Thinking | 18 December 2009

Can foreign financial service providers operate in Australia?

This article explores the requirement for foreign financial services providers (FFSP) to hold an Australian Financial Services Licence (AFSL) when operating a financial services business in Australia and sets out the various options available to FFSPs including various exemptions from the requirement to hold an AFSL.

The Corporation Act (Act)

Chapter 7 of the Act prohibits the carrying on of a financial services business in Australia without an AFSL, unless an exemption applies.

A financial service includes the provision of financial product advice and dealing in a financial product. Financial product advice is a recommendation or statement of opinion, or a report of either of those things that is intended to influence (or could be reasonably  regarded as being intended to influence) a person in making a decision to acquire a financial product, eg interests in a fund, or class of financial product. Dealing in a financial product includes the issuing of interests or the arranging for the issuing of interests in financial products.
Further, for the purposes of Chapter 7 of the Act, a financial service business is taken to be carried on in Australia, if in the course of the person carrying on the business, the person engages in conduct that is:
  • intended to induce people in Australia to use the financial services the person provides or
  • likely to have that effect.
Accordingly, the marketing and provision of financial products by financial services providers in Australia is likely to be considered financial product advice and dealing in financial products, notwithstanding that the financial service provider may be based in an overseas jurisdiction and the actual issue of the financial product may occur in a foreign jurisdiction.
Thus, in the absence of any applicable exemptions, the marketing of financial products in Australia and the issue of interests in foreign financial products to investors in Australia would constitute conduct that would require an AFSL.
The Act also contemplates that ASIC may exempt a person regulated by an overseas regulatory from the requirement to hold an AFSL. ASIC has set out its policy in respect of this power in Regulatory Guide 176: Licensing: Discretionary powers—wholesale foreign financial services providers (RG 176).

RG 176

RG 176 sets out the circumstances under which ASIC will grant exemptions from the requirement to hold an AFSL to FFSPs where they provide services only to wholesale clients and are regulated by overseas regulatory authorities.

Pursuant to RG 176 ASIC states that it will use its exemption powers so that an FFSP can provide particular financial services in Australia without an AFS licence only if:

  • The particular financial services are provided in Australia only to wholesale clients.

ASIC’s position is that wholesale clients are in a position to look after their own interests and, therefore, ASIC does not need to determine whether the relevant overseas regulatory authority protects the interests of these clients. As a result, RG 176 does not focus on consumer protection outcomes, or outcomes intended to protect a specific client.

  • The particular financial services are regulated by an overseas regulatory authority.

Generally, an FFSP will be regulated by one regulatory authority in its home jurisdiction. Where an FFSP is regulated by more than one overseas regulatory authority, whether within its home jurisdiction or elsewhere, ASIC regards the relevant overseas regulator as the regulator which, in ASIC’s view, has the most responsibility for monitoring and enforcing compliance by the FFSP with its regulatory obligations for financial services similar to those for which an exemption is sought under RG 176.

  • Regulation by that overseas regulatory authority is sufficiently equivalent to regulation by ASIC.

ASIC has determined that regulation by an overseas regulatory authority is sufficiently equivalent to regulation by ASIC if the regulatory regime under which that authority operates:

  • is clear, transparent and certain
  • is consistent with the IOSCO Objectives and Principles of Securities Regulation
  • is adequately enforced and
  • achieves sufficiently equivalent outcomes as the Australian regime achieves for the regulation of wholesale financial services.
  • There are effective co-operation arrangements between the overseas regulatory authority and ASIC.

This is a matter for ASIC to decide, in consultation with the relevant overseas regulator. It cannot be dealt with by FFSPs in an application for relief. Effective co-operation arrangements will usually be in the form of a Memorandum of Understanding or some other documented understanding, although they may be established by more informal arrangements. Effective co-operation arrangements will provide for:

  • prompt sharing of information by the relevant overseas regulator and
  • effective co-operation on supervision and investigation and enforcement.
  • The FFSP meets all the requirements of the relevant exemption.

Exemption under this policy may be either granted on an individual basis or to a class of persons and may be limited to the particular financial services provided by that FFSP in Australia.

ASIC’s general exemption power

ASIC also has a general power to exempt a person, or class of person from the requirement to hold an AFSL pursuant to s. 911A(2)(l) of the Act.

FFSP covered by class orders

ASIC has issued various class orders pursuant to its stated policy in RG 176 and pursuant to its power in s.911A(2)(l) of the Act, as set out in the table below. Each exemption set out below is subject to its own terms and conditions which must be met for the exemption to apply.

CourtChanges to Court Procedure Timeframe for ChangesContact Information
All JurisdictionsAnyone required to self-isolate MUST NOT attend the Court precinct. All Court visitors are to adhere to the various state and territory health guidelines, and at all times follow the instructions of Court staff. In effect from 18 March 2020 indefinitely.
Federal Jurisdiction
High Court of AustraliaThe High Court of Australia will not sit during April, May or June.

It will continue to deliver judgments and deal with special leave applications and hearings by videolink.

Documents to be filed for cases commenced before 1 January 2020 to be lodged in the Digital Lodgement System Portal for approval by the Registry.
In effect from 18 March 2020 indefinitely.
Further updates regarding sittings are expected for June.
Court Website: https://www.hcourt.gov.au/

DLS Portal: https://www.dls.hcourt.gov.au
Federal Court of AustraliaThe Federal Court building has been closed. The Court has vacated all listings for in-person appearance up to 30 June 2020.

All face to face contact has been closed, and registries will be providing remote services and support to practitioners.

All documents should be lodged by eLodgement. Wherever possible, hard copy documents should not be posted or hand delivered to the registry.

The Court will accept the filing of unsworn affidavits, on the understanding that if required, these will be sworn or affirmed at a later stage when circumstances allow.

The Court will accept documents to be signed electronically, including by typing a person’s name in the signature block of the document.

Document viewing is by appointment only, but practitioners should only request an appointment to view materials if it is truly necessary. As a general guide, the Court will consider if the matter is scheduled for hearing in the subsequent four weeks, or is otherwise urgent.

The Federal Court will contact parties with listed hearings up to 30 June 2020 directly to confirm new arrangements. The Court will endeavour to contact parties at least two weeks prior to the scheduled hearing.

New matters will undergo a triage process to determine how the Court will handle the listing of the matter. Parties will be contacted by the Court during this process.

The Court will endeavour to handle short listings on the papers or by audiovisual conference wherever possible. Some longer listings will also be accommodated using similar technology. The Court favours the use of Microsoft Teams, but other software options are being investigated.
In effect from 18 March 2020 to 30 June 2020.Court Website: https://www.fedcourt.gov.au/

ELodgement: https://www.elodgment.fedcourt.gov.au/

Guide to Virtual Hearings: https://www.fedcourt.gov.au/online-services/virtual-hearings
Family Court and Federal Circuit CourtFace-to-face hearings are being restored in a staggered fashion from 15 June 2020. Any face-to-face hearings need to be approved by the relevant case management judge.

Separated and designated courtrooms will be used for face-to-face hearings if possible, to reduce people in the waiting area. No more than eight people (excluding the Judge and Associate) should be in the Courtroom, and witnesses will be required to leave after giving evidence. Practitioners should adhere to social distancing, and are requested to use the COVIDSafe App. Court books should be provided electronically, and no hard copy documents should be handed up. The Courts will not provide water jugs or glasses.

All documents should be e-filed and or emailed to the relevant registry.

Viewing of subpoenas is by appointment only. Parties should only request to view documents if the matter is scheduled for hearing in the next four weeks.

The Court will accept the filing of unwitnessed affidavits, on the understanding that if required, these will be sworn or affirmed at a later stage when circumstances allow.

The Court will accept documents to be signed electronically, including by typing a person’s name in the signature block of the document.

Seek advice from state law societies and associations regarding finding private mediators, and appropriate mediation services.

In effect from 23 March 2020 indefinitely.

Changes from 15 June 2020.
Australian Administrative Tribunal (AAT)Parties who have hearings, conferences and other events scheduled on premises from 23 March 2020 are being contacted to make alternative arrangements.

AAT business should be conducted online or by telephone, or will be adjourned if not urgent.
In effect from 23 March 2020 indefinitely.
NSW Jurisdictions
NSW Supreme CourtRegistrar’s Lists will be conducted by Online Court where available, or by telephone link. Contentious matters will be conducted by Online Court or videolink. Practitioners are to email short minutes of orders to the Registrar no later than 4:00pm the day before the scheduled directions.

Judges’ Lists will be conducted in the same approach, subject to specific directions given by the judge administering the list.

All personal appearances have been altered to online or videolink. The Court will contact parties in relation to future listings to advise of specific arrangements.

All documents are to be provided electronically, through Online Court, E-Subpoena or Online registry. Where those facilities do not exist, documents will be received by email.

Face-to-face annexed mediations will continue to be held by teleconference unless approved by the mediator to be face to face.

In addition to the current requirements of preparing physical copy of the Appeal Books, an electronic copy should also be prepared and forwarded to the registry. Liaise with the registry as to the method of electronic delivery.

Face to face civil hearings will recommence 1 June 2020. Civil hearings with limited parties, witnesses and legal representatives will be able to return first. Those hearings involving multiple parties and more witnesses will follow, with directions hearings, judges and registrar’s lists and court-annexed mediations to return later. It is envisaged that some lists will continue to be dealt with online.

On reopening, physical distancing, staggered courtroom times (from 9am to 5pm), temperature checks, visual reminders of distancing, increased cleaning and hand sanitiser will all be in effect to maximise safety.
In effect from 23 March 2020 until 1 June 2020.

New procedure in place from 1 June 2020.
Court Website: http://www.supremecourt.justice.nsw.gov.au/
Virtual Courtroom information: http://www.supremecourt.justice.nsw.gov.au/Documents/Home%20Page/Announcements/Fact%20Sheet%20-%20Practitioners.pdf
NSW District CourtParties should act on the basis that matters will proceed on the date allocated. Any party wishing to vacate a hearing must continue to do so by Notice of Motion with an Affidavit in support.

From 1 June 2020, some personal appearances will be permitted for contested hearings where parties and witnesses are to be called to give evidence. Court attendees (including the judge, associate and court staff) will still be required to observe physical distancing.

Judges’ Lists will be managed by Online Court wherever possible, and alternative arrangements will be made at the discretion of the judicial officer.

General List managed by the Judicial Registrar in Court 7D will be conducted by Online Court. If Online Court is not available for the matter, it will be conducted by telephone directions.
Motions Lists managed by Assistant Registrars will be conducted by Online Court.

Proceedings listed for hearing will be allocated a Judge by 3pm the day before the hearing, and the matter will proceed to the Virtual Courtroom. The Associate to the judge will email parties before 5pm the day prior to the hearing to provide info. The parties must agree on a Joint Court Book containing current pleadings, documentary evidence to be tendered, any objections to the documentary evidence, any documents it is anticipated may be shown to a witness. The Joint Court Book must be delivered to the Court no later than 4pm on the day before the hearing, and a soft copy should be ready to be emailed to the Associate of the judge and any witnesses who may be shown documents from the Court Book.
In effect from 18 March 2020 indefinitely.
Court Website: http://www.districtcourt.justice.nsw.gov.au/
Virtual Courtoom Information: http://www.districtcourt.justice.nsw.gov.au/Documents/Virtual%20Court%20User%20Guide%20-%20FOR%20PRACTITIONERS.pdf
NSW Local CourtPractitioners will be allowed to appear via telephone for small claims hearings, review lists, directions list and motions list.

Any hearings listed between 23 March 2020 and 1 May 2020 have been vacated and listed for mention in the week of 4 May 2020.

The Local Court has set aside the month of October 2020 to catch up with a backlog that builds up under these arrangements.

Only listed matters will be scheduled for October 2020 in most metropolitan courts.

In effect from 18 March 2020 indefinitely.Court Website: http://www.localcourt.justice.nsw.gov.au/
NSW Civil and Administrative Tribunal (NCAT)Directions, Conciliation conferences and most interlocutory proceedings will be conducted where possible by phone or AVL. Precise arrangements will be provided separately.
Consumer and Commercial Division Group Lists with multiple parties will be reorganised to reduce the need for parties to attend.

From 23 March 2020, all Group lists are suspended until further notice. Administrative, Occupational and Equal Opportunity Lists will continue where matters can be heard by phone or on the papers. Consumer and Commercial Division will prioritise urgent cases that can be heard on the phone or on the papers.
In effect from 18 March 2020 indefinitely.

Additional precautions in effect from 23 March 2020 indefinitely.
Court Website: https://www.ncat.nsw.gov.au/
ACT Jurisdictions
ACT Supreme CourtAll Registrar and Deputy Registrar Lists will be conducted by teleconference or videolink. Further information will be provided to legal representatives and parties.
If compulsory attendance is required, and you are required to self-isolate, contact the Registry team in advance of the hearing to make alternative arrangements.
Civil Directions Hearings will be heard by videolink or teleconference.

All documents should be filed via eLodgement via firm’s creating registering in the portal. Firms must provide a central email contact for each firm to correspond with the Court. Each firm is also to provide practitioner and litigant contact information for each matter.

The Court will send out a Webex meeting invite to the central email address for each listing that the firm has. It is the firm’s responsibility to invite the appropriate solicitors and practitioners for the appearance.
In effect from 17 March 2020 indefinitely.Court Website: https://www.courts.act.gov.au/supreme
sclisting@courts.act.gov.au or (02) 6205 0000 at least one business day prior to listing to make arrangements
scregistrar@courts.gov.au
ELodgement: https://www.courts.act.gov.au/eservices
Joining Webex Meetings for Listings: https://www.courts.act.gov.au/__data/assets/pdf_file/0017/1502432/How-to-join-a-Court-WebEx-meeting.pdf
ACT Magistrates CourtThe Court has resumed its usual business, with all hearings in person except when a matter was adjourned with the next appearance to be by telephone or AVL, unless the parties contact the Court and request personal appearances.

Some civil lists with dates before 1 July 2020 will remain via Webex or Telephones.

Appearances are still permitted by videolink or telephone for unwell or isolated practitioners.

Civil directions, listings and settlement list before Registrars will be heard in person at 2:15pm on Tuesdays.

All enforcement matters, final hearings, costs assessments and Registrar’s listing hearing list are stayed until 1 July 2020.

In effect from 2 June 2020.Court Website: https://www.courts.act.gov.au/magistrates/home
mclistings@courts.act.gov.au or (02) 6205 0000 at least one business day prior to make arrangements
mcregistrar@courts.act.gov.au
SA Jurisdictions
SA Supreme CourtAll matters and mediations will return to normal, unless other arrangements are made with Chambers.

All non-contentious hearings will be conducted via email.

Oaths for affidavits must not be sworn by video link. In the event, that it cannot be sworn in person, the deponent’s unsigned affidavit should be exhibited as an attachment to a lawyer’s own affidavit, with an undertaking to file the sworn original once it is possible, and attest to the reasons it is not possible for it to be sworn, but that it will be once possible.

In effect from 9 June 2020.Court Website: http://www.courts.sa.gov.au/Pages/default.aspx

Online Registry for document filing: supreme.registry@courts.sa.gov.au
SA District CourtFrom June 1 2020, normal operations including matters, settlement conferences and other mediations have returned to normal, unless arrangements are made with Chambers.

All non-contentious directions hearings will be conducted by email.

No documents are to be handed up in court. All documents should be sent to chambers before the hearing.

Oaths for affidavits must not be sworn by video link. In the event, that it cannot be sworn in person, the deponent’s unsigned affidavit should be exhibited as an attachment to a lawyer’s own affidavit, with an undertaking to file the sworn original once it is possible, and attest to the reasons it is not possible for it to be sworn, but that it will be once possible.
In effect from 23 March 2020 indefinitely. Court Website: http://www.courts.sa.gov.au/Pages/default.aspx

Online Registry for document filing: district.civil@courts.sa.gov.au
Victorian Jurisdictions
Victorian Supreme CourtThe Court of Appeal will hear all appeals by videolink. Where appropriate, matters will be determined “on the papers” through the filing of written submissions.

Commercial directions and interlocutory applications will be heard by consent orders, or videoconferencing or ‘on the papers’ where consent orders are not possible. Trials will be conducted remotely, with short trials given preference.

Common Law proceedings will proceed before a judge only, using remote telephone or videoconferencing for parties, counsel and witnesses.

Mediations should take place by video or phone teleconferencing.

The Registry is still open, but appointments should be made by phone, to discuss alternative arrangements if possible.

Substituted service or service by solicitor with authority will be accepted in place of personal service. The Court will accept unsworn affidavits on the basis that there is an explicit statement that it cannot be sworn due to COVID-19, and that the relaxation of this formality does not diminish the need for the affidavit to be true and correct, and that it is sworn once circumstances allow.

Subpoenaed persons (addressees) are encouraged to comply with production of documents in electronic form to the Court.

Practitioners filing Trial Division Court Books should endeavour to do so electronically, and the Registry should be contacted to arrange this.
In effect from 23 March 2020 indefinitely.
Court Website: https://www.supremecourt.vic.gov.au/

Registry Phone:
03 8600 2000
Victorian County CourtThe Common Law and Commercial Divisions will hear judge alone matters of short duration via videoconference.

The Court encourages eFiling, and will temporarily permit documents to be scanned electronically.

The Court will accept unsworn or unaffirmed affidavits providing a signed version is filed as soon as possible. Such affidavits must also note that it is not possible to have it sworn or affirmed at this time due to COVID19.
All Court Divisions will conduct hearings via videolink or teleconferencing, or on the papers. The Court will prioritise extension of time applications, and urgent interlocutory applications only, until after the hiatus.
Urgent commercial matters should be emailed to the Commercial Registry and marked urgent. (commercial.registry@courts.vic.gov.au)

Substituted service or service by solicitor with authority will be accepted in place of personal service. The Court will accept unsworn affidavits on the basis that there is an explicit statement that it cannot be sworn due to COVID-19, and that the relaxation of this formality does not diminish the need for the affidavit to be true and correct, and that it is sworn once circumstances allow.

Directions hearings will be held over Zoom, and eHearings will be by videolink.
Practitioners filing Common Law Division Court Books should endeavour to do so electronically, and the Registry should be contacted to arrange this.

See the website for details regarding witnesses giving evidence at eHearings.
In effect 23 March 2020 indefinitely.
Court Website: https://www.countycourt.vic.gov.au/
Common Law Division: 03 8636 6515
Commercial Division: 03 8636 6690
Victorian Magistrates’ CourtThe Court continues to operate using online technology. Practitioners are not to attend in person.
All directions hearings will be given on the papers. All contested hearings will be adjourned, and directions will be given to the conduct of the hearing. A range of matters will be adjourned to a nominal date of 15 June 2020.

All proceedings must be initiated by email (civilcoordinator@courts.voc.gov.au).
Ordinary service may be affected by email. Personal service will be sufficient by way of a receipt from Australia Post with an affidavit of service.
Matters may be adjourned outside of the usual protocols at the discretion of Magistrates, Judicial Registrars and Registrars.

All proceedings will be referred for a telephone prehearing conference. Contested matters will be adjourned. Seven days prior to the prehearing conference, parties will exchange offers of compromise, Calderbank offers, notices to admit, and costs disclosure statements.

Prior to any matter being listed for a contested hearing, all matters will be referred for early neutral evaluation (ENE) in accordance with existing Practice Directions.
In effect from 23 March 2020 until 25 June 2020. Court Website: https://www.mcv.vic.gov.au/
Victorian Civil and Administrative Tribunal (VCAT)VCAT has closed its venues. No face-to-face hearings have been scheduled, and all non-critical matters up to and including 15 May 2020 are adjourned for the foreseeable future.
Some critical matters will be held by telephone. In this event, the Tribunal will contact parties.
In effect from 17 March 2020 indefinitely.
Court Website: https://www.vcat.vic.gov.au/
Tasmanian Jurisdictions
Tasmanian Supreme CourtFollowing the allocation of a trial date, a telephone directions hearing will be convened. At this time, case management matters such as the appropriateness of counsel, witnesses and parties to appear by videolink, and evidence issues that may come to light under the circumstances.

Directions hearings by telephone will provide outlines for submissions, case management and other efficiency matters. There will be no civil jury trials until at least 21 July 2020.

Hearings conducted by the Associate Judge will be conducted in the Courtroom. Where all parties are represented on an interlocutory application or directions hearing, practitioners are to appear by audiovisual link.

All mediations are to be by audiovisual link.
In effect from 1 April 2020 indefinitely.Court Website: https://www.supremecourt.tas.gov.au/
Contact details to be emailed to: christine.parker@supremecourt.tas.gov.au
Tasmanian Magistrates Court Listings will be conducted by audiovisual link. Practitioners must advise the registry of their contact details.

All directions hearings will be by telephone.

All mediations will be by telephone.

Any matter listed for hearing has been adjourned, and the Court will contact parties once new dates have been arranged.

All documents are to be filed by email.
In effect from 1 April 2020 indefinitely. Court Website: https://www.magistratescourt.tas.gov.au/
WA Jurisdictions
WA Supreme CourtThe Court remains operational. All documents are to be filed electronically.

Case Management and Directions hearings will be conducted by telephone.

Civil Proceedings will only occur by way of telephone or videolink. Arrangements for witnesses to give evidence should be discussed with the Chief Justice before any arrangements are made.

Trials listed until the end of June are being reviewed for vacation and adjournment.

The Registry has been closed to the public with all documents to be filed electronically.

No new mediations will be listed until 31 May 2020. Personal attendance at mediation hearings is not required, subject to individual judicial officers. Arrangements will be made for appearances by telephone.

The Appeal Books must have one copy filed in hard copy, and electronic copies available.
In effect from 26 March 2020 indefinitely.

Updates of mediation to be provided before 1 May 2020.
Court Website: https://www.supremecourt.wa.gov.au/
WA District CourtAll civil trials listed for hearing up to 3 July 2020 will be vacated. A callover will be conducted on 20 April 2020 to be adjourned to a mediation before a registrar or other mediator. Practitioners are expected to advise the Court at the time of the callover as to unavailable dates for mediation. All mediations will be conducted by telephones.

All civil trials listed after 3 July 2020 will be reviewed in June 2020. No new trials will be listed before 30 October 2020 unless an order is made to satisfy a judge that the parties have exhausted all reasonable attempts to settle the matter without trial, and that the hearing can be conducted with social distancing.

All documents are to be filed electronically.
Parties are to appear at a pre-trial conference unless it is agreed that all parties attend the pre-trial conference at another venue to be agreed outside of the Court.
In effect from 6 April 2020 indefinitely. Court Website: https://www.districtcourt.wa.gov.au/default.aspx
WA Magistrates CourtUnless otherwise ordered, physical attendance is suspended. Directions hearings, applications and conferences will be conducted by telephone or videoconference. All Court users who have current listings should contact the Magistrates Court to update that matter. Civil Trials are temporarily suspended.

Documents should be filed electronically through the Electronic Document Management System (EDMS).
In effect from 6 April 2020 indefinitely. Court Website: https://www.magistratescourt.wa.gov.au/default.aspx
Queensland Jurisdictions
Queensland Supreme CourtAny consent orders, including adjournments are to be emailed in Word format prior to 9:00am on the day the matter is listed. All parties should be copied in. Where an appearance is required, each party is to provide contact details by 9:00am to the applications list manager on the day the matter is listed.

The callover will be conducted at 10:00am using Chorus Call. Parties are to dial in and enter the reference number and remain until their matter is called over.

Unless otherwise indicated, hearings will be held by teleconferencing or videoconferencing. Where possible, parties will be advised in advance of the preferred manner of hearing the matter. Currently, videoconferencing through the Pexip solution or the Cisco Webex videoconferencing system is preferred, with videoconferencing limited to contentious matters.
In effect from 12 June 2020.
Court Website: https://www.courts.qld.gov.au/

Court Phone: 1800 173 224
Reference: 9093270#
Queensland District CourtThe Court remains open and operational. All civil applications will be staggered at half-hourly intervals, starting at 9:30am.

Practitioners should endeavour to minimise the need to attend in person. Telephone and videolink options are available for applications and calling witnesses, Making applications on the papers when feasible is also encouraged.

Parties must send outlines by 4:00pm the day before the listing, and consent and adjournments will be made on the papers. Parties should seek a hearing on the papers, or by Pexip or Webex.

The Judge presiding over particular matters will determine whether the matter will be heard by telephone or videolink. Where possible, parties will be advised in advance of the preferred manner of hearing the matter. Currently, telephone conferencing through the Pexip or Webex videoconferencing systems are preferred, with videoconferencing limited to contentious matters.

In effect from 22 June 2020.Court Website: https://www.courts.qld.gov.au/
Queensland Magistrates CourtThe Court is now open and operational. All civil applications will be staggered at half-hourly intervals, starting at 9:30am.

Trials, hearings and applications will proceed in person unless otherwise ordered. Parties may apply to appear via AVL or telephone.

There will be no physical appearances in Court except in exceptional circumstances. All matters will be conducted by telephones or videoconference appearances.

All documents are to be submitted electronically.

All currently listed civil matters will be adjourned on the papers, without appearance to a date to be fixed by the Magistrate.

All civil applications will be dealt with on the papers. Parties are required to exchange and file their written submissions, supporting material and draft orders five days before the hearing of the application.
In effect from 14 June 2020.Court Website: https://www.courts.qld.gov.au/

Limited Australian contact

Section 911D of the Act sets out that a financial services business is taken to be carried on in the Australian jurisdiction if conduct is engaged in that is intended to induce people in Australia to use the financial services it provides, or is likely to have that effect. As set out above, a financial services business can only be carried on in Australia without an AFSL under specific exemptions.

One such exemption, under Class Order 03/824, provides that where a financial service is provided and:

  • the financial service is provided only to wholesale clients and
  • were it not for the activity outlined in 911D (inducing people in Australia to use a financial service) the entity would otherwise not be considered carrying on a business in Australia.

Activities such as establishing a local agent or local premises would exclude the business from this class order relief. Under this exemption, foreign financial services providers would not be able to undertake investor relations efforts or carry out any marketing for their products within Australia as such activities are likely to amount to carrying on a financial services business in Australia, outside the ambit of section 911D of the Act.

This Class Order relief would only enable a foreign entity to act from a foreign jurisdiction (for example advertising via the internet) and make contact with people from outside Australia. Any substantive business activities carried out within Australia is likely to exclude this relief.

Mutual Recognition – New Zealand

Chapter 8 of the Act contains the trans-Tasman mutual recognition scheme for offers of securities and is intended to promote investment between Australia and New Zealand. It allows an issuer to offer securities or interests in managed or collective investment schemes in both countries using one disclosure document prepared under the fundraising laws in its home country.

Under the mutual recognition scheme, issuers will not be required to comply with most of the requirements of the other country’s fundraising laws. Instead, issuers who wish to operate under the scheme will be able to comply with some minimal entry and ongoing requirements.

ASIC has issued Regulatory Guide 190: Offering securities in New Zealand and Australia under mutual recognition which set out the relevant requirements.

RG 178 Foreign collective investment schemes

Under RG 178, ASIC will generally provide conditional relief from managed investment scheme registration, fundraising requirements, the AFSL requirements for certain financial services, and some of the financial product disclosure requirements to foreign collective investment scheme (FCIS) operators where the following pre-conditions are met:

  • The regulatory regime in the jurisdiction from which the FCIS operator originates and in which it is regulated (home jurisdiction) is sufficiently equivalent to the Australian regulatory regime for registered managed investment schemes and financial product disclosure.
  • ASIC has effective co-operation arrangements with the regulator of the FCIS in the FCIS’s home jurisdiction.
  • Adequate rights and remedies are practically available to investors resident in Australia if the FCIS operator breaches the relevant provisions of the regulatory regime in its home jurisdiction.

The Securities and Futures Commission of Hong Kong (SFC) applied to ASIC for relief under RG 178 for the operation of FCIS authorised by the SFC. As a result, ASIC issued Class Order CO 08/506 Hong Kong Collective Investment Schemes which sets out the requirements for relief pursuant to RG 178.

ASIC has also issued CO 04/526 Foreign collective investment schemes which exempts US and New Zealand collective investment schemes that are not principally aimed at Australians.

Advising on Foreign Financial Products

It is also important to note that licensed and authorised financial planners can advise on foreign financial products even though a foreign issuer does not operate in Australia. As the financial planner is the interface with the client, the financial planner will be responsible for advising the client and arranging for the issue of the financial products (which should be covered by the relevant AFSL authorisations). Further, there is also an exemption contained in the Act for FFSPs that issue products to Australian investors through the holder of an AFSL. However, financial planners will need to ensure that they comply with all of their obligations, and particularly the need to properly research foreign financial products, in order to make informed decisions before making recommendations to clients.

Contact

John Bassilios

John has broad experience in financial services, funds management, blockchain, corporate and corporate law.

Harry New

Harry leads our financial services team and focuses extensively on financial services law and corporate advisory.

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