ASIC Corporations (Foreign Financial Services Providers) Instrument 2025/798

This instrument applies to a very specific group of foreign financial services providers, often called FFSPs. It is not a broad exemption for all offshore firms that want to provide financial services into Australia. It only continues certain historic exemptions for providers that were already in a qualifying position on 31 March 2020.

The instrument defines the relevant historic relief by listing seven repealed ASIC FFSP class orders: ASIC Class Orders [CO 03/1099], [CO 03/1100], [CO 03/1101], [CO 03/1102], [CO 03/1103], [CO 04/829] and [CO 04/1313]. If a provider could rely on an exemption under one of those class orders, as that exemption had been continued by ASIC Corporations (Repeal and Transitional) Instrument 2016/396, on 31 March 2020, the exemption can continue under this instrument.

That makes the instrument most relevant to existing cross-border arrangements rather than new market entry. Australian businesses are affected where they receive financial services from an offshore provider, refer clients to one, or structure products, investments or service models around an offshore provider that does not hold an Australian financial services licence.

It is also important to read the scope carefully. The instrument itself does not say that every foreign provider serving Australian wholesale clients is exempt. It only preserves old relief for providers that already met the historical gateway and that continue to operate within the same circumstances and conditions as the original class order exemption.

The instrument is made under paragraph 911A(2)(l) of the Corporations Act 2001. Its simplified outline says it remakes the substantive provision in ASIC Corporations (Repeal and Transitional) Instrument 2016/396 to continue the exemption of certain foreign financial service providers from the requirement to hold an Australian financial services licence in specified circumstances.

The operative rule is in section 7. It says that an exemption specified in a repealed ASIC FFSP class order, as in force immediately before repeal, continues to apply in the circumstances and on the conditions specified for that exemption. In practical terms, this means the instrument carries forward the old exemption settings rather than replacing them with a new standalone code.

That point matters because businesses cannot assess compliance by reading this instrument in isolation. The continued exemption still depends on the original circumstances and conditions attached to the relevant class order. If the provider's current conduct no longer fits those settings, the fact that this instrument exists does not solve the problem.

The instrument also deals with one evidentiary issue. If a circumstance or condition required a person to have provided ASIC with evidence of a matter that ASIC had stated in writing was adequate, that requirement is taken to be satisfied if the person has provided ASIC with evidence of that matter. For businesses, that means record keeping still matters. If reliance depends on evidence having been given to ASIC, the provider should be able to show what was provided.

The notes to section 7 explain the transition. After the old class orders were repealed, their exemptions had been continued by Schedule 2 of the 2016 instrument. This instrument now remakes that continuation mechanism, and Schedule 1 repeals the 2016 instrument in full.

The key trigger point is 31 March 2020. Under section 7(2)(a), a person relying on the exemption must have been able to rely on the exemption, as continued in force by ASIC Corporations (Repeal and Transitional) Instrument 2016/396, on that date.

This is a strict historical gateway. It is not enough that the provider is foreign, only deals with wholesale clients, or now looks similar to a provider that once qualified. The provider must actually have been able to rely on the relevant exemption on 31 March 2020. If that historical position cannot be shown, this instrument does not create a fresh exemption.

That is why the instrument is not available to new FFSPs entering the market after that date, and not available to providers that did not meet the eligibility criteria at that time. Businesses should be careful not to treat the instrument as a general transitional regime for any offshore provider with a wholesale client model.

For Australian counterparties, the practical issue is evidence. If your business receives services from an offshore provider under this regime, you should be able to identify which listed class order the provider relies on, why the provider was able to rely on that exemption on 31 March 2020, and whether the current services still fit the same exemption settings. If those points are unclear, the arrangement should not be treated as safely covered.

The instrument continues exemptions only on the original circumstances and conditions. That means compliance is not limited to the text of this instrument. A business also needs to understand the conditions attached to the relevant repealed class order exemption that is being carried forward.

Section 7(2)(b) adds an express ongoing condition. A person relying on the exemption must comply with any written notice from ASIC directing the person to give ASIC, within the time specified in the notice, a written statement containing specified information about the financial service business operated by the person in Australia.

In practice, this is a governance and documentation issue. A provider relying on the exemption should be able to explain what services it provides into Australia, which exemption it relies on, how it satisfied the historical gateway on 31 March 2020, and what records support that position. It should also have a process for responding promptly if ASIC issues a written notice.

Australian businesses that depend on the provider should also keep enough file material to show why they considered the provider to be operating within the exemption. That may include the nominated class order, descriptions of the services provided into Australia, client classification records, and documents showing the provider's historical reliance position.

The instrument does not itself set out penalties or a separate compliance code. Its practical effect is narrower. It preserves old relief for a limited group, subject to the old conditions and the new notice-compliance requirement. If the provider's services, client base or operating model have changed materially since the earlier reliance position, those changes should be checked carefully against the original exemption conditions.

If your business deals with an offshore provider under this regime, review both the paper trail and the actual conduct. The legal position depends on historical eligibility and ongoing fit with the original exemption conditions, so both matter.

Start with the provider's basis for reliance. Ask which of the listed class orders applies, what financial services are being provided into Australia, and what records show the provider was able to rely on the exemption on 31 March 2020 as continued by the 2016 instrument. Then compare that with the current arrangement. If the provider has expanded services, changed client categories, or altered how it operates in Australia, those changes may affect whether the old exemption still fits.

Also check whether the provider has records of any evidence previously given to ASIC where the historic exemption required that step. The instrument treats certain adequacy wording as satisfied if the person has provided ASIC with evidence of the matter, but that still assumes the evidence was in fact provided.

Finally, check operational readiness for an ASIC notice under section 7(2)(b). A provider relying on the exemption must comply with a written notice within the time specified. Businesses that depend on the provider should know who would handle that request and what information could be produced about the provider's Australian financial services business.

The instrument was made on 2 December 2025 and registered on 4 December 2025. It commences on the day after registration, so it started operating on 5 December 2025.

Section 8 states that the instrument is repealed at the end of 31 March 2027. Schedule 1 also repeals ASIC Corporations (Repeal and Transitional) Instrument 2016/396 in full. That means this instrument is now the operative continuation mechanism for the old FFSP class order exemptions, but only for a limited period.

Businesses should not treat the 2027 end date as a minor administrative point. If an arrangement depends on this relief, the parties should identify that dependency early, keep records supporting current reliance, and track whether another exemption, licensing basis or regulatory change will be needed before the repeal date arrives.

This page is based on the text of ASIC Corporations (Foreign Financial Services Providers) Instrument 2025/798 on the Federal Register of Legislation. The instrument is short and works by continuing exemptions from earlier class orders rather than restating all of their detailed conditions in full.

Before relying on this page, businesses should check four things in the legislation itself. First, which of the listed class orders is relevant. Second, whether the provider was able to rely on the exemption, as continued by the 2016 instrument, on 31 March 2020. Third, whether the current services still fit the circumstances and conditions of that carried-over exemption. Fourth, whether the provider can comply with any ASIC written notice requiring information about its Australian financial services business. Those checks are central to whether the relief is actually available.