ASIC Corporations (Miscellaneous Technical Relief) Instrument 2026/115

Explanatory Statement

ASIC Corporations (Miscellaneous Technical Relief) Instrument 2026/115

This is the Explanatory Statement for ASIC Corporations (Miscellaneous Technical Relief) Instrument 2026/115 (Instrument).

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

Summary

1.              The Instrument makes technical and machinery changes to provisions in the Corporations Act 2001 (Act) relating to:

1.    those who are exempt from the requirement to hold an Australian financial services (AFS) licence under subsection 911A(2) of the Act, to extend the operation of those provisions to persons who are exempt from the requirement to hold an AFS licence under subsection 926A(2), so that these provisions apply in the same way irrespective of the power used by ASIC to grant the exemption; and
2.    the lodgement or publication of supplementary or replacement documents under Chapter 6, Chapter 6D and Part 7.9 of the Act, to extend the operation of those provisions so that references to the original document in an ASIC instrument include any supplementary or replacement documents lodged or published after the original.

Purpose of the instrument

1.              The Instrument remakes relief previously provided under ASIC Corporations (Miscellaneous Technical Relief) Instrument 2015/1115 (Instrument 2015/1115).

Provisions relating to persons exempt from the requirement to hold an AFS licence

1.              Subsection 911A(1) of the Act provides that a person who carries on a financial services business in this jurisdiction must hold an AFS licence covering the provision of the financial services.
2.              ASIC has two sources of power in Part 7.6 of the Act to grant an exemption to a person or a class of persons from the requirement to hold an AFS licence covering the provision of financial services. The sources of power are:

1.    paragraphs 911A(2)(h) and (l) of the Act; and
2.    subsection 926A(2) of the Act.

1.              Paragraph 911A(2)(a) of the Act exempts a person from the requirement to hold an AFS licence for financial services they provide as representative of second person who carries on a financial services business and who either holds an AFS licence or is exempt under subsection 911A(2) of the Act. However, this exemption does not apply if the second person is exempt pursuant to an exemption made by ASIC under subsection 926A(2) of the Act. ASIC considers this to be an anomaly.
2.              Subsection 911B(1) of the Act provides that a person (the provider) must only provide a financial service in this jurisdiction on behalf of another person (the principal) in certain circumstances. Under paragraph 911B(1)(e), one such circumstance is where, if the principal (rather than the provider) provided the service, the principal would not need an AFS licence because the provision of the financial service would be exempt under subsection 911A(2) of the Act. This does not cover licensing exemptions granted by ASIC under subsection 926A(2) of the Act. ASIC considers this to be an anomaly.
3.              Part 7.9 of the Act imposes various obligations on ‘regulated persons’ in relation to issues, sales and recommendations of financial products to a retail client. Section 1011B of the Act defines ‘regulated person’. The definition includes financial services licensees, together with persons who are not required to hold an AFS licence because the person is covered by an exemption specified by ASIC for the purposes of paragraph 911A(2)(l) of the Act. The definition does not extend to a person who is not required to hold an AFS licence because the person is covered by an exemption under subsection 926A(2) of the Act. ASIC considers this to be an anomaly.
4.              The Instrument addresses the above anomalies by modifying provisions of the Act relating to persons exempt from the requirement to hold an AFS licence to ensure that these provisions operate consistently irrespective of the power used by ASIC to grant the exemption.

Consequences of lodging or publishing certain supplementary and replacement documents

1.              Chapter 6 of the Act regulates takeover bids, including requirements for bidder’s and target’s statements. Section 646 of the Act provides that if a supplementary bidder’s or target’s statement is lodged with ASIC, for the purposes of the application of Chapters 6 and 6B to events that occur after lodgement, the bidder’s or target’s statement is taken to be the original statement together with the supplementary statement.
2.          Chapter 6D of the Act regulates prospectuses and other disclosure documents used in relation to offers of shares and other securities. Subsections 719(4) and (5) of the Act provide that if a supplementary or replacement document is lodged with ASIC, the disclosure document is taken to be the disclosure document as supplemented or replaced for the purposes of the application of Chapter 6D to events that occur after lodgement. Subsections 719A(7) to (9) contain similar provisions dealing with the effect of lodging supplementary and replacement documents in relation to two-part simple corporate bonds prospectuses. Subsections 738W(8) and (9) of the Act contain similar provisions dealing with the effect of publishing supplementary and replacement crowd-sourced funding offer documents.
3.          Part 7.9 of the Act contains requirements in relation to issues, sales and recommendations of financial products to retail investors. In particular, a Product Disclosure Statement (PDS) is generally required to be provided in such circumstances. Subdivision DA of Division 2 of Part 7.9 of the Act enables a Replacement Product Disclosure Statement (Replacement PDS) to be used in relation to an offer of stapled securities. Section 1014J provides that if a Replacement PDS is prepared and lodged with ASIC, a reference to a PDS is taken to be a reference to the Replacement PDS for the purposes of the application of ‘this Act’ to events that occur after the lodgement.
4.          Section 9 of the Act defines ‘this Act’ to include ‘the regulations, the Insolvency Practice Rules and the Passport Rules for this jurisdiction’. Given that the definition of ‘this Act’ does not include ASIC instruments, there may be some uncertainty as to whether references to disclosure documents, bidder’s and target’s statements and PDSs in ASIC instruments are taken to be references to those documents as supplemented or replaced in relation to events that occur after lodgement or publication of a supplementary or replacement document.
5.          The Instrument clarifies that references in ASIC instruments to disclosure documents, bidder’s and target’s statements and PDSs operate in the same way as references to those documents in the Act in circumstances where the relevant document has been supplemented or replaced.
6.          Disclosure documents, bidder’s and target’s statements and PDSs provide critical information to investors. ASIC considers that the modifications to the Act referred to above will promote investors receiving up-to-date information where such documents have been supplemented or replaced.

Consideration of the purposes of Chapter 6

1.          Subsection 655A(1) of the Act provides that ASIC may exempt a person from a provision of Chapter 6 or declare that Chapter 6 applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration. Subsection 655A(2) of the Act provides that, in deciding whether to give an exemption or declaration under subsection 655A(1) of the Act, ASIC must consider the purposes of Chapter 6 as set out in section 602 of the Act.
2.          ASIC considers that the modification to section 646 will promote the purposes of Chapter 6 set out in section 602 of the Act. The modification will clarify that requirements in ASIC instruments that relate to a bidder’s or target’s statement operate in relation to the bidder’s or target’s statements as supplemented. This will promote the acquisition of control over voting shares in listed entities taking place in an efficient, competitive and informed market and help ensure that holders of shares or interests are given enough information to enable them to assess the merits of a proposal to acquire a substantial interest in the relevant entity: see paragraphs 602(a) and (b) of the Act.
3.          The Instrument also repeals Instrument 2015/1115, which is due to sunset on 1 April 2026.

Consultation

1.          Before making the Instrument, ASIC conducted a streamlined public consultation inviting feedback on a proposal to remake the relief under Instrument 2015/1115 as set out in CS 41 Proposed remake of miscellaneous technical relief and updated credit disclosure instruments. The consultation ran from 4 December 2025 to 23 January 2026 and involved the publication of a news item and a consultation webpage on ASIC’s website, attaching a draft legislative instrument.
2.          Under the proposal, the relief in ASIC Instrument 2015/1115 remained largely unchanged, with only minor changes for style and clarity. ASIC did not receive any submissions, and no substantive changes were made to the draft legislative instrument following the consultation.

Operation of the instrument

Part 1 – Preliminary

1.          Section 1 of the Instrument specifies the title of the Instrument.
2.          Section 2 of the Instrument specifies that the Instrument commences on the date after it is registered on the Federal Register of Legislation.
3.          Section 3 of the Instrument specifies that it is made under subsections 655A(1), 741(1), 926A(2) and 1020F(1) of the Act.
4.          Section 4 of the Instrument provides that each instrument included in a Schedule to the Instrument is amended or repealed. Schedule 1 to the Instrument repeals ASIC Instrument 2015/1115.
5.          Section 5 of the Instrument provides a simplified outline for the Instrument. Its purpose is to assist readers in understanding the substantive provisions. However, the outline is not intended to be comprehensive. Readers should rely on the substantive provisions when considering the Instrument’s effect.
6.          Section 6 of the Instrument specifies definitions to be relied upon in the Instrument.

Part 2 – Declaration

1.          Subsection 7(1) of the Instrument modifies paragraph 911A(2)(a) and subsection 911B(1) of the Act to extend these provisions so that they apply in relation to an exemption granted by ASIC under subsection 926A(2) of the Act in the same way as they apply in relation to an exemption granted by ASIC under subsection 911A(2) of the Act.
2.          Subsection 7(2) of the Instrument inserts a new notional subparagraph into the definition of regulated person in section 1011B of the Act, extending the definition to include persons who are not required to hold an AFS licence because of an exemption granted by ASIC under subsection 926A(2) of the Act.
3.          Section 8 of the Instrument modifies section 646, subsections 719(4) and (5), 719A(7) to (9), and 738W(8) and (9) and section 1014J of the Act. These modifications clarify that references in ASIC instruments to disclosure documents, bidder’s and target’s statements and PDSs are taken, for the purposes of the application of an ASIC instrument to events that occur after lodgement or publication of a supplementary or replacement document, to be a reference to the original document as supplemented or to the replacement document (as the case may be). This is consistent with the treatment of references to such documents in the Act.

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 it provides relief where strict compliance with the primary legislation produces anomalous outcomes that would be inconsistent with the intent of the primary law.
2.          The Instrument is made under powers specifically delegated to ASIC to modify or affect the operation of the Act to provide a tailored and flexible regulatory environment that is fit for purpose. 
3.          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 self-repeals at the start of 1 April 2031. This allows sufficient time for the Government and for Parliament to determine whether to amend the primary legislation to incorporate the relief in the Instrument.

Legislative authority

1.          The Instrument is a disallowable instrument made under subsections 655A(1), 741(1), 926A(2) and 1020F(1) of the Act.
2.          Subsection 655A(1) of the Act provides that ASIC may, among other things, declare that Chapter 6 of the Act applies to all persons as if specified provisions were omitted, modified or varied as specified in the declaration.
3.          Subsection 741(1) of the Act provides that ASIC may, among other things, declare that Chapter 6D of the Act applies to all persons as if specified provisions were omitted, modified or varied as specified in the declaration.
4.          Subsection 926A(2) of the Act provides that ASIC may, among other things, declare that Part 7.6 of the Act (other than Divisions 4 and 8) applies in relation to a class of persons as if specified provisions were omitted, modified or varied as specified in the declaration.
5.          Subsection 1020F(1) of the Act provides that ASIC may, among other things, declare that Part 7.9 of the Act applies in relation to a class of persons as if specified provisions were omitted, modified or varied as specified in the declaration.

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 (Miscellaneous Technical Relief) Instrument 2026/115

Overview

1. ASIC has two independent sources of power in the Corporations Act 2001 (the Act) to grant an exemption to a person from the requirement to hold an Australian financial services (AFS) licence covering the provision of financial services.

2. Paragraph 911A(2)(a), subsection 911B(1) and the definition of ‘regulated person’ in section 1011B of the Act operate differently depending on the power used by ASIC to grant an exemption from the AFS licensing requirement. ASIC considers this to be an anomaly.

3. ASIC Corporations (Miscellaneous Technical Relief) Instrument 2026/115 (the Instrument) modifies the Act to ensure that these provisions operate consistently, irrespective of the source of power used by ASIC to grant an AFS licensing exemption.

4. Under the Act, references to disclosure documents, bidder’s and target’s statements and Product Disclosure Statements (PDSs) are taken to be references to the document as supplemented or replaced for the purposes of the application of the Act to events that occur after lodgement or publication of a replacement or supplementary document.

5. The Instrument modifies the Act to clarify that references in ASIC instruments to disclosure documents, bidder’s and target’s statements and PDSs also operate in this way where the relevant document has been supplemented or replaced.

Assessment of human rights implications

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

Conclusion

7. 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.