Practical guidance for operators of foreign collective investment schemes

This is Information Sheet 93 (INFO 93). It is for operators of foreign collective investment schemes (FCIS).

This information sheet explains what you, as an FCIS operator, must do if you wish to apply for individual relief under Regulatory Guide 178 Foreign collective investment schemes (RG 178), including:

• how to apply for registration as a foreign company
• how to apply for individual relief
• standard conditions of individual relief that you must comply with
• notifications you are required to lodge under individual relief, and
• how to lodge forms and documents.

How to apply for registration as a foreign company

As a standard regulatory condition of individual relief, an FCIS operator must register as a foreign company in Australia. Registration under Division 2 of Part 5B.2 of the Corporations Act 2001 (Corporations Act) may be required by the relevant relief instrument or by the Corporations Act itself.

If the relevant FCIS is structured as a company, then the company must register as a foreign company.

Registering as a foreign company

To register as a foreign company, you must complete Form 402 Application for registration as a foreign company.

This form asks for general details about the company and must be completed in full. The guide to the form (which is included with the form) has more details on how to appropriately complete and lodge the form.

The guide also sets out what documents must accompany the form. These documents include:

• a current certificate of registration, or a document of similar effect, that confirms that the company is currently registered in your home jurisdiction
• a certified copy of the company’s constitution
• a memorandum of appointment of a local agent, or a power of attorney in favour of a local agent (see ‘Appointing a local agent’), and
• a memorandum stating the powers of certain directors.

If any of the documents accompanying Form 402 are not in English, you must include a certified translation of that document in English.

There are prescribed fees for registering as a foreign company: see Information Sheet 30 Fees for commonly lodged documents (INFO 30).

For information about how to lodge Form 402, see ‘How to lodge forms and documents’.

If the application form and accompanying documents are in complete order, the application process usually takes approximately 1–2 weeks. After your application is processed, we will issue you with a 9-digit identifying number, known as an Australian Registered Body Number (ARBN), and a certificate of registration.

Appointing a local agent

As a registered foreign company, you must appoint a local agent under section 601CF of the Corporations Act. A local agent must be a natural person or a company that is resident in Australia. A local agent of a registered foreign company is:

• answerable for doing all acts, matters and things that the foreign company is required to do by or under the Corporations Act, and
• personally liable for any penalties imposed on the foreign company for a contravention of the Corporations Act if a court or tribunal hearing the matter is satisfied that the local agent should be so liable.

There are two ways of appointing a local agent:

• by a memorandum of appointment (see Form 418 Memorandum of appointment of local agent), or
• by a power of attorney duly executed by or on behalf of the foreign company.

You will need to lodge the memorandum of appointment or power of attorney with a completed Form 404 Notification of change to agent of a foreign company and the prescribed fees with ASIC. For information about how to lodge Form 404, see ‘How to lodge forms and documents’.

If at any time the local agent you have appointed ceases to act for you, you must appoint a new local agent. A foreign company may have more than one local agent at the same time.

So if the old agent ceases acting for you and/or you appoint a new one, you must notify us of these changes on Form 404.

Applying for individual relief

You should apply for individual relief through the ASIC Regulatory Portal. You will be prompted to explain:

• the type of relief you are applying for
• the legal basis of your application for relief
• the regulatory issue or problem that you want ASIC to consider
• the legal and cost/benefit arguments for relief
• whether you have consulted with ASIC or other relevant regulatory organisation(s)
• whether any third parties are affected by your application for relief, and if so, whether you have consulted with those third parties
• whether your application is urgent, and if so, why, and
• your response to the questions in Appendix 2 of RG 178, which gives examples of questions about your overseas regulatory regime that you should generally address.

You will need to pay a fee with the application for relief.

Signed declaration

Your application should be accompanied by your signed declaration, or if you are a corporate entity, a statement authorised by the proper authority, that to the best of your knowledge and after making proper inquiries, the information and documents you have provided in response to the questions in Appendix 2 of RG 178 and in support of your application are true, correct and complete, and that you acknowledge that ASIC may take action to verify that the statements made in the application are not false or misleading.

Standard conditions of individual relief you must comply with

If you are granted individual relief, you will be subject to the following standard conditions of individual relief:

• individual relief will continue only while your relevant conduct is authorised under your overseas regulatory regime
• you must be registered as a foreign company under Division 2 of Part 5B.2 (and appoint a local agent under section 601CF)
• you must submit to the non-exclusive jurisdiction of the Australian courts in regard to any matter that concerns you
• you must comply with any direction of an Australian court
• you must give written consent and take all other practicable steps to enable your overseas regulatory authority to disclose to us, and for us to disclose to your regulatory authority, any information or document that relates to you, and
• you must promptly provide us with each annual financial statement of each FCIS operated under the individual relief when the financial statement is published, together with any associated audit and other reports.

Notifications you are required to lodge under individual relief

If you are granted individual relief, you will have an ongoing obligation to notify us of the following:

Significant changes

You will be required to notify us as soon as practicable and in any event within 15 business days after you have become aware or should reasonably have become aware of significant changes to, for example, your licence, registration, authorisation or other approval granted by your overseas regulatory authority that is relevant to the operation of your FCIS.

The requirements for notifying us of significant changes will be set out in your individual relief instrument.

Examples of notifications include:

• if there is any significant change to your authorisation relevant to the financial services provided or intended to be provided in Australia
• if the overseas regulatory authority authorises you to engage in any additional types of financial service
• if the overseas regulatory authority terminates part or all of your authorisation
• if you are granted a significant exemption or other relief from the relevant overseas regulatory authority regime, or
• significant investigation, enforcement or disciplinary action taken by any overseas regulatory authority against you.

Note: See RG 178 at RG 178.85–RG 178.86 for what we mean by ‘significant’ investigation, enforcement or disciplinary action.

Breaches

If you become aware or should reasonably have become aware that you are in breach of any of the requirements of your individual relief, you need to provide full details to us of the breach within 10 business days after that time. Breach notifications should be sent to Applications@asic.gov.au.

The terms and conditions of individual relief will be strict, and failure to comply with these requirements would result, among other things, in your relief under the individual relief instrument from the registration, licensing and product disclosure requirements lapsing, so that you will no longer be able to continue to rely on it. If you are unable to continue to rely on the individual relief, you must advise us in writing that this is the case.

Our decision about whether or not to continue granting relief following a breach would depend on the circumstances surrounding the matter, the nature of the breach, the number of times the breach has occurred, any history of non-compliance with the relevant overseas regulatory authority, the currency of your accreditation with the relevant overseas regulatory authority, and full details of the systems and procedures you have or you will be putting in place to address the breach.

We encourage you to regularly monitor your compliance with the terms and conditions of your individual relief and report any breaches to us promptly, rather than leaving reporting to the end of the period permitted in the relief instrument. If we have insufficient time to consider your response before the expiration of the reporting period, there is an increased risk that the relief may expire.

Apart from any modifications or exemptions under the individual relief instrument or as specified by ASIC, you must comply with all other relevant Australian laws, including laws that ASIC administers.

What to include with notifications

You must include the following information with notifications, which will help us in assessing the notifications and recording the information on our database:

• your name and address as the FCIS operator and any changes to your name or address since you last lodged any notification
• your organisation number or reference number as recorded on the ASIC database
• the name of your local agent (if applicable) together with the name of any previous local agent since you last lodged any notification
• the name of the country where you are incorporated or formed
• the full name of the regulatory authority that is currently regulating your activity overseas for purposes of RG 178, and
• the full name and address of the person who is lodging the ongoing notification on your behalf together with the person’s role in the organisation, their contact details (e.g. phone or email) and their registered address.

How to lodge forms and documents

Table 1 gives guidance on how to lodge the different forms and documents mentioned in this information sheet.

There are prescribed fees for certain forms and applications. For more information about fees, see INFO 30.

If you are required to lodge any supporting documents and they are not in English, you must include a certified translation of that document in English.

Table 1: Lodging forms and documents

Form or document	How to lodge
Form 402 Application for registration as a foreign company Form 404 Notification of change to agent of a foreign company Form 418 Memorandum of appointment of local agent	By mail to: Australian Securities and Investments Commission PO Box 4000 Gippsland Mail Centre VIC 3841 Australia
Documents in support of application for individual relief	Through the ASIC Regulatory Portal
Notifications required under individual relief	By email to Applications@asic.gov.au

Where can I get more information?

• RG 178 Foreign collective investment schemes
• INFO 30 Fees for commonly lodged documents
• For our general policy on applying for relief, see Regulatory Guide 51 Applications for relief (RG 51)
• For concise guidance on applying for relief, see Information Sheet 82 Apply for relief (INFO 82)
• For details of any applicable fees, see Regulatory Guide 21 How ASIC charges fees for relief applications (RG 21)
• For more information about registering as a foreign company, appointing a local agent, fulfilling post-registration obligations and other relevant information, see Information Sheet 32 Foreign companies (INFO 32)
• Contact us online.

Important notice

Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice. We encourage you to seek your own professional advice to find out how the applicable laws apply to you, as it is your responsibility to determine your obligations.

You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases, your particular circumstances must be taken into account when determining how the law applies to you.