2.2 If an arrangement satisfies the definition of a managed investment scheme and is not eligible for relief from the requirement to be registered, registration may be required under section 601ED

Section 601ED(1) specifies a “three-pronged” criteria as to when a managed investment scheme is required to be registered. If the scheme is caught by any “one” of the criteria, then it is required to be registered, unless the scheme is the result of a promoter:

  1. dealing in interests that do not require disclosure because of the interests being made available only:

    1. by “personal offer” under the 20/12 Rule; or
    2. to “wholesale clients”; or
  2. making an “offer of interests” that complies with the terms of the relief afforded by the ASIC Instrument, including that there be a PDS approved by a lead regulator.

Section 601ED states:

“When a managed investment scheme must be registered

  1. Subject to subsection (2) and (2A), a managed investment scheme must be registered under Section 601EB if:

    1. it has more than 20 members;
    2. it was promoted by a person, or an associate of a person, who was, when the scheme was promoted, in the business of promoting managed investment schemes; or
    3. a determination under subsection (3) is in force in relation to the scheme and the total number of members of all of the schemes to which the determination relates exceeds 20.
  2. A managed investment scheme does not have to be registered if all of the issues of interests in the scheme that have been made would not have required the giving of a Product Disclosure Statement under Division 2 of Part 7.9 if the scheme had been registered when the issues were made.
  3. ASIC may, in writing, determine that a number of managed investment schemes are closely related and that each of them has to be registered at any time when the total number of all of the schemes exceeds 20. ASIC must give written notice of the determination to each operator of each of the schemes.
  4. For the purpose of this Section, when working out how many members a scheme has:

    1. joint holders of an interest in the scheme count as a single member; and
    2. an interest in the scheme held on trust for a beneficiary is taken to be held by the beneficiary (rather than the trustee) if:

      1. the beneficiary is presently entitled to a share of the trust estate or of the income of the trust estate; or
      2. the beneficiary is, independently or together with other beneficiaries, in a position to control the trustee.
  5. A person must not operate in this jurisdiction a managed investment scheme that this Section requires to be registered under Section 601EB unless the scheme is so registered.

    Note: Failure to comply with this subsection is an offence: see subsection 1311(1).
  6. For the purpose of subsection (5), a person is not operating a scheme merely because:
    1. they are acting as an agent or employee of another person; or
    2. they are taking steps to wind up the scheme or remedy a defect that led to the scheme being deregistered”.