ASIC Corporations (Foreign Securities – Incidental Advertising) Instrument 2015/360
Explanatory Statement
Prepared by the Australian Securities and Investments Commission
Corporations Act 2001
The Australian Securities and Investments Commission (ASIC) makes ASIC Corporations (Foreign Securities – Incidental Advertising) Instrument 2015/360 under sections 741 and 1020F of the Corporations Act 2001 (the Act).
Section 741 provides that ASIC may declare that Chapter 6D of the Act applies to a person as if specified provisions were omitted, modified or varies as specified in the declaration.
Section 1020F provides that ASIC may declare that Part 7.9 of the Act 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.
1. Background
Subsection 734(2) and section 1018A of the Act contain a broad restriction on the advertising or publication of statements that directly or indirectly refer to offers of securities or financial products. The Act provides a number of exceptions to this broad restriction (see subsections 734(7) and 1018A(4)) but none of these exceptions relate specifically to statements that are primarily published outside Australia.
2. Purpose and operation of instrument
ASIC Corporations (Foreign Securities – Incidental Advertising) Instrument 2015/360 gives relief from subsection 734(2) and section 1018A to authors and publishers who publish an advertisement or statement relating to foreign securities that is only incidentally published in Australia.
The relief is broader than the similar exception in subsections 734(7) and 1018A(4) for news reports but it only applies where the author or publisher authorised publication outside this jurisdiction.
The relief covers statements published in print media, radio and television broadcasts and electronic services operated on a commercial basis that are similar to newspapers, magazines or broadcasts.
3. Regulatory guidance
Further guidance on the policy underlying the relief is contained in Section E of Regulatory Guide 72 Foreign securities: Disclosure relief (RG 72). RG 72 is available on ASIC's website at www.asic.gov.au.
4. Consultation
The relief given in ASIC Corporations (Foreign Securities – Incidental Advertising) Instrument 2015/360 was the subject of public consultation in Consultation Paper 225 Remaking ASIC class orders on offers of foreign securities (CP 225). CP 225 was published in December 2014 and is available on ASIC's website.