In the August edition of Property Fund News we commented on ASIC Consultation Paper 100 titled "Unlisted property schemes—improving disclosure for retail investors".  The paper annexed a draft regulatory guide in which ASIC proposed eight new principles designed to promote the transparent disclosure of key issues to both new and existing investors.  ASIC called for submissions by 5 August 2008 and stated that they would issue a final regulatory guide on 2 September 2008.  True to their word, ASIC yesterday issued the regulatory guide.

McMahon Clarke Legal drafted a submission on behalf of the Australian Direct Property Investment Association and it is pleasing to note that ASIC have taken a lot of the issues into account when finalising the regulatory guide.

It is now clear that the new disclosure regime is to be implemented as follows:

Timetable for implementation

Date	Action(s)
By 30 November 2008—open schemes	Responsible entities of open schemes should provide existing investors with updated disclosure that applies the disclosure principles (e.g., in a regular investor update or by including the information on a website that is used to communicate with investors).
By 30 November 2008—PDSs that are dated before 30 November 2008 but remain in use	If an existing PDS is still in use, responsible entities should either—
	n	include the disclosure principle information on a website referred to in the PDS (if the omission of disclosure principle information from the PDS is not materially adverse), or
	n	update the PDS by a new or a supplementary PDS so that it includes the disclosure principle information.
New PDSs from 30 November 2008	PDSs dated on or after 30 November should clearly and prominently disclose information covered by the disclosure principles.
By 31 March 2009—closed schemes	Responsible entities of closed schemes should provide existing investors with updated disclosure that applies the disclosure principles, unless the investors need earlier disclosure to make a decision on withdrawal rights that commence on or shortly after 31 March 2009.

For the purposes of the regulatory guide an open scheme is an unlisted property scheme that at any time from 30 November 2008 to 31 March 2009 gives investors withdrawal rights.

ASIC suggest the consultation process has resulted in them clarifying their expectations and simplifying some of the disclosure principles.  We tend to agree however there are still some matters that require further consideration.  We will be meeting with ASIC in the coming weeks to discuss the regulatory guide and seek guidance in relation to the practical application of the disclosure principles.  If you have any queries in relation to the regulatory guide then please do not hesitate to contact us.