ASIC Consults on the Constitutions of Registered Managed Investment Schemes
ASIC released September 18 a consultation paper outlining proposals to update the guidance relating to the content requirements of constitutions of registered managed investment schemes.
Consultation Paper 188 Managed investments: Constitutions – Updates to RG 134 (CP 188) contains proposals about ASIC’s views on the requirements in s601GA and s601GB of the Corporations Act 2001 (the Act), and how it will apply them in deciding to register a managed investment scheme.
ASIC’s proposed guidance covers the following areas in relation to a registered managed investment scheme:
* the consideration to acquire an interest in the scheme
* powers of the responsible entity of the scheme
* complaints handling for retail clients and wholesale clients
* winding up the scheme
* the payment of fees to a responsible entity and its rights of indemnity from scheme property
* withdrawal rights of members of the scheme
* the use of extrinsic material to the constitution; and
* legal enforceability of the constitution.
ASIC Commissioner Greg Tanzer said: ‘Regulatory Guide 134 was released in 1998, a time when the managed investments regime was still in its infancy. The proposed updates factor in significant developments in the managed investments industry that have occurred, and the operational policy that has developed, since the guide was last updated in 2000.
‘One of our three strategic priorities is to ensure efficient registration and licensing. These proposals also improve transparency and ensure that responsible entities and their advisers have sufficient certainty about what we will look for in reviewing a constitution when deciding whether to register a managed investment scheme.’
CP 188 seeks the views of responsible entities, their advisers, industry associations, financial consumer and investor advocacy groups and any other interested parties. Comments on the proposals in CP 188 are due by 13 November 2012.
Section 601GA of the Act requires that a constitution of a registered managed investment scheme make adequate provision for, or specify, certain prescribed matters. These include:
* the consideration to acquire and dispose of an interest in the scheme
* the powers of the responsible entity in making investments, borrowing or dealing with scheme property
* the method for dealing with complaints about the scheme
* winding up the scheme
* the rights of the responsible entity to be paid fees or indemnified out of scheme property and
any rights of members to withdraw from the scheme.
Section 601GB of the Act requires that the constitution be a document that is legally enforceable as between the members and the responsible entity.
ASIC’s current regulatory approach to the content requirements of constitutions of registered managed investment schemes is contained in Regulatory Guide 134 Managed investments: Constitutions (RG 134) and Class Order [CO 05/26] Constitutional provisions about the consideration to acquire interests.