Relief Applications, Class Orders & ASIC Consultation
Do you think you should be exempt from requirements under the Corporations Act 2001, or relieved from obtaining an Australian Credit Licence (ACL) or an Australian Financial Services Licence (AFSL)? For example, you may be subject to another jurisdiction or regulatory body that requires you to meet obligations that overlap, or it may not be applicable to your situation. If so, you may be eligible for relief.
For example, ASIC has granted relief so that:
See here for an exhaustive list of ASIC class orders.
- CFD & margin forex issuers can hold client money overseas (in a number of countries);
- overseas companies may be relieved from the requirement to appoint Australian auditors provided certain conditions are met;
- charities are exempt from the requirement to hold an AFSL to provide financial services associated with their charitable purposes, subject to certain requirements, and are also in some cases exempt from APRA banking authorisation requirements; and
- funders, lawyers and their representatives are exempt from the requirement to hold an AFSL to provide financial services associated with a litigation funding scheme and a proof of debt funding scheme.
If you believe that you could be eligible for, or in need of, an exemption, give us a call. We can help to determine whether you’re appropriate to fit an existing class or forge a new one, and consequentially apply for relief.
We have successfully applied for relief on numerous occasions. Topics include handling client money, advice, dealing and issuing requirements, structured matters, eligible undertakings and more.
The onus is on your organisation to show why ASIC should grant such relief. Therefore, the application process is extremely important, as ASIC may refuse an application that does not address all relevant issues.
ASIC’s regulatory guide 51 sets out the guidelines in applying for relief. Under Regulatory Guide 51.1, ASIC may exercise discretionary powers to grant relief from the provisions of the:
There are three types of applications for relief:
- (a) Corporations Act 2001 (Corporations Act);
- (b) Superannuation Industry (Supervision) Act 1993 (SIS Act);
- (c) National Consumer Credit Protection Act 2009 (National Credit Act); or
- (d) National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Transitional Act).
Holley Nethercote can assist your organisation by providing consultation on what relief your organisation may require. We can then determine the necessary information to be included in your relief application and help formulate this for you to ensure that the application is in the best state possible when forwarded to ASIC for assessment. Information on how to apply for relief can be found on the ASIC website. We usually engage in discussion with ASIC to "test the water" before lodging an application for relief.
- (a) Standard applications — seeking relief in accordance with published ASIC policy and pro forma instruments (see RG 51.19);
- (b) Minor and technical applications — involving the application of existing policy to new situations (see RG 51.20 – RG 51.22); and
- (c) New policy applications — requiring us to formulate substantive new policy (see RG 51.23–RG 51.24).
Contact us now to find out more how we can assist.
Wednesday, 6 August 2014
The timing proposed by APRA in August 2013 was that the changes would take effect from 30 June 2014 with a 6 month transition period. No new exemptions would be granted as of 30 June 2014 and existing RCDFs would need to comply with the new arrangements from 1 January 2015.
Wednesday, 6 August 2014
This is the second part of a blog series title ‘Sleepers Wake’ about the regulation of religious charitable development funds. Read the first blog here.
Monday, 4 August 2014
The Australian Prudential Regulation Authority (APRA) is responsible for the prudential regulation (or as the Americans call it the “safety and soundness”) of the banking sector. Any company that engages in “banking business” (which under the Banking Act 1959 (Cth) means accepting deposits and making loans) must, unless it is covered by an exemption, be authorised by APRA and comply with its prudential standards covering matters such as capitalisation and risk management.
Dealing with the Regulator