Applying for relief - AFS licensees
The Australian Securities and Investments Commission (ASIC) can grant exemptions from or modifications to the law in certain situations. Companies or persons can apply to ASIC for relief from the:
- Corporations Act 2001 (Corporations Act); or
- Superannuation Industry (Supervision) Act 1993.
We most frequently exercise our discretionary powers in provisions of the Corporations Act that involve accounting, takeovers, fundraising, managed investment schemes, licensing, and disclosure.
How to apply for relief
Our general policy on applying for relief is set out in Regulatory Guide 51 Applications for relief (RG 51). Other published ASIC policy may include details of how to apply for particular kinds of relief.
It is important to read all the relevant published policy before submitting your application.
Types of applications
Applications for relief fall into three categories:
- ‘Standard’ applications seek relief precisely in line with the terms of published ASIC policy and pro forma instruments.
- ‘Minor and technical’ applications are not completely standard but are clearly within the policy of the Corporations Act or existing ASIC policy. While they may involve applying existing policy to new situations, the issues are not so significant as to require extensive consideration by ASIC.
- ‘Novel’ applications require ASIC to formulate substantive new policy. This may be because they raise new policy considerations, involve more than minor or technical variations to existing policy, or involve a significant change to (or reversal of) existing policy.
Every application that is neither standard nor minor and technical is automatically a novel application.
What to include in your application
There is no set format for an application for relief. However, all applications for relief should clearly identify and answer the following issues.
Delays often occur when some of this information is omitted.
For longer or more complex applications, it will help us if you include an executive summary of the key legal, commercial and regulatory issues you want us to consider.
1 What type of relief are you applying for?
Specify what type of relief you are applying for (e.g. ‘standard’, ‘minor and technical’ or ‘novel’).
If you are submitting a standard application, specify the relevant pro forma (PF) instrument: see RG 51 at RG 51.16.
If you are submitting a novel application, apply as early as possible so we have enough time to consider your application.
2 What is the legal basis of your application?
- the particular discretionary power(s) in the Corporations Act you want us to exercise; and
- the specific provision(s) of the Corporations Act you want relief from.
3 What is the regulatory issue or problem you want us to consider?
- a summary of the issue or problem you want us to address; and
- a description of any legal, policy, commercial or regulatory aspects of the application.
4 Why can't you comply with the Corporations Act?
Describe how the application extends, relaxes or varies:
- the Corporations Act or ASIC published policy; or
- any precedent relief, class orders, pro forma instruments; or
- any previous ASIC policy decisions.
If any aspects of your application differ from our normal policy or relief instruments, explain:
- exactly what that difference is; and
- why you cannot meet the normal requirements by changing your commercial arrangements.
5 What are the legal and cost/ benefit arguments for relief?
- a cost/benefit analysis of the proposed relief; and
- legal, commercial, or policy reasons for the application.
If you are applying for relief from financial reporting and audit requirements, give reasons why compliance with the Corporations Act would:
- make the financial reports misleading;
- be inappropriate; or
- impose an unreasonable burden.
If your application is a ‘no action’ request, make sure you consider the requirements in Regulatory Guide 108 No-action letters (RG 108).
6 Have you consulted with ASIC or other relevant regulatory organisation(s)?
- name(s) of person(s) or organisation(s) you have consulted with; and
- outcome of the consultation.
7 Are any third parties affected by your application? Have you consulted with them?
- name(s) of person(s) or organisation(s) that may be affected by your application; and
- details of any consultation.
8 Is the application urgent? If so, why?
See RG 51 at RG 51.19 for details about urgent applications.
9 Have you enclosed the right fees?
See Regulatory Guide 21 How ASIC charges fees for relief applications (RG 21) for details of fees.
10 Have you attached other documents?
Attach a draft instrument of relief with your application and mark up any changes from our previous relief documents.
If you have other lengthy attachments, include a summary of their nature and effect.
Where to send your application
To ensure your application is decided as quickly as possible, please send:
- an electronic copy of the application letter to: firstname.lastname@example.org
- a hard copy of the document to the ASIC office in the relevant state or territory.
This is Information Sheet 82 (INFO 82). Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.