On 23 June 2022, the Australian Securities and Investments Commission (ASIC) released a range of documents relevant to the commencement of the corporate collective investment vehicles (CCIVs) regime on 1 July 2022.
The packet of material includes updates to key licensing guidance (Regulatory Guides 1, 2, and 3), general obligations under an Australian financial services (AFS) licence (Regulatory Guides 104 and 105), and funds management (Regulatory Guides 132 and 133). These amendments are now effective with the commencement of the CCIV regime.
Further amendments to existing instruments and guidance are scheduled to be released shortly.
A CCIV is a new type of company that can be registered from 1 July 2022. A CCIV is limited by shares, recognised as a separate legal entity, with one corporate director who is responsible for managing the business and conducting the affairs of the CCIV.
The Corporate Collective Investment Vehicle Framework and Other Measures Act 2022 (Cth) implements the legislative regime for CCIVs by amending the Corporations Act 2001 (Cth) (Corporations Act), the Australian Securities and Investments Commission Act 2001 (Cth) and the Personal Property Securities Act 2009 (Cth).
ASIC will be responsible for licensing corporate directors and registering CCIVs. In addition, ASIC will also offer guidance to corporate directors to ensure compliance with licensee requirements and other obligations under the Corporations Act.
ASIC released Information Sheet 272 ‘How to register a corporate collective investment vehicle and sub-fund’ which explains how to register:
Report 728, ‘Response to submissions on CP 360 Corporate collective investment vehicles: Preparing for the commencement of the new regime’ (REP 728), was also released and highlights the key issues that arose from the submissions received on CP 360 and details ASIC’s responses to those concerns.
Generally, respondents to CP 360 supported ASIC’s proposals for the licensing of corporate directors to operate a CCIV. However, the below three issues were raised.
In assessing an AFS licence variation, ASIC will apply the same principles outlined in section 913B of the Corporations Act. Therefore, ASIC must grant an AFS licence if there is no reason to believe that an applicant is likely to contravene the general licensee obligations.
Moreover, ASIC will generally not impose a limit of a single sub-fund on corporate directors of wholesale CCIVs. Finally, AFS licensees that did not utilise the one-off offer of an ASIC-initiated variation by 3 May 2022 can still apply for a variation but will be required to pay an application fee and submit the required proofs.
An AFS licensee that is both a responsible entity and a corporate director will be required to have adequate PI insurance having regard to the nature of the activities carried out by the licensee.
An AFS licensee that is both a responsible entity and a corporate director will have a single NTA requirement.
ASIC has updated a range of regulatory guides to support the implementation of the CCIVs regime. Highlighted below are some of the key amendments relevant to CCIVs.
See below (Schedule 1) for a summary of key takeaways from the Updated Guidance Material.
ASIC will soon release a new legislative instrument (ASIC Corporations (Financial Requirements for Corporate Directors of Retail Corporate Collective Investment Vehicles) Instrument 2022/449) and issue updated versions of the below guides:
The regulatory space governing CCIVs will continue to change in the lead up to the implementation of the regime. As such, entities should familiarise themselves with the new guidance materials released by ASIC and keep informed of any upcoming regulatory or legislative amendments.
RG 1.2: You will provide financial services if you operate the business and conduct the affairs of a CCIV.
RG 1.77: If you have applied to operate the business and conduct the affairs of a CCIV, you will need to register the CCIV. You can apply to register the CCIV after you receive your final AFS licence. Your CCIV registration application will be refused if you have not met the licensing requirements at the time you apply. Note: the initial sub-fund(s) of the CCIV are registered when the CCIV is registered. If your licence limits you to operating one retail CCIV (with a single sub-fund), you will need to ensure your registration application is consistent with your licence.
RG 1.131: If the variation to your AFS licence includes an authorisation to operate the business and conduct the affairs of a CCIV, you can apply to register the CCIV after you receive your final varied AFS licence. Your registration application will be refused if you have not met the AFS licensing requirements at the time you apply.
RG 2.69 and 2.78: If you wish to advise or deal with CCIV securities you must hold an AFS licence authorisation to advise or deal on ‘securities’ (this is a broad authorisation covering all types of securities, including CCIV securities). Note: If you already hold an authorisation to advise or deal on ‘securities’ as at 30 June 2022, you are able to advise on CCIV securities and will not be required to vary your AFS licence.
RG 2.100: You generally don’t need an authorisation to provide custodial or depository services if you only operate a CCIV.
RG 2.127 – 2.144: Details how to operate the business and conduct the affairs of a CCIV. These regulations cover choosing what type of CCIV you will operate, limits on the operations of retail CCIVS, CCIV asset types, other authorisations and when to register.
RG 2.371: For each responsible manager you must set out, among other things, if you will be operating a CCIV, their knowledge and skills in relation to the operation of the CCIV and the assets under management to be held or the business operated by the CCIV.
RG 2.382: The financial requirements in Appendices 2-10 of RG 166 generally apply to corporate directors of retail CCIVs.
RG 3.75 and 3.76: Outlines what proof is required for a CCIV Operating Capacity Statement and CCIV Asset Statement. For example, the statement must include the target investors and proposed number of sub-funds.
RG 104.1: If you are an operator of an Australian passport fund or a person with responsibilities in relation to an Australian passport fund, you must comply with the law of each host economy for the fund.
RG 105.41 – If you operate a CCIV, your responsible managers must demonstrate that they understand the investment and operational issues of the assets under management or, if relevant, the business proposed to be operated under your AFS licence.
RG 105.44 – If you operate a CCIV, you need to have at least one responsible manager with knowledge and skills for the CCIV.
RG 105.47 – When assessing whether a responsible manager meets the knowledge and skills component, the following are considered – qualifications and prior experience in providing financial product advice on and/or dealing in CCIVs, interests in a managed investment scheme; and/or similar overseas experience.
RG 105.104 – 105.109 outlines the limits on operations of retail CCIVs.
RG 105.110 – If you have an existing authorisation to advise on and/or deal in securities, you are considered to be also authorised to advise on and/or deal in CCIV securities and will not need to apply to ASIC for a separate authorisation.
RG 132.26 – A retail CCIV is not required to establish a compliance committee.
RG 132.91 – Given the fundamental differences between a managed investment scheme and a CCIV, a retail CCIV cannot incorporate by reference the compliance plan of a registered scheme.
RG 132.160 – All assets of a CCIV must be allocated to a sub-fund. A corporate director of a CCIV must set up and maintain a register of assets and liabilities of the CCIVs sub-funds.
RG 133.6 – This guide does not apply to the corporate director of a corporate collective investment vehicle (CCIV), a CCIV or a custodian engaged by the corporate director or CCIV. However, where the assets of the CCIV are held by the CCIV, the corporate director may wish to consider the principles set out in this guide; and where the assets of the CCIV are held by a person other than the CCIV, the corporate director may wish to consider the principles set out in this guide when assessing whether that person has met the minimum standards in reg 8B.5.10(2) of the Corporations Regulations 2001.
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Liam Hennessey, Partner
Taylor Green, Associate
Georgia Bloxham, Paralegal