prescribed form; and
(b) without limiting paragraph (a), set out the basis on which the operator of the fund believes that there are no longer grounds for the stop order.
1215C(4)
ASIC must:
(a) revoke a stop order made under section 1215 in relation to an Australian passport fund if:
(i) an application is made under subsection (1) of this section; and
(ii) ASIC is of the opinion that there are no longer grounds for the stop order; and
(b) revoke a stop order made under section 1215A in relation to a notified foreign passport fund if:
(i) an application is made under subsection (2) of this section; and
(ii) ASIC is of the opinion that there are no longer grounds for the stop order.
1215C(5)
Nothing in this section limits the circumstances in which ASIC may revoke or vary a stop order made under section 1215 or 1215A .
This section applies if:
(a) ASIC gives the operator of an Australian passport fund a copy of a stop order under subsection 1215(5) or an interim stop order under subsection 1215B(3) ; or
(b) ASIC gives the operator of a notified foreign passport fund a stop order under subsection 1215A(9) or an interim stop order under subsection 1215B(3) .
1215D(2)
The operator must not contravene the order.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1215D(3)
The operator must take reasonable steps to ensure that any other person who might engage in conduct that is contrary to the order, is aware of the order.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
1215D(4)
A person who is aware of the order must not engage in conduct that is contrary to the order.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).