Explanatory Statement
ASIC Corporations (Disregarding Technical Relief) Instrument 2026/180 and ASIC Corporations (Amendment and Repeal) Instrument 2026/181
This is the Explanatory Statement for ASIC Corporations (Disregarding Technical Relief) Instrument 2026/180 and ASIC Corporations (Amendment and Repeal) Instrument 2026/181.
The Explanatory Statement is approved by the Australian Securities and Investments Commission (ASIC).
Summary
1. ASIC Corporations (Disregarding Technical Relief) Instrument 2026/180 (Disregarding Technical Relief Instrument) allows entities to disregard certain technical relief granted by ASIC which would otherwise prevent them from relying on certain disclosure concessions under Chapter 6D and Part 7.9 of the Corporations Act 2001 (Corporations Act).
2. ASIC Corporations (Amendment and Repeal) Instrument 2026/181 (Amendment and Repeal Instrument):
(a) replaces the reference in ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547 (LI 2019/547) to ASIC Corporations (Disregarding Technical Relief) Instrument 2016/73 (LI 2016/73) with a reference to the Disregarding Technical Relief Instrument; and
(b) repeals ASIC Corporations (Offer Information Statements) Instrument 2016/76 (LI 2016/76).
Purpose of the instruments
3. The Disregarding Technical Relief Instrument remakes the relief previously provided in LI 2016/73.
4. The purpose of the Disregarding Technical Relief Instrument is to:
(a) identify specific ASIC instruments which provide technical relief that does not detract from the level of information available to the market (technical relief instruments); and
(b) allow entities that rely on such relief to:
(i) use transaction specific disclosures under sections 713 and 1013FA of the Corporations Act;
(ii) rely on “cleansing notice” exemptions in sections 708A and 1012DA of the Corporations Act; and
(iii) rely on exemptions applying to rights issues under sections 708AA and 1012DAA of the Corporations Act.
5. Relief is required as entities relying on a technical relief instrument would otherwise be disqualified from relying on these provisions. Specifically:
(a) Sections 713 and 1013FA permit a disclosing entity to prepare a disclosure document or product disclosure statement (PDS) with specified limited content for an offer of “continuously quoted securities”. Under section 9 of the Corporations Act, securities and financial products will only satisfy the definition of “continuously quoted securities” where, among other things, no order or exemptions under certain provisions covered the entity, its directors or auditor, during the shorter of the period during which the class of securities were quoted and the period of 12 months before the date of the prospectus or PDS.
(b) Sections 708A and 1012DA of the Corporations Act permit an entity to lodge a ‘cleansing notice’ rather than a prospectus or PDS for a sale offer of securities or financial products that are quoted where, among other things, no order under section 340 or 341 covered the entity, its directors and auditor, at any time during the shorter of the period during which the class of securities or financial products were quoted and the period of 12 months before the day on which the relevant securities or products were issued.
(c) Sections 708AA and 1012DAA of the Corporations Act permit an entity to make a rights issue of quoted securities and quoted financial products without a disclosure document or PDS, provided certain requirements are satisfied. One requirement is that no order under sections 340 or 341 of the Corporations Act covered the entity, or any person as director or auditor of the entity, at any time during the shorter of the period during which the class of securities or financial products were quoted and the period 12 months before the day on which offers under the rights issue are made.
6. The purpose of the Amendment and Repeal Instrument is to make a consequential amendment to LI 2019/547 to replace a reference to the previous relief in LI 2016/73 with a reference to the Disregarding Technical Relief instrument, and to repeal LI 2016/76.
Consultation
7. ASIC consulted publicly on our proposal to remake the relief in LI 2016/73 and allow LI 2016/76 to sunset through CS 45: Proposed remake and sunset of financial reporting-related legislative instruments.
8. ASIC noted that it had assessed that:
(a) LI 2016/73 was operating effectively and efficiently and continued to form a necessary and useful part of the legislative framework.
(b) LI 2016/76 should be allowed to sunset as offer information statements (OIS) are used very rarely and the likelihood that a financial report included in an OIS is not a report for a 12-month period is very remote.
9. ASIC did not receive any submissions in response to CS 45.
10. ASIC did not consult on the Amendment and Repeal Instrument on the basis that it only makes a simple consequential amendment to LI 2019/547 and repeals LI 2016/76, which would otherwise automatically sunset on 1 April 2026.
Operation of the Instruments
Disregarding Technical Relief Instrument
Part 1 – Preliminary
11. Section 1 of the Disregarding Technical Relief Instrument specifies its title.
12. Section 2 of the Disregarding Technical Relief Instrument specifies that it commences on the later of day after it is registered on the Federal Register of Legislation or 1 April 2026.
13. Section 3 of the Disregarding Technical Relief Instrument specifies that it is made under sections 741 and 1020F of the Corporations Act.
14. Section 4 of the Disregarding Technical Relief Instrument specifies that each instrument included in a Schedule to the instrument is amended or repealed as set out in the Schedule concerned. Schedule 1 of the Disregarding Technical Relief Instrument provides that LI 2016/73 is repealed.
15. Section 5 of the Disregarding Technical Relief Instrument provides a simplified outline for the instrument. Its purpose is to assist readers in understanding the substantive provisions. However, the outline is not intended to be comprehensive, and readers should rely on the substantive provisions when considering the instrument’s effect.
16. Section 6 of the Disregarding Technical Relief Instrument specifies definitions to be relied upon in the instrument.
Part 2 – Preliminary
17. Section 7 of the Disregarding Technical Relief Instrument provides that Chapter 6D of the Corporations Act applies to all persons, and Part 7.9 of the Corporations Act applies in relation to regulated persons in relation to financial products, as if:
(a) in section 9, a definition of technical relief instrument is inserted, and the definition of continuously quoted securities is modified so that the requirement that the securities are not covered by certain exemptions or declarations does not include an exemption or declaration that is a technical relief instrument; and
(c) in paragraphs 708AA(2)(e), 708A(5)(d), 1012DAA(2)(e) and 1012DA(5)(d), the requirement that the securities or financial products are not covered by certain orders does not include an order that is a technical relief instrument.
Part 3 – Repeal
18. Section 8 of the Disregarding Technical Relief Instrument specifies that the instrument is repealed at the start of 1 April 2031.
Amendment and Repeal Instrument
Part 1 – Preliminary
19. Section 1 of the Amendment and Repeal Instrument specifies its title.
20. Section 2 of the Amendment and Repeal Instrument specifies that it commences on the later of the day it is registered on the Federal Register of Legislation and 1 April 2026.
21. Section 3 of the Amendment and Repeal Instrument specifies that it is made under subsections 741(1) and 1020F(1) of the Corporations Act.
22. Section 4 of the Amendment and Repeal Instrument specifies that each instrument included in a Schedule to the instrument is amended or repealed as set out in the Schedule concerned.
Schedule 1—Amendments
23. Schedule 1 of the Amendment and Repeal Instrument amends the note to the definition of excluded order in section 4 of LI 2019/547 to replace a reference to LI 2016/73 with a reference to the Disregarding Technical Relief Instrument.
Schedule 2—Repeals
24. Schedule 2 of the Amendment and Repeal Instrument repeals LI 2016/76 rather than allow the instrument to sunset as proposed in CS 45. This is to avoid any doubt about the status of the instrument.
Legislative instrument and primary legislation
25. The subject matter and policy implemented by the Disregarding Technical Relief Instrument is more appropriate for a legislative instrument rather than primary legislation because it provides relief where strict compliance with the primary legislation produces anomalous outcomes that would be inconsistent with the intent of the primary law.
26. If the matters in the Disregarding Technical Relief Instrument were to be inserted into the primary legislation, they would insert into an already complex statutory framework a set of specific provisions that would apply only to a relatively small group of entities. This would result in additional cost and unnecessary complexity for other users of the primary legislation.
27. It will be a matter for the Government and for Parliament as to whether the Act or Regulations may be amended in future to include the relief in the Disregarding Technical Relief Instrument.
Duration of the instrument
28. The Disregarding Technical Relief Instrument self-repeals at the start of 1 April 2031. This allows sufficient time for the Government and for Parliament to determine whether to amend the Corporations Act or Corporations Regulations 2001 to include the relief in the instrument.
Legislative authority
29. The Disregarding Technical Relief Instrument is made under sections 741 and 1020F of the Act.
30. The Amendment and Repeal Instrument is made under subsections 741(1) and 1020F(1) of the Corporations Act.
31. Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make any instrument, the power is to be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.
32. The Disregarding Technical Relief Instrument and the Amendment and Repeal Instrument are disallowable legislative instruments under the Legislation Act 2003.
Statement of Compatibility with Human Rights
33. The Explanatory Statement for a disallowable legislative instrument must contain a Statement of Compatibility with Human Rights under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility with Human Rights is in the Attachment.
Attachment
Statement of Compatibility with Human Rights
This Statement of Compatibility with Human Rights is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
ASIC Corporations (Disregarding Technical Relief) Instrument 2026/180
ASIC Corporations (Amendment and Repeal) Instrument 2026/181
Overview
1. ASIC Corporations (Disregarding Technical Relief) Instrument 2026/180 allows entities to disregard certain technical relief granted by ASIC which would otherwise prevent them from relying on certain disclosure concessions under Chapter 6D and Part 7.9 of the Corporations Act 2001.
2. ASIC Corporations (Amendment and Repeal) Instrument 2026/181:
(a) replaces the reference in ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547 to ASIC Corporations (Disregarding Technical Relief) Instrument 2016/73 with a reference to ASIC Corporations (Disregarding Technical Relief) Instrument 2026/180; and
(b) repeals ASIC Corporations (Offer Information Statements) Instrument 2016/76.
Assessment of human rights implications
3. The instruments do not engage any of the applicable rights or freedoms.
Conclusion
4. Thie instruments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.