ASIC Corporations (Amendment) Instrument 2023/825

Administered by Department of the Treasury

Legislation au F2023L01475 Not in force Legislative Instrument

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Explanatory Statement

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was required in respect of the Instrument because it gives effect to the policy intent of ASIC Instrument 2023/683 as originally made.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

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

The ASIC Corporations (Amendment) Instrument 2023/825 amends certain paragraphs and sections of the ASIC Corporations (Takeover Bids) Instrument 2023/683, introduced to ensure the intent of the original instrument is realised and that it operates consistently with the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023. The Instrument was enacted by the Australian Securities and Investments Commission (ASIC), addressing discrepancies and typographical errors in the ASIC Instrument 2023/683 to align with the Modernising Business Communications Act. The policy objective is to provide administrative relief where strict compliance with the primary legislation results in unintended or unforeseen outcomes. The changes made by the Instrument will cease to have effect upon the expiry of ASIC Instrument 2023/683.

Scope and Application

The ASIC Corporations (Amendment) Instrument 2023/825 amends the ASIC Corporations (Takeover Bids) Instrument 2023/683, addressing and correcting certain provisions to ensure they operate consistently with the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023. This legislative instrument applies to entities and individuals involved in takeover bids and compulsory acquisitions, as well as those who hold securities and derivatives, within the Commonwealth jurisdiction. The changes are designed to correct a typographical error in the original instrument and to align the provisions with the Modernising Business Communications Act, ensuring that the administration of takeover bids is consistent with the intended policy. The amendments will remain in effect until the expiry of ASIC Instrument 2023/683. The Instrument is made under the authority of the Corporations Act 2001 and is subject to disallowance under the Legislation Act 2003. Additionally, the Instrument is accompanied by a Statement of Compatibility with Human Rights, which asserts that the amendments do not engage any of the applicable rights or freedoms and are therefore compatible with the human rights and freedoms recognised in relevant international instruments.

Key Provisions

The ASIC Corporations (Amendment) Instrument 2023/825 amends several provisions of the ASIC Corporations (Takeover Bids) Instrument 2023/683. Specifically, it modifies paragraphs 6(f) and 6(g) and section 9 of the Instrument. The primary aim of these amendments is to align the Instrument with the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023, ensuring that subsection 641(1) operates consistently with the new legislation. Additionally, it corrects a typographical error in section 9 of the Instrument. The changes are designed to reflect the original intent of ASIC Instrument 2023/683, ensuring that it functions as originally planned without unintended consequences. The Instrument imposes several obligations on the parties and entities it governs. Firstly, it mandates that subsection 641(1) of ASIC Instrument 2023/683 must be interpreted in a manner consistent with the Modernising Business Communications Act. This includes ensuring that subparagraphs 641(1)(aa)-(ab) are incorporated and that the provision operates over holders of derivatives. Secondly, it requires the correction of the typographical error in section 9 to ensure the Instrument's accuracy and effectiveness. These obligations are essential for maintaining the integrity and intended function of the Takeover Bids Instrument. Failure to comply with the provisions of the ASIC Corporations (Amendment) Instrument 2023/825 may result in civil and criminal consequences. However, the Explanatory Statement does not detail specific penalties for breaches. Typically, breaches of similar legislative instruments could lead to fines, legal action, or other enforcement measures. The precise penalties would depend on the nature and severity of the breach, as well as any relevant case law or guidelines. It is advisable for affected parties to consult with legal professionals to understand the full implications of non-compliance. The Instrument is made under subsection 655A(1) of the Corporations Act 2001 and is subject to the Acts Interpretation Act 1901, which allows for the amendment of legislative instruments. As a disallowable legislative instrument, it can be subject to disallowance under section 42 of the Legislation Act 2003. The compatibility of the Instrument with human rights is also addressed, with a Statement of Compatibility with Human Rights included in the Attachment to the Explanatory Statement, confirming that the Instrument is compatible with human rights and freedoms as recognised in relevant international instruments.

Area of Law: Corporate Law & Governance
Instrument: Legislative Instrument
Concepts: Definitions & Interpretation; Regulatory Standards; Enforcement Powers

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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.

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