ASIC has extended existing licensing relief for public offer trustees to include all registrable superannuation entities to ensure that non-public offer trustees are regulated consistently with public offer trustees under the Corporations Act 2001.
ASIC Corporations (Superannuation and Schemes: Underlying Investments) Instrument 2016/378 (primary instrument) confirms that a dealing authorisation under an Australian financial services (AFS) licence is not required by public offer trustees in order to deal in a financial product (other than an interest in the fund) in the ordinary course of operating the superannuation fund. ASIC Corporations (Amendment) Instrument 2021/550 (amending instrument) has extended the exemption to non-public offer trustees, having regard to law reform that requires these trustees to hold an Australian financial services (AFS) licence.
From 1 July 2021, all registrable superannuation trustees will be required to hold an AFS licence with authorisations to deal in superannuation interests and to provide a superannuation trustee service.
The change is consistent with ASIC's previously communicated position that the relief would be extended to non-public offer trustees following the implementation of the Financial Sector Reform (Hayne Royal Commission Response) Act 2020 (Hayne Act) and associated regulations.
The relief applies to all superannuation trustees for a period of 18 months, ending 31 December 2022. No immediate action is required by trustees who currently rely on the relief or wish to do so in the future.
Prior to its expiry, ASIC will consult on the operation of the instrument with industry and reconsider the appropriateness of the relief following the introduction of the new financial service - 'provide a superannuation trustee service'.
ASIC will give sufficient notice to industry before any further change is implemented.
Background
On 4 December 2015, ASIC released Consultation Paper 244 Remaking ASIC class orders on dealing in underlying investments to publicly consult on the relevant class orders that were due to sunset in April 2017 (refer: 15-367MR).
On 17 May 2016, ASIC released ASIC Corporations (Superannuation and Schemes: Underlying Investments) Instrument 2016/378. This instrument continues, with minor and technical changes, the relief given under ASIC Class Orders [CO 02/1161], [CO 02/1073] and [CO 02/1074], which relate to various Chapter 7 requirements that apply to underlying investments in a superannuation fund (refer 16-169MR).
