Report lights up ASIC’s discretionary powers
The corporate regulator has shed light on how it exercises its discretionary power when granting relief from financial services provisions of the Corporations Act.
The Australian Securities and Investments Commission (ASIC) has released a report, available on its website, outlining the rationale behind decisions on relief applications between January 1 and March 31, 2006.
ASIC uses discretion to vary or set aside certain requirements of the law, where the burden of complying with the law significantly detracts from its overall benefit, or where business can be facilitated without harming other stakeholders.
“Prospective applicants for relief who have read this report may gain a better insight into the factors we take into account in deciding whether to exercise our discretion to grant relief,” the report said.
Examples in the report include ASIC’s refusal to exempt self-employed financial planners who were agents of foreign entities for providing financial advice on and dealing in financial products where some of the financial products had been acquired in Australia.
“We considered that É they had a sufficient nexus with Australia to justify the imposition of the requirement to hold an AFS licence,” the report concluded.
The report also highlights instances where ASIC adopted a no-action position regarding specified non-compliance with provisions, such as where a company had inadvertently traded in a managed investment scheme and miscellaneous investment products without the necessary AFS licence authorisation.
“We took a no-action position on the failure to obtain the appropriate AFS licence authorisation on the condition that the applicant apply for the correct authorisation.”
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