How to register a managed investment scheme

Requirements for the responsible entity

To register a managed investment scheme, the proposed responsible entity must:

  • be a registered Australian public company
  • hold an Australian financial services (AFS) licence authorising the responsible entity to:
    • operate the scheme (either an ‘in-kind’ scheme authorisation or ‘named-scheme’ authorisation)
    • provide any other relevant financial services in relation to the scheme and its underlying assets.

When to register a scheme

Generally, a managed investment scheme must be registered if it has more than 20 members or is promoted by a person who is in the business of promoting managed investment schemes: see section 601ED of the Corporations Act. Some managed investment schemes may be exempt from registration – for example, where all of the interests in the scheme are issued to wholesale clients only: see section 601ED(2). Unregistered managed investment schemes are referred to as unregistered schemes.

Note: Operators of unregistered schemes must generally hold an AFS licence to issue, vary and dispose of interests in the scheme to wholesale investors. They must also hold an AFS licence to provide any other relevant financial services in relation to the scheme and its underlying assets – for example, a custodial and depository authorisation. For more information on requirements that apply to unregistered schemes, see Information 251 AFS licensing requirement for trustees of unregistered managed investment schemes (INFO 251).

Applying to register a scheme

To apply to register a managed investment scheme, the responsible entity will need to submit an application: see Form 5100 Application for registration of a managed investment scheme.

You will be asked to select the kind of scheme you are registering. We have identified the following kinds of schemes for licensing purposes:

  • financial asset schemes
  • derivative schemes
  • mortgage schemes
  • IDPS-like schemes
  • direct real property schemes
  • stable property trusts or syndicates
  • listed property trusts
  • service strata schemes
  • primary production schemes. These schemes will be further categorised according to the type of scheme (e.g. horticulture, aquaculture, tea trees, viticulture, forestry, cattle breeding, horse breeding, livestock grown for fleece, and ratites)
  • film schemes
  • time-sharing schemes.

If the scheme does not clearly fit within the above categories, you may need a tailored AFS licence authorisation to operate the scheme.

Note: Form 5100 does not specifically provide for litigation funding schemes. If you are completing Form 5100 for a litigation funding scheme, please select ‘Other Primary Production’ as the scheme kind in section 1, and specify ‘Litigation funding scheme’ in the space provided.

Your application must also include:

  • a copy of the scheme’s constitution
  • a copy of the scheme’s compliance plan (as defined by section 601HA of the Corporations Act and signed in accordance with section 601HC)
  • Form 5103 Directors' statement relating to application for registration of a managed investment scheme– a statement signed by the directors of the proposed responsible entity, confirming that:
    • the scheme's constitution complies with sections 601GA and 601GB
    • the scheme's compliance plan complies with section 601HA
  • an annexure that cross-references the contents of the constitution required by sections 601GA and 601GB to the equivalent provisions in the scheme's constitution
  • if necessary, agent's authorities appointing another person to sign the compliance plan (see regulation 5C.4.01 of the Corporations Regulations).

FAQs for executing scheme documents

In relation to the requirements for executing scheme documents, the answers to frequently asked questions are outlined below:

  1. Will ASIC accept digital signatures on forms and documents that must be lodged when applying to register a scheme?

We will accept a digital signature on Form 5100 Application for registration of a managed investment scheme when the form is lodged through the AFS licensee portal or the registered agent portal.

We will also accept a digital signature on the scheme constitution that is executed in accordance with section 127 of the Corporations Act.

Note: See Treasury Laws Amendment (2021 Measures No. 1) Act 2021 and review the Government’s website for any future developments.

All other forms and documents lodged with ASIC should be a copy of the document that was physically signed.

  1. Will ASIC accept documents executed in counterparts?

We acknowledge that in some circumstances in may be difficult for all directors to sign the same physical copy of a document.

Where the following documents are signed by more than one person, we will accept them for lodgement in counterparts:

  • Form 5103
  • the scheme’s compliance plan (including a modification or new plan)
  • company documents signed under section 127 of the Corporations Act (including the scheme constitution).

If any of these documents are signed in counterparts and lodged as part of an application to register a scheme through the AFS licensee portal or the registered agent portal, you must provide all separately signed counterparts of the document. These portals allow two documents to be uploaded for each of the compliance plan and constitution and one document to be uploaded for Form 5103. If the number of counterparts exceeds the number of documents that may be uploaded, you must scan the counterparts and uploaded them as a single document.

If any of these documents are signed in counterparts and lodged by post, you must provide all separately signed counterparts of the document.

If directors are not able to sign a compliance plan, or a modified or replacement compliance plan, an agent of the directors may sign these documents on their behalf. The agent’s authority, or a copy verified by a director of the entity, must be attached to the plan or modification.

If a compliance plan is lodged via the portal, the agent’s authority, or a copy verified by a director, must be uploaded with the compliance plan.

Lodging your application

Current AFS licensees can lodge Form 5100 and accompanying documents online through the AFS licensee portal or the registered agent portal.

New AFS licence applicants can lodge Form 5100 and accompanying documents online through the registered agent portal.

If you are unable to access the portals due to technical difficulty, you can download a copy of Form 5100 and email it to applications@asic.gov.au.

Note: A responsible entity should not lodge its scheme registration application with ASIC before it receives at least a draft AFS licence. Otherwise the application may be refused on the basis that the proposed responsible entity does not hold an AFS licence authorising the operation of the scheme.

You must retain the original documents for a period of seven years from the date on which you lodged the form online.

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Last updated: 10/09/2021 04:35