ASIC Corporations (Minimum Subscription and Quotation Conditions) Instrument 2026/87

Explanatory Statement

ASIC Corporations (Minimum Subscription and Quotation Conditions) Instrument 2026/87

This is the Explanatory Statement for ASIC Corporations (Minimum Subscription and Quotation Conditions) Instrument 2026/87 (Instrument).

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

Summary

1.              Chapter 6D of the Corporations Act 2001 (Act) sets out the legislative framework for the offer of securities for issue or sale under a disclosure document. Sections 723 and 724 of the Act impose certain requirements on issuers in relation to offers that contain a minimum subscription condition and/or quotation condition.
2.              The Instrument modifies Chapter 6D of the Act to enable issuers to extend the minimum subscription and quotation condition time periods (or remove or vary those conditions) for all applicants—by lodging a refresh document which includes certain information and statements and provides applicants with withdrawal rights.  
3.              The Instrument also modifies Chapter 6D to specify how the minimum subscription and quotation condition time periods are calculated in circumstances where there is a supplementary or replacement document or a refresh document.
4.              The Instrument provides relief, on largely the same terms as ASIC Corporations (Minimum Subscription and Quotation Conditions) Instrument 2016/70 which was scheduled to expire under the Legislation Act 2003 on 1 April 2026 (Sunsetting Instrument).

Purpose of the instrument

Minimum subscription and quotation conditions

1.              A minimum subscription condition is a statement in a disclosure document that securities will not be issued or transferred unless the issuer receives applications for a minimum number of securities or raises a minimum amount: s723(2).
2.              If a disclosure document contains a minimum subscription condition, the issuer cannot issue or transfer any securities until that condition is satisfied: s723(2).
3.              If the minimum subscription condition is not satisfied within four months of the date of the disclosure document (s724(1)(a)), the issuer must deal with any applications received in accordance with s724(2) of the Act.
4.              The quotation condition comprises two parts. If an issuer states or implies in a disclosure document that the offered securities are to be quoted on a financial market (whether in Australia or elsewhere), then the issuer must:

1.           apply to the financial market for permission to admit securities to quotation within seven days after the date of the disclosure document (the seven-day application condition): s723(3)(a); and

1.           have the securities admitted to quotation within three months after the date of the disclosure document (the three-month quotation condition): s723(3)(b).

1.              If either part of the quotation condition is not satisfied within the relevant time period (s724(1)(b)), the issuer must deal with any applications received in accordance with s724(2) of the Act.
2.          The Instrument enables issuers to extend the minimum subscription and quotation condition time periods (or remove or vary those conditions) for all applicants, by lodging a refresh document.
3.          Refresh document is defined in notional subsection 724(3H).  While a refresh document takes the form of a supplementary or replacement document, not every supplementary or replacement document will be a refresh document.
4.          A refresh document can only be lodged if an issuer has not issued or transferred securities under the offer.

Calculation of time periods

1.          Subsections 719(4)–(5) of the Act provide that, once lodged, a replacement disclosure document (or supplementary disclosure document, together with the original) is the ‘disclosure document’ for the application of Chapter 6D to events that occur after lodgement.
2.          In relation to applications, where an offer is subject to a minimum subscription or quotation condition, ss719(4)–(5) of the Act operate so that:

1.           the minimum subscription and quotation condition time periods are calculated based on the date of the original disclosure document for applications received in response to an offer under the original disclosure document; and

1.           the minimum subscription and quotation condition time periods are calculated based on the date of any supplementary or replacement disclosure document for applications received in response to an offer under that supplementary or replacement disclosure document.

1.          As a result, the time periods under s723(2)–(3) and 724 of the Act would apply inconsistently to applicants when a supplementary or replacement disclosure document was lodged before the expiry of the relevant time period (and applications were received in response to both the original and that supplementary or replacement disclosure document).
2.          The practical operation of s719, 723 and 724 of the Act can cause uncertainty for issuers and investors. ASIC is aware that current market practice is for issuers to calculate the minimum subscription and quotation condition time periods for all applicants by reference to the date of the original disclosure document, even where supplementary or replacement disclosure documents have been lodged. This practice is inconsistent with the operation of the Act.
3.          The Instrument clarifies how the time periods in s723(2)–(3) apply to supplementary and replacement disclosure documents generally, and how they apply differently to refresh documents.
4.          The relief operates so that the time periods applying to applications are synchronised and operate consistently, promoting certainty for issuers, investors and operators of any financial market on which the issuer seeks quotation of the securities that are the subject of the offer.

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.

Relief to provide refresh documents

1.          The Instrument modifies s723, by inserting notional subsections (2A) and (3A), and s724, by inserting notional subsections (3A) to (3H) (and making related amendments to s724(1)), to put in place a mechanism for issuers to extend the minimum subscription and quotation condition time periods, or remove or vary those conditions, by lodging a refresh document. A refresh document will take the form of a supplementary or replacement document.
2.          Subsection 724(3G) sets out the procedure for an issuer to lodge a refresh document.
3.          Under the modified provisions, an issuer who wishes to extend the minimum subscription condition or three-month quotation condition time periods (or remove or vary those conditions) must, before those time periods expire:

1.           lodge with ASIC the refresh document that sets out the prescribed information and statements; and

1.           give applicants the refresh document, accompanied by a one-month period in which applicants may withdraw their application and be repaid: s723(3G) and (3H).

1.          If the issuer does not take the above steps, and the minimum subscription condition or three-month quotation condition time periods expire before those conditions are met, subsections 724(3A) and 724(3C) require the issuer to repay the money received from applicants as soon as practicable after the end of the relevant period.
2.          The Instrument inserts new subsection 724(3E) so that the seven-day application period may be extended by the issuer lodging a refresh document and offering withdrawal rights before that period expires. If the issuer does not do so, and has not applied for quotation within seven days after the date of the disclosure document, the issuer must either:

1.           if they wish to continue with the offer—lodge a refresh document changing the seven-day application period and offering withdrawal rights; or
2.           repay the money received from applicants as soon as practicable.

1.          The seven-day application period cannot be extended after the three-month quotation condition time period has expired.
2.          Under the provisions as modified by the instrument:

1.           a single refresh document can change both the minimum subscription and quotation condition time periods;

1.           a refresh document can remove or vary the minimum subscription and quotation conditions (that is, vary the offer to which the refresh document relates, so that it is no longer subject to a minimum subscription or quotation condition, or subject to a different minimum subscription condition);

1.           a further refresh document can be used to extend the minimum subscription and quotation condition time periods, where those time periods have been previously extended by an earlier refresh document (up until the expiry date of the prospectus, which may be no later than 13 months after the date of the original prospectus: s711(6)); and

1.           a refresh document can also contain other information that would ordinarily be included in a supplementary or replacement disclosure document.

1.          In each of the above cases, s723(3G) requires that the refresh document be accompanied by a one-month period in which applicants may withdraw their application and be repaid. The instrument modifies the Act so that all applicants get an opportunity to withdraw each time an issuer lodges a refresh document.

Relief for calculating time periods

1.          The Instrument modifies s723 by inserting subsections 723(2A) and (3A) to make it clear that the minimum subscription and quotation condition time periods are calculated for all applicants based on the date of the original disclosure document, even where those applicants have applied under a supplementary or replacement disclosure document. This is the default position and applies unless a refresh document has been lodged.
2.          The instrument also modifies s723 and 724 to differentiate a refresh document from all other supplementary or replacement disclosure documents, and ensures that only refresh documents restart the time periods in s723(2)–(3) for both existing applications and subsequent applications: s723(2A) and (3A), s724(3G)(c) and (d).
3.          Where a refresh document has been lodged, the minimum subscription and quotation condition time periods for all applicants are based on the date of the refresh document: s724(3G)(c) and (d). The refresh document must be provided to all applicants each time a refresh document is lodged with ASIC: s724(3G)(b)(i).
4.          Where a refresh document is subsequently supplemented or replaced, the minimum subscription and quotation condition time periods for all applicants are based on the date of the most recent refresh document: s723(2A) and (3A).
5.          As a result, once a refresh document has been lodged, the following statutory protections apply to all applicants consistently—whether they applied under the original disclosure document (including as supplemented or replaced) or the refresh document—and relevant time periods are calculated by reference to the date of the refresh document:

1.           section 723(2), which provides that where an offer is subject to a minimum subscription condition, the issuer cannot issue or transfer any securities until that condition is satisfied; and

1.           section 723(3), which provides that where an offer is subject to a quotation condition and the relevant time period for meeting that condition has expired, any issue or transfer of securities is void, and the issuer must return the money it has received from applicants as soon as practicable.

Prescribed information and statements that must be included in a refresh document

1.          The Instrument modifies s724 by inserting s724(3H), which sets out the prescribed information and statements which must be included in a refresh document.
2.          The purpose of this prescribed disclosure is to ensure investors are provided with not only the new dates by which the minimum subscription or quotation conditions must be met, but also particular information regarding the progress of the offer to enable them to make an informed decision about whether to exercise their withdrawal rights.
3.          Paragraphs 723(3H)(c) and (d) require that all refresh documents must include statements to the effect that:

(a) applicants have one month to withdraw their application and be repaid, and set out the means by which this may be done; and

(b) the offer will remain open until at least the expiration of this one-month period.

1.          Paragraph s723(3H)(a) requires that, where the offer was subject to a minimum subscription condition, the following information and statements must be included in the refresh document:

(a) the number of securities for which applications have been received as at the date of the refresh document;

(b) details of any changes to the minimum subscription condition (including whether the terms of the offer are no longer subject to the condition); and

(c) if the terms of the offer remain subject to a minimum subscription condition (the new minimum subscription condition), the date by which the new minimum subscription condition must be satisfied (this must be no later than four months after the date of the refresh document).

1.          Paragraph s723(3H)(b) requires that, where the offer was subject to a quotation condition, the following information and statements must be included in the refresh document:

(a) whether an application for admission to quotation of the securities was made within seven days after the date of the original disclosure document for the offer (and, if no application was made, that an application will be made within seven days after the date of the refresh document);

(b) whether the securities have been admitted to quotation as at the date of the refresh document;

(c) whether the operator of the financial market has indicated that securities will not be admitted to quotation, or will be admitted to quotation subject to certain conditions being satisfied (in which case, a summary of the conditions that have not yet been satisfied must also be included);

(d) details of any changes to the quotation condition (including whether the terms of the offer are no longer subject to the condition);

(e) if the terms of the offer remain subject to a quotation condition (the new quotation condition), the date by which the new quotation condition must be satisfied (this must be no later than three months after the date of the refresh document); and

(f) the number of securities for which applications have been received as at the date of the refresh document.

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.

Strict liability offence

1.          The substantive effect of the strict liability regime imposed by subsections 724(3B), 724(3D) and 724(3F) (as notionally inserted by the Instrument) is to provide a concession from the existing statutory strict liability regime in subsections 724(1) and (1A) of the Act.
2.          Section 724 of the Act provides a series of procedural choices that are open to issuers if they have failed to satisfy, among other things, the minimum subscription and quotation condition time periods.  The procedural choices available are the same, irrespective of which condition has not been satisfied within the timeframes.  They are:
   1.           refund application monies;
   2.           offer withdrawal rights; or
   3.           issue/transfer the securities and offer withdrawal rights.
3.          Failure to implement at least one of these choices, is a contravention which can be prosecuted as a strict liability offence under subsection 724(1).
4.          The effect of the Instrument is to put in place a mechanism for issuers to extend the minimum subscription and quotation condition time periods (or remove or vary these conditions) through the refresh document and withdrawal rights procedure in subsection 724(3G).
5.          If the issuer does not take advantage of the procedure in subsection 724(3G), the remaining procedural choices open to the issuer are more limited and specific to the condition that has not been satisfied, namely:
   1.           where a minimum subscription condition is not satisfied within the required timeframe by the issuer, the issuer must follow a procedure of refunding application monies;
   2.           where the quotation admittance condition is not satisfied within the required timeframe by the issuer, the issuer must follow a procedure of refunding application monies;
   3.           where the quotation application condition is not satisfied by the issuer within the required timeframe, the issuer must either refund application monies or follow the required refresh and offer withdrawal rights procedure.
6.          A failure to follow these procedures will be a contravention which can be prosecuted as an offence of strict liability. Technically, there are three new offences of strict liability because different procedural requirements/choices will apply depending on which kind of condition has not been satisfied. However, in substance, there is still only a single strict liability offence for a failure to follow the required procedure and so, to that extent, the Instrument replicates the existing position under subsections 724(1) and (1A) of the Act.
7.          Consistent with paragraph 2.2.6 of the Attorney-General’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers:
   1.           the new offences are not punishable by imprisonment and are punishable by a fine of up to 20 penalty units for an individual (200 penalty units for a body corporate): see sections 1311C and 1311F of the Act; and  
   2.           consistent with the existing strict liability regime in subsections 724(1) and (1A) of the Act, the punishment of the offences is likely to significantly enhance the integrity of financial and corporations legislation in relation to prospectuses and similar disclosure documents.

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 the Instrument:
   1.           contains technical detail which would otherwise introduce unnecessary complexity to the primary legislation; and
   2.           provides administrative relief in circumstances where strict compliance with the primary legislation produces an unintended or unforeseen result.
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 subsection 741(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.          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.
4.          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 (Minimum Subscription and Quotation Conditions) Instrument 2026/87

Overview

1.              This instrument modifies Chapter 6D of the Corporations Act 2001 to enable issuers to extend the minimum subscription and quotation condition time periods (or remove or vary those conditions) for all applicants—by lodging a refresh document which includes certain information and statement and provides applicants with withdrawal rights.
2.              This instrument also modifies Chapter 6D to specify how the minimum subscription and quotation condition time periods are calculated in circumstances where there is a supplementary or replacement document or a refresh document.

Assessment of human rights implications

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

Conclusion

4. 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.