AUSTRALIA Law and Practice Contributed by: Michael Lawson, Nicole Brown, Lizzie White and Tamaryn Leach, MinterEllison
3.3.9 Post-Marketing Ongoing Requirements Once a retail fund has been marketed to inves - tors in Australia, certain ongoing requirements may need to be considered. Certain activities related to the retail fund (for example, issuing interests in the retail fund to investors in Australia and providing reporting and information to such investors) may involve providing a financial service in Australia. In these circumstances, the fund operator may require an AFSL or be able to rely on an exemption. If an AFSL is obtained, the licensed entity will be subject to ongoing statutory duties and obliga - tions, including, for example: • providing their services efficiently, honestly and fairly; • managing conflicts of interest; and • reporting “reportable situations” to ASIC. Alternatively, if a relevant exemption was being relied upon, the conditions of that exemption would need to be complied with on an ongoing basis. For example, sufficient equivalence relief includes certain reporting requirements to ASIC. Please refer to 3.3.3 Local Regulatory Require- Investor protection rules in relation to financial services provided to a retail client in an Austral - ian retail fund are primarily focused on compli - ance with the conditions applicable to the AFSL under which the relevant financial service is being provided. This includes compliance with the Corporations Act, which prohibits uncon - scionable conduct and engaging in misleading, deceptive or dishonest conduct. ments for Non-local Managers . 3.3.10 Investor Protection Rules
retail fund can be marketed. Consequently, a registered managed investment scheme in Aus - tralia can be marketed to any individual within the country. However, the entity promoting the fund must either possess an appropriate AFSL or be able to rely on an available exemption that authorises it to offer the relevant financial ser - vices to both retail and wholesale clients. The introduction of the DDO in October 2021 means that some Australian retail funds must ensure their marketing activities comply with the new obligations. Please see 4.1 Recent Devel- opments and Proposals for Reform for further discussion. 3.3.8 Marketing Authorisation/Notification Process In Australia, marketing of retail funds may involve the provision of financial services in the country, for which an AFSL will be required, subject to applicable exemptions. In these circumstances, depending on whether an AFSL will be required or an exemption is available, some form of prior authorisation or notification may be required to be made to ASIC. For example, if it is determined that an AFSL is required, an application for an AFSL will need to be made to ASIC prior to any marketing activities taking place. Alternatively, if it is determined that an exemp - tion is available, depending on the exemption, prior notification to ASIC may be required. Please refer to 3.3.3 Local Regulatory Require- ments for Non-local Managers .
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