ASIC has remade seven legislative instruments relating to takeovers, compulsory acquisitions and relevant interests. These instruments were due to automatically repeal and cease operation (‘sunset’) on 1 October 2023 if not remade.

The relief is contained in the following seven legislative instruments:

ASIC Corporations (Changing the Responsible Entity) Instrument 2023/681;
ASIC Corporations (Takeover Bids) Instrument 2023/683;
ASIC Corporations (Compulsory Acquisitions and Buyouts) Instrument 2023/684;
ASIC Corporations (Bidder Giving Substantial Holding Notice) Instrument 2023/685;
ASIC Corporations (On-Sale Disclosure Relief for Scrip Bids and Schemes of Arrangement) Instrument 2023/686;
ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687; and
ASIC Corporations (Replacement Bidder’s and Target’s Statements) Instrument 2023/688 (together, the Instruments).
The relief was remade following public consultation in Consultation Paper 365 Remaking ASIC class orders on takeovers, compulsory acquisitions and relevant interests (CP 365) which was issued in November 2022 (refer 22-331MR).

Details of the submissions received are contained in REP 773 Response to submissions on CP 365.

Based on consultation feedback, ASIC considered that the sunsetting instruments were operating effectively and efficiently and continue to form a necessary and useful part of the legislative framework. Accordingly, the relief embodied in the Instruments is on substantially the same terms as the sunsetting instruments, with the exception of the following amendments that:

extend the scope of subsection 617(2) to derivatives to addresses an ambiguity where certain performance rights may not meet the definition of ‘securities’ under subsection 92(3) and therefore fall outside the scope of subsection 617(2) (ASIC Instrument 2023/683);
provide that a bidder may nominate a shorter period for payment of bid consideration than is otherwise required by subsection 620(2) (ASIC Instrument 2023/683);
provide that securities acquired on-market by the bidder in reliance on the exemption provided in item 2 of section 611 are included for the purposes of the 75% calculation in subparagraph 661A(1)(b)(ii) (ASIC Instrument 2023/684);
remove the requirement to lodge a supplementary bidder’s statement in order to lodge and dispatch a replacement bidder’s statement (ASIC Instrument 2023/688);
allow the lodgement and dispatch of a replacement target’s statement (ASIC Instrument 2023/688); and
clarify the timing for dispatch of the target’s statement in a market bid where a replacement bidder’s statement is lodged (ASIC Instrument 2023/688).
On 21 September 2023, Schedule 5 of the Treasury Laws Amendment (2023 Law Improvement Package No. 1) Act 2023 commenced and moved matters in Class Order [CO 13/520] Relevant interests, voting power and exceptions to the general prohibition into the Corporations Act 2001. It is therefore unnecessary for ASIC to remake [CO 13/520] which was consulted on in CP 3