ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 (Cth)

ASIC Corporations (Wholly-owned Companies) Instrument 2016/785

About this compilation

Compilation No. 7

This is a compilation of ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 as in force on 9 September 2022. It includes any commenced amendment affecting the legislative instrument to that date.

This compilation was prepared by the Australian Securities and Investments Commission.

The notes at the end of this compilation (the endnotes) include information about amending instruments and the amendment history of each amended provision.

Contents

Part 1—Preliminary 1 Name of legislative instrument 3 Authority 4 Definitions Part 2—Order 5 Financial reporting relief for wholly-owned entities 6 Where financial reporting relief applies 7 Conditions 8 Companies excluded from relying on financial reporting relief 9 Relief from requirement to appoint auditor 10 When auditor appointment relief applies 11 Relief allowing holding entity to include consolidated financial statements in a financial report Part 3—Savings and transitional 12 Application of Part 2 13 Application of ASIC Class Order [CO 98/1418] Endnotes Endnote 1—Instrument history Endnote 2—Amendment history

Part 1—Preliminary

1 Name of legislative instrument This is the ASIC Corporations (Wholly-owned Companies) Instrument 2016/785.

3 Authority This instrument is made under subsection 341(1) of the Corporations Act 2001.

4 Definitions In this instrument: additional consolidation information in relation to consolidated financial statements prepared by a holding entity for a financial year means: (a) the following information for the financial year: (i) a statement of comprehensive income setting out the information specified by paragraphs 82 to 87 of Accounting Standard AASB 101 Presentation of Financial Statements (AASB 101) in force at the end of the financial year; (ii) opening and closing retained earnings, dividends provided for or paid, and transfers to and from reserves; (iii) a statement of financial position complying with paragraphs 54 to 60 of AASB 101 in force at the end of the financial year; and (b) if the holding entity was a holding entity for the purposes of this instrument or a Holding Entity for the purposes of ASIC Class Order [CO 98/1418] at any time during the preceding financial year—comparative information for that immediately preceding financial year for the information referred to in paragraph (a). Act means the Corporations Act 2001. ASIC Pro Forma 24 means ASIC Pro Forma 24 Deed of cross guarantee. ASIC Pro Forma 27 means ASIC Pro Forma 27Assumption deed. assumption deed means: (a) in relation to a deed of cross guarantee, an Assumption Deed contemplated by the deed of cross guarantee; and (b) in relation to an entity that became party to a deed of cross guarantee by an Assumption Deed contemplated by the deed of cross guarantee, that Assumption Deed. borrower in relation to debentures means a company that is or will be liable to repay money under a debenture, but does not include a company that only has debentures on issue that were issued or allotted: (a) by excluded issues to which paragraph 66(2)(d) of the Law applied as that Law stood before 13 March 2000; or (b) as a result of offers which did not need disclosure to investors under Part 6D.2 of the Act because of subsection 708(1) of the Act. certificate in relation to a deed of cross guarantee or an assumption deed to which a company is a party, means one or more certificates in writing addressed to the company, the trustee and any alternative trustee under the deed of cross guarantee and to ASIC which together include statements to the following effect: (a) that the deed is in exactly the same terms as ASIC Pro Forma 24 or ASIC Pro Forma 27 as the case requires except for the following: (i) all instructions for the inclusion of specified information have been replaced by that information in a complete and accurate manner and any consequential changes of a minor or editorial nature that are necessary for the effective operation of the deed have been made; (ii) execution clauses have been added, deleted, modified or varied as required in order to facilitate the proper execution of the deed; (iii) the date has been completed; (iv) the headnote, the headings before the headnote and any editorial note have been omitted; (v) in the case of an assumption deed which covers more than one entity—such variations as are necessary to enable the additional entities to be covered; (vi) in the case of an assumption deed which covers making the trustee of the deed of cross guarantee to which the assumption deed relates a member of the closed group—such variations as are necessary to enable the assumption deed to have that effect; (b) that, in relation to the execution of the deed by each party to it that is a company, either: (i) the deed appears to be signed in accordance with subsection 127(1) of the Act; or (ii) the company's common seal appears to have been fixed to the deed, and the fixing of the seal appears to have been witnessed, in accordance with subsection 127(2) of the Act; and the provider of the certificate does not know and has no reason to suspect that the deed has not been duly executed by the company; (c) that the provider of the certificate, after having made such inquiries as were reasonable in the circumstances, is of the opinion that the deed has been duly executed by each party to it that is not a company; where the certificates referred to in paragraphs (a), (b) and (c) are given by a lawyer who holds a practising certificate. closed group means the holding entity and the wholly-owned entities. closely-held subsidiary: a body is a closely-held subsidiary of a holding entity if, and only if, no member of the body is a person other than: (a) the holding entity; or (b) a nominee of the holding entity; or (c) a body that is a closely-held subsidiary of the holding entity because of any other application or applications of this definition: or (d) a nominee of a body referred to in paragraph (c). control has the same meaning as in Accounting Standard AASB 10 Consolidated Financial Statements. consolidated financial statements has the same meaning as in Accounting Standard AASB 10 Consolidated Financial Statements. deed of cross guarantee means each of the following: (a) in the case of a deed lodged with ASIC: (i) before the day this instrument commences; or (ii) for the purposes of ASIC Class Order [CO 98/1418] (as continued in force by section 13); a Deed of Cross Guarantee as defined in the first order to ASIC Class Order [CO 98/1418] (as continued in force by section 13); (b) a deed that has been lodged with ASIC for the purposes of this instrument and that is in exactly the same terms as ASIC Pro Forma 24 (as at the date of this instrument) except for the following: (i) all instructions for the inclusion of specified information have been replaced by that information in a complete and accurate manner and any consequential changes of a minor or editorial nature that are necessary for the effective operation of the deed have been made; (ii) execution clauses have been added as required in order to facilitate the proper execution of the deed; (iii) the date has been completed; and (iv) the headnote, the headings before the headnote and any editorial note have been omitted; and includes such a deed as varied by: (c) an assumption deed that is lodged with ASIC together with a certificate relating to that deed; or (d) a revocation deed; or (e) in the case of a deed referred to in paragraph (a)—a deed of variation that is lodged with ASIC and that varies the deed to reflect any amendments to ASIC Pro Forma 24 made on or before the date of this instrument. exempt entity means a company which is not controlled by a foreign company and which is: (a) a small proprietary company; or (b) a large proprietary company which: (i) satisfied all of the requirements of subsection 319(4) of the Law (as taken to be included in the Act by subsection 1408(2) of the Act), or would have satisfied all of those requirements except that its financial statements or financial reports during 1993 or a later financial year were not audited before the deadline for reporting to members for that year in accordance with relief obtained under this instrument, ASIC Corporations (Extended Reporting and Lodgment Deadlines—Unlisted Entities) Instrument 2020/395, ASIC Class Order [CO 98/1418] or Australian Securities Commission Class Orders [CO 95/1530] or [CO 96/1579]; and (ii) has not at any time during 1993 or a later financial year been a member of: (A) a closed group for the purposes of this instrument; or (B) a Closed Group for the purposes of ASIC Class Order [CO 98/1418] or Australian Securities Commission Class Order [CO 95/1530]; where that closed group or Closed Group included a company which was not an exempt entity. extended closed group means the closed group and any other bodies which are parties to the deed of cross guarantee and which are controlled by the holding entity, but does not include a body which: (a) holds office as trustee or alternative trustee under the deed of cross guarantee; and (b) is not a Group Entity (within the meaning of that deed). first reliance year: see paragraph 6(1)(g). foreign entity means an entity that is not a company or other body incorporated in Australia. group has the same meaning as in Accounting Standard AASB 10 Consolidated Financial Statements. holding entity in relation to a company that is party to a deed of cross guarantee means a company, a disclosing entity which is a body incorporated in Australia, or a registered foreign company: (a) of which the company is a closely-held subsidiary; and (b) which is a party to the deed; and (c) which is not controlled by another of its closely-held subsidiaries which is also a party to the deed. incorporated in relation to a country includes incorporated in part of the country. Law means in relation to a company, the former Corporations Law of the State or Territory under which the company was registered immediately before the commencement of the Act; and includes a separate reference to the former Corporations Law of each other State and Territory. notice of disposal means, in relation to a deed of cross guarantee, a notice of disposal contemplated by the deed of cross guarantee. previous order means any one of Australian Securities Commission Class Orders [CO 91/996], [CO 92/770], [CO 93/1370], [CO 94/1862], [CO 95/1530] or [CO 96/153] or ASIC Class Order [CO 98/1418]. relevant financial year: see subsection 5(1). relevant holding entity financial year: see paragraph 6(1)(d). reporting entity has the same meaning as in Accounting Standard AASB 1057 Application of Australian Accounting Standards. revocation deed means, in relation to a deed of cross guarantee, a Revocation Deed contemplated by the deed of cross guarantee. wholly-owned entities in relation to a holding entity collectively means companies and foreign companies: (a) all of which are controlled by the holding entity; and (b) all of which are closely-held subsidiaries of the holding entity; and (c) all of which are parties to the deed of cross guarantee; but does not include an entity which: (d) holds office as trustee or alternative trustee under the deed of cross guarantee; and (e) is not a Group Entity (within the meaning of that deed).