Corporations Act 2001

CHAPTER 8B - CORPORATE COLLECTIVE INVESTMENT VEHICLES  

PART 8B.2 - REGISTRATION OF CCIVs  

Division 1 - Registering a CCIV  

Subdivision A - Requirements for registration as a CCIV  

SECTION 1222  

1222   REQUIREMENTS FOR REGISTRATION AS A CCIV  

The requirements for registration of a company as a CCIV are as follows:

(a)    the company is a company limited by shares;

(b)    the company has a constitution;

(c)    the sole proposed director of the company is a public company that holds an Australian financial services licence authorising it to operate the business and conduct the affairs of a CCIV;

(d)    the company will, upon registration, have at least one sub-fund;

(e)    each sub-fund of the company will, upon registration, have at least one member;

(f)    a notice under subsection 1222A(4) (about whether a CCIV is to be a retail CCIV or a wholesale CCIV) has been lodged with the application;

(g)    if the company will, on registration, be a retail CCIV - the company has a compliance plan.

Note: CCIV is short for corporate collective investment vehicle, which is a type of company that can be registered under this Act: see section 112 .

Subdivision B - How a CCIV is registered  

SECTION 1222A   APPLYING FOR REGISTRATION  

1222A(1)    
This section applies in relation to an application for registration made under subsection 117(1) if the type of company that is proposed to be registered under this Act is a CCIV.

1222A(2)    
The application is not required to state the information mentioned in paragraphs 117(2)(d) , (e) , (f) , (ma) and (mb) .

1222A(3)    
In addition to the information required by subsection 117(2) as modified by subsection (2) of this section, the application must also state:

(a)    the name, and the address of the registered office, of the public company that consents in writing to become the director of the CCIV; and

(b)    the proposed name of each sub-fund the CCIV is to have when it is registered; and

(c)    for each such proposed sub-fund:

(i) which of the members identified under paragraph 117(2)(c) are to be members of the sub-fund; and

(ii) which of the shares identified under paragraph 117(2)(k) are to be referable to the sub-fund.

Note: For paragraph (b) , see section 1222V .

1222A(4)    
A notice stating whether the CCIV is to be a retail CCIV or a wholesale CCIV must be lodged with the application.

1222A(5)    
A copy of the CCIV ' s constitution must be lodged with the application.

Note: The requirement for a CCIV to have a constitution is set out in section 1223B .

1222A(6)    
If the CCIV is to be a retail CCIV, a copy of the compliance plan signed by all the directors of the proposed corporate director of the CCIV must be lodged with the application.

Note: The requirement for a retail CCIV to have a compliance plan is set out in section 1226 .

1222A(7)    
Subsection 117(5) applies as if the consents referred to in subsection (3) of this section were referred to in subsection 117(2) .

SECTION 1222B  

1222B   NO OTHER WAY TO REGISTER A CCIV  

A body may not be taken under section 5H to be registered under this Act as a CCIV.

SECTION 1222C  

1222C   REGISTRATION OF A CCIV  

If:

(a)    an application to register a company as a CCIV is lodged under section 117 ; and

(b)    the company meets the requirements for registration as a CCIV set out in section 1222 ;

ASIC may take the steps set out in paragraphs 118(1)(a) , (b) and (c) for the company.

Note 1: The CCIV comes into existence on registration: see section 119 .

Note 2: ASIC must also register at least one sub-fund of the CCIV: see paragraph 1222(d) and section 1222R .

SECTION 1222D   CORPORATE DIRECTOR AND MEMBERS OF A CCIV  

1222D(1)    
A public company becomes the director of a CCIV on registration if the public company is specified in the application with its consent as the proposed corporate director of the CCIV.

1222D(2)    
A person becomes a member of a CCIV on registration if the person is specified in the application with their consent as a proposed member of the CCIV.

Note: The shares taken to be issued to the member are those specified in the application: see subsection 120(2) .

1222D(3)    
Subsection 120(1) does not apply in relation to a CCIV.

Subdivision C - Names of CCIVs  

SECTION 1222E   SPECIAL REQUIREMENTS FOR NAMING OF CCIVs  

1222E(1)    
Subsection 148(1) applies to a CCIV as if the referenceto subsections (2) and (3) of section 148 were instead a reference to subsection (2) of this section.

1222E(2)    
A CCIV must have the expression " Corporate Collective Investment Vehicle " at the end of its name.

SECTION 1222F  

1222F   SPECIAL REQUIREMENTS FOR ACCEPTABLE ABBREVIATIONS OF CCIV NAMES  

Section 149 has effect as if the following item were added to the table in subsection (1) of that section:

10

Corporate Collective Investment Vehicle

CCIV

SECTION 1222G  

1222G   CARRYING ON BUSINESS USING " CCIV " IN NAME  

Section 156 has effect as if paragraph 156(1)(a) included a reference to the words " Corporate Collective Investment Vehicle " (or an abbreviation of those words).

SECTION 1222H  

1222H   CHANGE OF NAME NOT ALLOWED WHILE SUB-FUND IN LIQUIDATION  

No application may be lodged with ASIC under section 157A in relation to a CCIV.

Subdivision D - Retail CCIVs and wholesale CCIVs  

SECTION 1222J   MEANING OF RETAIL CCIV AND WHOLESALE CCIV  

1222J(1)    
A CCIV is a retail CCIV if:

(a)    the CCIV satisfies the retail CCIV test in section 1222K ; or

(b)    the CCIV is notified as a retail CCIV (see section 1222L ).

1222J(2)    
A CCIV that is not a retail CCIV is a wholesale CCIV .

SECTION 1222K   RETAIL CCIV TEST  

1222K(1)    
A CCIV satisfies the retail CCIV test in this section if any of the following apply:

(a)    at least one member of the CCIV is covered by subsection (2) (about protected retail clients);

(b)    at least one member of the CCIV is covered by subsection (3) (about protected clients under custodial arrangements);

(c)    at least one member of the CCIV is covered by subsection (4) (about protected members of passport funds).

When a person is a protected retail client of a CCIV

1222K(2)    
For the purposes of paragraph (1)(a) , a person is covered by this subsection in relation to a CCIV if all of the following apply:

(a)    the person acquires a security (within the meaning of Chapter 7 ) issued by the CCIV, by way of:

(i) an issue of the security to the person (rather than a transfer of the security to the person); or

(ii) a transfer of the security to the person in circumstances described in subsection 1012C(5) , (6) or (8) (secondary sales that require a Product Disclosure Statement);

(b)    the person acquired the security as a retail client for the purposes of Chapter 7 ;

(c)    the person is not associated (within the meaning of subsection 1241S(3) ) with the CCIV;

(d)    if the person acquired the security by way of an issue - the issue was not made in a situation, or pursuant to an offer made in a situation, to which section 1012E (about small scale offerings) applies.

Note: Section 1012E applies to financial products that are securities in a CCIV: see subsection 1241S(6) .

When a person is a protected client under a custodial arrangement

1222K(3)    
For the purposes of paragraph (1)(b) , a person is covered by this subsection in relation to a CCIV if all of the following apply:

(a)    an acquisition of a security (within the meaning of Chapter 7 ) in the CCIV occurs pursuant to an instruction given by the person under a custodial arrangement (within the meaning of section 1012IA );

(b)    if there were an equivalent direct acquisition (within the meaning of subsection 1012IA(2) ) by the person, the person would acquire the security as a retail client for the purposes of Chapter 7 ;

(c)    the person is not associated (within the meaning of subsection 1241S(3) ) with the CCIV.

When a person is a protected passport fund member

1222K(4)    
For the purposes of paragraph (1)(c) , a person is covered by this subsection in relation to a CCIV if:

(a)    a sub-fund of the CCIV is an Australian passport fund; and

(b)    the person became a member of the sub-fund (whether in this jurisdiction or any host economy for the fund):

(i) on the expectation that the sub-fund would become an Australian passport fund; or

(ii) after the sub-fund became an Australian passport fund; and

(c)    the person:

(i) is not, and has not at any time been, the corporate director of the CCIV; and

(ii) is not a related party of an entity that is, or has at any time been, the corporate director of the CCIV.

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

Regulations

1222K(5)    
The regulations may do either or both of the following:

(a)    prescribe additional circumstances in which a person is covered by subsection (2) , (3) or (4) in relation to a CCIV;

(b)    provide that a particular class of person is not covered by subsection (2) , (3) or (4) in relation to a CCIV.

SECTION 1222L   NOTIFYING ASIC OF STATUS AS A RETAIL CCIV OR WHOLESALE CCIV  

1222L(1)    
For the purposes of paragraph 1222J(1)(b) , a CCIV is notified as a retail CCIV if:

(a)    the most recent notice lodged with ASIC under this section is a notice that the CCIV is, or wishes to be, a retail CCIV; or

(b)    both:

(i) the notice required by subsection 1222A(4) to be lodged with the application to register the CCIV stated that the CCIV was to be a retail CCIV; and

(ii) the CCIV has not lodged a notice with ASIC under this section stating that the CCIV is eligible to be, and wishes to be, a wholesale CCIV.

1222L(2)    
Subject to this section, a CCIV may at any time:

(a)    lodge with ASIC a notice in the prescribed form stating that the CCIV is, or wishes to be, a retail CCIV; or

(b)    lodge with ASIC a notice in the prescribed form stating that the CCIV is eligible to be, and wishes to be, a wholesale CCIV.

Note: A CCIV that lodges a notice under paragraph (2)(b) will be a retail CCIV despite the notice if it is not eligible to be a wholesale CCIV because it passes the retail CCIV test: see section 1222J . Lodging a notice under paragraph (2)(b) in this situation is an offence: see subsection (7) .

When a retail CCIV notice must be lodged

1222L(3)    
A CCIV must lodge a notice under paragraph (2)(a) if, because of the operation of paragraph 1222J(1)(a) (about the retail CCIV test), the CCIV becomes a retail CCIV.

1222L(4)    
A notice required by subsection (3) must be lodged within 2 business days of the CCIV becoming a retail CCIV.

1222L(5)    
An offence based on subsection (3) is an offence of strict liability.

1222L(6)    
In any proceedings against a person for an offence based on subsection (3) , it is a defence if at the relevant time the person did not know, and could not reasonably be expected to have known, that the CCIV satisfied the retail CCIV test.

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

When a wholesale CCIV notice must not be lodged

1222L(7)    
A CCIV commits an offence if:

(a)    the CCIV lodges a notice under paragraph (2)(b) ; and

(b)    the CCIV satisfies the retail CCIV test.

1222L(8)    
An offence based on subsection (7) is an offence of strict liability.

SECTION 1222M  

1222M   TABLE OF PROVISIONS THAT APPLY ONLY TO RETAIL CCIVs  

The following table sets out the main provisions of this Act that apply only in relation to retail CCIVs. If a provision is not set out in this table, disregard that fact in deciding whether or not the provision applies only to retail CCIVs.

Provisions that apply only to retail CCIVs
Item	Topic	Provision(s)
1	A sub-fund of a retail CCIV may be registered as an Australian passport fund	Part 8A.3
2	ASIC may direct a retail CCIV to modify its constitution	section 1223C
3	Content requirements for the constitution of a retail CCIV	sections 1223G and 1223H
4	Duties owed by a director of a retail CCIV	subsection 1224D(2)
5	The corporate director of a retail CCIV must have external directors	section 1224G
6	Extended responsibility of corporate director of a retail CCIV for certain acts of agents	section 1224M
7	Limitation on right of the corporate director of a retail CCIV to fees and indemnities	section 1224N
8	Limitation on right of the corporate director of a retail CCIV to acquire shares in the CCIV	section 1224P
9	Duties owed by the officers of the corporate director of a retail CCIV	section 1225
10	Duties owed by the employees of the corporate director of a retail CCIV	section 1225F
11	Requirement for a retail CCIV to have a compliance plan	Division 4 of Part 8B.3
12	Requirement for member approval for certain related party transactions relating to retail CCIVs (application of Chapter 2E )	Subdivision A of Division 5 of Part 8B.3
13	Further requirements for redemptions of shares by a retail CCIV	sections 1230G to 1230K
14	Requirements for self-acquisition by retail CCIV	subsection 1231J(2)
15	Part 2M.3 (financial and sustainability reporting)	section 1232

Subdivision E - Listing not permitted for certain CCIVs and sub-funds  

SECTION 1222N  

1222N   CERTAIN CCIVs AND SUB-FUNDS MUST NOT BE LISTED  

The following must not be included in the official list of a declared financial market operated in this jurisdiction:

(a)    a wholesale CCIV;

(b)    a retail CCIV that has more than one sub-fund;

(c)    a sub-fund of a wholesale CCIV;

(d)    a sub-fund of a retail CCIV that has more than one sub-fund.

Note 1: This section does not prohibit either or both of the following from being included in the official list of a declared financial market operated in this jurisdiction:

(a) a sub-fund of a retail CCIV that has only one sub-fund;

(b) that retail CCIV.

Note 2: A retail CCIV will be a listed company if its single sub-fund is included in such an official list even if the retail CCIV is not so included (see the definition of listed in section 9 ).

Subdivision F - Changing company type not permitted  

SECTION 1222P  

1222P   PART 2B.7 DOES NOT APPLY TO A CCIV  

Part 2B.7 (about changing company type) does not apply to a CCIV.

Division 2 - Registering a sub-fund of a CCIV  

Subdivision A - What is a sub-fund of a CCIV  

SECTION 1222Q   WHAT IS A SUB-FUND OF A CCIV  

1222Q(1)    
A sub-fund of a CCIV is all or part of the business of the CCIV that is registered as a sub-fund under section 1222S .

Note: A sub-fund of a CCIV may be registered as a passport fund: see Part 8A.3 .

1222Q(2)    
A sub-fund does not have legal personality.

1222Q(3)    
A person is a member of a sub-fund of a CCIV if the person:

(a)    is a member of the CCIV; and

(b)    holds one or more shares that are referable to the sub-fund.

Note: For when a share is referable to a sub-fund, see section 1230 .

Subdivision B - How a sub-fund of a CCIV is registered  

SECTION 1222R  

1222R   INITIAL SUB-FUNDS TO BE REGISTERED WHEN THE CCIV IS REGISTERED  

If ASIC registers a CCIV, ASIC must also register one or more sub-funds of the CCIV.

Note: If ASIC deregisters a sub-fund, and as a result the CCIV has no sub-funds, ASIC must deregister the CCIV: see section 1239K .

SECTION 1222S   REGISTRATION OF A SUB-FUND  

Registration of initial sub-funds

1222S(1)    
ASIC may register a sub-fund of a CCIV if:

(a)    ASIC registers the CCIV; and

(b)    the proposed name of the sub-fund is specified in the application to register the CCIV.

Registration of further sub-funds

1222S(2)    
ASIC may also register a sub-fund of a CCIV if an application to register the sub-fund is lodged under section 1222U .

ASIC to give sub-fund an ARFN

1222S(3)    
If ASIC registers a sub-fund, ASIC must give the sub-fund an ARFN.

ASIC must keep record of registration

1222S(4)    
ASIC must keep a record of the registration. Subsections 1274(2) and (5) apply to the record as if it were a document lodged with ASIC.

SECTION 1222T   SUB-FUND IS ESTABLISHED ON REGISTRATION  

1222T(1)    
A sub-fund of a CCIV is established at the beginning of the day on which the sub-fund is registered.

1222T(2)    
The sub-fund ' s name is the name specified in ASIC ' s record of the registration.

SECTION 1222U   APPLICATION TO REGISTER FURTHER SUB-FUNDS  

1222U(1)    
To register a sub-fund of a CCIV, a person may lodge an application with ASIC.

Note: A CCIV must have at least one sub-fund when it is first registered: see section 1222R .

1222U(2)    
The application must state:

(a)    the name and ACN of the CCIV; and

(b)    the proposed name of the sub-fund; and

(c)    the name and address of each person who consents to become a member of the sub-fund; and

(d)    the following:

(i) the number and class of shares each member agrees in writing to take up;

(ii) the amount (if any) each member agrees in writing to pay for each share;

(iii) whether the shares each member agrees in writing to take up will be fully paid on registration;

(iv) if that amount is not to be paid in full on registration - the amount (if any) each member agrees in writing to be unpaid on each share;

(v) whether or not the shares each member agrees in writing to take up will be beneficially owned by the member on registration.

1222U(3)    
The application must be in the prescribed form.

Subdivision C - Names of sub-funds  

SECTION 1222V   A SUB-FUND ' S NAME  

CCIV using ACN

1222V(1)    
If a CCIV has as its name the expression " Australian Company Number " followed by the CCIV ' s ACN, a sub-fund of the CCIV may have as its name the expression " Australian Registered Fund Number " followed by the sub-fund ' s ARFN.

CCIV using available name

1222V(2)    
If a CCIV has as its name an available name, a sub-fund of the CCIV may have as its name an expression comprising the following 3 elements, in the following order:

(a)    first element - the CCIV ' s name (without the words " Corporate Collective Investment Vehicle " at the end of the name);

(b)    second element - a name that meets the requirements in subsection (3) ;

(c)    third element - the expression " Sub-fund " .

1222V(3)    
A name meets the requirements in this subsection unless the name is:

(a)    identical to a name that is used as the second element of the name of another sub-fund of the same CCIV; or

(b)    identical to a name that is reserved by ASIC in respect of another person who is not the person applying to have the name; or

(c)    unacceptable for registration under the regulations.

SECTION 1222W   USING SUB-FUND NAME AND ARFN ON DOCUMENTS  

1222W(1)    
A CCIV must set out a sub-fund ' s name and ARFN on all its public documents and negotiable instruments that relate to the sub-fund.

1222W(2)    
An offence based on subsection (1) is an offence of strict liability.

SECTION 1222X   ACCEPTABLE ABBREVIATIONS OF SUB-FUND NAMES  

1222X(1)    
The abbreviations set out in the following table may be used:

(a)    instead of words that this Act requires to be part of a sub-fund ' s name or to be included in a document or negotiable instrument; and

(b)    instead of words that are part of a sub-fund ' s name; and

(c)    with or without full stops.

Acceptable abbreviations
Item	Word	Abbreviation
1	Sub-fund	SF
2	Australian Registered Fund Number	ARFN
3	Australian	Aust
4	Number	No
5	and	&

1222X(2)    
If a sub-fund ' s name includes any of these abbreviations, the word or words corresponding to the abbreviation may be used instead.

SECTION 1222Y   SUB-FUND CHANGING ITS NAME  

1222Y(1)    
To change the name of a sub-fund of a CCIV, the CCIV may lodge an application to ASIC in the prescribed form stating the proposed name of the sub-fund.

1222Y(2)    
However, no application may be lodged with ASIC under subsection (1) while the sub-fund is in liquidation.

1222Y(3)    
If the proposed name meets the requirements of section 1222V , ASIC must change the sub-fund ' s name by altering ASIC ' s record of the sub-fund ' s registration to reflect the change. The change of name takes effect when ASIC alters ASIC ' s record of the sub-fund ' s registration.

SECTION 1222Z   ASIC ' S POWER TO DIRECT CCIV TO CHANGE A SUB-FUND ' S NAME  

1222Z(1)    
ASIC may direct a CCIV in writing to change the name of a sub-fund of the CCIV within 2 months if:

(a)    the name should not have been registered; or

(b)    ASIC has directed the CCIV to change its name under section 158 .

1222Z(2)    
The CCIV must comply with the direction within 2 months after being given it.

1222Z(3)    
An offence based on subsection (2) is an offence of strict liability.

1222Z(4)    
If the CCIV does not comply with subsection (2) , ASIC may change the sub-fund ' s name to the expression " Australian Registered Fund Number " followed by the sub-fund ' s ARFN. ASIC does this by altering ASIC ' s record of the sub-fund ' s registration to reflect the change.

Note: For ASIC ' s record of the registration of a sub-fund, see subsection 1222S(4) .

1222Z(5)    
A change of name under subsection (4) takes effect when ASIC alters ASIC ' s record of the sub-fund ' s registration.

SECTION 1222ZA  

1222ZA   EFFECT OF NAME CHANGE  

A change of the name of a sub-fund of a CCIV does not:

(a)    create a legal entity; or

(b)    affect the sub-fund ' s existing property, rights or obligations; or

(c)    render defective any legal proceedings by or against the CCIV and relating to the sub-fund.

Division 3 - Registers  

SECTION 1222ZB   REGISTERS RELATING TO CCIVs  

1222ZB(1)    
The register of members kept by a CCIV in accordance with section 169 must, in addition to the information mentioned in subsection 169(3) , also show the following:

(a)    the sub-fund of the CCIV to which each share is referable;

(b)    if the CCIV holds a share in the CCIV:

(i) the sub-fund of the CCIV to which the share is referable; and

(ii) the other sub-fund of the CCIV for which the share has been acquired;

(c)    if another CCIV holds a share in the CCIV:

(i) the sub-fund of the CCIV to which the share is referable; and

(ii) the sub-fund of the other CCIV for which the share has been acquired.

1222ZB(2)    
The register of option holders kept by a CCIV in accordance with section 170 must, as part of the description of an unissued share mentioned in paragraph 170(1)(d) , also show the following:

(a)    the sub-fund of the CCIV to which the share is referable;

(b)    if the CCIV holds an option over the share:

(i) the sub-fund of the CCIV to which the share is referable; and

(ii) the other sub-fund of the CCIV for which the option over the share has been acquired;

(c)    if another CCIV holds an option over the share:

(i) the sub-fund of the CCIV to which the share is referable; and

(ii) the sub-fund of the other CCIV for which the option over the share has been acquired.

1222ZB(3)    
The register of debenture holders kept by a CCIV in accordance with section 171 must also contain information about the following:

(a)    the sub-fund of the CCIV to which each debenture is referable;

(b)    if the CCIV holds a debenture issued by the CCIV:

(i) the sub-fund of the CCIV to which the debenture is referable; and

(ii) the other sub-fund of the CCIV for which the debenture has been acquired;

(c)    if another CCIV holds a debenture issued by the CCIV:

(i) the sub-fund of the CCIV to which the debenture is referable; and

(ii) the sub-fund of the other CCIV for which the debenture has been acquired.