AUSTRALIA Law and Practice Contributed by: Michael Lawson, Nicole Brown, Lizzie White and Tamaryn Leach, MinterEllison
Licensing The Corporations Act requires a person, regard - less of whether they are local or from offshore, who “carries on a financial services business in Australia” to hold an AFSL covering the provision of such services unless an exemption applies. A person provides a financial service if, among other things, the person: • provides financial product advice; • deals in a financial product; or • operates a registered managed investment scheme. For these purposes, a unit in an Australian retail fund that is a registered managed investment scheme will be a financial product. The entity or corporate director responsible for an Australian retail fund is required to hold an AFSL. The investment manager would also generally hold an AFSL or rely on an available exemption in order to provide these financial services. 3.3.2 Requirements for Non-Local Service Providers As discussed in 3.3.1 Regulatory Regime, the Corporations Act requires a person, whether local or from offshore, who “carries on a financial services business in Australia” to hold an AFSL covering the provision of such services unless an exemption applies. Depending on the scope and structure of the provision of the relevant services, a non-local service provider may need an AFSL or be able to rely on an exemption in order to provide their services to an Australian retail fund.
Australian Licensing Options If a non-local service provider is deemed to be carrying on a financial services business in Aus - tralia, it will need to: • obtain an AFSL; or • consider whether there are any available exemptions. Please see 2.3.3 Local Regulatory Require- ments for Non-local Managers and 4. Legal, Regulatory or Tax Changes for further discus - sion. Authorised Representative Exemption One such exemption that may be available is for a person to be appointed as an authorised repre - sentative of a holder of an AFSL. This effectively enables the non-local service provider to provide the same financial services as the AFSL holder, and the AFSL holder will be responsible for the provision of the relevant financial services by the non-local service provider. AFSL If a non-local service provider cannot rely upon a suitable exemption, the non-local service pro - vider will likely need to apply for an AFSL. Registration as a Foreign Company Additionally, to the extent that a foreign com - pany, itself or through its agents, is carrying on business in Australia, Australian law will require that company to be registered with ASIC as a foreign company in Australia. 3.3.3 Local Regulatory Requirements for Non- Local Managers Similar to as discussed in 3.3.2 Requirements for Non-local Service Providers , any non-local manager that provides financial services in Aus - tralia would need to hold an AFSL or seek to rely
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