ASIC Corporations (Unsolicited Offers—Foreign Bids) Instrument 2026/103

Explanatory Statement

ASIC Corporations (Unsolicited Offers—Foreign Bids) Instrument 2026/103

This is the Explanatory Statement for ASIC Corporations (Unsolicited Offers—Foreign Bids) Instrument 2026/103 (Instrument).

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

Summary

1.              Division 5A of Part 7.9 of the Corporations Act 2001 (Act) regulates unsolicited offers to purchase financial products off-market. These offers generally require an offer document which, among other things, sets out in a clear, concise and effective manner, certain information about:

1.           the market price of the financial product; or
2.           if applicable:

1.             a fair estimate of the value of the financial product as at the date of the offer; and

1.          an explanation of the basis on which the estimate was made.

1.              The value of off market financial products can be uncertain if there is no independently verifiable price.
2.              The purpose of Division 5A of Part 7.9 (Division) is to provide a disclosure regime to ensure adequate investor protections in situations where an investor may not know the value of their financial products. The Division is primarily (but not solely) aimed at stopping 'low ball offers' being made to unsophisticated investors.
3.              The Instrument provides an exemption from the Division for unsolicited offers of securities that are made under foreign takeover bids or foreign compromises or arrangements regulated in certain foreign jurisdictions .
4.              The Instrument provides relief, on largely the same terms as ASIC Corporations (Unsolicited Offers—Foreign Bids) Instrument 2015/1070 which was scheduled to expire under the Legislation Act 2003 on 1 April 2026 (Sunsetting Instrument).
5.              However, in the Instrument, the definition of “eligible foreign country” now includes Belgium, Norway and Portugal.

Purpose of the instrument

1.              The purpose of the Instrument is to facilitate international comity by ensuring Australian legislation does not unreasonably impede a bona fide and otherwise lawful takeover bid or compromise or arrangement for a foreign company, for example, where a foreign company which may only have a small percentage of Australian shareholders is regulated in a foreign jurisdiction with comparable regulatory requirements to Australia.
2.              Whilst the Division specifically prescribes the way in which unsolicited offers to purchase a financial product must be made, Paragraph 1019D(1)(d) contains provisions which carve out the requirements of the Division for offers:
   1.           to buy back shares under a buy-back authorised under s257A;
   2.           made under a compromise or arrangement under Part 5.1;
   3.           made under an off-market bid; or
   4.           to compulsorily acquire or buy out securities under Chapter 6A.
3.              However, the Division captures unsolicited offers made in connection with a takeover bid or compromise or arrangement for a foreign company which are made or received in Australia. In such circumstances offers made to Australian holders of securities in a foreign company under a foreign takeover bid or foreign compromises or arrangements will, without relief, also need to be accompanied by an offer document in accordance with the Division.
4.          Foreign takeover bids and foreign compromises or arrangements regulated in certain jurisdictions are likely to be accompanied by adequate disclosure because these jurisdictions have takeover regimes that offer comparable levels of disclosure and investor protection to that provided in Australia. As such, these regulated foreign takeover bids and foreign compromises or arrangements should not be subject to the disclosure provisions in the Division.

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 provides an exemption from the Division in relation to an unsolicited offer with respect to securities of a foreign company where the offer is made under a foreign takeover bid or foreign compromise or arrangement, which the person reasonably believes is made in accordance with the relevant regulatory requirements.

1.          The definition of foreign takeover bid or foreign compromise or arrangement must be satisfied in order to rely on the relief in the Instrument.
2.          Finally, 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 the matters contained in the Instrument only affect a relatively small subset of issuers. 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 subsection 1020F(1) of the Act.
2.          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.
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 (Unsolicited Offers—Foreign Bids) Instrument 2026/103

Overview

1.              Division 5A of Part 7.9 of the Corporations Act 2001 regulates unsolicited offers to purchase financial products. These offers generally require an offer document which includes, among other things, the market value of the financial product.
2.              This instrument provides an exemption for unsolicited offers of securities that are made under foreign takeover bids or foreign compromises or arrangements regulated in certain foreign jurisdictions.

Assessment of human rights implications

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

Conclusion

1.              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.