Corporations Amendment (Asia Region Funds Passport) Act 2018 (61 of 2018)

Schedule 2   Amendments consequential on Chapter 8A

Corporations Act 2001

146   After section 601PB

Insert:

Division 2 - Registered schemes that are Australian passport funds

601PBA Application of this Division

This Division applies to a registered scheme that is an Australian passport fund (the fund ).

601PBB Deregistration - voluntary

Application

(1) The operator of the fund may lodge an application with ASIC for deregistration of the fund as a registered scheme.

Note: The responsible entity of a registered scheme that is an Australian passport fund is also the operator of the fund. In this Division, the responsible entity is referred to as the operator.

(2) The application must be in the prescribed form.

ASIC to deregister

(3) On an application under subsection (1), ASIC must deregister the fund as a registered scheme if:

(a) the fund satisfies one of the criteria mentioned in paragraphs 601PA(2)(a), (b) and (c) (usual grounds on which a registered scheme can be voluntarily deregistered); and

(b) there are no members of the fund who became members (whether in this jurisdiction or any host economy for the fund) after the fund became an Australian passport fund; and

(c) there are no members of the fund who became members (whether in this jurisdiction or any host economy for the fund) on the expectation that the fund would become an Australian passport fund.

(4) For the purposes of subsection (3), ignore any member of the fund that:

(a) is, or has at any time been, the operator of the fund; or

(b) is a related party of an entity that is, or has at any time been, the operator of the fund.

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.

601PBC Deregistration - initiated by ASIC

(1) ASIC may decide to deregister the fund as a registered scheme if:

(a) the fund does not have a responsible entity that meets the requirements of section 601FA; or

(b) the fund does not have a constitution that meets the requirements of sections 601GA and 601GB; or

(c) the fund does not have a compliance plan that meets the requirements of section 601HA; or

(d) the fund's property is not being:

(i) clearly identified as the fund's property; and

(ii) held separately from property of the operator and property of any other scheme;

in accordance with the fund's compliance plan; or

(e) the following conditions are satisfied:

(i) the response to a return of particulars given to the operator of the fund is at least 6 months late;

(ii) no other documents have been lodged by or on behalf of the fund in the last 18 months;

(iii) ASIC has no reason to believe that the fund is being operated; or

(f) the fund's review fee in respect of a review date has not been paid in full at least 12 months after the due date for payment; or

(g) the fund has been wound up.

(2) However, ASIC must not decide to deregister an Australian passport fund if ASIC is of the opinion that to do so would not be in the interests of:

(a) members of the fund who became members (whether in this jurisdiction or any host economy for the fund) after the fund became an Australian passport fund; and

(b) members of the fund who became members (whether in this jurisdiction or any host economy for the fund) on the expectation that the fund would become an Australian passport fund.

(3) For the purposes of subsection (2), ignore any member of the fund that:

(a) is, or has at any time been, the operator of the fund; or

(b) is a related party of an entity that is, or has at any time been, the operator of the fund.

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.

(4) Before deciding to deregister the fund as a registered scheme, ASIC must give the operator written notice that requires the operator to show cause, at a hearing before a specified person, why the fund should not be deregistered as a registered scheme.

(5) The notice must specify:

(a) the grounds on which it is proposed to deregister the fund as a registered scheme; and

(b) a reasonable time and place at which the hearing is to be held.

However, if the operator consents, the person conducting the hearing may fix a different time or place.

(6) The person conducting the hearing must:

(a) give the operator an opportunity to be heard at the hearing; and

(b) give ASIC:

(i) a report about the hearing; and

(ii) a recommendation about the grounds in the notice on which it is proposed to deregister the fund as a registered scheme.

(7) After considering the report and recommendation, ASIC may:

(a) decide to take no further action in relation to the matter and give written advice of that decision to the operator; or

(b) deregister the fund as a registered scheme.

(8) Neither of the following is a legislative instrument:

(a) a notice under subsection (4);

(b) a report under subsection (6) (if it is in writing).

601PBD Notices relating to deregistration process

Notice before deregistration

(1) If ASIC proposes to deregister a registered scheme that is an Australian passport fund under subsection 601PBB(3) or paragraph 601PBC(7)(b), ASIC must give written notice setting out the date on which ASIC proposes to deregister the registered scheme:

(a) to the operator; and

(b) to each host regulator for the Australian passport fund.

(2) The notice must be given at least 5 business days before the fund is deregistered as a registered scheme.

Notice of deregistration

(3) If ASIC deregisters a registered scheme that is an Australian passport fund under subsection 601PBB(3) or paragraph 601PBC(7)(b), ASIC must give written notice that the fund has been deregistered as a registered scheme and the date on which it has been deregistered:

(a) to the operator; and

(b) to each host regulator for the Australian passport fund.

(4) The notice must be given within 5 business days after the fund is deregistered as a registered scheme.

601PBE Consequences of deregistration on status as an Australian passport fund

(1) A scheme ceases to be an Australian passport fund at the same time as it ceases to be a registered scheme.

(2) ASIC must annotate the Register of Passport Funds to indicate that the scheme is no longer a registered scheme or an Australian passport fund, or cause that annotation to be made on the Register.