ASIC Corporations (Exposure Period) Instrument 2026/90

Explanatory Statement

ASIC Corporations (Exposure Period) Instrument 2026/90

This is the Explanatory Statement for ASIC Corporations (Exposure Period) Instrument 2026/90 (Instrument).

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

Summary

1.              Chapter 6D of the Corporations Act 2001 (Act) establishes the statutory regime applying to fundraising through the offer of securities for issue or sale in Australia. It:
   1.            addresses the circumstances in which a person offering securities for issue or sale must lodge a disclosure document with ASIC and the relevant form, content and procedural requirements applying to that disclosure document;
   2.            sets out certain prohibited conduct in relation to fundraising activity;
   3.            outlines the circumstances in and extent to which persons may be liable for defective disclosure documents; and
   4.            provides certain statutory remedies for investors.
2.              Part 7.9 of the Act establishes the statutory regime applying to offers of financial products in Australia.
3.              The Instrument contains various exemptions from the exposure period requirements in Chapter 6D and Part 7.9 of the Act that apply to certain offers of securities and financial products. The exemptions apply in relation to:
   1.            supplementary and replacement documents; and
   2.            offers of securities in a class of securities that is quoted on a declared financial market (and offers of options to acquire such securities); and
   3.            offers of certain financial products that are able to be traded on a declared financial market.
4.              The Instrument provides relief, on largely the same terms as ASIC Corporations (Exposure Period) Instrument 2016/74 which was scheduled to expire under the Legislation Act 2003 on 1 April 2026 (Sunsetting Instrument).

Purpose of the instrument

1.              Where a disclosure document offering non-quoted securities is lodged, s727(3) imposes a waiting period of seven days from the date of lodgement during which a person must not accept applications for, transfer or issue, securities under the disclosure document (commonly referred to as the ‘exposure period’).
2.              Where a PDS is lodged offering financial products that are not able to be traded, s1016B imposes an exposure period of seven days from the date of lodgement during which a person must not accept applications for, transfer or issue, securities under the PDS.
3.              Both periods may be extended to up to 14 days by ASIC.

Supplementary and replacement disclosure documents

1.              Subsections 719(4) and (5) provide that—for the purposes of applying Chapter 6D—a ‘disclosure document’ is either the original document read together with the supplementary document, or the replacement document (as applicable) for events that occur after their lodgement. The exposure period imposed by s727(3) therefore applies to supplementary and replacement disclosure documents (even where the document being supplemented or replaced has already been subject to an exposure period).
2.              The Instrument provides minor and technical relief to ensure that the replacement and supplementary disclosure documents are not subject to a separate exposure period because the legislative policy is clearly framed around one exposure period only.

Quoted securities

1.          Arguably, s727(3) imposes an exposure period on all disclosure documents because—even where securities are in the same class as securities that are quoted on a declared financial market—the actual new securities offered will be non-quoted at the time the disclosure document is lodged (for example, under the listing rules of  ASX Limited, new securities are not automatically granted quotation even if they are in the same class as securities that are already quoted).
2.          The Instrument provides minor and technical relief to the effect that disclosure documents for an offer of securities that are in the same class as securities which at the time of the lodgement are quoted on a declared financial market are not subject to the exposure period imposed by s727(3).

Options to acquire quoted securities

1.          Chapter 6D of the Act recognises the intrinsic link between an option to acquire a quoted security and the quoted security itself.
2.          The Instrument extends exposure period relief to disclosure documents offering options to acquire quoted securities.

Products able to be traded on a declared financial market

1.          Arguably s1016B imposes an exposure period on all PDSs because—except where the PDS relates to a managed investment product of an Australian passport, or a foreign passport fund product—the new products offered will not be able to be traded at the time the PDS is lodged.  This is the case even if the financial products are in the same class as products able to be traded on a declared financial market.
2.          The Instrument  provides exposure period relief for offers under a PDS of a managed investment product or a security in a retail CCIV that is referable to a sub-fund of the CCIV, taking into account the slightly different drafting of the exposure period in s1016B (which imposes an exposure period on an offer of financial products not able to be traded as opposed to s727(3), which refers to non-quoted securities).

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.
2.          On 24 November 2025, ASIC published CS 36 Proposed remake of relief for fundraising and mergers and acquisitions (CS 36).
3.          On 24 November 2025, ASIC also published an accompanying news item ASIC proposes to remake relief for fundraising and mergers and acquisitions. 
4.          ASIC brought CS 36 to the attention of its external stakeholders through the Corporate Finance Update published November 2025.
5.          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.
2.          The Instrument sets out four exemptions:
   1.            three of which exempt an issuer from the operation of s727(3); and
   2.            one that exempts a responsible person from the operation of s1016B(1),

in certain circumstances, as set out below.

Supplementary and replacement disclosure documents

1.          A person who lodges a supplementary or replacement disclosure document after the expiration of the exposure period in relation to a disclosure document that is being supplemented or replaced does not have to comply with subsection 727(3) of the Act to the extent it would otherwise prohibit the person from accepting an application for, or issuing or transferring, securities offered under the updating document until the period of seven days after the lodgement of the supplementary or replacement document has ended.
2.          The Instrument does not exempt issuers from the operation of s727(3) as it applies to a supplementary or replacement disclosure document in circumstances where the supplementary or replacement is lodged at a point in time at which the document being supplemented or replaced is itself still subject to the exposure period. The relief for the supplementary or replacement disclosure document is activated once the exposure period (or extended exposure period) applying to the document being supplemented or replaced expires.

Quoted securities

1.          A person does not have to comply with the exposure period requirements in s727(3) if, at the time of lodgement of the disclosure document, the securities offered therein are in a class of securities that are quoted on a declared financial market.

Options to acquire quoted securities

1.          A person does not have to comply with subsection 727(3) of the Act in relation to an offer of options to acquire securities if, at the time of lodgement of the disclosure document for the options, the underlying securities are in a class of securities that are quoted on a declared financial market.

Products that are able to be traded on a declared financial market

1.          A responsible person does not have to comply with subsection 1016B(1) of the Act in relation to an application made in response to a Product Disclosure Statement for a managed investment product (the product) or a security (the product) in a retail CCIV that is referable to a sub-fund of the CCIV  if, at the time of lodgement of the Product Disclosure Statement, the product is in a class of products that are able to be traded on a declared financial market.
2.          The Instrument also clarifies that, for the purposes of s1016B(1), a class of products is not to be taken as not being able to be traded on a declared financial market merely because, at the time of lodgement of the Product Disclosure Statement, trading in that class has been suspended.

Repeal of Sunsetting Instrument

1.          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 this 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 anomalous outcomes that would be inconsistent with the intent of the primary law.
2.          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.
2.          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 741(1) and 1020F(1) of the Act.
2.          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.

1.          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.
2.          This 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 (Exposure Period) Instrument 2026/90

Overview

1. This instrument contains various exemptions from the exposure period requirements in Chapter 6D and Part 7.9 of the Corporations Act 2001 that apply to certain offers of securities and financial products. The exemptions apply in relation to:

(a)  supplementary and replacement documents; and

(b)  offers of securities in a class of securities that is quoted on a declared financial market (and offers of options to acquire such securities); and

(c) offers of certain financial products that are able to be traded on a declared 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.