Applying for relief

When applying for relief from any of the provisions relating to fundraising/equities, financial reporting, mergers and acquisitions, debentures or transactions affecting share capital, make sure you:

1. Apply early

If you're thinking of applying for relief, you should apply as early as possible. Applications for relief often raise issues that may take some time to resolve.

In general, we do not have power to grant retrospective relief. This particularly applies to applications for relief from the financial reporting requirements (application under section 340 of the Corporations Act 2001 (Corporations Act)).

2. Apply through the ASIC Regulatory Portal

You should submit your application for relief through the ASIC Regulatory Portal. You will need to pay fees for an application. We have provided details about payment options in the portal. 

The portal features structured online transactions with mandatory fields and questions that make it easier for applicants to ensure the information ASIC requires is provided upfront. Links to the relevant ASIC regulatory guidance are included. For more information, see how you apply for relief.

3. Address the criteria in our policies on relief

You should specifically address the criteria set out in Regulatory Guide 51 Applications for relief (RG 51).

For example, in your application you should particularly address the commercial benefit and any net regulatory benefit or detriment from granting the relief you seek. If you think you have special circumstances or you are disproportionately affected by the provisions, clearly set out your reasons.

Reports on relief applications

These reports summarise situations where we have exercised, or refused to exercise, our exemption and modification powers from:

• the financial reporting, managed investment, takeovers, fundraising or financial services provisions of the Corporations Act, and
• provisions of the National Consumer Credit Protection Act 2009 or National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009.

View all ASIC reports

ASIC guidance on relief

You can download copies of our regulatory guides (formerly policy statements) on relief as a PDF file.

• RG 5 Relevant interests and substantial holding notices
• RG 6 Takeovers: Exceptions to the general prohibition
• RG 43 Financial reports and audit relief
• RG 44 Annual general meeting - extension of time
• RG 51 Applications for relief
• RG 59 Announcing and withdrawing takeover bids (s653 and s746)
• RG 60 Schemes of arrangement
• RG 71 Downstream acquisitions
• RG 72 Foreign securities: Disclosure relief
• RG 74 Acquisitions approved by members
• RG 95 Disclosing entity provisions relief
• RG 102 Tender offers by vendor shareholders
• RG 108 No-action letters
• RG 110 Share buy-backs
• RG 115 Audit relief for proprietary companies
• RG 125 Share purchase plans
• RG 163 Takeovers: minimum bid price principle - s621
• RG 173 Disclosure for on-sale of securities and other financial products
• RG 174 Externally administered companies: Financial reporting and AGMs
• RG 188 Disclosure in reconstructions
• RG 189 Disclosure relief for rights issues 
• RG 254 Offering securities under a disclosure document 

Relief under ASIC Corporations (Wholly-owned Companies) Instrument 2016/785

Under ASIC Corporations (Wholly-owned Companies) Instrument 2016/785, certain wholly-owned companies may be relieved from the requirement to prepare and lodge audited financial statements under Chapter 2M of the Corporations Act 2001, where they enter into deeds of cross guarantee with their parent entity and meet certain other conditions.

Relief under this instrument is based on similar relief available to corporate groups since the 1980s. The deed of cross guarantee makes the group of companies that are parties to that deed akin to a single legal entity in many respects. Creditors and potential creditors can then focus on the consolidated position for those entities rather than the individual financial statements of the wholly-owned subsidiaries that are parties to the deed.

You must lodge deeds of cross guarantee with ASIC, as well as meet the following requirements.

You must ensure that:

1. the wording of all deeds exactly duplicates the ASIC pro formas (except for specific information such as company names and dates), and
2. you lodge with the deed certification that the deed wording is exactly the same as that in the relevant ASIC proforma (Pro Forma 24 for deeds of cross guarantee or Pro Forma 27 for assumption deeds), and certain statements concerning the execution of the deed by the parties to it.

This certification must be provided by a legal practitioner holding a current practising certificate. This will allow most in-house counsel to do this for companies. No other certification is now required.

Small proprietary companies controlled by a foreign company but not part of a large group and ASIC Corporations (Wholly-owned Companies) Instrument 2016/785

The changes introduced by ASIC mean that companies relying on relief in [CO 98/98] will be able to lodge opt-in and opt-out forms at any time during a 19-month period commencing three months before the start of the relevant financial year and ending four months after the end of the financial year.

As the last date for lodging a Form 389 opt-in notice coincides with the deadline for lodging a financial report for the first year an entity intended to rely on ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 relief, there is no scope for a further extension to the period to lodge the notice.

Entities which fail to lodge a Form 389 on time, and therefore cannot rely on ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 for relief, will have a continuing obligation to prepare and lodge a financial report for the first financial year they intended to rely on the relief. Although ASIC may not take action to require such companies to lodge the outstanding financial report, we will be very unlikely to grant individual relief to remove the continuing obligation to lodge the report. We will also be unlikely to grant a formal no-action letter where the report has not been lodged.

Where a company lodges a financial report after the due date, normal late lodgement fees will apply. However, late lodgement of the financial report will not prevent a company taking advantage of relief in ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 for the next financial year, provided the conditions of the instrument are met.

Lodgement arrangements for opt-out notice Form 399 have not changed.

Getting relief under ASIC Corporations (Wholly-owned Companies) Instrument 2016/785

Before you apply for relief, you should carefully read ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 and the relevant pro forma to ensure you meet all of the eligibility requirements for relief.

We recommend you use our form CF06 and read the accompanying guide when lodging material under ASIC Corporations (Wholly-owned Companies) Instrument 2016/785. It is not essential to use this form, but it will help you make sure you meet all our requirements.

Mail the required material to:

Australian Securities and Investments Commission
PO BOX 4000
Gippsland Mail Centre
Victoria 3841

There is no lodgement fee for a deed of cross guarantee. There is no fee payable for lodgement of revocation deeds or notices of disposal.

Provided you have complied with all of the conditions of the instrument, you will be eligible for the relief as soon as the material is lodged with ASIC.

Use our checklists

Use our checklists to help you ensure your wholly-owned subsidiary clients meet the certain relief requirements. Download a copy of our checklists for:

• Deeds of cross guarantee and assumption deeds (PDF 190KB)
• Revocation deeds (PDF 133KB)
• Notices of disposal (PDF 139KB)

Keep in mind that these checklists are not exhaustive and are not a substitute for the company and its directors ensuring that all requirements for relief are met.

Answers to your questions about lodging deeds

Read our Information Sheet 24 Deeds of Cross Guarantee (INFO 24) for answers to frequently asked questions and some of the more common problems we see with deeds lodged with us. This information is also appended to Pro Forma 24 as an editorial note.

Download instrument, pro formas and checklists

How ASIC will check compliance

ASIC will, from time to time, check compliance with certain requirements for relief through surveillance of a random selection of companies. These checks may not occur around the time deeds are lodged and companies and their directors should be aware the consequences of non-compliance can be serious.

Consequences of not complying

The consequences of non-compliance with these requirements can be serious. If your client fails to meet all the instrument's conditions, relief won’t be available. This means each affected wholly-owned company must comply with the normal financial reporting requirements of Chapter 2M of the Act for that financial year and perhaps one or more prior years.

ASIC does not have the power to relieve a company retrospectively of those breaches.