Corporations Act 2001

ASIC may decide to deregister the fund as a registered scheme if:

the fund does not have a responsible entity that meets the requirements of section 601FA; or

the fund does not have a constitution that meets the requirements of sections 601GA and 601GB; or

the fund does not have a compliance plan that meets the requirements of section 601HA; or

the fund’s property is not being:

clearly identified as the fund’s property; and

held separately from property of the operator and property of any other scheme;

the following conditions are satisfied:

the response to a return of particulars given to the operator of the fund is at least 6 months late;

no other documents have been lodged by or on behalf of the fund in the last 18 months;

ASIC has no reason to believe that the fund is being operated; or

the fund’s review fee in respect of a review date has not been paid in full at least 12 months after the due date for payment; or

the fund has been wound up.

However, ASIC must not decide to deregister an Australian passport fund if ASIC is of the opinion that to do so would not be in the interests of:

members of the fund who became members (whether in this jurisdiction or any host economy for the fund) after the fund became an Australian passport fund; and

members of the fund who became members (whether in this jurisdiction or any host economy for the fund) on the expectation that the fund would become an Australian passport fund.

For the purposes of subsection (2), ignore any member of the fund that:

is, or has at any time been, the operator of the fund; or

is a related party of an entity that is, or has at any time been, the operator of the fund.

See section 1216B for the circumstances in which a person becomes a member of a fund on the expectation that it would become an Australian passport fund.

Before deciding to deregister the fund as a registered scheme, ASIC must give the operator written notice that requires the operator to show cause, at a hearing before a specified person, why the fund should not be deregistered as a registered scheme.

The notice must specify:

the grounds on which it is proposed to deregister the fund as a registered scheme; and

a reasonable time and place at which the hearing is to be held.

The person conducting the hearing must:

give the operator an opportunity to be heard at the hearing; and

give ASIC:

a report about the hearing; and

a recommendation about the grounds in the notice on which it is proposed to deregister the fund as a registered scheme.

After considering the report and recommendation, ASIC may:

decide to take no further action in relation to the matter and give written advice of that decision to the operator; or

deregister the fund as a registered scheme.

Neither of the following is a legislative instrument:

a notice under subsection (4);

a report under subsection (6) (if it is in writing).