ASIC Corporations (Sale Offers by Controllers) Instrument 2026/95

Explanatory Statement

ASIC Corporations (Sale Offers by Controllers) Instrument 2026/95

This is the Explanatory Statement for ASIC Corporations (Sale Offers by Controllers) Instrument 2026/95(Instrument)

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

Summary

1.              Chapter 6D of the Corporations Act 2001 (Act) regulates the making of offers for the issue or sale of securities. It provides a disclosure and liability regime to ensure adequate investor protection in circumstances where an investor may not know all the information needed to make a decision whether to accept an offer of securities.
2.              In addition to requiring disclosure for the issue of securities, the provisions set out when an offer for the sale of securities needs disclosure to investors. The following sale offers need disclosure under Chapter 6D (unless an exemption applies):
   1.           an offer of a body’s securities for sale by the body’s controller where the securities are either not quoted or not offered for sale in the ordinary course of trading on a relevant financial market;
   2.           an offer of a body’s securities for sale within 12 months after their issue without disclosure where either the body issued the securities, or the person to whom they were issued acquired them, with the purpose of the securities being on-sold; and
   3.           an offer of a body’s securities for sale within 12 months after their sale without disclosure by the body’s controller where the securities were at the time of sale by the controller either not quoted or not offered for sale in the ordinary course of trading on a relevant financial market and either the controller sold the securities, or the person to whom they were sold acquired them, with the purpose of the securities being on-sold.
3.              Section 708A allows some sale offers to be made without disclosure.  Its scope was extended by the Corporations Legislation Amendment (Simpler Regulatory System) Act 2007 (SRS Act) to cover certain sale offers made within 12 months after a controller sale.
4.              The exemption applying to sale offers made within 12 months after a controller sale has various conditions that relate to the issue of the relevant securities.  The nature of these conditions means that it is more appropriate to apply them with reference to the controller sale rather than the issue of the securities.
5.              For example, the conditions require a “cleansing notice” to be given to the relevant market operator within 5 business days after the issue of the securities.  However, the securities may have been issued a number of years before the controller sale and before the relevant company was listed or a controller sale contemplated.  The condition operates more effectively if the notice must be given within 5 business days after the controller sale since the 12-month period during which the exemption may be relied on commences at the time of the controller sale rather than the time the securities were issued.
6.              Another example is that both the body whose securities are being sold and the controller are responsible for giving the cleansing notice to the relevant market operator, but only the body is liable for a defective notice. The condition operates more effectively if both the body and the controller may be liable for the defective notice.
7.              Part 7.9 regulates the making of offers for the issue or sale of financial products (other than securities).  It requires disclosure for sale offers of financial products in similar circumstances to those applying to sale offers of securities under Chapter 6D.
8.              Section 1012DA allows some sale offers to be made without disclosure.  Its scope was also extended by the SRS Act to cover certain sale offers made within 12 months after a controller sale.  The disclosure exemption applying to these sale offers has various conditions that relate to the issue of the relevant financial products.  As with the corresponding exemption under section 708A, the nature of these conditions means that it is more appropriate to apply them with reference to the controller sale rather than the issue of the financial products.
9.              The Instrument modifies various provisions of the Act to ensure the effective operation of the disclosure exemptions in sections 708A and 1012DA of the Act for certain sale offers made within 12 months of a sale by a controller.
10.          The Instrument provides relief on largely the same terms as ASIC Corporations (Sale Offers By Controllers) Instrument 2016/81 which was scheduled to expire under the Legislation Act 2003 on 1 April 2026 (Sunsetting Instrument).

Purpose of the instrument

1.          The Instrument modifies various provisions of the Act to ensure the effective operation of the disclosure exemptions in sections 708A and 1012DA of the Act for certain sale offers made within 12 months of a sale by a controller.

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 modifies section s708A, so that various conditions of the exemption in that section for sale offers of securities made within 12 months of a controller sale relate to the controller sale rather than the issue of the securities. 
3.          The Instrument makes similar modifications to the corresponding exemption for sale offers of financial products in section 1012DA.
4.          The Instrument also makes technical amendments to subsection 707(5) and paragraph 1012C(9)(b) to clarify, and give effect to, the intended operation of those provisions.
5.          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 he matters contained in the instrument only affect a relatively small subset of offers. 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 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.
4.          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
5.          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 (Sale Offers by Controllers) Instrument 2026/95

Overview

1. This instrument modifies various provisions of the Corporations Act 2001 to ensure the effective operation of the disclosure exemptions in sections 708A and 1012DA of the Act for certain sale offers made within 12 months of a sale by a controller.

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.