Australia

Table Of Contents

For more information

For information relating to Australia please email arfp@asic.gov.au

Becoming an Australian passport fund

An Australian passport fund operator seeking to register a passport fund will need to complete and submit an application to ASIC.

To become an Australian passport fund, the fund must already be a registered scheme. However, it does not need to be a registered scheme at the time the application is lodged to register as an Australian passport fund.

To register an Australian passport fund, ASIC needs to be of the opinion that:

  • the Australian passport fund operator is an eligible entity within the meaning of the Memorandum of Cooperation; and
  • the Australian passport fund is likely to be operated in compliance with the Corporations Act 2001, including the Australian Passport Rules, and the Australian Securities and Investments Commission Act 2001.

Offering interests to Australian investors as a notified foreign passport fund

Overview of regulatory requirements

Obligations apply to entities when carrying on a financial services business in Australia. These obligations generally apply in the same way to Australian and non-Australian entities.

These obligations are contained in the:

  • Corporations Act 2001;
  • Australian Passport Rules;
  • Australian Securities and Investments Commission Act 2001;
  • Corporations Regulations 2001;
  • Australian Securities and Investments Commission Regulations 2001;
  • ASIC Supervisory Cost Recovery Levy Regulations 2017; and
  • legislative instruments made under the Corporations Act 2001.

There is also a range of other obligations that apply under Australian law, including in relation to taxation, privacy, competition, anti-money laundering and counter-terrorism financing and foreign acquisition.

Under the Asia Region Funds Passport, foreign passport fund operators seeking to carry on a financial services business of issuing interests in a notified foreign passport fund to investors in Australia are exempt from some requirements in the Corporations Act 2001 and Corporations Regulations 2001 that would normally apply.

The Australian Securities and Investments Commission (ASIC) is an independent agency of the Australian Government that regulates registered companies, financial markets and financial services providers by enforcing and administering relevant legislation, including the Corporations Act.

Entry requirements

For a foreign passport fund to become a notified foreign passport fund in Australia, the operator must become a registered foreign company and meet the ongoing offer of interests in the fund’s home economy requirement in one of the available ways.

Once the operator is a registered foreign company, it must complete and submit a notice of intention to ASIC to offer fund interests in Australia. A fee is payable. Before it submits this notice, the operator should check if the name of the foreign passport fund is available to use.

Distribution

Foreign passport fund operators seeking to issue interests in a notified foreign passport fund in Australia under the Asia Region Funds Passport may take one of two approaches. They can:

(a)  offer and sell directly to Australian investors; or

(b)  offer and sell through an Australian financial services licensee that is authorised to offer interests for sale, or a representative of this licensee (known as an ‘authorised representative’).

If a foreign passport fund operator decides to offer interests directly to investors in Australia, the operator must hold an Australian financial services licence and meet the general obligations of licensees.

If a foreign passport fund operator uses an Australian financial services licensee or its authorised representative to offer interests in Australia (a distributor), the operator does not need to hold a licence. This is so long as the offer is covered by the licensee’s licence.

A foreign passport fund operator must not offer interests in the foreign passport fund unless it is a notified foreign passport fund.

Ongoing requirements

In addition to responsibilities under the Australian Passport Rules, notified foreign passport funds and their operators must comply with certain ongoing requirements under Australian law. These requirements include:

  • satisfying ongoing obligations of a registered foreign company;
  • observing Australian financial services licence exemption requirements, or holding a licence;
  • meeting Product Disclosure Statement requirements, transaction confirmation requirements and cooling-off requirements;
  • complying with the prohibition on conflicted and other banned remuneration, and with advertising requirements;
  • maintaining a register of members;
  • providing ongoing disclosures, periodic statements, financial reports and auditors’ reports to members;
  • providing additional information about the interests in the fund on request, certain documents on request, or copies of books on court order;
  • making annual lodgements, providing change of event notifications and lodging registers of members;
  • reporting breaches to ASIC;
  • meeting internal and external requirements for handling Australian member complaints; and
  • paying an annual levy for ASIC supervisory costs.

Further information