ASIC has today released a consultation proposing to remake nine class orders relating to takeovers, compulsory acquisitions and relevant interests.

ASIC proposes to remake these class orders because they are operating effectively and efficiently and continue to form a necessary and useful part of the legislative framework. The fundamental policy principles that underpin the class orders have not changed.

Consultation Paper 365 Remaking ASIC class orders on takeovers, compulsory acquisitions and relevant interests proposes to remake, without significant changes:

• Class Order [CO 12/1209] Relevant Interests, ASIC and ASIC Chairperson, which sunsets on 1 April 2023
• Class Order [CO 13/519] Changing the responsible entity, which sunsets on 1 October 2023
• Class Order [CO 13/520] Relevant interests, voting power and exceptions to the general prohibition, which sunsets on 1 October 2023
• Class Order [CO 13/521] Takeover bids, which sunsets on 1 October 2023
• Class Order [CO 13/522] Compulsory acquisitions and buyouts, which sunsets on 1 October 2023
• Class Order [CO 13/524] Bidder giving substantial holding notice, which sunsets on 1 October 2023
• Class Order [CO 13/525] On-sale disclosure relief for scrip bids and schemes of arrangement, which sunsets on 1 October 2023
• Class Order [CO 13/526] Warrants: Relevant interests and associations, which sunsets on 1 October 2023
• Class Order [CO 13/528] Changes to a bidder’s statement between lodgement and dispatch, which sunsets on 1 October 2023.

ASIC is consulting on a number of minor changes to the instruments to improve the operation of the provisions. These minor changes consider developments and innovations observed in the market over time and address technical issues and anomalies identified in the course of ASIC’s administration of the provisions. ASIC proposes to remake the instruments with a five-year sunsetting period in order to provide sufficient certainty for industry.

ASIC invites submissions from stakeholders on the proposed amendments and as to whether the class orders are currently operating effectively and efficiently. Submissions on CP 365 are due on 23 January 2023.

ASIC is seeking feedback on the proposals to remake these instruments if they are not incorporated into the primary law before they are due to expire.

On 23 November 2022, the Government introduced the first tranche of legislation to move certain ASIC legislative instruments directly into the primary Acts and regulations. As those instruments approach their end dates, Treasury and ASIC will progressively review the instruments to determine whether the structure and navigability of the law would be improved if the instruments were instead contained in the primary law or regulations.

Background

Under the Legislation Act 2003, all class orders are repealed automatically or ‘sunset’ after a period (usually 10 years) unless ASIC takes action to preserve them. This ensures that legislative instruments like class orders are kept up-to-date and only remain in force while they are fit for purpose and relevant.

Where an instrument is operating effectively and efficiently and still serves a regulatory purpose, ASIC will consult on remaking it even if only minor changes are proposed.