Corporations Act 2001

CHAPTER 8A - ASIA REGION FUNDS PASSPORT  

PART 8A.6 - STOP ORDERS  

SECTION 1215A   STOP ORDER - 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.

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.