ASIC Corporations (Foreign Securities—Incidental Advertising) Instrument 2025/615

Explanatory Statement

ASIC Corporations (Foreign Securities— Incidental Advertising) Instrument 2025/615

This is the Explanatory Statement for ASIC Corporations (Foreign Securities— Incidental Advertising) Instrument 2025/615 (Instrument).

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

Summary

1.              Subsection 734(2) and section 1018A of the Act contain a broad restriction on the advertising or publication of statements that directly or indirectly refer to offers of securities or financial products. The Act provides a number of exceptions to this broad restriction (see subsections 734(7) and 1018A(4)) but none of these exceptions relate specifically to statements that are primarily published outside Australia. 
2.              The Instrument gives relief from subsection 734(2) and section 1018A to authors and publishers who publish an advertisement or statement relating to foreign securities that is only incidentally published in Australia.

Purpose of the instrument

1.              The relief is broader than the similar exception in subsections 734(7) and 1018A(4) for news reports but it only applies where the author or publisher authorised publication outside this jurisdiction.
2.              The relief covers statements published in print media, radio and television broadcasts and electronic services operated on a commercial basis that are similar to newspapers, magazines or broadcasts.
3.              The Instrument provides relief, on largely the same terms as ASIC Corporations (Foreign Securities – Incidental Advertising) Instrument 2015/360 which was scheduled to expire on 1 October 2025. However, there is now a consolidated exemption for authors and publishers. 

Consultation

1.              On 9 July 2025, ASIC published simple consultation CS 25 Proposed remake of disclosure relief for offers of foreign securities and interests to Australian investors (CS 25) on its website. 
2.              On 9 July 2025, ASIC also published an accompanying news item ASIC proposes to remake disclosure relief for offers of foreign securities and interests to Australian investors.  
3.              ASIC brought CS 25 to the attention of its external stakeholders through the Corporate Finance Update published July 2025.
4.              ASIC did not receive any submissions in response to CS 25 (which closed 15 August 2025).

Operation of the instrument

1.          The Instrument commences on the day after it is registered on the Federal Register of Legislation.
2.          The Instrument exempts from subsection 734(2) and section 1018A of the Act a person who, as author or publisher, publishes an advertisement or statement about foreign securities in this jurisdiction where:
   1.           the person causes or authorises the publication of an advertisement or statement in relation to foreign securities outside this jurisdiction; and
   2.           the publication of the advertisement or statement in this jurisdiction is merely incidental to its publication outside this jurisdiction.

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 the matters contained in the Instrument only apply where publication in Australia is incidental to publication outside Australia. The Instrument provides administrative relief in circumstances where strict compliance with the primary legislation produces an unintended or unforeseen result. If the matters in the Instrument were to be inserted into the primary legislation, they would insert, into an already complex statutory framework, a set of specific provisions that would apply only to a relatively small group of entities. This would result in additional cost and unnecessary complexity for other users of the primary legislation.
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 the Instrument is made 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.
3.          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.          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 (Foreign Securities— Incidental Advertising) Instrument 2025/615

Overview

1. This instrument gives relief from subsection 734(2) and section 1018A of the Corporations Act 2001 to authors and publishers who publish an advertisement or statement relating to foreign securities that is only incidentally published in Australia.

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.