ASIC Corporations (Consents to Statements) Instrument 2026/89

Explanatory Statement

ASIC Corporations (Consents to Statements) Instrument 2026/89

This is the Explanatory Statement for ASIC Corporations (Consents to Statements) Instrument 2026/89 (Instrument).

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

Summary

1.              Chapter 6 of the Corporations Act 2001 (Act) relates to takeover bids and Chapter 6D relates to fundraising. Part 7.9 deals with financial product disclosure.
2.              The Act allows a bidder’s and target’s statement in relation to a takeover bid under Chapter 6, a fundraising disclosure document and a CSF offer document under Chapter 6D and a product disclosure statement under Part 7.9, to include statements attributed to, or based on a statement made by another person (e.g. an expert or advisor), but only if:
   1.           the person has consented to the statement being included in the document, or accompanying it, in the form and context in which it is included;
   2.           the document states that the person has given this consent; and
   3.           the person has not withdrawn this consent before the document is lodged with ASIC.
3.              This instrument modifies the Act to allow disclosure documents, CSF offer documents, Product Disclosure Statements, bidder’s statements and target’s statements to include certain statements made by a person, without having to obtain the consent of the person.
4.              The modifications apply to certain statements made by official persons or in books, journals or comparable publications; certain historical geological data; and certain trading data relating to trading on an approved financial market.
5.              The Instrument provides relief, on largely the same terms as ASIC Corporations (Consents to Statements) Instrument 2016/72 which was scheduled to expire under the Legislation Act 2003 on 1 April 2026 (Sunsetting Instrument).

Purpose of the instrument

1.              An issuer, bidder or a target is required under the Act to obtain the consent of a person who makes a statement before using the statement in the disclosure document, CSF offer document, product disclosure statement or the bidder’s or target’s statement. This enables the person to:
   1.           control or limit their liability; and
   2.           control the overall effect of the statement.
2.              The Instrument modifies the consent requirements in a selection of discrete circumstances set out below.

Statements made by government officials, or those published in books or journals

1.              The Instrument allows an issuer, company, bidder or target to include the following statements made by other persons in their disclosure document, CSF offer document, product disclosure statement or bidder’s or target’s statement without having to obtain the person’s consent:

(a) a statement made by an official person;

(b) a statement that is, or is an extract from, a public official document; or

(c) a statement, or an extract from, a statement that has already been published in a book, journal, or comparable publication.

1.              Without this relief, issuers, bidders or targets would be required to obtain consent to refer to the statements of government officials and government publications—for example, publications of the Australian Bureau of Statistics or the Commonwealth Bureau of Meteorology. To obtain the consent of Government to use such a general statement may be onerous for the issuer, bidder or target. There is a low risk of liability for the Government in these circumstances.

1.          The Crown in right of the Commonwealth may be exposed to civil liability for damages for a misleading statement included in a disclosure document, a bidder’s or target’s statement: subsections 5A(3) and (5) of the Act. However, liability is unlikely if the statement was not made for the purpose of being included in the disclosure document, bidder’s or target’s statement.

1.          Similarly, with regard to books, journals and comparable publications, it is generally impractical for the issuer, bidder or target to obtain the consent of the author of the statement, if the statement is not specific to the offer, issuer, bid, bidder, target or their businesses. There is also a low risk of liability for the author in this case.

Historical geological data

1.          A disclosure document, CSF offer document, product disclosure statement, bidder’s or target’s statements relating to mining tenements will often contain an independent technical assessment or valuation of the mining tenements. Inherent in the preparation of the reports is the need to refer to previous results and assessments on the mining tenements (historical results). In many cases, the historical results are obtained from an open file register or website of a government department, authority or agency, or an open register or website of the operator of a declared financial market. The historical results are often obtained from geologists’ reports commissioned by previous holders of the tenements. The Instrument gives relief from the consent requirement for a geologist’s report dealing with the estimation, assessment or evaluation of minerals in a disclosure document, CSF offer document, product disclosure statement, bidder’s statement or target’s statement to cite a previous geological report.

Trading data

1.          Where issuers, bidders or targets seek to include in a disclosure document, CSF offer document, product disclosure statement, bidder’s statement or target’s statement (as applicable) trading data relating to trading on an approved financial market (the definition of approved financial market is set out in the Instrument and includes, but is not limited to, a declared financial market), the consent of the relevant market operator or of any other party who provided the trading data (e.g. Bloomberg, Reuters or IRESS) is required. This is impractical. We give relief because the risk of trading data being misleading or inaccurate is limited. It is also unlikely that the market data provider would be liable.

Consultation

1.          ASIC determined that the relief in the Sunsetting Instrument was operating effectively and efficiently and continues to form a necessary and useful part of the legislative framework.

1.          On 24 November 2025, ASIC published CS 36 Proposed remake of relief for fundraising and mergers and acquisitions (CS 36).

1.          On 24 November 2025, ASIC also published an accompanying news item ASIC proposes to remake relief for fundraising and mergers and acquisitions.  

1.          ASIC brought CS 36 to the attention of its external stakeholders through the Corporate Finance Update published November 2025.

1.          ASIC did not receive any submissions about the Instrument in response to CS 36 (which closed 19 December 2025).

Operation of the instrument

1.          The Instrument commences on the later of:
   1.           the day after it is registered on the Federal Register of Legislation; and
   2.           1 April 2026.

Statements made by government officials, or those published in books or journals

1.          The Instrument modifies the Act to give relief such that consent does not need to be obtained in relation to a statement in a disclosure document, product disclosure statement, bidder’s or target’s statement that:
   1.           fairly represents what purports to be a statement made by an official person; or
   2.           is a correct and fair copy of, or extract from, what purports to be a public official document; or
   3.           is a correct and fair copy of, or extract from, a statement which has already been published in a book, journal or comparable publication.

1.          For the relief to apply, the statement must not have been made in connection with:

1.            the particular fundraising or in connection with the issuer’s business or property (in the case of a disclosure document);

1.            the responsible person or their business, or the promotion the subject of the product disclosure statement or any property to be acquired by the responsible person which is the subject of the product disclosure statement (in the case of a product disclosure statement); or

1.            the takeover bid or the business or property of the bidder or target (in the case of a bidder’s or target’s statement).

1.          For the purposes of the relief, the following paragraphs define and explain the various terms:

‘Official person’

1.          The term ‘official person’ contemplates a government official or staff member of a government department, authority or agency. A statement made by an official person refers to a statement made by such a person in their capacity as an official person and that reflects the view of the relevant government body.  Summaries of reports lodged by third parties are not covered as they do not state the views of the relevant government body.

‘Public official document’

1.          Guidance on the meaning of the phrase ‘public official document’ can be found in cases that have considered the term ‘public document’ in an evidentiary context. A public document is one made by a public official as the result of a public inquiry and is available to the public: Lord Blackburn in Sturla v Freccia [1874–80] All ER Rep 657.

1.          For the purposes of the relief, the term ‘public official document’ contemplates a document that is:

1.            made by an ‘official person’ as the result of carrying out their duties or exercising their powers in their capacity as an ‘official person’;

1.            made public; and

1.            reflects the view of the relevant government body.

1.          Documents do not become public official documents merely because they have been lodged with a government department or statutory authority and are maintained for public access on a registry by the department or authority.

‘Book, journal, or comparable publication’

1.          For the purposes of the relief, the phrase ‘book, journal or comparable publication’ includes references to statements in a form, and of a standard, similar to that normally contained in a book or journal, but which are made available through the internet or other electronic means. This excludes, for example, references to statements made in internet chat rooms, news groups and homepages with unaccountable content (i.e. with anonymous participants or without editorial control).

Historical geological data

1.          The Instrument modifies the Act to give relief from the consent requirement for a geologist’s report dealing with the estimation, assessment or evaluation of minerals in a disclosure document, CSF offer document, product disclosure statement, bidder’s statement or target’s statement to cite a previous geological report where:

1.           the current geologist is either (or both) a Member or Fellow of the Australasian Institute of Mining and Metallurgy (AusIMM) or the Australian Institute of Geoscientists (AIG) with a minimum of five years of experience relevant to estimating, assessing and evaluating the resources the subject of the report;
2.           the statement is made in, or based on a statement made in, the previous geological report and that previous geological report is publicly available (with or without payment of a fee) from:
   1.             a government department, authority or agency of an Australian state or territory or of the Commonwealth; or
   2.          the operator of a declared financial market;
3.           in the case of a disclosure document, CSF offer document or product disclosure statement:
   1.             the previous geological report was not prepared in connection with the preparation of the disclosure document, CSF offer document or product disclosure statement;
   2.          the previous geological report was not prepared or commissioned by a person with or from whom the issuer (or any associate of the issuer):
      1.            has a shared interest in the tenement that is the subject of the disclosure document, CSF offer document or product disclosure statement; or
      2.             has purchased the tenement that is the subject of the disclosure document, CSF offer document or product disclosure statement;
4.           in the case of a bidder’s statement, the previous report was not prepared in connection with the takeover bid and was not prepared or commissioned by a person:
   1.             who is the bidder or an associate; or
   2.          with whom the bidder, or an associate, has shared an interest in a tenement the subject of the current report; or
   3.        from whom the bidder, or an associate, has purchased the tenement; or
   4.         where securities are offered as consideration under the bid and the bidder, or an associate, is not the body that has issued or will issue the securities:
      1.            with whom the issuer, or an associate, has shared an interest in a tenement that is covered by the current report; or
      2.             from whom the issuer, or an associate, has purchased the tenement;
5.           in the case of a target’s statement, the previous report was not prepared in connection with the preparation of the target’s statement and was not prepared or commissioned by a person:
   1.             who is the target or an associate; or
   2.          with whom the target, or an associate, has shared an interest in a tenement the subject of the current report; or
   3.        from whom the target, or an associate, has purchased the tenement; or
   4.         where securities are offered as consideration under the bid and the bidder, or an associate, is not the body that has issued or will issue the securities:
      1.            with whom the issuer, or an associate, has shared an interest in a tenement that is covered by the current report; or
      2.             from whom the issuer, or an associate, has purchased the tenement; and
6.            the current geological report states, close to the first occurring reference to the previous geological report, the name of the author of the previous report and that the author of the previous report has not consented to its use in the current report.

Trading data

1.          The Instrument provides relief from the consent requirement in circumstances where the information included in the disclosure document, CSF offer document, product disclosure statement, bidder’s statement or target’s statement is quantitative data on financial product trading prices and volumes quoted on an approved financial market (the definition of an approved financial market is set out in the Instrument).

1.          The disclosure document, product disclosure statement, target’s statement or bidder’s statement must state, close to the trading data reference:

1.            the name of the person who prepared the trading data; and
2.           that the person who prepared the trading data has not consented to the use of the reference in the bidder’s statement or the accompanying document (as applicable).

Repeal of Sunsetting Instrument

1.          Finally, the Instrument repeals the Sunsetting Instrument (rather than leave it to expire/sunset) to avoid any doubt that it no longer continues in force.

Legislative instrument and primary legislation

1.          The subject matter and policy implemented by the Instrument is more appropriate for a legislative instrument rather than primary legislation because:

1.           the instrument contains technical detail which would otherwise introduce unnecessary complexity to the primary legislation; and
2.           the instrument provides administrative relief in circumstances where strict compliance with the primary legislation produces an unintended or unforeseen result [produces anomalous outcomes that would be inconsistent with the intent of the primary law].

1.          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 Instrument.

Duration of the instrument

1.          The Instrument will expire after 5 years.

1.          This allows sufficient time for the Government and for Parliament to determine whether to amend the Act or Regulations to include the relief.

Legislative authority

1.          ASIC makes this Instrument under subsections 655A(1), 741(1) and 1020F(1) of the Corporations Act 2001 (the Act).

1.          Subsection 655A(1) provides that ASIC may:

1.           exempt a person from a provision of Chapter 6; or

1.           declare that Chapter 6 applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration.

1.          Subsection 655A(2) provides that in deciding whether to give the exemption or declaration, ASIC must consider the purposes of Ch 6 set out in section 602.  
2.          ASIC has considered section 602 and concluded that the declarations in this Instrument are:
   1.           not inconsistent with, and do not undermine, the purposes of Ch 6; and
   2.           appropriate.  

1.          Subsection 741(1) provides that ASIC may:

1.           exempt a person from a provision of Chapter 6D; or
2.           declare that Chapter 6D applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration.

1.          Subsection 1020F(1) provides that ASIC may:
   1.           exempt a person or class of persons from all or specified provisions of Part 7.9; or
   2.           exempt a financial product or a class of financial products from all or specified provisions of Part 7.9; or
   3.           declare that Part 7.9 applies in relation to a person or a financial product, or a class of persons or financial products, as if specified provisions were omitted, modified or varied as specified in the declaration.
2.          Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), 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.
3.          The Instrument is disallowable under section 42 of the Legislation Act 2003

Statement of Compatibility with Human Rights 

1.          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 (Consents to Statements) Instrument 2026/89

Overview

1. This instrument modifies the Corporations Act 2001 to allow disclosure documents, CSF offer documents, Product Disclosure Statements, bidder’s statements and target’s statements to include certain statements made by a person, without having to obtain the consent of the person. The modifications apply to certain statements made by official persons or in books, journals or comparable publications; certain historical geological data; and certain trading data relating to trading on an approved financial market.

Assessment of human rights implications

2. This instrument does not engage any of the applicable rights or freedoms. 

Conclusion

3. This 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.