Explanatory Statement
ASIC Corporations (Amendment) Instrument 2023/825
This is the Explanatory Statement for ASIC Corporations (Amendment) Instrument 2023/825.
The Explanatory Statement is approved by the Australian Securities and Investments Commission (ASIC).
Summary
1. ASIC Corporations (Amendment) Instrument 2023/825 (the Instrument) amends paragraphs 6(f) and 6(g) and section 9 of ASIC Corporations (Takeover Bids) Instrument 2023/683 (ASIC Instrument 2023/683). These changes are made to give effect to the original intent of ASIC Instrument 2023/683 and ensure subsection 641(1) operates consistently with the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 (Modernising Business Communications Act).
Purpose of the Instrument
2. The Instrument amends notional subsection 641(1) in ASIC Instrument 2023/683 so that it is consistent with the Modernising Business Communications Act. The Instrument also corrects a typographical error in section 9 of ASIC Instrument 2023/683.
Consultation
3. 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was required in respect of the Instrument because it gives effect to the policy intent of ASIC Instrument 2023/683 as originally made.
Operation of the Instrument
4. The Instrument amends ASIC Instrument 2023/683 to ensure that its modification of subsection 641(1) incorporates subparagraphs 641(1)(aa)-(ab) as inserted by the Modernising Business Communications Act. The Instrument also amends subparagraph 641(1)(aa) to ensure it operates over the holders of derivatives for the purposes of the amendment to subsection 617(2) provided in paragraph 5(a) of ASIC Instrument 2023/683. The heading to section 641 has also been amended to by the Instrument to clarify its operation over holdings of securities and derivatives. Finally, the Instrument corrects a typographical error in section 9 of ASIC Instrument 2023/683.
Legislative instrument and primary legislation
5. 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
6. The amendments made by the Instrument will cease to have effect on expiry of ASIC Instrument 2023/683.
Legislative authority
7. The Instrument is made under subsection 655A(1) of the Corporations Act 2001.
8. 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 amend any such instrument.
9. As a legislative instrument, the Instrument is disallowable under section 42 of the Legislation Act 2003.
Statement of Compatibility with Human Rights
10. 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 2023/825
Overview
1. ASIC Corporations (Amendment) Instrument 2023/825 (the Instrument) amends paragraphs 6(f) and 6(g) and section 9 of ASIC Corporations (Takeover Bids) Instrument 2023/683 (ASIC Instrument 2023/683). These changes are made to give effect to the original intent of ASIC Instrument 2023/683 and ensure subsection 641(1) operates consistently with the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023.
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.