ASIC Corporations (Amendment) Instrument 2023/774

Administered by Department of the Treasury

Legislation au F2023L01396 Not in force Legislative Instrument

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Explanatory Statement

 

 

ASIC Corporations (Amendment) Instrument 2023/774

This is the Explanatory Statement for ASIC Corporations (Amendment) Instrument 2023/774.

The Explanatory Statement is approved by the Australian Securities and Investments Commission (ASIC).

Summary

1. ASIC Corporations (Amendment) Instrument 2023/774 (the Instrument) repeals section 10 and amends paragraph 6(c) of ASIC Corporations (Takeover Bids) Instrument 2023/683 (ASIC Instrument 2023/683), and adds new subparagraph 5(a)(iia) and amends paragraph 5(b) of ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684 (ASIC Instrument 2023/684). These changes are made to give effect to the original intent of the relevant instruments.

Purpose of the Instrument

2. The Instrument updates notional subparagraph 636(1)(g) in ASIC Instrument 2023/683, so that it is consistent with subparagraph 636(1)(g)(iii) and (iv) of the Corporations Act 2001, by referring to sections 710 to 713 and sections 713C to 713E as applicable material that would be required for a prospectus.  

3. The Instrument repeals section 10 of ASIC Instrument 2023/683 and moves the substance of that relief to ASIC Instrument 2023/684 by inserting the word “or derivatives” in paragraph 661A(4)(c). The Instrument also corrects notional subparagraph 661B(1)(c) to clarify that the bidder’s election under subparagraph 661A(4)(c) is to acquire securities, and not derivatives, that come to be in the bid class after the notice is given.

Purpose of the Instrument

4. The Instrument repeals section 10 and amends paragraph 6(c) of ASIC Corporations (Takeover Bids) Instrument 2023/683, and adds new subparagraph 5(a)(iia) and amends paragraph 5(b) of ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684.

Consultation

5. On 30 November 2022, ASIC released Consultation Paper 365 (CP 365) seeking feedback on proposals to remake nine class orders relating to takeovers, compulsory acquisitions and relevant interests (including [CO 12/1209], [CO 13/519], [CO 13/520], [CO 13/521], [CO 13/522], [CO 13/524], [CO 13/525], [CO 13/526], and [CO 13/528]). The consultation period closed on 23 January 2023 and ASIC took submissions to CP 365 into account in remaking the relevant class orders. Details of the submissions received are contained in REP 773 Response to submissions on CP 365 which is available on ASIC’s website at www.asic.gov.au. No further consultation was required in respect of the Instrument because it gives effect to the policy intent of ASIC Instrument 2023/683 and ASIC Instrument 2023/684 as originally made.

Operation of the Instrument

6. The Instrument amends ASIC Instrument 2023/683 and ASIC Instrument 2023/684.

Legislative instrument and primary legislation

7. The subject matter and policy implemented by the Instrument is more appropriate for a legislative instrument rather than primary legislation because it provides administrative relief in circumstances where strict compliance with the primary legislation produces an unintended or unforeseen result.

Duration of the Instrument

8. The amendments made by the Instrument will cease to have effect on expiry of ASIC Instrument 2023/683 and ASIC Instrument 2023/684.

Legislative authority

9. The Instrument is made under subsections 655A(1) and 669(1) of the Corporations Act 2001.

10. Under subsection 33(3) of the Acts Interpretation Act 1901 (as in force as at 1 January 2005 and as applicable to the relevant powers because of section 5C of the Act), 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 amend any such instrument.

11. As a legislative instrument, the Instrument is disallowable under section 42 of the Legislation Act 2003.

Statement of Compatibility with Human Rights

12. 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 (Amendment) Instrument 2023/774

Overview

1. ASIC Corporations (Amendment) Instrument 2023/774 (the Instrument) repeals section 10 and amends paragraph 6(c) of ASIC Corporations (Takeover Bids) Instrument 2023/683, and adds new subparagraph 5(a)(iia) and amends paragraph 5(b) of ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684. It makes minor changes to these instruments to give effect to the policy intentions of the instruments as originally made.

Assessment of human rights implications

2. The Instrument does not engage any of the applicable rights or freedoms.

Conclusion

3. The Instrument is 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.

 

Overview

ASIC Corporations (Amendment) Instrument 2023/774 was enacted to amend and repeal certain provisions within the ASIC Corporations (Takeover Bids) Instrument 2023/683 and ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684. The instrument aims to bring these regulations in line with the Corporations Act 2001 and the original intent of the respective instruments. The Australian Securities and Investments Commission (ASIC) introduced this instrument to ensure that the regulations governing takeover bids and compulsory acquisitions are clear, consistent, and effectively implemented. This legislative amendment addresses any discrepancies or inconsistencies found in the original instruments, thereby enhancing the regulatory framework for corporate acquisitions and ensuring that it operates as intended by the legislature.

Scope and Application

The ASIC Corporations (Amendment) Instrument 2023/774 applies to entities involved in takeovers and compulsory acquisitions, specifically targeting the administrative relief provisions in the ASIC Corporations (Takeover Bids) Instrument 2023/683 and the ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684. The amendments made by the Instrument are designed to ensure that these administrative relief provisions align with the original intent of the primary legislation, the Corporations Act 2001. This legislative instrument is applicable across the Commonwealth of Australia and affects any entities and individuals involved in corporate transactions governed by the mentioned instruments. The scope includes financial institutions, investment firms, and corporate entities engaged in takeovers or buyouts. The Instrument does not introduce new exclusions, exemptions, or thresholds; instead, it corrects and clarifies existing provisions to avoid unintended consequences that may arise from strict compliance with the primary legislation. The Instrument also allows for further specification and application through subordinate instruments, enabling ASIC to provide detailed guidance and administrative relief as necessary.

Key Provisions

The ASIC Corporations (Amendment) Instrument 2023/774 modifies the ASIC Corporations (Takeover Bids) Instrument 2023/683 and ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684 to ensure they align with the intent of the original instruments and the Corporations Act 2001. Specifically, section 1 of the Instrument repeals section 10 and amends paragraph 6(c) of ASIC Instrument 2023/683, while adding new subparagraph 5(a)(iia) and amending paragraph 5(b) of ASIC Instrument 2023/684 (paragraphs 2 and 4). These changes aim to clarify and correct the original provisions, ensuring they function as intended. The amended instruments impose obligations on parties involved in takeover bids and compulsory acquisitions. For instance, the revised provisions in ASIC Instrument 2023/683 require bidders to include specific information in their prospectus, aligning it with the Corporations Act 2001 (paragraph 2). Similarly, the changes in ASIC Instrument 2023/684 ensure that bidders' elections to acquire securities are clearly defined and distinct from derivatives (paragraph 3). These obligations are critical for maintaining transparency and fairness in corporate transactions. Breaches of the provisions in these instruments can lead to significant consequences. Under the Corporations Act 2001, individuals or entities failing to comply with the requirements may face civil penalties, including fines up to $210,000 for individuals and $1,050,000 for bodies corporate (section 1317E(1)). Additionally, directors or officers found in breach may be subject to disqualification orders, preventing them from managing corporations for a specified period (section 206C). Criminal penalties may also apply for more serious breaches, with maximum fines and imprisonment terms stipulated in the Act (section 13005). The Instrument also ensures that any administrative relief provided is consistent with human rights obligations. The Statement of Compatibility with Human Rights confirms that the amendments do not engage any applicable rights or freedoms, and therefore, the Instrument is compatible with the human rights and freedoms recognised or declared in international instruments (paragraph 3). This demonstrates ASIC's commitment to upholding human rights while regulating corporate activities.

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Area of Law
Corporate Law & Governance
Instrument
Legislative Instrument
Concepts
Repeal & Amendment
Regulatory Standards
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.