ASIC is proposing that a legislative instrument, relating to managed investment schemes, be allowed to expire ('sunset') on 1 October 2024. This means the instrument will cease to operate and entities will no longer be able to rely on it. 

ASIC is seeking feedback regarding the sunsetting of ASIC Corporations (Land Holding for Primary Production Schemes) Instrument 2024/15 from Australian financial services (AFS) licensees, superannuation trustees, platform operators, responsible entities, consumer groups and other interested stakeholders.  

ASIC understands that the relief for primary production schemes covered by this instrument may no longer be required by the managed fund sector. 

ASIC invites feedback on whether the instrument still forms a necessary and useful part of the legislative framework, and whether standards set out in the instrument remain appropriate to ensure effectiveness. 

Regulatory Guide 133 Funds management and custodial services: Holding assets (RG 133) sets out standards for responsible entities of registered schemes. This guide details obligations relevant to holding interests in land. 

You are invited to provide feedback on our proposal. Submissions should be sent by 5pm 9 August 2024 to rri.consultation@asic.gov.au. 

Background 

The ASIC Corporations (Land Holding for Primary Production Schemes) Instrument 2024/15 modifies the Corporations Act 2001. 

Where an offer of interests in a registered scheme is made with, or includes, an offer of rights attaching to or arising from the land on which the scheme will occur, the responsible entity must satisfy extra requirements. 

These include: 

1. taking reasonable steps to ensure that any regulatory approvals, necessary to carry out the primary production activities that the scheme is involved in, are obtained and maintained;
2. protecting the rights of members to have use of the land on which the primary production occurs, as relevant to the scheme and for the expected duration of the scheme, through a registered interest in the land under state or territory land title laws; 
3. registering the interest in such a form and in such a way that it cannot be adversely affected either by the interests of others in the land or, as far as possible, by any future interests; and 
4. ensuring that, if the registered interest is a lease or an instrument that confers the right to use land that requires regular payments to be made, the responsible entity is empowered to require members to make payments to meet the obligations. 

ASIC Corporations (Land Holding for Primary Production Schemes) Instrument 2024/15 remade ASIC Class Order [CO 13/1406] Land holding for primary production schemes, which expired on 25 March 2024, and extends the effect of its provisions by a further six months in order to enable further consultation from interested stakeholders. In the absence of feedback that suggests further extension of these provisions is necessary, the instrument will not be remade and will expire. 

ASIC is Australia’s corporate, markets and financial services regulator.