The report, Overview of decisions on relief applications (June 2011 to September 2011) (REP 274), aims to improve the level of transparency and 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), the National Consumer Credit Protection Act 2009 (National Credit Act) or the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Transitional Act).
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 without harming other stakeholders.
Report 274 summarises situations where ASIC has exercised, or refused to exercise, its exemption and modification powers under the Corporations Act, the licensing and responsible lending provisions of the National Credit Act, and the registration provisions of Schedule 2 of the Transitional Act. The report also highlights instances where ASIC has decided to adopt a no-action position regarding specified non-compliance with statutory provisions. Decisions by ASIC to refuse to exercise its powers are described on an anonymous basis.
The report provides examples of decisions that demonstrate how ASIC has applied its policy in practice, which we think will be of particular interest to capital market participants and those working in the consumer credit and financial services industries. The report includes an appendix detailing the relief instruments ASIC executed.
REP 274 is available from the ASIC website or by calling ASIC’s Infoline on 1300 300 630.
Background
ASIC can modify or set aside certain provisions of Chapters 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 Chapter 2 and the responsible lending conduct provisions in Chapter 3. ASIC has powers to give relief from the registration provisions in Schedule 2 of the Transitional Act.
ASIC publishes a copy of most of the relief instruments issued in the ASIC Gazette which is available from the ASIC website. Credit instruments are available from the ASIC website under ‘Credit relief’.
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), which can be found at: www.asic.gov.au/rg
Applications can be submitted electronically to applications@asic.gov.au. Fees are applicable for relief applications.