The Australian Securities and Investments Commission (ASIC) today released a report outlining some of its decisions on recent applications for relief by financial service providers from the licensing, conduct, disclosure and managed investments provisions of the Corporations Act 2001 (the Act).
ASIC has a number of exemption and modification powers under the financial services provisions of Chapter 7 of the Act (inserted by the Financial Services Reform Act 2001) and the managed investments provisions under Chapter 5C. The report, which covers relief applications considered by ASIC between 11 October 2003 and 14 August 2004, provides an overview of the circumstances in which ASIC has exercised, or refused to exercise, its discretionary powers to grant relief.
ASIC’s Director of Legal and Technical Operations in Financial Services Regulation, Mr John Price said this information had been released to make ASIC’s decisions on relief applications fully transparent.
‘While the report does not include details of every single decision made in the reporting period, it does provide examples of decisions that demonstrate how we have applied our policy in practice’, Mr Price said.
The report also outlines limited instances where ASIC decided to take a no-action position in relation to non-compliance with provisions of the Act. It includes an appendix detailing the relief instruments ASIC has executed for the matters referred to in the report. For ease of reference, the appendix contains cross-references linking the instruments to the relevant paragraph(s) of the report.
‘Prospective applicants for relief may gain a better insight into the factors we take into account in deciding whether or not to exercise our discretion to grant relief. However potential applicants should not assume that ASIC will provide relief in the future in similar cases because each relief application depends on the unique facts and circumstances of the case’, Mr Price said.
The report is available from the ASIC website or by calling ASIC’s Infoline on 1300 300 630. ASIC has published an earlier overview of relief decisions as an attachment to Information Release [IR 03/31] ASIC provides overview of applications for relief under FSRA, also available from the website.
‘We are aiming to circulate a further update in early 2005, and to provide frequent updates about our relief decisions in the future’, Mr Price said.
ASIC’s general policy is only to consider granting relief from the requirements of Chapters 5C and 7 of the Act to address atypical or unforeseen circumstances and unintended consequences of those provisions.
The criteria that ASIC will apply in considering applications for relief are most recently outlined in:
Information Release [IR 03/29] ASIC issues additional guidance for FSR relief applicants
Policy Statement 136: Managed investments: Discretionary powers and closely related schemes [PS 136];
Policy Statement 167: Licensing: Discretionary powers and transition [PS 167]; and
Policy Statement 169: Disclosure: Discretionary powers and transition [PS 169].
ASIC is required to publish a copy of each exemption and/or modification instrument issued in the ASIC Gazette, which is available from the ASIC website at www.asic.gov.au. Copies of ASIC’s policy statements, information releases and class orders are available from the same web address or by calling ASIC’s Infoline on 1300 300 630.
Applications for relief must be in writing and should address the requirements set out in Policy Statement 51 Applications for relief [PS 51]. Applications can be submitted electronically to email@example.com.
More information on applying for relief is available at www.asic.gov.au/fsrrelief.
End of release