ASIC Corporations (IDPS—Relevant Interests) Instrument 2026/100

Explanatory Statement

ASIC Corporations (IDPS—Relevant Interests) Instrument 2026/100

This is the Explanatory Statement for ASIC Corporations (IDPS—Relevant Interests) Instrument 2026/100 (Instrument).

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

Summary

1.              Investor Directed Portfolio Services (IDPS) are unregistered managed investment schemes for holding and dealing with one or more investments selected by investors.  In broad terms, they provide custodial, transactional and consolidated reporting services which operate as a master fund, master trust or wrap service. They are designed to allow clients to manage and retain control of their investment portfolios with consolidated tax, transaction and performance reporting.
2.              IDPSs are operated by IDPS “operators”, which are defined in ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669 as "a public company that is a holder of an Australian financial services licence that is authorised to operate an IDPS and who provides an IDPS or a function that forms part of the IDPS".
3.              IDPS-like schemes operate similarly to IDPSs in that investment decisions are generally made in accordance with specific member instructions.  They differ in that they are registered managed investment schemes and as a result the responsible entities that operate them have different, slightly wider powers than IDPS operators.
4.              ASIC's policy on IDPSs and IDPS-like schemes generally is set out in Regulatory Guide 148 Platforms that are managed investment schemes and nominee and custody services (RG 148).
5.              IDPS operators have the power to deal with securities, but only on the instructions of their clients. Although they have very limited control over the securities held through the IDPS, without relief, operators of an IDPS will have a relevant interest in the securities held through the IDPS, which may lead to a technical breach of Chapter 6 of the Corporations Act 2001 (Act).
6.              The Instrument provides relief, on largely the same terms as ASIC Corporations (IDPS—Relevant Interests) Instrument 2015/1067 which was scheduled to expire under the Legislation Act 2003 on 1 April 2026 (Sunsetting Instrument).

Purpose of the instrument

1.              The Instrument modifies section 609 so that the operator of an IDPS or a financial services licensee or their representative involved in the operation of an IDPS do not a relevant interest in securities held through the IDPS merely because they hold the securities or have a discretion in respect of their disposal.
2.              The Instrument only applies where the IDPS Operator has the benefit of ASIC Instrument 2023/669. 
3.              The relief is appropriate because ASIC considers that operators of an IDPS have powers over securities held through the IDPS so limited that they should be treated in a manner similar to a bare trustee.
4.          The relief is deliberately not extended to operators of IDPS-like schemes because operators of these schemes generally have wider powers over securities held through the schemes.

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.           day after it is registered on the Federal Register of Legislation; and
   2.           1 April 2026.
2.          The Instrument modifies section 609 of the Act so that the operator of an IDPS or a financial services licensee or their representative involved in the operation of an IDPS do not a relevant interest in securities held through the IDPS merely because they hold the securities or have a discretion in respect of their disposal. .
3.          The Instrument also 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 the matters contained in the Instrument only affect a relatively small subset of entities. 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 this Instrument under subsections 655A(1) and 673(1) of the Act.
2.          Subsection 655A(1) provides that ASIC may:
   1.           exempt a person from a provision of Chapter 6; or
   2.           declare that Chapter 6 applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration.
3.          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.  
4.           Subsection 673(1) provides that ASIC may:
   1.            exempt a person from a provision of Chapter 6C; or
   2.            declare that this Chapter applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration.
5.           Subsection 673(2) provides that in deciding whether to give the exemption or declaration, ASIC must consider the purposes of Ch 6 as set out in section 602.
6.          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.
7.          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. 
8.          This Instrument is disallowable under section 42 of the Legislation Act 2003.

Statement of Compatibility with Human Rights 

20. 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 (IDPS—Relevant Interests) Instrument 2026/100

Overview

1. This instrument modifies section 609 of the Corporations Act 2001 so that the operator of an investor directed portfolio service (also known as an IDPS) or a financial services licensee or their representative involved in the operation of an IDPS do not a relevant interest in securities held through the IDPS merely because they hold the securities or have a discretion in respect of their disposal.

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.