Overview

The Australian Securities and Investments Commission (ASIC) has enacted ASIC Class Order [CO 09/422] under the Corporations Act 2001, with the purpose of correcting a typographical error present in the principal class order, ASIC Class Order [CO 07/429]. This legislative instrument is intended to provide relief from certain obligations, such as obtaining consent from the maker of specific statements (e.g., credit ratings, trading data, and geological reports) included in a bidder's or target's statement, under Chapter 6 of the Corporations Act. By issuing this class order, ASIC aims to rectify the identified error and ensure that the relief provisions are accurately represented. This amendment, deemed minor and of a machinery nature, did not require consultation with stakeholders.

Scope and Application

The ASIC Class Order [CO 09/422] applies to persons who are subject to Chapter 6 of the Corporations Act 2001, particularly those involved in the making of certain types of statements such as credit ratings, trading data, and geological reports that are included in or accompany a bidder’s statement or a target’s statement. The order is designed to provide relief from the obligation to obtain the consent of the maker of such statements in specific circumstances, thereby streamlining the process for those involved in corporate actions governed by the Act. The jurisdictional reach of this order is confined to the Commonwealth of Australia, ensuring consistency in the application of the Act across the nation. There are no stated exclusions or exemptions, and the order operates to correct a typographical error in the preceding ASIC Class Order [CO 07/429], without introducing any new substantive changes. The amendment is minor and primarily serves to correct a technical inaccuracy in the original class order. The scope and application of this order are not extended or restricted by any subordinate instruments.

Key Provisions

ASIC Class Order [CO 09/422] is a regulatory instrument made by the Australian Securities and Investments Commission (ASIC) under the Corporations Act 2001 (the Act). This Class Order specifically aims to correct a typographical error in an earlier class order, ASIC Class Order [CO 07/429], which provides relief from certain consent obligations for certain types of statements included in bidder's or target's statements. The main operative sections of ASIC Class Order [CO 09/422] involve amending notional subparagraph 636(4A)(b)(ii) of the Act, as inserted by the earlier class order, to rectify the error (subsections 655A(1) and 636(4A)(b)(ii)). This amendment ensures that the correct legal provisions apply to the specified types of statements. The obligations and requirements imposed by ASIC Class Order [CO 09/422] on the entities it governs primarily relate to ensuring that the corrected legal framework is applied to the specified types of statements. This means that when a bidder's statement or a target's statement includes credit ratings, trading data, or geological reports, the relief from obtaining the consent of the statement maker, as provided under the amended subparagraph, is now accurately applied. This amendment ensures consistency and clarity in the application of the Act, particularly regarding the relief from certain consent obligations. Breach of the provisions in the Corporations Act 2001, including those amended by ASIC Class Order [CO 09/422], can lead to various civil or criminal consequences. However, the specific Class Order itself does not introduce new offences or penalties. Instead, it ensures that the correct legal provisions are applied, which in turn ensures compliance with the overarching legislative framework. Any breaches of the Act's provisions that this Class Order rectifies would be subject to the existing penalties under the Act, which can include substantial fines for both individuals and corporations, as well as potential criminal penalties for serious or repeated violations. The exact penalties depend on the nature and severity of the breach, as outlined in the relevant sections of the Act.