2.4 The ASIC Instrument

The ASIC Instrument is effectively a grant by ASIC to the thoroughbred industry of conditional relief from specific provisions of the Act considered onerous if applied to small-scale schemes. The relief is in the form of industry co-regulation, with ASIC exercising its administrative power and appointing the Principal Racing Authorities of the various states and territories as lead regulators and delegating to them the responsibility for administering the terms of the ASIC Instrument within their respective jurisdictions.

The ASIC Instrument, like previous Class Orders, grants to eligible promoters conditional relief for small-scale schemes from the provisions of section 601ED(5) relating to scheme registration.

The relief is limited to the terms of the ASIC Instrument. Accordingly, only promoters and schemes that comply with the terms of the ASIC Instrument are eligible to be administered by the lead regulators. All other promoters and schemes, remain subject to the direct regulatory power and authority of ASIC and must comply with the Act.

The terms of the relief require that:

  1. the “promoter”:

    1. hold an appropriate AFS licence; and
    2. be approved and on the register of approved promoters of a lead regulator; and
  2. the “offer of shares” be the subject of a disclosure statement and scheme agreement approved by a lead regulator prior to the offer being made.

The ASIC Instrument states in Part 2 – Exemptions:

manager” is defined as:

  1. “in relation to a horse racing syndicate, means the person:

    1. holding office as manger under the syndicate agreement; or
    2. otherwise holding office as manager of the horse racing syndicate with the approval of the lead regulator; and …”.

 “participant” is defined as:

“a person who holds a beneficial interest in a horse racing syndicate or a private horse breeding scheme whether jointly or otherwise.”

It should be noted here that this definition of “participant” treats persons who hold interests jointly differently to how they are treated under the Act.

Under the Act, the joint holders of an interest in a scheme count as a single member.

The PDS for each Horse racing syndicate must be approved by a lead regulator before the promoter can proceed with the “offer of shares”.