Foreign financial services providers - practical guidance

This information sheet (INFO 157) is for foreign financial services providers (FFSPs) seeking to provide financial services in Australia to wholesale clients only.

FFSPs regulated by certain overseas regulators that wish to provide financial services in Australia to wholesale clients can notify us that they wish to rely on ‘class’ relief under an ASIC instrument that exempts the FFSP from the need to hold an Australian financial services (AFS) licence under section 911A of the Corporations Act 2001 (Corporations Act), provided certain conditions are met.

This information sheet explains what you, as an FFSP, must do if you wish to:

  • rely on ‘class’ relief under an ASIC instrument, or
  • apply for individual relief under Regulatory Guide 176 Foreign financial services providers (RG 176).

Specifically, it explains:

Relief available for FFSPs

The ASIC instruments on which an FFSP may rely for relief from the requirement to hold an AFS licence when providing specified financial services are listed in Table 1.

Note: The relief available under these instruments is currently due to expire on 30 September 2019. Details of our proposals for FFSPs are in Consultation Paper 268 Licensing relief for foreign financial services providers with a limited connection to Australia (CP 268) and Consultation Paper 301 Foreign financial services providers (CP 301).

Table 1: Relief available for FFSPs under ASIC instruments

Where the FFSP is regulated

Relevant instrument

United Kingdom

Class Order [CO 03/1099] UK regulated financial service providers

United States

Class Order [CO 03/1100] US SEC regulated financial service providers, Class Order [CO 03/1101] US Federal Reserve and OCC regulated financial service providers, Class Order [CO 04/829] US CFTC regulated financial services providers

Singapore

Class Order [CO 03/1102] Singapore MAS regulated financial service providers

Hong Kong

Class Order [CO 03/1103] Hong Kong SFC regulated financial service providers

Germany

Class Order [CO 04/1313] German BaFin regulated financial service providers

Luxembourg

ASIC Corporations (CSSF-Regulated Financial Services Providers) Instrument 2016/1109

For all countries noted above

ASIC Corporations (Repeal and Transitional) Instrument 2016/396 and ASIC Corporations (Amendment) Instrument 2018/807 (collectively ‘transitional relief’)

Note: ASIC Corporations (Amendment) Instrument 2018/807 temporarily extended the relief for FFSPs available under the instruments listed in this table (until 30 September 2019) while we review the policy settings underlying the relief.

How to apply for registration as a foreign company

Before relying on the relief available for FFSPs, you must consider if you are carrying on a business in Australia, in which case you must register as a foreign company in Australia under Division 2 of Part 5B.2 of the Corporations Act.

Whether you will be carrying on a business is determined by reference to Division 3 of Part 1.2 of the Corporations Act and will depend on a number of factors: see Regulatory Guide 121 Doing financial services business in Australia (RG 121).

Registration under Division 2 of Part 5B.2 of the Corporations Act may also be required by the relevant ASIC instrument or by the Corporations Act itself.

Registering as a foreign company

To register as a foreign company, you must complete Form 402 Application for registration as a foreign company. This form asks for general details about the company and must be completed in full. The guide to the form (which is included with the form) has more details on how to appropriately complete and lodge the form.

The guide also sets out what documents must accompany the form. These documents include:

  • a current certificate of registration, or a document of similar effect, that confirms that the company is currently registered in its home jurisdiction
  • a certified copy of the company’s constitution
  • a memorandum of appointment of a local agent, or a power of attorney in favour of a local agent (see ‘Appointing a local agent’ below)
  • a memorandum stating the powers of certain directors.

If any of the documents accompanying Form 402 are not in English, you must include a certified translation of that document into English.

There are prescribed fees for registering as a foreign company: see Information Sheet 30 Fees for commonly lodged documents (INFO 30).

For information on how to lodge Form 402, see ‘How to lodge forms and documents’ below.

If the application form and accompanying documents are in complete order, the registration process usually takes approximately one to two weeks, but it may take longer if ASIC requires further information or has any queries about the application. After the application is processed, we will issue you with:

  • a nine-digit identifying number, known as an Australian Registered Body Number (ARBN)
  • a certificate of registration.

Appointing a local agent

A registered foreign company must always have a local agent. As a registered foreign company, you must appoint a local agent under section 601CF of the Corporations Act. A local agent must be a natural person or a company that is resident in Australia. A local agent of a registered foreign company is:

  • answerable for doing all acts, matters and things that the foreign company is required to do under the Corporations Act
  • personally liable for any penalties imposed on the foreign company for a contravention of the Corporations Act if a court or tribunal hearing the matter is satisfied that the local agent should be so liable.

There are two ways a registered foreign company may appoint a local agent:

  • by a memorandum of appointment (see Form 418 Memorandum of appointment of local agent)
  • by a power of attorney duly executed by or on behalf of the foreign company.

If at any time the local agent you have appointed ceases to act for you, you must appoint a new local agent. A foreign company may have more than one local agent at the same time.

As a registered foreign company relying on relief, if your local agent ceases acting for you, you must appoint a new one, or if the details of your local agent change you must notify us of both types of changes:

Appointing a local agent when not a registered foreign company

An FFSP relying on relief that is not a registered foreign company under the Corporations Act must appoint a local agent for service to facilitate the commencement of proceedings in Australia.

There is no prescribed form for this appointment. However, you will need to provide ASIC with a certified copy or original of your local agent memorandum of appointment and the agent’s contact details (name, address and email) as described below: see ‘Documents you must lodge and fees you may need to pay’.

Changes to local agent

From the time you rely on the relief, the terms of the instruments require that you have not failed to have a local agent for any consecutive period of 10 business days.

If at any time the local agent you have appointed ceases to act for you, you must:

You must also advise ASIC of changes to the details of your local agent (i.e. name and/or address) by email to FFSP@asic.gov.au: see ‘Notifications required under relief’ below.

Documents you must lodge and fees you may need to pay

After registering as a foreign company and/or appointing a local agent, all FFSPs need to provide certain information to ASIC. We will consider this information before you can rely on the relief provided under the instruments in Table 1. In some circumstances, an FFSP may also need to pay an application fee (see ‘Paying an application fee’ below).

The information that needs to be provided includes:

To facilitate our consideration, all information and documents provided to ASIC must:

  • be in English – if they are not in English, you must include a certified translation of that document in English
  • have original signatures – we will not accept signatures that are scanned or photocopied
  • where supporting documents are copies, the certifier should certify that each copy is a true and correct copy of the original document – by stamping, signing and annotating the copy of the document, initialling each page, and listing their name, date of certification, and qualification or occupation that makes them eligible to certify.

We may also request additional information if we need it to properly consider an FFSP’s reliance on the relief.

A delay in providing this information, or an incomplete application that does not contain all the information in the way we require, can delay ASIC confirming to an FFSP that it is able to rely on the relief. Without the relief, FFSPs are unable to conduct business in Australia under the instruments.

For information on how all FFSPs (whether or not an application fee is payable) are to lodge the letter, supporting documents and deed, see ‘How to lodge forms and documents’ below.

Paying an application fee

An application fee is payable under the Corporations (Fees) Regulations 2001 (Fees Regulations) when an instrument that the FFSP is seeking to rely on requires:

  • the FFSP to provide ASIC with evidence as to particular matters
  • ASIC to provide a statement in writing that the evidence provided by the FFSP is adequate (see item 80(f) of Schedule 1 to the Fees Regulations).

You must pay an application fee if you are seeking to rely on the relief under:

  • [CO 03/1100], [CO 03/1101], [CO 03/1103], [CO 04/829] or [CO 04/1313] – as temporarily extended by the transitional relief
  • [CO 03/1102] (as extended by the transitional relief) by:
    • being a merchant bank approved as a financial institution on the basis provided in Schedule B, clause 2(a)(ii) of [CO 03/1102]
    • providing ASIC with evidence and ASIC has stated in writing that the evidence provided is adequate.

An application fee is not payable if you are seeking to rely on the relief in the following instruments because these instruments do not require ASIC to provide a statement in writing that the evidence provided by the FFSP is adequate:

  • [CO 03/1099] (as extended by the transitional relief)
  • ASIC Corporations (CSSF-Regulated Financial Services Providers) Instrument 2016/1109 (as extended by the transitional relief)
  • [CO 03/1102] (as extended by the transitional relief) – if you have provided ASIC with a copy of your capital market services licence or banking licence under Schedule B, clause 2(a)(i) of [CO 03/1102].

Providing a letter of intention to provide financial services

You must provide an original dated signed letter to ASIC that you intend to provide financial services in Australia in reliance on a specified instrument. We will not accept a letter of intention from an agent or other representative acting on behalf of the FFSP. The letter of intention should set out:

  • your full name, address and contact details as the FFSP, and your ARBN if you have one
  • the instrument number on which you intend to rely
  • the name of the relevant overseas regulatory authority
  • a statement that your primary business is the provision of financial services
  • a statement that you will provide financial services in Australia in reliance on the instrument
  • a statement that neither you nor your local agent have been notified by ASIC that you are excluded from relying on the relief
  • a statement that you have not notified ASIC that you will not rely on the relief
  • the full name, title and signature of the person who is authorised to sign on your behalf.

We also request that the letter include a brief description of the financial services you intend to provide in Australia in reliance on the relief at the time of writing the letter, and any financial products those services may relate to.

Providing supporting documents

You must provide the documents listed in Table 2 with the letter of intention to provide financial services in Australia. There is no prescribed form for these documents.

Table 2: Supporting documents

Document

Explanation

Evidence of your authorisation, licence or permission from your overseas regulatory authority

You need to provide either an original or certified copy of your licence, permission (e.g. Part IV permission) or authorisation.

If the relevant overseas regulatory authority does not issue a separate authorisation, you need to provide:

  • a certified copy of a current extract from the website of the overseas regulatory authority being authenticated by a person who is authorised to sign on your behalf
  • an original dated letter from you advising ASIC why a separate authorisation cannot be obtained from the overseas regulatory authority.

Note: For [CO 03/1099], we will accept certified extracts from the website of the Financial Conduct Authority’s register of permissions. We will do so without also requiring a written explanation from the FFSP as to why certified originals are not available (we note this reflects current practice in the jurisdiction).

Note: For [CO 03/1100], we will accept the following, without also requiring a written explanation from the FFSP as to why certified originals of the authorisation are not available (we note this reflects current practice in the jurisdiction):

  • a reference to a link to the Securities and Exchange Commission’s Investment Adviser Public Disclosure website that demonstrates registration or a certified copy of the ‘Form ADV’
  • if you are a registered broker–dealer, a certified extract of membership with the Securities Investor Protection Corporation (SIPC) and the Financial Industry Regulatory Authority (FINRA) from the SIPC and FINRA websites.

Note: For [CO 04/829], we will accept certified extracts from the National Futures Association’s website for the purpose of membership with that association, without also requiring a written explanation from the FFSP as to why certified originals are not available (we note this reflects current practice in the jurisdiction).

Your registration as a body corporate or formation as a partnership in the country in which you were registered or formed

You need to provide a certified copy or original of your registration as a body corporate or formation as a partnership in the country in which you were registered or formed.

You do not need to provide this document if you are already registered as a foreign company in Australia at the time of lodging the letter.

In the case of partnerships, you need to provide a copy of the partnership agreement, together with a list of persons or entities authorised to sign on behalf of the partnership.

Note: For [CO 03/1099], this requirement does not apply to a partnership incorporated under the Limited Liability Partnerships Act 2000 (UK), in which case we will accept an original or certified copy of the certificate of incorporation provided by Companies House.

The agreement with your local agent in Australia for the purposes of your reliance on the relevant instrument

You need to provide a certified copy or original of your local agent memorandum of appointment and its contact details (name, address and email).

You do not need to provide this document if you are already registered as a foreign company in Australia at the time of lodging the letter.

An original written consent letter that refers to you consenting to the sharing of information about yourself between the overseas regulatory authority and ASIC

You need to provide an original written consent letter addressed to ASIC that should be from the FFSP that is relying on the instrument (ASIC will not accept a consent letter from an agent or other representative acting for the FFSP). It must:

  • have a date
  • be signed by a person who is authorised to sign on behalf of the FFSP (but not by an agent or other representative acting for the FFSP).

The written consent should include:

  • the full name of the FFSP
  • the relevant instrument
  • the full name of the person signing, including their title and contact details
  • words to the effect that the FFSP consents to the disclosure by the relevant overseas regulatory authority to ASIC, and from ASIC to the relevant overseas regulatory authority, of any information or document that the relevant overseas regulatory authority or ASIC has in relation to the FFSP. There is no obligation for you to get a written consent from the overseas regulatory authority.

Additional documents required for certain types of authorisations under [CO 04/829]

If you are a registered commodity pool operator or a registered commodity trading adviser, you must provide a written certification to ASIC that you have adequate resources to provide the financial services you provide and intend to provide in Australia. The certification must:

  • have a date
  • specify the relevant instrument
  • be signed by a person who is authorised to sign on behalf of the FFSP (but not by an agent or other representative acting for the FFSP)
  • include the name of the FFSP and the full name of the person signing, including their title and contact details.

Providing an original signed deed of covenant

You must also provide an original signed counterpart of a deed of covenant that contains the following information:

  • the full name of the FFSP
  • details of the instrument on which you intend to rely
  • the name of the relevant overseas regulatory authority
  • a statement that the deed is for the benefit of and enforceable by ASIC and any other person referred to in section 659B(1) of the Corporations Act

Note: For clarity, it is best practice to define the terms ‘ASIC’ and ‘other persons referred to in section 659B(1) of the Corporations Act’ in the deed. Section 659B(1) includes: ASIC; a Minister of the Commonwealth; a Minister of a state or territory of Australia; a holder of an office established by a law of the Commonwealth or a state or territory in Australia; or a body corporate incorporated for a public purpose by a law of the Commonwealth or a state or territory in Australia to the extent to which it is exercising a power conferred by a law of the Commonwealth or a state or territory in Australia. Terms used in the deed should be consistent with those in the relevant instrument.

  • a statement that the deed applies even if you cease to rely on the instrument
  • a statement that the deed is irrevocable except with ASIC’s prior written consent
  • a statement that you submit to the non-exclusive jurisdiction of the Australian courts in legal proceedings conducted by ASIC (including section 50 of the Australian Securities and Investments Commission Act 2001 (ASIC Act)) and, in proceedings relating to a financial services law, by any person referred to in section 659B(1) of the Corporations Act and whether brought in the name of ASIC or the Crown or otherwise
  • a statement that you covenant to comply with any order of an Australian court in respect of any matter relating to the provision of the financial services
  • a statement that if you are not as yet registered under Division 2 of Part 5B.2 of the Corporations Act, service of process for legal proceedings conducted by ASIC (including under section 50 of the ASIC Act) and for proceedings relating to a financial services law, by any person referred to in section 659B (1) of the Corporations Act and whether brought in the name of ASIC or the Crown or otherwise, can be effected on the FFSP’s agent in this jurisdiction
  • a statement that you covenant that, on written request of either the relevant overseas regulatory authority or ASIC, you will give or vary written consent and take all other practicable steps to enable and assist the relevant overseas regulatory authority to disclose to ASIC, and ASIC to disclose to the relevant overseas regulatory authority, any information or document that the overseas regulatory authority or ASIC has that relates to the FFSP.

We do not have a pro forma for this deed of covenant. We require that the deed will have the effect intended under the relevant provisions of the relevant instrument.

The deed of covenant should:

  • be dated (including the day, month and year)
  • include the full name, title and signatures of any person signing the deed on your behalf.

Any questions about the deed of covenant required by the instrument should be raised with us by sending an email to applications@asic.gov.au.

After lodging the letter, supporting documents and a copy of the deed of covenant with us by email, you can send the originals to us by mail. See ‘How to lodge forms and documents’ below.

Confirmation of relief

For an instrument where you are required to pay an application fee to ASIC under the Fees Regulations, we will notify you in writing if the information you have provided with your application is adequate and, therefore, whether you can rely on the instrument.

The timing of this confirmation will depend on:

  • the adequacy of the information you provide (i.e. whether you have provided all relevant and complying documents referred to in the relevant instrument and in the way we require)
  • whether we need to consider any additional information about an FFSP’s reliance on the relief.

For example, we may not issue a letter of adequacy unless you have provided us with the required original or certified supporting document or other information we may require to consider the financial services you propose to provide in Australia.

For an instrument where you are not required to pay an application fee, we will consider the information you have provided and the financial services you propose to provide in Australia. We will write to you to acknowledge receipt of the information and to notify you of the date from which you may rely on the relief, or we will contact you if we require further information or have any queries before you are able to rely on the relief.

Where possible, our officers will advise you before refusing an application to rely on an instrument and we will notify you of the additional information we need to consider the application and by when.

Notifications required under relief

After we have confirmed to you in writing that you can rely on a relevant instrument in Table 1, you have an ongoing obligation to notify ASIC of certain information as an entity relying on the relief.

There is no prescribed form for these ongoing notifications.

Notifications are to be sent by letter to FFSP@asic.gov.au. This letter is in addition to any prescribed form you must submit to ASIC for changes as a registered foreign company or to your local agent.

Note: These notifications may also apply as conditions to individual relief, as specified in an individual relief instrument. See ‘Applying for individual relief’ below.

Significant changes

If you are relying on any of the relevant instruments in Table 1 for relief, you must notify ASIC as soon as possible by letter and in any event within 15 business days from the date you become aware, or should have reasonably become aware, of the following notifiable matters:

  • that you no longer wish to rely on the instrument
  • a change of the name or the address of the FFSP
  • a change of the name or the address of your agent, or change in your agent, or both
  • a change in your business structure (e.g. from limited partnership to limited liability company or other type of structure)
  • any significant change to the FFSP’s authorisation relevant to the financial services provided or intended to be provided in Australia (e.g. if part or all of it is terminated, if you are authorised to engage in any additional types of financial service, or if you are granted a significant exemption or other relief)
  • any significant investigation, enforcement or disciplinary action against you in an overseas jurisdiction.

This information should be sent to FFSP@asic.gov.au: see RG 176 for further detail.

Breaches

If you are relying on any of the relevant instruments in Table 1 and you become aware, or should reasonably have become aware, that you are in breach of any of the requirements of the relevant instrument, you must provide full details to ASIC of the breach by letter within 15 business days after that time. Breach notifications should be sent to FFSP@asic.gov.au.

The terms and conditions of an instrument are strict and failure to comply with the requirements would result, among other things, in the relief from AFS licensing obligations lapsing, such that you will no longer be able to continue to rely on the instrument. If you are unable to rely on the relevant instrument, you need to advise ASIC in writing and consider applying for individual ‘case-by-case’ relief.

We encourage you to regularly monitor your compliance with the terms and conditions of the relevant instrument and report any breaches to us promptly, rather than leaving the reporting to the end of the 15 business-day period permitted in the instrument.

If we decide that the FFSP should continue to have the benefit of relief, we will notify it of this decision within 30 business days after we receive its notification. If we do not respond to the FFSP’s breach notification, the relief will lapse and the FFSP will no longer be eligible to rely on the relevant relief.

If an FFSP fails to inform us of a breach of a condition, its relief will lapse and the FFSP will no longer be eligible to rely on the relevant relief.

Apart from any exemptions under the relevant instrument or as specified by ASIC, you must comply with all other relevant Australian laws, including laws that ASIC administers.

What to include with notifications

You must include the following information with notifications, which will help us in assessing the notifications and recording the information on our database:

  • your name and address as the FFSP and any changes to your name or address since you last lodged any notification
  • your organisation number or reference number as recorded on the ASIC database (i.e. ARBN or ASIC Organisation Number)
  • the name, address and contact details of your local agent (if applicable) together with the name of any previous local agent since you last lodged any notification
  • the instrument reference number that is relevant to you
  • the name of the country where you are incorporated or formed
  • the full name of the regulatory authority that is currently regulating your activity overseas for the purposes of RG 176
  • the full name and address of the person who is lodging the ongoing notification on your behalf, together with the person’s role in the organisation, their contact details (including phone and email) and their registered address.

If you are relying on the instrument relief, there is no fee for lodging these ongoing notifications with ASIC: see ‘How to lodge forms and documents’ below.

Applying for individual relief

If you do not want to or are unable to rely on any of the instruments in Table 1, you can apply for individual ‘case-by-case’ relief. Individual relief will reflect similar terms and conditions to the instruments in Table 1 issued under RG 176. The relief will generally apply for the same period that the relief available under the instruments listed in Table 1 is extended (currently until 30 September 2019), while we review the policy settings underlying FFSPs.

Applications for individual relief should be sent to applications@asic.gov.au.

What to include in your application

In your application for individual relief, you should clearly identify and explain in sufficient detail:

  • what type of relief is being applied for
  • the legal basis of your application for relief
  • the regulatory issue or problem that you want ASIC to consider
  • the legal and cost/benefit arguments for relief
  • whether you have consulted with ASIC or other relevant regulatory organisation(s)
  • whether any third parties are affected by the application, and, if so, whether you have consulted with those third parties
  • whether the application is urgent, and, if so, why
  • your responses to the questions in Table 3 (see ‘Questions for applicants’ below)
  • your responses to the guidance in Regulatory Guide 51 Applications for relief (RG 51), which sets out our general policy on applying for relief.

If you are applying for individual relief because you are no longer able to rely on the instrument due to a breach, your application should also explain in sufficient detail:

  • the circumstances surrounding the matter
  • the nature of the breach
  • the number of times the breach has occurred
  • the history of non-compliance with the relevant overseas regulatory authority
  • the currency of your accreditation with the relevant overseas regulatory authority
  • the full details of the systems and procedures you have, or you will be putting in place, to address the breach and ensure that it does not occur again.

The application for individual relief will require the payment of fees: see item 80 of Schedule 1 to the Fees Regulations.

Make sure you include supporting documents and the prescribed fee as required with your application: see ‘How to lodge forms and documents’ below.

Signed declaration

Your application for individual relief must be accompanied by your signed declaration, or, if you are a corporate entity, a statement authorised by the proper authority, that:

  • to the best of your knowledge and after making proper inquiries, the information and documents you have provided in response to the questions in Table 3 and in support of your application are true, correct and complete
  • you acknowledge that ASIC may take action to verify that the statements made in the application are not false or misleading.

Notifications

If you are granted individual relief, you also have an ongoing obligation to notify us of certain information: see ‘Notifications required under relief’ above.

Questions for applicants

When you apply for individual relief, you will need to provide answers to the questions in Table 3. The questions are those that you should be addressing for the purposes of ASIC’s assessment about yourself, the financial services you will be providing and the relevant overseas regulatory authority that has primary responsibility for monitoring and enforcing compliance with your regulatory obligations for providing financial services in Australia.

While the answers to these questions will help us in assessing applications and provide most of the information we require, they should not be regarded as an exhaustive list. We may also request additional information to help us assess an application.

Applicants should provide verifiable information in support of any assertions about their regulatory regime, such as current references to legislation, regulations and policy. We will regard an application that does not provide such supporting information as incomplete.

If we decide to grant the relief, you will need to provide information and documents that may be required under the terms and conditions of any relief we grant. We will advise you of any required information and documents.

Note: In Table 3, we generally refer to the relevant overseas regulatory authority as ‘your regulatory authority’ and the relevant overseas regulatory regime as ‘your regulatory regime’.

Table 3: Questions for FFSPs applying for individual relief

Part A: Applicant details

Q1.1

What is your Australian Company Number (ACN) or Australian Registered Body Number (ARBN)? If you do not have an ACN or ARBN, are you applying for one? If not, what is your current ‘business form’?

Note: If an FFSP should be registered as a foreign company under Division 2 of Part 5B.2 of the Corporations Act, it must ensure that it has done so before applying for individual relief.

Q1.2

If you are a member of a corporate group, describe the structure of that group.

Q1.3

Name the overseas regulatory authority or authorities that regulate you.

Note: We will only consider regulation by your regulatory authority (usually your home regulator) when deciding whether to grant relief: see RG 176 at RG 176.18. You should name your home regulators, but only mention overseas regulatory authorities in host jurisdictions if they are relevant: see RG 176 at RG 176.18–RG 176.24.

Part B: What financial services do you provide?

Q2.1

Describe each financial service (within the meaning of Division 4 of Part 7.1 of the Corporations Act) that you intend to provide or continue to provide in Australia, and any financial products those services may relate to.

If the financial service is described in different terminology in your regulatory regime, please also describe how it would translate into Australian terminology.

You may wish to consult Chapter 7 of the Corporations Act to help identify in your response which of the financial services you propose to offer in Australia are covered by Chapter 7.

Q2.2

Describe how you will provide the financial service in Australia. For example, provide detailed information on the following:

  • Will you use local representatives or employees? If so, how many local representatives do you expect to use and what are their functions and reporting obligations?
  • How will you monitor and supervise those people who will provide the financial service in Australia?
  • Will you have a permanent place of business in Australia?

Q2.3

How will you ensure that the financial service provided in Australia is provided only to wholesale clients (within the meaning of section 761G of the Corporations Act)? For example:

  • What practical controls or processes apply to ensure that the financial service is provided only to wholesale clients?
  • Will your regulatory authority monitor your provision of a financial service in Australia to ensure it is provided only to wholesale clients?

Q2.4

Do you provide the same financial service in your home or host jurisdiction?

Part C: The overseas regulatory regime

Q3.1

Provide proof of the authorisation/registration/licence issued by your regulatory authority that:

  • entitles you to provide the financial service
  • demonstrates that your provision of the financial service is regulated by your regulatory authority.

Note: If you have authorisations/registrations/licences from any other overseas regulatory authority in your home jurisdiction (or in another relevant overseas jurisdiction: see RG 176 at RG 176.18–RG 176.24), provide proof of all such authorisations/registrations/licences.

You need to provide either an original or certified copy of your authorisation/registration/licence permission.

If your regulatory authority does not issue a separate authorisation, provide:

  • a certified copy of a current extract from the website of your regulatory authority being certified by a person who is authorised to sign on your behalf
  • an explanation from you advising ASIC why a separate authorisation cannot be obtained from your regulatory authority
  • other relevant regulatory references.

Q3.2

For services you intend to provide in Australia, do you have any exemptions from your regulatory authority in relation to the financial services that they regulate? If so, what are these exemptions and what relevance do they have to the financial service you will provide in Australia?

Q3.3

What is the jurisdictional reach of your regulatory authority? Does your regulatory authority regulate, supervise and monitor services provided by you in Australia?

Q3.4

Describe how your regulatory authority regulates the financial service you will provide in Australia. For example:

  • What broad criteria have you satisfied to be authorised/ registered/licensed to provide financial services? For example, does your regulatory authority require satisfaction of honesty, competency or resource requirements?
  • How does your regulatory regime ensure you act fairly and honestly in your provision of financial services to clients? For example, does your regulatory regime impose any obligation on you to act fairly and honestly? Does your regulatory regime prohibit you from acting dishonestly?
  • How does your regulatory regime ensure that you are competent to provide the financial service you will provide in Australia? For example, does your regulatory regime impose on you any obligations to be competent in your provision of financial services to clients? Does your regulatory regime prohibit you from acting incompetently in your provision of financial services to clients? Does your regulatory regime prescribe minimum educational or other qualifications?
  • How does your regulatory regime ensure that you monitor and supervise employees and/or representatives who provide financial services on your behalf in Australia?
  • How does your regulatory regime ensure that you have sufficient resources to provide the service you will provide in Australia? For example, does your regulatory regime impose any obligations on you to meet specified financial requirements or other resource requirements? Provide detailed descriptions of all such requirements.
  • How does your regulatory regime ensure you have adequate risk management processes? For example, does your regulatory regime impose any obligations on you to meet requirements for adequate risk management processes, either specifically or as part of your broader obligations? Does your regulatory regime require you to have adequate internal controls or compliance arrangements?
  • To what extent does your regulatory regime regulate your provision of financial services to wholesale clients?
  • How does your regulatory authority monitor and enforce compliance with each of the obligations or prohibitions you have described?
  • Does your regulatory authority have the power to enforce the financial services regulations and rules of your regulatory regime for your provision of financial services in other jurisdictions, such as Australia? Give details of those powers.

If you are regulated by more than one relevant overseas regulatory authority, describe the roles and powers of each regulatory authority for each of these matters.

If appropriate, provide copies of relevant legislative provisions and policies.

How to lodge forms and documents

Table 4 explains how to lodge the different types of documents mentioned in this information sheet. This list is not exhaustive: see ‘Where can I get more information?’ below.

If you are required to lodge any supporting documents and they are not in English, you must include a certified translation of that document in English.

Table 4: Lodging forms and documents

Form or document

How to lodge

Documents in support of reliance on instrument relief

By email to applications@asic.gov.au

Send all hard-copy documents by mail to:

Australian Securities and Investments Commission
GPO Box 9827
Brisbane QLD 4001
Australia

Documents in support of application for individual relief

By email to applications@asic.gov.au

Send all hard-copy documents that ASIC may require by mail to:

Australian Securities and Investments Commission
GPO Box 9827
Brisbane QLD 4001
Australia

Notifications required under instrument or individual relief

By email to FFSP@asic.gov.au

Memorandum of agent appointment (where not a registered foreign company)

By email to FFSP@asic.gov.au

Send the hard-copy document by mail to:

Australian Securities and Investments Commission
GPO Box 9827
Brisbane QLD 4001
Australia

Form 402 Application for registration as a foreign company

Form 404 Notification of change to agent of a foreign company

Form 409 Notification of change to details of a foreign company or a registered Australian body

Form 418 Memorandum of appointment of local agent

Form 489 Notification of a change of a registered office or office hours of a registered body

By mail to:

Australian Securities and Investments Commission
PO Box 4000
Gippsland Mail Centre VIC 3841
Australia

Where can I get more information?

  • ASIC publications referred to in this information sheet, including RG 176 and relevant forms are available free of charge on our website at www.asic.gov.au.

Note: RG 176 is currently under review. See Consultation Paper 301 Foreign financial services providers (CP 301) for further information and Information Sheet 30 Fees for commonly lodged documents (INFO 30).

Important notice

Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice.

You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases, your particular circumstances must be taken into account when determining how the law applies to you.

This is Information Sheet 157 (INFO 157), reissued in April 2019. Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.

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Last updated: 03/04/2019 12:22