Document ID: chunk:federal_register_of_legislation:F2022C00868:reg:9
Version: federal_register_of_legislation:F2022C00868
Segment Type: reg
Provision Reference: reg 9
Character Range: 19128–21379

9  Track record of operator
 (1) The operator of a passport fund must at all times meet the track record test.

Track record—experience of the operator
 (2) For this section, the operator meets the track record test if the home regulator for the passport fund is satisfied that:
 (a) for the past 5 years the operator has been responsible for the operation of financial asset CIS that have been regulated in a way that enables interests in the CIS to be offered to the general public in:
 (i) a participating economy; or
 (ii) an economy that has a regulatory framework applying to financial asset CIS that is broadly similar in effectiveness to that of the home economy for the fund in the opinion of the home regulator for the fund, having regard where relevant to the IOSCO principles and IOSCO assessment methodology relating to CIS; and
 (b) if the operator has undergone a relevant change of control in the past 5 years:
 (i) there has been substantial continuity among the officers and employees of the operator responsible for making or supervising discretionary investment decisions for financial asset CIS; and
 (ii) the operator has made decisions in relation to the operation of financial asset CIS without substantial influence by any person who controls the operator unless in exceptional circumstances.

Track record—experience of a related party of the operator
 (3) For this section, an operator is also taken to meet the track record test if the home regulator for the passport fund is satisfied that:
 (a) the operator is able to rely on the experience and expertise of a related party in the operation of financial asset CIS having regard to the degree of commonality between the operator and the related party concerning:
 (i) decision‑making processes; and
 (ii) business processes; and
 (iii) staff; and
 (b) the related party meets the track record test in accordance with subsection (2).
 (4) For this section, an operator undergoes a relevant change of control if during the past 5 years:
 (a) another entity has commenced to control the operator; or
 (b) another entity has ceased to control the operator.
Note: The reference to supervising discretionary investment decisions in this section is defined in subsection 6(3).