ASIC has released its latest report outlining decisions on relief applications, highlighting ASIC’s efforts to reduce red-tape and achieve a practical, positive outcome for companies seeking some regulatory flexibility.
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 activity or cut red tape without harming other stakeholders.
ASIC considers this aspect a key element of its function. Between 1 October 2015 and 31 March 2016, ASIC approved 622 relief applications.
Report 483 Overview of decisions on relief applications (October 2015 to March 2016) (REP 483) aims to improve the level of transparency and the quality of publicly available information about decisions ASIC makes when asked to grant relief from provisions of the:
- Corporations Act 2001 (Corporations Act), or
- National Consumer Credit Protection Act 2009 (National Credit Act).
REP 483 also discusses the various relevant publications released by ASIC during the six months.
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 believes could be of particular interest and use for capital market participants and for participants in the financial services industry. The report includes an appendix detailing the publicly available individual relief instruments referred to in the report.
ASIC can modify or set aside certain provisions of Chapters 2D (officers and employees), 2G (meetings), 2M (financial reporting and audit), 5C (managed investment schemes), 6 (takeovers), 6D (fundraising) and 7 (financial services) of the Corporations Act.
ASIC also has powers to grant relief under the provisions of Chapters 2 (licensing) and 3 (responsible lending) of the National Credit Act and from all or specified provisions of the National Credit Code, which is in Sch 1 to the National Credit 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 are 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 email@example.com. Fees are applicable for relief applications.
To ensure that applications are assessed as quickly and efficiently as possible, ASIC will be more strictly enforcing its policy to refuse applications for relief where information needed to make a decision is not provided. Where ASIC has asked for additional information within a specified time period - and a reasonable explanation is not provided for any delay - an application for relief may be refused.