Post: ASIC consults on remaking ‘sunsetting’ class orders on unit pricing discretions for managed investment schemes

ASIC is seeking feedback on proposals to remake managed investment scheme unit pricing class orders that are due to expire (‘sunset’) on 1 October 2023. The proposals relate to the following class orders:

[CO 13/655] – Provisions about the amount of consideration to acquire interests and withdrawal amounts not covered by ASIC Corporations (Managed investment product consideration) Instrument 2015/84
[CO 13/657] – Discretions affecting the amount of consideration to acquire interests and withdrawal amounts.
ASIC considers that the class orders are operating effectively and efficiently and continue to form a necessary and useful part of the legislative framework. The fundamental policy principles that underpin the class orders have not changed, including to provide an appropriate level of flexibility for responsible entities exercising unit pricing discretions and certainty on how to comply with unit pricing requirements in the scheme’s constitution.

ASIC proposes to remake the class orders in a combined legislative instrument in substantially the same form for 5 years. ASIC is proposing a minor change to CO 13/657 to simplify the requirement to document exercises of discretion that affect the pricing of interests and reduce the level of prescription in the provisions.

Subject to feedback received, ASIC proposes to issue a new legislative instrument as set out in the following draft:

Draft legislative instrument 1: ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price for Interests in Managed Investment Schemes) Instrument 2023/XX (PDF 268KB)
ASIC invites submissions on the proposal to remake the class orders in the form set out in the draft. In particular, ASIC is seeking feedback on:

ASIC’s proposal to simplify the drafting of the duty to maintain written policies and records in relation to the exercise of pricing discretions in CO 13/657,
whether the broad existing requirement that pricing discretions be consistent with commercial practice and result in a current value/price requirement in CO 13/657 (see new s601FC(1A)), remains appropriate, and
whether ASIC should continue to maintain a separate unit pricing regime for the relevant schemes that were registered before 1 October 2013. That regime is set out in ASIC Corporations (Managed investment product consideration) Instrument 2015/847.

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