ASIC has released its latest report outlining decisions on relief applications covering the period 1 October 2013 to 31 January 2014.
Businesses frequently approach ASIC for assistance to help make the law work better for them. ASIC uses its discretion to vary or set aside certain requirements of the law where there is a net regulatory benefit or where ASIC can facilitate business or cut red tape without harming other stakeholders.
This is a key part of ASIC's function and between 1 October 2013 and 31 January 2014, ASIC approved 565 relief applications.
Report 395 Overview of decisions on relief applications (October 2013 to January 2014) (REP 395), aims to improve the level of transparency and the quality of publicly available information about decisions ASIC makes when asked to exercise its discretionary powers to grant relief from provisions of the:
Corporations Act 2001 (Corporations Act)
National Consumer Credit Protection Act 2009 (National Credit Act), or
National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Transitional Act).
REP 395 also discusses the various relevant publications released by ASIC during the four-month period.
The report summarises examples of situations where ASIC has exercised, or refused to exercise, its exemption and modification powers under the Corporations Act and the licensing and responsible lending provisions of the National Credit Act. The report also highlights instances where ASIC has considered adopting a no-action position regarding specified non-compliance with statutory provisions.
Finally, the report provides examples of decisions that demonstrate how ASIC has applied its policy in practice, which ASIC thinks will be of particular interest for capital market participants and for participants in the financial services industry. The report includes an appendix detailing the relief instruments referred to in the report.
ASIC can modify or set aside certain provisions of Chs 2D (officers and employees), 2J (share buy-backs), 2L (debentures), 2M (financial reporting and audit), 5C (managed investment schemes), 6 (takeovers), 6A (compulsory acquisitions and buy-outs), 6C (information about ownership of entities), 6D (fundraising) and 7 (financial services) of the Corporations Act.
ASIC also has powers to grant relief under the National Credit Act from the licensing provisions in Ch 2 and the responsible lending conduct provisions in Ch 3. ASIC has powers to give relief from the registration provisions in Sch 2 of the Transitional Act.
In limited situations, ASIC may also consider providing a no-action letter when instances of non-compliance with certain statutory provisions have been brought to ASIC’s attention. A no-action letter states to a particular person that ASIC does not intend to take regulatory action over a particular state of affairs or particular conduct. The factors that ASIC will consider when dealing with a request for a no-action letter is set out in Regulatory Guide 108 No-action letters (RG 108).
Applying for relief
Applications for relief must be in writing and should address the requirements set out in Regulatory Guide 51 Applications for relief (RG 51) (and any other regulatory guides relevant to the application).
Applications can be submitted electronically to firstname.lastname@example.org. Fees are applicable for relief applications.