Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024 (87 of 2024)

Schedule 2   Financial market infrastructure: new and enhanced regulatory powers

Part 8   Streamlining some of ASIC's existing directions powers

Corporations Act 2001

71   Section 823D

Repeal the section, substitute:

823D ASIC's directions power - protecting dealings in financial products and ensuring fair and effective provision of services by CS facilities

(1) ASIC may, by written notice given to a CS facility licensee, direct the licensee:

(a) not to provide the licensee's services in relation to any transactions that:

(i) the licensee receives notice of after the direction is given; and

(ii) relate to a specified financial product or class of financial products; or

(b) to take, or refrain from taking:

(i) any actions; or

(ii) one or more specified actions;

relating to dealings with transactions relating to a specified financial product or class of financial products;

if subsection (2) applies.

(2) This subsection applies if ASIC considers that:

(a) the direction is necessary, or in the public interest, to protect people dealing in a financial product or class of financial products; or

(b) the licensee has not done all things reasonably practicable to ensure the facility's services are provided in a fair and effective way.

(3) The direction:

(a) must specify a reasonable time by which, or a reasonable period during which, it is to be complied with; and

(b) must include the reasons for the direction; and

(c) may deal with either or both of the matters in paragraphs (1)(a) and (b).

(4) The licensee must comply with the direction (even if, under subsection 823DA(1), the licensee has requested ASIC to refer the direction to the Minister).

Note: Failure to comply with this subsection is an offence: see subsection 1311(1).

(5) If the licensee fails to comply with the direction, ASIC may apply to the Court for, and the Court may make, an order that the licensee comply with the direction.

823DA Matters relating to ASIC directions - protecting dealings in financial products and ensuring fair and effective provision of services by CS facilities

Referrals to the Minister

(1) If, at any time after a CS facility licensee receives a direction under subsection 823D(1), the licensee requests in writing that ASIC refer the direction to the Minister, ASIC must do so immediately.

(2) The Minister may, if the Minister considers it appropriate after being referred the direction, direct ASIC to vary or revoke the direction.

(3) ASIC must comply with the direction given under subsection (2) immediately.

(4) A direction given under subsection (2) is not a legislative instrument.

Variations and revocations

(5) ASIC may vary or revoke a direction given under subsection 823D(1):

(a) in like manner; and

(b) subject to like conditions, except if a condition is contrary to a direction given under subsection (2) of this section;

(see subsection 33(3) of the Acts Interpretation Act 1901).

Notifying other affected persons

(6) As soon as practicable after:

(a) giving a direction under subsection 823D(1) to a CS facility licensee; or

(b) varying or revoking such a direction;

ASIC must give written notice of the direction, variation or revocation to:

(c) the operator of each financial market with which the facility has arrangements to provide services for transactions effected through the market; and

(d) if the direction relates to one or more specified financial products - each issuer of those products; and

(e) the Reserve Bank.

Directions are not legislative instruments

(7) A direction given under subsection 823D(1) is not a legislative instrument.