CHAPTER 6D
-
FUNDRAISING
PART 6D.2
-
DISCLOSURE TO INVESTORS ABOUT SECURITIES (OTHER THAN FOR CSF OFFERS)
History
Pt 6D.2 heading substituted by No 17 of 2017, s 3, Sch 1
[
7] (effective 28 September 2017).
Division 1
-
Overview
CCH Note:
Division 1 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
SECTION 703B
703B
PART GENERALLY DOES NOT APPLY IN RELATION TO CSF OFFERS
CCH Note:
Section 703B is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Part
6D.3A
(Crowd-sourced funding) contains a separate regime for the making of CSF offers. The provisions in this Part do not apply in relation to CSF offers, except as expressly provided in this Part or in Part
6D.3A
.
Note 1: The fact that a company makes a CSF offer of securities does not prevent the company from also making an offer of securities of the same class in reliance on a provision of section
708
(see section
738E
).
Note 2: Division
1A
of Part
7.12
(Employee share schemes) contains a separate regime for the making of offers in connection with employee share schemes. The provisions of this Part do not apply in relation to offers that are eligible to be made under that Division: see subsection
1100ZC(2)
and section
1100ZD
.
History
S 703B amended by No 14 of 2022, s 3, Sch 4[14] and
[
15] (effective 1 October 2022).
S 703B inserted by No 17 of 2017, s 3, Sch 1
[
8].
SECTION 704
704
WHEN DISCLOSURE TO INVESTORS IS NEEDED
CCH Note:
Section 704 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Sections
706
,
707
,
708
,
708AA
and
708A
say when an offer of securities, other than a CSF offer, needs disclosure to investors under this Part.
Note 1: Section
727
prohibits offering securities without disclosure.
Note 2: If the offer needs disclosure, section
734
applies advertising restrictions. These continue throughout the whole offer process. Different restrictions apply before and after the disclosure document is lodged.
Note 3: The way the offers are made to people must not breach the securities hawking prohibition in section
736
.
History
S 704 amended by No 17 of 2017, s 3, Sch 1
[
9] (effective 28 September 2017).
S 704 amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
72].
S 704 amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
13].
SECTION 705
705
TYPES OF DISCLOSURE DOCUMENT
CCH Note:
Section 705 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
The following table shows what disclosure documents to use if an offer of securities needs disclosure to investors under this Part.
|
Disclosure document
|
|
|
Type
|
Sections
|
1 |
prospectus
|
|
|
The standard full-disclosure document. |
content
[
710, 711, 713
] |
|
|
procedure
[
717
] |
|
|
liability
[
728 and 729
] |
|
|
defences
[
731, 733
] |
2 |
short form prospectus
|
|
|
May be used for any offer. |
content
[
712
] |
|
Section
712
allows a prospectus to refer to material lodged with ASIC instead of setting it out. |
|
|
Investors are entitled to a copy of this material if they ask for it. |
|
2A |
2-part simple corporate bonds prospectus
|
|
|
Must be used for any offer of simple corporate bonds. |
content [713C, 713D, 713E]
procedure [717]
liability [728 and 729]
defences [731 and 733] |
3 |
profile statement
|
|
|
Section
721
allows a brief profile statement (rather than the prospectus) to be sent out with offers with ASIC approval. The prospectus must still be prepared and lodged with ASIC. Investors are entitled to a copy of theprospectus if they ask for it. |
content
[
714
]
procedure
[
717
]
liability
[
728 and 729
]
defences
[
732, 733
] |
4 |
offer information statement
|
|
|
Section
709
allows an offer information statement to be used instead of a prospectus for an offer to issue securities if the amount raised from issues of securities is $10 million or less. |
content
[
715
]
procedure
[
717
]
liability
[
728 and 729
]
defences
[
732, 733
] |
Note: Subsection
709(1A)
provides that if the offer period for an offer of simple corporate bonds begins during the 2-year period beginning at the commencement of that subsection, a prospectus (other than a 2-part simple corporate bonds prospectus) may be prepared.
[
CCH Note:
S 705 will be amended by No 69 of 2020, s 3, Sch 1[1063] and
[
1064], by substituting
"
the Registrar
"
for
"
ASIC
"
in table item 2, column headed
"
Type
"
and
"
the Registrar
"
for
"
ASIC
"
(second occurring) in table item 3, column headed
"
Type
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 705 amended by No 100 of 2014, s 3, Sch 1
[
11] and
[
12].
S 705 amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
73].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
237] contained the following application provision (which was effective 28 June 2007):
Application of items 73, 75 to 77 and 84
The amendments made by items 73, 75 to 77 and 84 of this Schedule apply to offers of securities made on or after the day on which those items commence.]
Division 2
-
Offers that need disclosure to investors
CCH Note:
Division 2 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
SECTION 706
706
ISSUE OFFERS THAT NEED DISCLOSURE
CCH Note:
Section 706 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
An offer of securities for issue, other than a CSF offer, needs disclosure to investors under this Part unless section
708
or
708AA
says otherwise.
History
S 706 amended by No 17 of 2017, s 3, Sch 1
[
10] (effective 28 September 2017).
S 706 amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
74].
SECTION 707
SALE OFFERS THAT NEED DISCLOSURE
CCH Note:
Section 707 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations (On-Sale Disclosure Relief for Scrip Bids and Schemes of Arrangement) Instrument 2023/686.
Only some sales need disclosure
707(1)
An offer of securities for sale needs disclosure to investors under this Part only if disclosure is required by subsection (2), (3) or (5).
Off-market sale by controller
707(2)
An offer of a body's securities for sale needs disclosure to investors under this Part if:
(a)
the person making the offer controls the body; and
(b)
either:
(i)
the securities are not quoted; or
(ii)
although the securities are quoted, they are not offered for sale in the ordinary course of trading on a relevant financial market;
and section
708
does not say otherwise.
Note: See section
50AA
for when a person controls a body.
History
S 707(2) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
412] (effective 11 March 2002).
Sale amounting to indirect issue
707(3)
An offer of a body's securities for sale within 12 months after their issue needs disclosure to investors under this Part if:
(a)
the body issued the securities without disclosure to investors under this Part; and
(b)
either:
(i)
the body issued the securities with the purpose of the person to whom they were issued selling or transferring the securities, or granting, issuing or transferring interests in, or options over, them; or
(ii)
the person to whom the securities were issued acquired them with the purpose of selling or transferring the securities, or granting, issuing or transferring interests in, or options over, them;
and section
708
or
708A
does not say otherwise.
Note 1: Section
706
normally requires disclosure for the issue of securities. This subsection is intended to prevent avoidance of section
706
. However, to establish a contravention of this subsection, the only purpose that needs to be shown is that referred to in paragraph (b).
Note 2: The issuer and the seller must both consent to the disclosure document (see section
720
).
History
S 707(3) amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
14] (effective 1 July 2004).
S 707(3) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
412A] (effective 11 March 2002).
The purpose test in subsection (3)
707(4)
For the purposes of subsection (3):
(a)
securities are taken to be:
(i)
issued with the purpose referred to in subparagraph (3)(b)(i); or
(ii)
acquired with the purpose referred to in subparagraph (3)(b)(ii);
if there are reasonable grounds for concluding that the securities were issued or acquired with that purpose (whether or not there may have been other purposes for the issue or acquisition); and
(b)
without limiting paragraph (a), securities are taken to be:
(i)
issued with the purpose referred to in subparagraph (3)(b)(i); or
(ii)
acquired with the purpose referred to in subparagraph (3)(b)(ii);
if any of the securities are subsequently sold, or offered for sale, within 12 months after issue, unless it is proved that the circumstances of the issue and the subsequent sale or offer are not such as to give rise to reasonable grounds for concluding that the securities were issued or acquired with that purpose.
History
S 707(4) substituted by No 122 of 2001, s 3, Sch 1, Pt 2
[
412B] (effective 11 March 2002).
Sale amounting to indirect off-market sale by controller
707(5)
An offer of a body's securities for sale within 12 months after their sale by a person who controlled the body at the time of the sale needs disclosure to investors under this Part if:
(a)
at the time of the sale by the controller either:
(i)
the securities were not quoted; or
(ii)
although the securities were quoted, they were not offered for sale in the ordinary course of trading on a relevant financial market on which they were quoted; and
(b)
the controller sold the securities without disclosure to investors under this Part; and
(c)
either:
(i)
the controller sold the securities with the purpose of the person to whom they were sold selling or transferring the securities, or granting, issuing or transferring interests in, or options over, them; or
(ii)
the person to whom the securities were sold acquired them with the purpose of selling or transferring the securities, or granting, issuing or transferring interests in, or options over, them;
and section
708
does not say otherwise.
Note 1: Subsection (2) normally requires disclosure for a sale by a controller. This subsection is intended to prevent avoidance of subsection (2). However, to establish a contravention of this subsection, the only purpose that needs to be shown is that referred to in paragraph (c).
Note 2: See section
50AA
for when a person controls a body.
Note 3: The controller and the seller must both consent to the disclosure document (see section
720
).
History
S 707(5) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
413-413A].
The purpose test in subsection (5)
707(6)
For the purposes of subsection (5):
(a)
securities are taken to be:
(i)
sold with the purpose referred to in subparagraph (5)(c)(i); or
(ii)
acquired with the purpose referred to in subparagraph (5)(c)(ii);
if there are reasonable grounds for concluding that the securities were sold or acquired with that purpose (whether or not there may have been other purposes for the sale or acquisition); and
(b)
without limiting paragraph (a), securities are taken to be:
(i)
sold with the purpose referred to in subparagraph (5)(c)(i); or
(ii)
acquired with the purpose referred to in subparagraph (5)(c)(ii);
if any of the securities are subsequently sold, or offered for sale, within 12 months after their sale by the controller, unless it is proved that the circumstances of the initial sale and the subsequent sale or offer are not such as to give rise to reasonable grounds for concluding that the securities were sold or acquired (in the initial sale) with that purpose.
History
S 707(6) substituted by No 122 of 2001, s 3, Sch 1, Pt 2
[
413B].
SECTION 708
OFFERS THAT DO NOT NEED DISCLOSURE
CCH Note:
Section 708 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Small scale offerings (20 issues or sales in 12 months)
708(1)
Personal offers of a body
'
s securities by a person do not need disclosure to investors under this Part if:
(a)
none of the offers results in a breach of the 20 investors ceiling (see subsections
(3)
and
(4)
); and
(b)
none of the offers results in a breach of the $2 million ceiling (see subsections
(3)
and
(4)
).
This subsection does not apply to an offer for sale to which subsection
707(3)
(sale amounting to indirect issue) or
(5)
(sale amounting to indirect sale by controller) applies.
Note 1: Subsection
727(4)
makes it an offence to issue or transfer securities without disclosure to investors once 20 issues or transfers have occurred or $2 million has been raised.
Note 2: Under section
740
ASIC may make a determination aggregating the transactions of bodies that ASIC considers to be closely related.
708(2)
For the purposes of subsection
(1)
, a personal offer is one that:
(a)
may only be accepted by the person to whom it is made; and
(b)
is made to a person who is likely to be interested in the offer, having regard to:
(i)
previous contact between the person making the offer and that person; or
(ii)
some professional or other connection between the person making the offer and that person; or
(iii)
statements or actions by that person that indicate that they are interested in offers of that kind.
708(3)
An offer by a body to issue securities:
(a)
results in a breach of the 20 investors ceiling if it results in the number of people to whom securities of the body have been issued exceeding 20 in any 12 month period; and
(b)
results in a breach of the $2 million ceiling if it results in the amount raised by the body by issuing securities exceeding $2 million in any 12 month period.
708(4)
An offer by a person to transfer a body
'
s securities:
(a)
results in a breach of the 20 investors ceiling if it results in the number of people to whom the person sells securities of the body exceeding 20 in any 12 month period; and
(b)
results in a breach of the $2 million ceiling if it results in the amount raised by the person from selling the body
'
s securities exceeding $2 million in any 12 month period.
708(5)
In counting issues and sales of the body
'
s securities, and the amount raised from issues and sales, for the purposes of subsection
(1)
, disregard issues and sales that result from offers that:
(a)
do not need a disclosure document because of any other subsection of this section; or
(b)
are not received in Australia; or
(c)
are made under a disclosure document.
Note 1: Also see provisions on restrictions on advertising (section
734
) and securities hawking provisions (Part
6D.3
).
Note 2: Issues and sales that result from offers that are eligible to be made under Division
1A
of Part
7.12
(Employee share schemes) are also disregarded for the purposes of subsection
(1)
: see subsection
1100ZC(4)
.
History
S 708(5) amended by No 14 of 2022, s 3, Sch 4[16] and
[
17] (effective 1 October 2022).
708(6)
(Repealed by No 122 of 2001, s 3, Sch 1, Pt 2
[
414].)
708(7)
In working out the amount of money raised by the body by issuing securities, include the following:
(a)
the amount payable for the securities at the time when they are issued;
(b)
if the securities are shares issued partly-paid
-
any amount payable at a future time if a call is made;
(c)
if the security is an option
-
any amount payable on the exercise of the option;
(d)
if the securities carry a right to convert the securities into other securities
-
any amount payable on the exercise of that right.
Sophisticated investors
708(8)
An offer of a body
'
s securities does not need disclosure to investors under this Part if:
(a)
the minimum amount payable for the securities on acceptance of the offer by the person to whom the offer is made is at least $500,000; or
(b)
the amount payable for the securities on acceptance by the person to whom the offer is made and the amounts previously paid by the person for the body
'
s securities of the same classthat are held by the person add up to at least $500,000; or
(c)
it appears from a certificate given by a qualified accountant no more than 6 months before the offer is made that the person to whom the offer is made:
(i)
has net assets of at least the amount specified in regulations made for the purposes of this subparagraph; or
(ii)
has a gross income for each of the last 2 financial years of at least the amount specified in regulations made for the purposes of this subparagraph a year; or
(d)
the offer is made to a company or trust controlled by a person who meets the requirements of subparagraph (c)(i) or (ii).
Note 1: Section
9
defines
qualified accountant
.
Note 2: A financial services licensee has obligations under
Division 3
of Part
7.7
when providing financial advice. ASIC has a power under section
915C
to suspend or cancel a licensee
'
s licence.
History
S 708(8) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
75].
S 708(8) (Note 2) substituted by No 122 of 2001, s 3, Sch 1, Pt 2
[
415].
S 708(8) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
414A-414B].
[
CCH Note:
No 101 of 2007, Sch 1, Pt 6
[
237] contained the following application provision (which was effective 28 June 2007):
Application of items 73, 75 to 77 and 84
The amendments made by items 73, 75 to 77 and 84 of this Schedule apply to offers of securities made on or after the day on which those items commence.
]
708(9)
In calculating the amount payable, or paid, for securities for the purposes of paragraph
(8)(a)
or
(b)
, disregard any amount payable, or paid, to the extent to which it is to be paid, or was paid, out of money lent by the person offering the securities or an associate.
708(9A)
In addition to specifying amounts for the purposes of subparagraphs
(8)(c)(i)
and
(ii)
, the regulations may do either or both of the following:
(a)
deal with how net assets referred to in subparagraph
(8)(c)(i)
are to be determined and valued, either generally or in specified circumstances;
(b)
deal with how gross income referred to in subparagraph
(8)(c)(ii)
is to be calculated, either generally or in specified circumstances.
History
S 708(9A) inserted by No 122 of 2001, s 3, Sch 1, Pt 2
[
415A].
708(9B)
In determining the net assets of a person under subparagraph
(8)(c)(i)
, the net assets of a company or trust controlled by the person may be included.
Note:
Control
is defined in section
50AA
.
History
S 708(9B) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
76].
[
CCH Note:
No 101 of 2007, Sch 1, Pt 6
[
237] contained the following application provision (which was effective 28 June 2007):
Application of items 73, 75 to 77 and 84
The amendments made by items 73, 75 to 77 and 84 of this Schedule apply to offers of securities made on or after the day on which those items commence.
]
708(9C)
In determining the gross income of a person under subparagraph
(8)(c)(ii)
, the gross income of a company or trust controlled by the person may be included.
Note:
Control
is defined in section
50AA
.
History
S 708(9C) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
76].
[
CCH Note:
No 101 of 2007, Sch 1, Pt 6
[
237] contained the following application provision (which was effective 28 June 2007):
Application of items 73, 75 to 77 and 84
The amendments made by items 73, 75 to 77 and 84 of this Schedule apply to offers of securities made on or after the day on which those items commence.
]
708(10)
An offer of a body
'
s securities does not need disclosure to investors under this Part if:
(a)
the offer is made through a financial services licensee; and
(b)
the licensee is satisfied on reasonable grounds that the person to whom the offer is made has previous experience in investing in securities that allows them to assess:
(i)
the merits of the offer; and
(ii)
the value of the securities; and
(iii)
the risks involved in accepting the offer; and
(iv)
their own information needs; and
(v)
the adequacy of the information given by the person making the offer; and
(c)
the licensee gives the person before, or at the time when, the offer is made a written statement of the licensee
'
s reasons for being satisfied as to those matters; and
(d)
the person to whom the offer is made signs a written acknowledgment before, or at the time when, the offer is made that the licensee has not given the person a disclosure document under this Part in relation to the offer.
History
S 708(10) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
416-420].
Professional investors
708(11)
An offer of securities does not need disclosure to investors under this Part if it is made to:
(a)
a person covered by the definition of
professional investor
in section
9
(except a person mentioned in paragraph (e) of the definition); or
(b)
a person who has or controls gross assets of at least $10 million (including any assets held by an associate or under a trust that the person manages).
History
S 708(11) substituted by No 101 of 2007, s 3, Sch 1, Pt 1
[
77].
[
CCH Note:
No 101 of 2007, Sch 1, Pt 6
[
237] contained the following application provision (which was effective 28 June 2007):
Application of items 73, 75 to 77 and 84
The amendments made by items 73, 75 to 77 and 84 of this Schedule apply to offers of securities made on or after the day on which those items commence.
]
Offers of securities to people associated with the body
708(12)
An offer of a body
'
s securities does not need disclosure to investors under this Part if it is made to:
(a)
a senior manager of the body or a related body or their spouse, parent, child, brother or sister; or
(b)
a body corporate controlled by a person referred to in paragraph (a).
History
S 708(12) amended by No 103 of 2004, s 3, Sch 9
[
62].
Certain offers to present holder of securities
708(13)
An offer of securities for issue does not need disclosure to investors under this Part if it is an offer of fully-paid shares in a body to one or more existing holders of shares in the body under a dividend reinvestment plan or bonus share plan.
History
S 708(13) substituted by No 69 of 2023, s 3, Sch 4[94] (effective 15 September 2023).
708(14)
An offer of a disclosing entity
'
s debentures for issue does not need disclosure to investors under this Part if the offer is made to 1 or more existing debenture holders.
708(14A)
Subsection
(14)
does not apply to:
(a)
an offer of simple corporate bonds; or
(b)
an offer of debentures (other than simple corporate bonds), if the offer is made to holders of simple corporate bonds.
History
S 708(14A) inserted by No 100 of 2014, s 3, Sch 1
[
13].
Issues or sales for no consideration
708(15)
An offer of securities (other than options) does not need disclosure to investors under this Part if no consideration is to be provided for the issue or transfer of the securities.
708(16)
An offer of options does not need disclosure to investors under this Part if:
(a)
no consideration is to be provided for the issue or transfer of the options; and
(b)
no consideration is to be provided for the underlying securities on the exercise of the option.
Compromise or arrangement under Part 5.1
708(17)
An offer of securities does not need disclosure to investors under this Part if it is made under a compromise or arrangement under Part
5.1
approved at a meeting held as a result of an order under subsection
411(1)
or
(1A)
.
Deed of company arrangement
708(17A)
An offer of securities does not need disclosure to investors under this Part if:
(a)
it is made to any or all of the company
'
s creditors under a deed of company arrangement; and
(b)
it does not require the provision of consideration other than the release of the company from a debt or debts; and
(c)
before the offer was specified in the deed, the administrator gave as many creditors as reasonably practicable a statement:
(i)
that set out all relevant information about the offer that was within the knowledge of the administrator of the deed; and
(ii)
that stated that the statement is not a prospectus and may contain less information than a prospectus.
[
CCH Note:
Regulation 10.25.02(3)(i) (which was effective 1 March 2017) provides that the amendments made by No 11 of 2016, s 3, Sch 2[208] apply in relation to external administrations on and after 1 September 2017.]
(d)
(Repealed)
[
CCH Note:
Regulation 10.25.02(3)(i) (which was effective 1 March 2017) provides that the amendments made by No 11 of 2016, s 3, Sch 2[208] apply in relation to external administrations on and after 1 September 2017.]
History
S 708(17A) amended by No 11 of 2016, s 3, Sch 2[208].
S 708(17A) inserted by No 132 of 2007, s 3, Sch 4, Pt 1
[
46].
Takeovers
708(18)
An offer of securities does not need disclosure to investors under this Part if it is:
(a)
made as consideration for an offer to acquire securities under a takeover bid under Chapter
6
; and
(b)
accompanied by a bidder
'
s statement.
Note: Although this offer does not need a disclosure document, similar disclosures must be made about the securities in the bidder
'
s statement under section
636
.
Debentures of certain bodies
708(19)
An offer of a body
'
s debentures for issue or sale does not need disclosure to investors under this Part if the body is:
(a)
an Australian ADI; or
(b)
registered under section
21
of the
Life Insurance Act 1995
.
History
S 708(19) amended by No 75 of 2009, Sch 1
[
199].
Offers by exempt bodies
708(20)
An offer of a body
'
s securities in a State or Territory in this jurisdiction does not need disclosure to investors under this Part if the body is an exempt body corporate of that State or Territory.
Note: Section
66A
defines
exempt body corporate
of a State or Territory.
History
S 708(20) amended by No 69 of 2023, s 3, Sch 2[149] and
[
150] (effective 15 September 2023).
708(21)
An offer of a body
'
s securities for issue does not need disclosure to investors under this Part if the body is an exempt public authority of a State or Territory.
Note: Debentures, stock or bonds issued by a government are not securities for the purposes of this Chapter (see subsection
92(3)
).
SECTION 708AA
RIGHTS ISSUES THAT DO NOT NEED DISCLOSURE
CCH Note:
Section 708AA is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
708AA(1)
This section applies to an offer of a body
'
s securities (the
relevant securities
) for issue if:
(a)
but for subsection
(2)
, disclosure to investors under this Part would be required by section
706
; and
(b)
a determination under subsection
(3)
is not in force in relation to the body at the time when the relevant securities are offered.
Conditions required for rights issue
708AA(2)
The offer does not need disclosure to investors under this Part if:
(a)
the relevant securities are being offered under a rights issue; and
(b)
the class of the relevant securities are quoted securities at the time at which the offer is made; and
(c)
trading in that class of securities on a prescribed financial market on which they are quoted was not suspended for more than a total of 5 days during the shorter of the following periods:
(i)
the period during which the class of securities is quoted;
(ii)
the period of 12 months before the day on which the offer is made; and
(d)
no exemption under section
111AS
or
111AT
covered the body, or any person as director or auditor of the body, at any time during the relevant period referred to in paragraph
(c)
; and
(e)
no order under section
340
or
341
covered the body, or any person as director or auditor of the body, at any time during the relevant period referred to in paragraph
(c)
; and
(f)
the body gives the relevant market operator for the body a notice that complies with subsection
(7)
within the 24 hour period before the offer is made.
Determination by ASIC
708AA(3)
ASIC may make a determinationunder this subsection if ASIC is satisfied that in the previous 12 months the body contravened any of the following provisions:
(a)
subsection
283AA(1)
,
283AB(1)
or
283AC(1)
;
(b)
the provisions of Chapter
2M
as they apply to the body;
(c)
section
674
,
674A
,
675
or
675A
;
(d)
section
724
or
728
;
(e)
subsection
(10)
of this section;
(f)
section
1308
as that section applies to a notice under subsection
(2)
of this section.
History
S 708AA(3) amended by No 82 of 2021, s 3, Sch 2[29] (effective 14 August 2021).
708AA(4)
The determination must be made in writing and a copy must be published in the
Gazette
as soon as practicable after the determination is made.
708AA(5)
The determination made under subsection (3) is not a legislative instrument.
708AA(6)
A failure to publish a copy of the determination does not affect the validity of the determination.
Requirements for notice
708AA(7)
A notice complies with this subsection if the notice:
(a)
states that the body will offer the relevant securities for issue without disclosure to investors under this Part; and
(b)
states that the notice is being given under paragraph
(2)(f)
; and
(c)
states that, as at the date of the notice, the body has complied with:
(i)
the provisions of Chapter
2M
as they apply to the body; and
(ii)
sections
674
and
674A
; and
(d)
sets out any information that is excluded information as at the date of the notice (see subsections
(8)
and
(9)
); and
(e)
states:
(i)
the potential effect the issue of the relevant securities will have on the control of the body; and
(ii)
the consequences of that effect.
Note 1: A person is taken not to contravene section
727
if a notice purports to comply with this subsection but does not actually comply with this subsection: see subsection
727(5)
.
Note 2: A notice must not be false or misleading in a material particular, or omit anything that would render it misleading in a material respect: see sections
1308
and
1309
. The body has an obligation to correct a defective notice: see subsection
(10)
of this section.
History
S 708AA(7) amended by No 82 of 2021, s 3, Sch 2[30] (effective 14 August 2021).
708AA(8)
For the purposes of subsection
(7)
, excluded information is information:
(a)
that has been excluded from a continuous disclosure notice in accordance with the listing rules of the relevant market operator to whom that notice is required to be given; and
(b)
that investors and their professional advisers would reasonably require for the purpose of making an informed assessment of:
(i)
the assets and liabilities, financial position and performance, profits and losses and prospects of the body; or
(ii)
the rights and liabilities attaching to the relevant securities.
708AA(9)
The notice given under subsection
(2)
must contain any excluded information only to the extent to which it is reasonable for investors and their professional advisers to expect to find the information in a disclosure document.
Obligation to correct defective notice
708AA(10)
The body contravenes this subsection if:
(a)
the notice given under subsection
(2)
is defective; and
(b)
the body becomes aware of the defect in the notice within 12 months after the relevant securities are issued; and
(c)
the body does not, within a reasonable time after becoming aware of the defect, give the relevant market operator a notice that sets out the information necessary to correct the defect.
708AA(11)
For the purposes of subsection
(10)
, the notice under subsection
(2)
is
defective
if the notice:
(a)
does not comply with paragraph
(2)(f)
; or
(b)
is false or misleading in a material particular; or
(c)
has omitted from it a matter or thing, the omission of which renders the notice misleading in a material respect.
History
S 708AA inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
78].
SECTION 708A
SALE OFFERS THAT DO NOT NEED DISCLOSURE
CCH Note:
Section 708A is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Sale offers to which this section applies
708A(1)
This section applies to an offer (the
sale offer
) of a body
'
s securities (the
relevant securities
) for sale by a person if:
(a)
but for subsection
(5)
,
(11)
or
(12)
, disclosure to investors under this Part would be required by subsection
707(3)
for the sale offer; and
(b)
the securities were not issued by the body with the purpose referred to in subparagraph
707(3)(b)(i)
; and
(c)
a determination under subsection
(2)
was not in force in relation to the body at the time when the relevant securities were issued.
History
S 708A(1) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
79].
S 708A(1) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
708A(1A)
This section also applies to an offer (the
sale offer
) of a body
'
s securities (the
relevant securities
) for sale by a person if:
(a)
but for subsection
(5)
, disclosure to investors under this Part would be required by subsection
707(5)
for the sale offer; and
(b)
the securities were not sold by the controller with the purpose referred to in subparagraph
707(5)(c)(i)
; and
(c)
a determination under subsection
(2)
was not in force in relation to the body at the time when the relevant securities were issued.
History
S 708A(1A) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
79].
Determination by ASIC
708A(2)
ASIC may make a determination under this subsection if ASIC is satisfied that in the previous 12 months the body contravened any of the following provisions:
(a)
subsection
283AA(1)
,
283AB(1)
or
283AC(1)
;
(b)
the provisions of Chapter
2M
as they apply to the body;
(c)
section
674
,
674A
,
675
or
675A
;
(d)
section
724
or
728
;
(e)
subsection
(9)
of this section; or
(f)
section
1308
as that section applies to a notice under subsection
(5)
of this section.
History
S 708A(2) amended by No 82 of 2021, s 3, Sch 2[31] (effective 14 August 2021).
S 708A(2) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
708A(3)
The determination must be made in writing and a copy must be published in the
Gazette
as soon as practicable after the determination is made.
History
S 708A(3) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
708A(4)
A failure to publish a copy of the determination does not affect the validity of the determination.
History
S 708A(4) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
Sale offer of quoted securities
-
case 1
708A(5)
The sale offer does not need disclosure to investors under this Part if:
(a)
the relevant securities are in a class of securities that were quoted securities at all times in the 3 months before the day on which the relevant securities were issued; and
(b)
trading in that class of securities on a prescribed financial market on which they were quoted was not suspended for more than a total of 5 days during the shorter of the period during which the class of securities were quoted, and the period of 12 months before the day on which the relevant securities were issued; and
(c)
no exemption under section
111AS
or
111AT
covered the body, or any person as director or auditor of the body, at any time during the relevant period referred to in paragraph
(b)
; and
(d)
no order under section
340
or
341
covered the body, or any person as director or auditor of the body, at any time during the relevant period referred to in paragraph
(b)
; and
(e)
either:
(i)
if this section applies because of subsection
(1)
-
the body gives the relevant market operator for the body a notice that complies with subsection
(6)
before the sale offer is made; or
(ii)
if this section applies because of subsection
(1A)
-
both the body, and the controller, give the relevant market operator for the body a notice that complies with subsection
(6)
before the sale offer is made.
History
S 708A(5) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
80-83].
S 708A(5) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
708A(6)
A notice complies with this subsection if the notice:
(a)
is given within 5 business days after the day on which the relevant securities were issued by the body; and
(b)
states that the body issued the relevant securities without disclosure to investors under this Part; and
(c)
states that the notice is being given under paragraph
(5)(e)
; and
(d)
states that, as at the date of the notice, the body has complied with:
(i)
the provisions of Chapter
2M
as they apply to the body; and
(ii)
sections
674
and
674A
; and
(e)
sets out any information that is excluded information as at the date of the notice (see subsections
(7)
and
(8)
).
Note 1: A person is taken not to contravene section
727
if a notice purports to comply with this subsection but does not actually comply with this subsection: see subsection
727(5)
.
Note 2: A notice must not be false or misleading in a material particular, or omit anything that would render it misleading in a material respect: see sections
1308
and
1309
. The body has an obligation to correct a defective notice: see subsection
(9)
of this section.
History
S 708A(6) amended by No 82 of 2021, s 3, Sch 2[32] (effective 14 August 2021).
S 708A(6) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
708A(7)
For the purposes of subsection
(6)
, excluded information is information:
(a)
that has been excluded from a continuous disclosure notice in accordance with the listing rules of the relevant market operator to whom that notice is required to be given; and
(b)
that investors and their professional advisers would reasonably require for the purpose of making an informed assessment of:
(i)
the assets and liabilities, financial position and performance, profits and losses and prospects of the body; or
(ii)
the rights and liabilities attaching to the relevant securities.
History
S 708A(7) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
708A(8)
The notice given under subsection
(5)
must contain any excluded information only to the extent to which it is reasonable for investors and their professional advisers to expect to find the information in a disclosure document.
History
S 708A(8) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
Obligation to correct defective notice
708A(9)
The body contravenes this subsection if:
(a)
the notice given under subsection
(5)
is defective; and
(b)
the body becomes aware of the defect in the notice within12 months after the relevant securities are issued; and
(c)
the body does not, within a reasonable time after becoming aware of the defect, give the relevant market operator a notice that sets out the information necessary to correct the defect.
History
S 708A(9) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
708A(10)
For the purposes of subsection
(9)
, the notice under subsection
(5)
is
defective
if the notice:
(a)
does not comply with paragraph
(6)(e)
; or
(b)
is false or misleading in a material particular; or
(c)
has omitted from it a matter or thing the omission of which renders the notice misleading in a material respect.
History
S 708A(10) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
Sale offer of quoted securities
-
case 2
708A(11)
The sale offer does not need disclosure to investors under this Part if:
(a)
the relevant securities are in a class of securities that are quoted securities of the body; and
(b)
either:
(i)
a prospectus is lodged with ASIC on or after the day on which the relevant securities were issued but before the day on which the sale offer is made; or
(ii)
a prospectus is lodged with ASIC before the day on which the relevant securities are issued and offers of securities that have been made under the prospectus are still open for acceptance on the day on which the relevant securities were issued; and
(c)
the prospectus is for an offer of securities issued by the body that are in the same class of securities as the relevant securities.
[
CCH Note:
S 708A(11) will be amended by No 69 of 2020, s 3, Sch 1[1065] and
[
1066], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (b)(i) and (ii) and inserting
"
Lodgement of the prospectus must meet any requirements of the data standards.
"
at the end of subsection, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 708A(11) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
Sale offer of quoted securities
-
case 3
708A(12)
This subsection is satisfied if:
(a)
the body offered to issue securities under a prospectus; and
(b)
the body issued the relevant securities to:
(i)
a person (the
underwriter
) named in that prospectus as an underwriter of the issue; or
(ii)
a person nominated by the underwriter; and
(c)
the relevant securities were issued to the underwriter, or the person nominated by the underwriter, at or about the time that persons who applied for securities under the prospectus were issued with those securities; and
(d)
the relevant securities are in a class of securities that were quoted securities of the body.
History
S 708A(12) inserted by No 103 of 2004, s 3, Sch 7, Pt 3
[
15].
Division 3
-
Types of disclosure documents
CCH Note:
Division 3 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
SECTION 709
PROSPECTUSES, SHORT-FORM PROSPECTUSES, PROFILE STATEMENTS AND OFFER INFORMATION STATEMENTS
CCH Note:
Section 709 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Prospectus or short-form prospectus
709(1)
If an offer of securities (other than an offer of simple corporate bonds) needs disclosure to investors under this Part, a prospectus must be prepared for the offer unless subsection (4) allows an offer information statement to be used instead. Under section
712
, the prospectus may simply refer to material already lodged with ASIC instead of including it.
Note: See sections
710
to
713
for the contents of a prospectus.
[
CCH Note:
S 709(1) will be amended by No 69 of 2020, s 3, Sch 1[1067], by substituting
"
material held by the Registrar
"
for
"
material already lodged with ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 709(1) amended by No 100 of 2014, s 3, Sch 1
[
14].
709(1A)
If:
(a)
an offer of simple corporate bonds needs disclosure to investors under this Part; and
(b)
the offer period begins during the 2-year period beginning at the commencement of this subsection;
either of the following must be prepared for the offer:
(c)
a prospectus (other than a 2-part simple corporate bonds prospectus) unless subsection (4) allows an offer information statement to be used instead;
(d)
a 2-part simple corporate bonds prospectus.
Note: See sections
713B
to
713E
for the contents of a 2-part simple corporate bonds prospectus.
History
S 709(1A) inserted by No 100 of 2014, s 3, Sch 1
[
15].
709(1B)
If a prospectus is prepared under paragraph
(1A)(c)
, then, under section
712
, the prospectus may simply refer to material already lodged with ASIC instead of including it.
[
CCH Note:
S 709(1B) will be amended by No 69 of 2020, s 3, Sch 1[1067], by substituting
"
material held by the Registrar
"
for
"
material already lodged with ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 709(1B) inserted by No 100 of 2014, s 3, Sch 1
[
15].
709(1C)
If:
(a)
an offer of simple corporate bonds needs disclosure to investors under this Part; and
(b)
the offer period begins after the 2-year period beginning at the commencement of this subsection;
a 2-part simple corporate bonds prospectus must be prepared for the offer.
Note: See sections
713B
to
713E
for the contents of a 2-part simple corporate bonds prospectus.
History
S 709(1C) inserted by No 100 of 2014, s 3, Sch 1
[
15].
Profile statement
709(2)
A profile statement for an offer may be prepared in addition to the prospectus if ASIC has approved the making of offers of that kind with a profile statement instead of a disclosure document.
Note 1: See section
714
for the contents of a profile statement.
Note 2: Subsection
729(2)
provides that there is still liability to investors on the prospectus when a profile statement is used.
709(2A)
Subsection
(2)
does not apply to an offer of simple corporate bonds.
History
S 709(2A) inserted by No 100 of 2014, s 3, Sch 1
[
16].
709(3)
ASIC may approve the use of profile statements for offers of securities of a particular kind. The approval may specify information to be included in the profile statement (including information about a matter referred to in paragraphs
714(1)(a)
to
(d)
).
Offer information statement
709(4)
A body offering to issue securities may use an offer information statement for the offer instead of a prospectus (other than a 2-part simple corporate bonds prospectus) if the amount of money to be raised by the body by issuing the securities, when added to all amounts previously raised by:
(a)
the body; or
(b)
a related body corporate; or
(c)
an entity controlled by:
(i)
a person who controls the body; or
(ii)
an associate of that person;
by issuing securities under an offer information statement is $10 million or less.
Note 1: See section
715
for the contents of an offer information statement. The statement must include financial statements that are less than 6 months old.
Note 2: Under section
740
, ASIC may make a determination aggregating the transactions of bodies that ASIC considers to be closely related.
History
S 709(4) amended by No 100 of 2014, s 3, Sch 1
[
17].
S 709(4) and (Note 1) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
84
-
85].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
237] contained the following application provision (which was effective 28 June 2007):
Application of items 73, 75 to 77 and 84
The amendments made by items 73, 75 to 77 and 84 of this Schedule apply to offers of securities made on or after the day on which those items commence.
]
709(5)
In working out the amount of money to be raised by a body or entity by issuing securities, include the following:
(a)
the amount payable for the securities at the time when they are issued;
(b)
if the securities are issued partly-paid
-
any amount payable at a future time if a call is made;
(c)
if the securities are options
-
any amount payable on the exercise of the options;
(d)
if the securities carry a right to convert the securities into other securities
-
any amount payable on the exercise of that right.
However, do not include an amount payable for securities, or payable on the exercise of options, if the securities or options are issued under an employee share scheme.
History
S 709(5) amended by No 14 of 2022, s 3, Sch 4[18] (effective 1 October 2022).
S 709(5) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
86].
[
CCH Note:
Act No 101 of 2007, Sch 1, Pt 6
[
228] contained the following application provision (which was effective 28 June 2007):
Application of items 4, 5, 86, 92, 106, 131 and 132
The amendments made by items 4, 5, 86, 92, 106, 131 and 132 of this Schedule apply to employee share schemes offered on or after the day on which those items commence.
]
Division 4
-
Disclosure requirements
CCH Note:
Division 4 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
SECTION 710
PROSPECTUS CONTENT
-
GENERAL DISCLOSURE TEST
CCH Note:
Section 710 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
710(1)
A prospectus for a body
'
s securities must contain all the information that investors and their professional advisers would reasonably require to make an informed assessment of the matters set out in the table below. The prospectus must contain this information:
(a)
only to the extent to which it is reasonable for investors and their professional advisers to expect to find the information in the prospectus; and
(b)
only if a person whose knowledge is relevant (see subsection
(3)
):
(i)
actually knows the information; or
(ii)
in the circumstances ought reasonably to have obtained the information by making enquiries.
Disclosures
|
[
operative
]
|
|
Offer
|
Matters
|
1 |
offer to issue (or transfer) shares or debentures |
• |
the rights and liabilities attaching to the securities offered |
|
• |
the assets and liabilities, financial position and performance, profits and losses and prospects of the body that is to issue (or issued) the shares or debentures |
2 |
offer to grant (or transfer) a legal or equitable interest in securities or grant (or transfer) an option over securities |
• |
the rights and liabilities attaching to: |
|
|
- |
the interest or option |
|
|
- |
the underlying securities |
|
|
• |
for an option
-
the capacity of the person making the offer to issue or deliver the underlying securities |
|
|
• |
if the person making the offer is: |
|
|
|
- |
the body that issued or is to issue the underlying securities; or |
|
|
|
- |
a person who controls that body; |
|
|
|
the assets and liabilities, financial position and performance, profits and losses and prospects of that body |
|
|
• |
if subsection
707(3)
or
(5)
applies to the offer
-
the assets and liabilities, financial position and performance, profits and losses and prospects of the body whose securities are offered |
Note: Section
713
makes special provision for prospectuses for continuously quoted securities.
History
S 710(1) amended by No 69 of 2023, s 3, Sch 4[95] and
[
96] (effective 15 September 2023).
710(2)
In deciding what information should be included under subsection
(1)
, have regard to:
(a)
the nature of the securities and of the body; and
(b)
(Repealed)
(c)
the matters that likely investors may reasonably be expected to know; and
(d)
the fact that certain matters may reasonably be expected to be known to their professional advisers.
History
S 710(2) amended by No 69 of 2023, s 3, Sch 4[97] (effective 15 September 2023).
710(3)
For the purposes of this section, a person
'
s knowledge is relevant only if they are one of the following:
(a)
the person offering the securities;
(b)
if the person offering the securities is a body
-
a director of the body;
(c)
a proposed director of the body whose securities will be issued under the offer;
(d)
a person named in the prospectus as an underwriter of the issue or sale;
(e)
a person named in the prospectus as a financial services licensee involved in the issue or sale;
(f)
a person named in the prospectus with their consent as having made a statement:
(i)
that is included in the prospectus; or
(ii)
on which a statement made in the prospectus is based;
(g)
a person named in the prospectus with their consent as having performed a particular professional or advisory function.
Note: Section
729
says who is liable for misstatements in, and omissions from, a disclosure document.
History
S 710(3) amended by No 49 of 2019, s 3, Sch 4[28] (effective 6 April 2019).
S 710(3) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
422].
[
CCH Note:
The first eight words in section 710(3)(e) were not inserted as stated by Sch 1, Pt 2
[
422] of No 122 of 2001, as they do not appear to be required.]
710(4)
This section does not apply to a 2-part simple corporate bonds prospectus.
History
S 710(4) inserted by No 100 of 2014, s 3, Sch 1
[
18].
SECTION 711
PROSPECTUS CONTENT
-
SPECIFIC DISCLOSURES
CCH Note:
Section 711 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Terms and conditions of offer
711(1)
The prospectus must set out the terms and conditions of the offer.
Disclosure of interests and fees of certain people involved in the offer
711(2)
The prospectus must set out the nature and extent of the interests (if any) that each person referred to in subsection
(4)
holds, or held at any time during the last 2 years, in:
(a)
the formation or promotion of the body; or
(b)
property acquired or proposed to be acquired by the body in connection with:
(i)
its formation or promotion; or
(ii)
the offer of the securities; or
(c)
the offer of the securities.
711(3)
The prospectus must set out the amount that anyone has paid or agreed to pay, or the nature and value of any benefit anyone has given or agreed to give:
(a)
to a director, or proposed director, to induce them to become, or to qualify as, a director of the body; and
(b)
for services provided by a person referred to in subsection (4) in connection with:
(i)
the formation or promotion of the body; or
(ii)
the offer of the securities.
(c)
(Repealed)
To comply with this subsection it is not sufficient merely to state in the prospectus that a person has been paid or will be paid normal, usual or standard fees.
History
S 711(3) amended by No 69 of 2023, s 3, Sch 4[98] and
[
99] (effective 15 September 2023).
711(4)
Disclosures need to be made under subsections
(2)
and
(3)
in relation to:
(a)
any directors and proposed directors of the body;
(b)
a person named in the prospectus as performing a function in a professional, advisory or other capacity in connection with the preparation or distribution of the prospectus;
(c)
(Repealed)
(d)
a promoter of the body;
(e)
an underwriter (but not a sub-underwriter) to the issue or sale or a financial services licensee named in the prospectus as a financial services licensee involved in the issue or sale.
History
S 711(4) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
423] and
[
424].
Quotation of securities
711(5)
If the prospectus for an offer of securities states or implies that the securities will be able to be traded on a financial market (whether in Australia or elsewhere), the prospectus must state that:
(a)
the securities have been admitted to quotation on that financial market; or
(b)
an application for admission of the securities to quotation on that financial market has been made to the operator of that market; or
(c)
an application for admission of the securities to quotation on that financial market will be made to the operator of that market within 7 days after the date of the prospectus.
Note 1: Paragraph
724(1)(b)
gives times within which the person should seek and obtain admission to quotation.
Note 2: Subsection
716(1)
requires the prospectus to be dated.
History
S 711(5) substituted by No 122 of 2001, s 3, Sch 1, Pt 2
[
425].
Expiry date
711(6)
The prospectus must state that no securities will be issued on the basis of the prospectus after the expiry date specified in the prospectus. The expiry date must not be later than 13 months after the date of the prospectus. The expiry date of a replacement prospectus must be the same as that of the original prospectus it replaces.
Note 1: Subsection
716(1)
requires the prospectus to be dated.
Note 2: Section
719
deals with replacement prospectuses.
Lodgment with ASIC
711(7)
The prospectus must state that:
(a)
a copy of the prospectus has been lodged with ASIC; and
(b)
ASIC takes no responsibility for the content of the prospectus.
[
CCH Note:
S 711(7) will be amended by No 69 of 2020, s 3, Sch 1[1068]
-
[
1070], by substituting
"
the Registrar
"
for
"
ASIC
"
in the heading,
"
the Registrar
"
for
"
ASIC
"
in para (a) and
"
neither ASIC nor the Registrar takes
"
for
"
ASIC takes no
"
in para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Prescribed information
711(8)
The prospectus must set out the information required by the regulations.
Section does not apply to 2-part simple corporate bonds prospectus
711(9)
This section does not apply to a 2-part simple corporate bonds prospectus.
History
S 711(9) inserted by No 100 of 2014, s 3, Sch 1
[
19].
SECTION 712
PROSPECTUS CONTENT
-
SHORT FORM PROSPECTUSES
CCH Note:
Section 712 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Prospectus may simply refer to material lodged with ASIC
712(1)
Instead of setting out information that is contained in a document that has been lodged with ASIC, a prospectus may simply refer to the document. The reference must:
(a)
identify the document or the part of the document that contains the information; and
(b)
inform people of their right to obtain a copy of the document (or part) under subsection
(5)
.
[
CCH Note 1:
S 712(1) will be amended by No 69 of 2020, s 3, Sch 1[1071] and
[
1072], by substituting
"
held by the Registrar
"
for
"
lodged with ASIC
"
in the heading and
"
is covered by subsection (1A)
"
for
"
has been lodged with ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
[
CCH Note 2:
S 712(1A) will be inserted by No 69 of 2020, s 3, Sch 1[1073] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 712(1A) will read:
712(1A)
This subsection covers a document that:
(a)
is held by the Registrar (including a document that was lodged with ASIC); and
(b)
may be accessed by the public in accordance with the disclosure framework.]
712(2)
The reference must also include:
(a)
if the information is primarily of interest to professional analysts or advisers or investors with similar specialist information needs:
(i)
a description of the contents of the document (or part); and
(ii)
a statement to the effect that the information in the document (or part) is primarily of interest to those people; or
(b)
in any other case
-
sufficient information about the contents of the document to allow a person to whom the offer is made to decide whether to obtain a copy of the document (or part).
712(3)
The document (or part) referred to under subsection
(1)
is taken to be included in the prospectus.
712(4)
A person who wishes to take advantage of subsection
(1)
may lodge a document with ASIC even if this Act does not require the document to be lodged.
[
CCH Note:
S 712(4) will be amended by No 69 of 2020, s 3, Sch 1[1074] and
[
1075], by substituting
"
the Registrar
"
for
"
ASIC
"
and inserting
"
However, the document must satisfy paragraph (1A)(b) and meet any requirements of the data standards.
"
at the end of subsection, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
712(5)
If the prospectus is taken to include a document, or part of a document, under subsection
(1)
, the person making the offer must give a copy of the document (or part) free of charge to anyone who asks for it during the application period of the prospectus.
Section does not apply to 2-part simple corporate bonds prospectus
712(6)
This section does not apply to a 2-part simple corporate bonds prospectus.
History
S 712(6) inserted by No 100 of 2014, s 3, Sch 1
[
20].
SECTION 713
SPECIAL PROSPECTUS CONTENT RULES FOR CONTINUOUSLY QUOTED SECURITIES
CCH Note:
Section 713 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Alternative general disclosure test
713(1)
A prospectus for an offer of:
(a)
continuously quoted securities of a body; or
(b)
options to acquire continuously quoted securities of a body;
satisfies section
710
if it complies with subsections
(2)
,
(3)
and
(4)
of this section.
713(2)
The prospectus must contain all the information investors and their professional advisers would reasonably require to make an informed assessment of:
(a)
the effect of the offer on the body; and
(b)
(Repealed)
(c)
the rights and liabilities attaching to the securities offered; and
(d)
if the securities are options
-
the rights and liabilities attaching to:
(i)
the options themselves; and
(ii)
the underlying securities.
The prospectus must contain this information only to the extent to which it is reasonable for investors and their professional advisers to expect to find the information in the prospectus.
History
S 713(2) amended by No 122 of 2001, s 3, Sch 2
[
25].
713(3)
The prospectus must state that:
(a)
as a disclosing entity, the body is subject to regular reporting and disclosure obligations; and
(b)
copies of documents lodged with ASIC in relation to the body may be obtained from, or inspected at, an ASIC office.
[
CCH Note:
S 713(3) will be amended by No 69 of 2020, s 3, Sch 1[1076], by substituting para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (b) will read:
(b)
documents lodged with the Registrar in relation to the body may be accessed by the public in accordance with the disclosure framework.]
History
S 713(3) amended by No 122 of 2001, s 3, Sch 2
[
26].
713(4)
The prospectus must either:
(a)
inform people of their right to obtain a copy of any of the following documents:
(i)
the annual financial report most recently lodged with ASIC by the body;
(ii)
any half-year financial report lodged with ASIC by the body after the lodgment of that annual financial report and before the lodgment of the copy of the prospectus with ASIC;
(iii)
any continuous disclosure notices given by the body after the lodgment of that annual financial report and before the lodgment of the copy of the prospectus with ASIC; or
(b)
include, or be accompanied by, a copy of the document.
If the prospectus informs people of their right to obtain a copy of the document, the person making the offer must give a copy of the document free of charge to anyone who asks for it during the application period for the prospectus.
[
CCH Note:
S 713(4) will be amended by No 69 of 2020, s 3, Sch 1[1077], by substituting
"
the Registrar
"
for
"
ASIC
"
(wherever occurring) in para (a)(i) to (iii) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 713(4) amended by No 122 of 2001, s 3, Sch 2
[
27].
Information excluded from continuous disclosure notice
713(5)
Information about the offer must also be set out in the prospectus if the information:
(a)
has been excluded from a continuous disclosure notice in accordance with the listing rules of the prescribed financial market whose operator was given the notice; and
(b)
is information that investors and their professional advisers would reasonably require for the purpose of making an informed assessment of:
(i)
the assets and liabilities, financial position and performance, profits and losses and prospects of the body; and
(ii)
the rights and liabilities attaching to the securities being offered.
The prospectus must contain this information only to the extent to which it is reasonable for investors and their professional advisers to expect to find the information in the prospectus.
History
S 713(5) amended by No 122 of 2001, s 3, Sch 2
[
28].
ASIC power to exclude entity from this section
713(6)
ASIC may determine in writing that a body may not rely on this section if it is satisfied that, in the previous 12 months, any of the following provisions were contravened in relation to the body:
(a)
the provisions of Chapter
2M
;
(aa)
subsection
674(2)
,
674A(2)
,
675(2)
or
675A(2)
;
(ab)
subsection
708AA(10)
or
708A(9)
;
(b)
section
724
;
(c)
section
728
;
(d)
section
1308
as it applies to a notice under subsection
708AA(2)
or
708A(5)
;
ASIC must publish a copy of the determination in the
Gazette
.
While the determination is in force, section
710
and not this section applies to securities of the body.
History
S 713(6) amended by No 82 of 2021, s 3, Sch 2[33] (effective 14 August 2021).
S 713(6) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
87
-
88].
S 713(6) amended by No 103 of 2004, s 3, Sch 7, Pt 3
[
16-17].
S 713(6) amended by No 122 of 2001, s 3, Sch 2
[
29-31].
Section does not apply to 2-part simple corporate bonds prospectus
713(7)
This section does not apply to a 2-part simple corporate bonds prospectus.
History
S 713(7) inserted by No 100 of 2014, s 3, Sch 1
[
21].
SECTION 713A
OFFER OF SIMPLE CORPORATE BONDS
CCH Note:
Section 713A is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Simple corporate bonds
713A(1)
If the conditions set out in this section are satisfied in relation to an offer of securities for issue by a body:
(a)
the offer is an
offer of simple corporate bonds
; and
(b)
the securities are
simple corporate bonds
.
Securities must be debentures
713A(2)
The securities must be debentures.
Securities must be quoted on a prescribed financial market
713A(3)
The securities must be offered on the basis that:
(a)
the securities have been admitted to quotation on a prescribed financial market; or
(b)
an application for admission of the securities to quotation on a prescribed financial market has been made to the operator of that market; or
(c)
an application for admission of the securities to quotation on a prescribed financial market will be made to the operator of that market within 7 days after the date of the prospectus.
713A(4)
If, at a particular time, there is no prospectus, then, for the purposes of paragraph
(3)(c)
, assume that:
(a)
there is a prospectus; and
(b)
the date of the prospectus is the first day of the offer period.
Securities must be in Australian currency
713A(5)
The securities must be denominated in Australian currency.
Securities for fixed term
713A(6)
The securities must be for a fixed term of not more than 15 years.
Principal payable at end of fixed term
713A(7)
The principal in respect of the securities must be repaid by the issuing body to the holder at the end of the fixed term.
Interest rate must be fixed or floating
713A(8)
The rate at which interest is payable on the securities must be:
(a)
a fixed rate; or
(b)
a floating rate that is comprised of a reference rate and a fixed margin.
Fixed rate etc. must not be decreased
713A(9)
If a fixed rate of interest is payable on the securities, the rate must not be decreased during the term of the securities.
713A(10)
If a floating rate of interest is payable on the securities, the fixed margin of the rate must not be decreased during the term of the securities.
Interest to be paid periodically etc.
713A(11)
Interest payments on the securities:
(a)
must be paid periodically; and
(b)
must be paid no later than the end of the fixed term; and
(c)
cannot be deferred or capitalised by the issuing body.
Security must not exceed $1,000
713A(12)
The price payable for each security must not exceed $1,000.
Securities may only be redeemed before fixed term in specified circumstances
713A(13)
The securities must not be redeemable (other than at the end of the fixed term) except in one or more of the following circumstances:
(a)
at the option of the holders of the securities;
(b)
as a result of the acceptance of offers made to the holders by the issuing body to buy back the securities;
(c)
a change in a law, or in the application or interpretation of a law, with the effect that interest payable on the securities is not, or may not be, deductible by the issuing body for the purposes of calculating its taxation liability;
(d)
a change in a law, or in the application or interpretation of a law, with the effect that:
(i)
the issuing body, or any guarantor for the body, would be required to deduct or withhold an amount in respect of taxes from a payment to the holders; and
(ii)
under the terms of the securities, that deduction or withholding would result in the body, or any guarantor, being required to pay an additional amount to the holders in relation to the amount deducted or withheld;
(e)
there is a change of control of the issuing body (as defined in the terms of the securities) and the redemption does not take effect unless all securities issued under the offer are redeemed;
(f)
fewer than 10% of the securities issued under the offer remain on issue and the redemption does not take effect unless all securities issued under the offer are redeemed.
Debt to security holders is not subordinated to debts to unsecured creditors
713A(14)
The issuing body
'
s debts to holders of the securities must not be subordinated to any of the issuing body
'
s debts to unsecured creditors.
Securities not convertible
713A(15)
The securities must not be convertible into another class of securities.
Securities are offered at single price
713A(16)
The price payable for the securities must be the same for all persons who accept the offer.
Continuously quoted securities
713A(17)
The issuing body must be a body that:
(a)
has continuously quoted securities; or
(b)
is a wholly-owned subsidiary of a body corporate that:
(i)
has continuously quoted securities; and
(ii)
has guaranteed, or agreed to guarantee, the repayment of any money deposited or lent to the borrower under the securities; and
(iii)
has guaranteed, or agreed to guarantee, the payment of any interest payable on the securities;
where trading in the securities on a prescribed financial market on which the securities are quoted was not suspended for more than a total of 5 days during the shorter of the following periods:
(c)
the period during which the class of securities is quoted;
(d)
the period of 12 months before the day on which the offer is made.
713A(18)
If, at a particular time, there is no prospectus, then, in determining, for the purposes of subsection
(17)
, whether a body has continuously quoted securities at that time, assume that:
(a)
there is a prospectus; and
(b)
the date of the prospectus is the first day of the offer period.
Auditor
'
s reports have not been modified
713A(19)
If the condition in subsection
(17)
is satisfied because of the application of paragraph
(17)(a)
to the issuing body, the auditor
'
s report on:
(a)
the issuing body
'
s financial report for the most recent financial year; or
(b)
if a half-year financial report was prepared by the issuing body after the issuing body
'
s financial report for the most recent financial year
-
the half-year financial report;
must not include:
(c)
a statement to the effect that the auditor is of the opinion that the financial report, or the half-year financial report, as the case may be, is not in accordance with this Act; or
(d)
a description of a defect or an irregularity in the financial report or the half-year financial report, as the case may be; or
(e)
a description of a deficiency, failure or shortcoming in respect of the matters referred to in paragraph
307(b)
,
(c)
or
(d)
; or
(f)
an emphasis of matter paragraph related to going concern.
713A(20)
If:
(a)
the issuing body is a wholly-owned subsidiary of a body corporate; and
(b)
the condition in subsection
(17)
is satisfied because of the application of paragraph
(17)(b)
to the body corporate;
the auditor
'
s report on:
(c)
the body corporate
'
s financial report for the most recent financial year; or
(d)
if a half-year financial report was prepared by the body corporate after the body corporate
'
s financial report for the most recent financial year
-
the half-year financial report;
must not include:
(e)
a statement to the effect that the auditor is of the opinion that the financial report, or the half-year financial report, as the case may be, is not in accordance with this Act; or
(f)
a description of a defect or an irregularity in the financial report or the half-year financial report, as the case may be; or
(g)
a description of a deficiency, failure or shortcoming in respect of the matters referred to in paragraph
307(b)
,
(c)
or
(d)
; or
(h)
an emphasis of matter paragraph related to going concern.
ASIC power to exclude body from this section
713A(21)
The issuing body must not be a body in relation to which a determination is in force under subsection
(23)
.
713A(22)
If the issuing body is a wholly-owned subsidiary of a body corporate, the body corporate must not be a body in relation to which a determination is in force under subsection
(23)
.
713A(23)
ASIC may determine that a body is a body to which this subsection applies if ASIC is satisfied that, in the previous 12 months, any of the following provisions were contravened in relation to the body:
(a)
subsection
283AA(1)
,
283AB(1)
or
283AC(1)
;
(b)
the provisions of Chapter
2M
as they apply to the issuing body;
(c)
section
674
,
674A
,
675
or
675A
;
(d)
section
724
or
728
.
ASIC must publish a copy of the determination in the Gazette.
History
S 713A(23) amended by No 82 of 2021, s 3, Sch 2[34] (effective 14 August 2021).
Regulations
713A(24)
The securities must comply with such other conditions (if any) as are specified in the regulations.
713A(25)
The offer must comply with such other conditions (if any) as are specified in the regulations.
713A(26)
The issuing body must comply with such other conditions (if any) as are specified in the regulations.
713A(27)
If the issuing body is a wholly-owned subsidiary of a body corporate, the body corporate must comply with such other conditions (if any) as are specified in the regulations.
History
S 713A inserted by No 100 of 2014, s 3, Sch 1
[
22] (effective 19 December 2014).
SECTION 713B
SIMPLE CORPORATE BONDS
-
2-PART SIMPLE CORPORATE BONDS PROSPECTUS
CCH Note:
Section 713B is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
713B(1)
A
2-part simple corporate bonds prospectus
for an offer of simple corporate bonds for issue by a body is the combination of the following documents prepared by the issuing body:
(a)
the base prospectus that covers the period during which the offer is made;
(b)
the offer-specific prospectus for the offer.
Prospectus
713B(2)
A 2-part simple corporate bonds prospectus is taken to be a prospectus for the purposes of this Act.
Base prospectus is not taken to be a prospectus in its own right
713B(3)
For the purposes of this Act, a base prospectus is taken not to be a prospectus in its own right.
Offer-specific prospectus is not taken to be a prospectus inits own right
713B(4)
For the purposes of this Act, an offer-specific prospectus is taken not to be a prospectus in its own right.
Lodgement of prospectus
713B(5)
For the purposes of this Act, a 2-part simple corporate bonds prospectus for an offer of simple corporate bonds is taken to have been lodged with ASIC on the day the offer-specific prospectus for the offer is lodged with ASIC.
[
CCH Note:
S 713B(5) will be amended by No 69 of 2020, s 3, Sch 1[1078] and
[
1079], by substituting
"
the Registrar
"
for
"
ASIC
"
(wherever occurring) and inserting
"
Lodgement of the offer-specific prospectus must meet any requirements of the data standards.
"
at the end of subsection, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Expiry date of prospectus
713B(6)
For the purposes of this Act, the expiry date of a 2-part simple corporate bonds prospectus for an offer of simple corporate bonds is taken to be the expiry date for the offer-specific prospectus for the offer.
Prospectus must be published on body
'
s website
713B(7)
A base prospectus must be available on the issuing body
'
s website throughout the covered period for the base prospectus (within the meaning of section
713C
).
713B(8)
An offer-specific prospectus must be available on the issuing body
'
s website throughout the application period for the offer-specific prospectus.
History
S 713B inserted by No 100 of 2014, s 3, Sch 1
[
22].
SECTION 713C
SIMPLE CORPORATE BONDS
-
BASE PROSPECTUS
CCH Note:
Section 713C is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Base prospectus
713C(1)
If a body prepares and lodges with ASIC a document that satisfies the conditions set out in subsections
(2)
and
(3)
, the document is a
base prospectus
for simple corporate bonds offered by the body during the 3-year period (the
covered period
) beginning on the date on which the document is lodged with ASIC.
[
CCH Note 1:
S 713C(1) will be amended by No 69 of 2020, s 3, Sch 1[1080], by substituting
"
the Registrar
"
for
"
ASIC
"
(wherever occurring) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
[
CCH Note 2:
S 713C(1A) will be inserted by No 69 of 2020, s 3, Sch 1[1081] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 713C(1A) will read:
713C(1A)
Lodgement of the document must meet any requirements of the data standards.]
Document must be expressed to be the base prospectus
713C(2)
The document must state that it is the base prospectus for all offers of simple corporate bonds made by the body during the covered period.
Document to be read with offer-specific prospectus
713C(3)
The document must state that:
(a)
there will be an offer-specific prospectus for each offer of simple corporate bonds during the covered period; and
(b)
the disclosure document for each such offer will consist of:
(i)
a base prospectus; and
(ii)
the offer-specific prospectus for the offer.
Note: See also section
713B
(2-part simple corporate bonds prospectus).
Replacement document
713C(4)
If the document is a replacement document, the
covered period
is the period:
(a)
beginning on the date on which the replacement document is lodged with ASIC; and
(b)
ending at the end of the covered period for the original base prospectus.
[
CCH Note:
S 713C(4) will be amended by No 69 of 2020, s 3, Sch 1[1082], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Content of base prospectus
713C(5)
A base prospectus must contain the information specified in the regulations.
713C(6)
A base prospectus must set out the statements specified in the regulations.
History
S 713C inserted by No 100 of 2014, s 3, Sch 1
[
22].
SECTION 713D
SIMPLE CORPORATE BONDS
-
OFFER-SPECIFIC PROSPECTUS
CCH Note:
Section 713D is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Offer-specific prospectus
713D(1)
If:
(a)
a body proposes to make a particular offer of simple corporate bonds; and
(b)
the body prepares and lodges with ASIC a document that satisfies:
(i)
the conditions set out in subsections
(2)
,
(3)
and
(4)
; and
(ii)
if the condition set out in subsection
(5)
is applicable
-
that condition;
the document is an
offer-specific prospectus
for the offer.
[
CCH Note 1:
S 713D(1) will be amended by No 69 of 2020, s 3, Sch 1[1082], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
[
CCH Note 2:
S 713D(1A) will be inserted by No 69 of 2020, s 3, Sch 1[1083] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 713D(1A) will read:
713D(1A)
Lodgement of the document must meet any requirements of the data standards.]
Document must be expressed to be the offer-specific prospectus
713D(2)
The document must state that it is the offer-specific prospectus for the offer.
Expiry date
713D(3)
The document must state that no simple corporate bonds will be issued under the offer after the expiry date specified in the document. The expiry date must not be later than 13 months after the date the document is lodged with ASIC. The expiry date of a replacement document must be the same as that of the original document it replaces.
Note: Section
719A
deals with replacement documents.
[
CCH Note :
S 713D(3) will be amended by No 69 of 2020, s 3, Sch 1[1084], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Document to be read with base prospectus
713D(4)
The document must state that:
(a)
there is a base prospectus that is applicable to the offer; and
(b)
the disclosure document for each such offer will consist of:
(i)
the offer-specific prospectus for the offer; and
(ii)
the base prospectus.
Note: See also section
713B
(2-part simple corporate bonds prospectus).
Minimum subscription
-
first offer
713D(5)
If the offer is the first offer of simple corporate bonds made by the issuing body during:
(a)
if the base prospectus that is applicable to the offer is not a replacement document
-
the covered period (within the meaning of subsection
713C(1)
) for the base prospectus; or
(b)
if the base prospectus that is applicable to the offer is a replacement document for the original base prospectus
-
the covered period (within the meaning of subsection
713C(1)
) for the original base prospectus;
the document must state that the simple corporate bonds will not be issued under the offer unless a minimum amount of $50 million is raised under the offer. For the purpose of working out whether this condition has been satisfied, a person who has agreed to take simple corporate bonds as an underwriter is taken to have applied for those simple corporate bonds.
Content of offer-specific prospectus
713D(6)
An offer-specific prospectus must contain the information specified in the regulations.
713D(7)
An offer-specific prospectus must set out the statements specified in the regulations.
Offer-specific prospectus may amend applicable base prospectus
713D(8)
An offer-specific prospectus may include material that modifies or supplements the applicable base prospectus.
History
S 713D inserted by No 100 of 2014, s 3, Sch 1
[
22].
SECTION 713E
SIMPLE CORPORATE BONDS
-
PROSPECTUS MAY REFER TO OTHER MATERIAL LODGED WITH ASIC
CCH Note:
Section 713E is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
[
CCH Note:
S 713E heading will be amended by No 69 of 2020, s 3, Sch 1[1085], by substituting
"
HELD BY THE REGISTRAR
"
for
"
LODGED WITH ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
713E(1)
Instead of setting out information that is contained in a document (the
lodged document
) that has been lodged with ASIC, a base prospectus or an offer-specific prospectus may simply refer to the lodged document. The reference must:
(a)
identify the lodged document or the part of the lodged document that contains the information; and
(b)
inform people of their right to obtain a copy of the lodged document (or part) under subsection
(5)
.
[
CCH Note:
S 713E(1) will be amended by No 69 of 2020, s 3, Sch 1[1086], by substituting
"
lodged document
"
for
"
document (the
lodged document
) that has been lodged with ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
713E(2)
The reference must also include:
(a)
if the information is primarily of interest to professional analysts or advisers or investors with similar specialist information needs:
(i)
a description of the contents of the lodged document (or part); and
(ii)
a statement to the effect that the information in the lodged document (or part) is primarily of interest to those people; or
(b)
in any other case
-
sufficient information about the contents of the lodged document to allow a person to whom the offer is made to decide whether to obtain a copy of the lodged document (or part).
713E(3)
The lodged document (or part) referred to under subsection
(1)
is taken to be included in the base prospectus, or the offer-specific prospectus, as the case may be.
713E(4)
A person who wishes to take advantage of subsection
(1)
may lodge a document with ASIC even if this Act does not require the document to be lodged.
[
CCH Note:
S 713E(4) will be amended by No 69 of 2020, s 3, Sch 1[1087] and
[
1088], by substituting
"
the Registrar
"
for
"
ASIC
"
and inserting
"
However, the document must satisfy paragraph (b) of the definition of
lodged document
(in subsection (6)) and meet any requirements of the data standards.
"
at the end of subsection, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
713E(5)
If the base prospectus, or the offer-specific prospectus, as the case may be, is taken to include a lodged document, or part of a lodged document, under subsection
(1)
, the person making the offer must give a copy of the lodged document (or part) free of charge to anyone who asks for it during:
(a)
in the case of a base prospectus
-
the covered period for the base prospectus (within the meaning of section
713C
); or
(b)
in the case of an offer-specific prospectus
-
the application period for the offer-specific prospectus.
[
CCH Note :
S 713E(6) will be inserted by No 69 of 2020, s 3, Sch 1[1089] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 713E(6) will read:
713E(6)
A
lodged document
is a document that:
(a)
is held by the Registrar (including a document that was lodged with ASIC); and
(b)
may be accessed by the public in accordance with the disclosure framework.]
History
S 713E inserted by No 100 of 2014, s 3, Sch 1
[
22].
SECTION 714
CONTENTS OF PROFILE STATEMENT
CCH Note:
Section 714 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
714(1)
A profile statement must:
(a)
identify the body and the nature of the securities; and
(b)
state the nature of the risks involved in investing in the securities; and
(c)
give details of all amounts payable in respect of the securities (including any amounts by way of fee, commission or charge); and
(d)
state that the person given the profile statement is entitled to a copy of the prospectus free of charge; and
(e)
state that:
(i)
a copy of the statement has been lodged with ASIC; and
(ii)
ASIC takes no responsibility for the content of the statement; and
(f)
give any other information required by the regulations or by ASIC approval under subsection
709(3)
.
[
CCH Note 1:
S 714(1) will be amended by No 69 of 2020, s 3, Sch 1[1090] and
[
1091], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (e)(i) and
"
neither ASIC nor the Registrar takes
"
for
"
ASIC takes no
"
in para (e)(ii) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
[
CCH Note 2:
S 714(1A) will be inserted by No 69 of 2020, s 3, Sch 1[1092] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 714(1A) will read:
714(1A)
Lodgement of the copy of the statement must meet any requirements of the data standards.]
714(2)
The profile statement must state that no securities will be issued on the basis of the statement after the expiry date specified in the statement. The expiry date must not be later than 13 months after the date of the prospectus. The expiry date of a replacement statement must be the same as that of the original statement it replaces.
Note 1: Subsection
716(1)
requires the profile statement to be dated.
Note 2: Section
719
deals with supplementary and replacement profile statements.
SECTION 715
CONTENTS OF OFFER INFORMATION STATEMENT
CCH Note:
Section 715 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
715(1)
An offer information statement for the issue of a body
'
s securities must:
(a)
identify the body and the nature of the securities; and
(b)
describe the body
'
s business; and
(c)
describe what the funds raised by the offers are to be used for; and
(d)
state the nature of the risks involved in investing in the securities; and
(e)
give details of all amounts payable in respect of the securities (including any amounts by way of fee, commission or charge); and
(f)
state that:
(i)
a copy of the statement has been lodged with ASIC; and
(ii)
ASIC takes no responsibility for the content of the statement; and
(g)
state that the statement is not a prospectus and that it has a lower level of disclosure requirements than a prospectus; and
(h)
state that investors should obtain professional investment advice before accepting the offer; and
(i)
include a copy of a financial report for the body; and
(j)
include any other information that the regulations require to be included in the statement.
[
CCH Note 1:
S 715(1) will be amended by No 69 of 2020, s 3, Sch 1[1093] and
[
1094], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (f)(i) and
"
neither ASIC nor the Registrar takes
"
for
"
ASIC takes no
"
in para (f)(ii) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
[
CCH Note 2:
S 715(1A) will be inserted by No 69 of 2020, s 3, Sch 1[1095] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 715(1A) will read:
715(1A)
Lodgement of the copy of the statement must meet any requirements of the data standards.]
715(2)
The financial report included under paragraph (1)(i) must:
(a)
be a report for a 12 month period and have a balance date that occurs within the last 6 months before the securities are first offered under the statement; and
(b)
be prepared in accordance with the accounting standards; and
(c)
be audited.
715(3)
The statement must state that no securities will be issued on the basis of the statement after the expiry date specified in the statement. The expiry date must not be later than 13 months after the date of the statement. The expiry date of a replacement statement must be the same as that of the original statement it replaces.
Note 1: Subsection
716(1)
requires the statement to be dated.
Note 2: Section
719
deals with replacement statements.
SECTION 715A
PRESENTATION ETC. OF DISCLOSURE DOCUMENTS
CCH Note:
Section 715A is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
715A(1)
The information in a disclosure document must be worded and presented in a clear, concise and effective manner.
Note: If this subsection is contravened, ASIC may make a stop order under section
739
.
715A(2)
A contravention of subsection (1) is not an offence.
History
S 715A inserted by No 103 of 2004, s 3, Sch 7, Pt 1
[
1].
SECTION 716
DISCLOSURE DOCUMENT DATE AND CONSENTS
CCH Note:
Section 716 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Date of disclosure document
716(1)
A disclosure document must be dated. The date is the date on which it is lodged with ASIC.
[
CCH Note:
S 716(1) will be amended by No 69 of 2020, s 3, Sch 1[1096], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Date for 2-part simple corporate bonds prospectus
716(1A)
Subsection
(1)
does not apply to a 2-part simple corporate bonds prospectus.
History
S 716(1A) inserted by No 100 of 2014, s 3, Sch 1
[
23].
716(1B)
For the purposes of this Act, the date of a 2-part simple corporate bonds prospectus for an offer of simple corporate bonds is taken to be the date on which the offer-specific prospectus for the offer is lodged with ASIC.
[
CCH Note:
S 716(1B) will be amended by No 69 of 2020, s 3, Sch 1[1096], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 716(1B) inserted by No 100 of 2014, s 3, Sch 1
[
23].
Consent of person to whom statement attributed
716(2)
A disclosure document may only include a statement by a person, or a statement said in the document to be based on a statement by a person, if:
(a)
the person has consented to the statement being included in the document in the form and context in which it is included; and
(b)
the document states that the person has given this consent; and
(c)
the person has not withdrawn this consent before the document is lodged with ASIC.
[
CCH Note:
S 716(2) will be amended by No 69 of 2020, s 3, Sch 1[1097], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (c) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Division 5
-
Procedure for offering securities
CCH Note:
Division 5 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
SECTION 717
717
OVERVIEW OF PROCEDURE FOR OFFERING SECURITIES
CCH Note:
Section 717 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
The following table summarises what a person who wants to offer securities must do to make an offer of securities that needs disclosure to investors under this Part and gives signposts to relevant sections:
Offering securities (disclosure documents and procedure)
|
|
Action required
|
Sections
|
Comments and related sections
|
1 |
Prepare disclosure document, making sure that it: |
710
711
712
713
713C
713D
713E
714
715
716 |
Section
728
prohibits offering securities under a disclosure document that is materially deficient. |
|
• |
sets out all the information required |
Section
729
deals with the liability for breaches of this prohibition. |
|
• |
does not contain any misleading or deceptive statements |
Sections
731
,
732
and
733
set out defences. |
|
• |
is dated |
|
|
and that the directors consent to the disclosure document. |
|
2 |
Lodge the disclosure document with ASIC |
718 |
Subsection
727(3)
prohibits processing applications for non-quoted securities for 7 days after the disclosure document is lodged. |
3 |
Offer the securities, making sure that the offer and any application form is either included in or accompanies: |
721 |
Sections
727
and
728
make it an offence to: |
|
|
• |
offer securities without a disclosure document |
|
• |
the disclosure document; or |
|
• |
offer securities if the disclosure document is materially deficient. |
|
• |
a profile statement if ASIC has approved the use of a profile statement for offers of that kind. |
|
Subsection
729(3)
deals with liability on the prospectus if a profile statement is used. |
|
|
|
The securities hawking provisions (section
736
) restrict the way in which the securities can be offered. |
4 |
If it is found that the disclosure document lodged was deficient or a significant new matter arises, either: |
719
719A
724 |
Section
728
prohibits making offers after becoming aware of a material deficiency in the disclosure document or a significant new matter. |
|
• |
lodge a supplementary or replacement document under section
719
or
719A
; or |
|
Section
730
requires people liable on the disclosure document to inform the person making the offer about material deficiencies and new matters. |
|
• |
return money to applicants under section
724
. |
|
5 |
Hold application money received on trust until the securities are issued or transferred or the money returned. |
722 |
Investors may have a right to have their money returned if certain events occur (see sections
724
,
737
and
738
). |
6 |
Issue or transfer the securities, making sure that: |
723 |
Section
721
says which disclosure document must be distributed with the application form. |
|
• |
the investor used an application form distributed with the disclosure document; and |
|
Section
729
identifies the people who may be liable if: |
|
• |
the disclosure document is current and not materially deficient; and |
|
• |
securities are issued in response to an improper application form; or |
|
• |
any minimum subscription condition has been satisfied. |
|
• |
the disclosure document is not current or is materially deficient. |
|
|
|
|
Sections
731
,
732
and
733
provide defences for the contraventions. |
|
|
|
|
Section
737
provides remedies for an investor. |
[
CCH Note:
S 717 will be amended by No 69 of 2020, s 3, Sch 1[1098] and
[
1099], by substituting
"
the Registrar
"
for
"
ASIC
"
in table item 2, column headed
"
Action required
"
and inserting
"
with the Registrar
"
after
"
lodged
"
in table item 4, column headed
"
Action required
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 717 amended by No 100 of 2014, s 3, Sch 1
[
24]
-
[
26].
SECTION 718
LODGING OF DISCLOSURE DOCUMENT
CCH Note:
Section 718 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
718(1)
A disclosure document to be usedfor an offer of securities must be lodged with ASIC.
Note 1: Subsection
727(3)
makes it an offence to process applications for non-quoted securities under an offer that needs a disclosure document until 7 days after the disclosure document is lodged.
Note 2: See section
720
for the consents that need to be obtained before lodgment.
Note 3: Section
351
says what signatures are necessary for documents that are to be lodged with ASIC.
[
CCH Note:
S 718(1) will be amended by No 69 of 2020, s 3, Sch 1[1100] and
[
1101], by substituting
"
the Registrar
"
for
"
ASIC
"
and repealing note 3, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 718(1) renumbered from s 718 by No 100 of 2014, Sch 1[27].
718(2)
This section does not apply to a 2-part simple corporate bonds prospectus.
Note: See section
713B
(2-part simple corporate bonds prospectus).
History
S 718(2) inserted by No 100 of 2014, s 3, Sch 1
[
28].
SECTION 719
LODGING SUPPLEMENTARY OR REPLACEMENT DOCUMENT
-
GENERAL
CCH Note:
Section 719 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
History
S 719 heading substituted by No 100 of 2014, s 3, Sch 1
[
29].
Need for a supplementary or replacement document
719(1)
If the person making the offer becomes aware of:
(a)
a misleading or deceptive statement in the disclosure document; or
(b)
an omission from the disclosure document of information required by section
710
,
711
,
712
,
713
,
714
or
715
; or
(c)
a new circumstance that:
(i)
has arisen since the disclosure document was lodged; and
(ii)
would have been required by section
710
,
711
,
712
,
713
,
714
or
715
to be included in the disclosure document if it had arisen before the disclosure document was lodged;
that is materially adverse from the point of view of an investor, the person may lodge a supplementary or replacement document with ASIC.
Note 1: Section
728
makes it an offence to continue making offers after the person has become aware of a misleading or deceptive statement, omission or new circumstance that is materially adverse from the point of view of an investor unless the deficiency is corrected.
Note 2: Because of section
712
, a prospectus may be taken to include information in another document. This should be taken into account when considering whether the prospectus is deficient.
Note 3: The power to issue a supplementary or replacement document is not limited to the situations dealt with in this section.
Note 4: This section applies to a document that has already been previously supplemented or replaced.
Note 5: See section
720
for the consents that need to be obtained before lodgment.
[
CCH Note:
S 719(1) will be amended by No 69 of 2020, s 3, Sch 1
[
1102] and
[
1103], by inserting
"
with the Registrar
"
after
"
lodged
"
in para (c)(i) and substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
719(1A)
If the person making the offer becomes aware that information in the disclosure document is not worded and presented in a clear, concise and effective manner, the person may lodge a supplementary or replacement document with ASIC.
[
CCH Note:
S 719(1A) will be amended by No 69 of 2020, s 3, Sch 1
[
1103], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 719(1A) inserted by No 103 of 2004, s 3, Sch 7, Pt 1
[
2].
Form of supplementary document
719(2)
At the beginning of a supplementary document, there must be:
(a)
a statement that it is a supplementary document; and
(b)
an identification of the disclosure document it supplements; and
(c)
an identification of any previous supplementary documents lodged with ASIC in relation to the offer; and
(d)
a statement that it is to be read together with the disclosure document it supplements and any previous supplementary documents.
The supplementary document must be dated. The date is the date on which it is lodged with ASIC.
[
CCH Note:
S 719(2) will be amended by No 69 of 2020, s 3, Sch 1[1104]
-
[
1106], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (c), inserting
"
meet any requirements of the data standards and
"
after
"
document must
"
and substituting
"
the Registrar
"
for
"
ASIC
"
(last occurring) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Form of replacement document
719(3)
At the beginning of a replacement document, there must be:
(a)
a statement that it is a replacement document; and
(b)
an identification of the disclosure document it replaces.
The replacement document must be dated. The date is the date on which it is lodged with ASIC.
[
CCH Note:
S 719(3) will be amended by No 69 of 2020, s 3, Sch 1[1107] and
[
1108], by inserting
"
meet any requirements of the data standards and
"
after
"
document must
"
and substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Consequences of lodging a supplementary document
719(4)
If a supplementary document is lodged with ASIC, the disclosure document is taken to be the disclosure document together with the supplementary document for the purposes of the application of this Chapter to events that occur after the lodgment.
Note: This subsection means, for example, that offers made after lodgment of the supplementary document must be accompanied by copies of both the original disclosure document and the supplementary document.
[
CCH Note:
S 719(4) will be amended by No 69 of 2020, s 3, Sch
[
1108], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Consequences of lodging a replacement document
719(5)
If a replacement document is lodged with ASIC, the disclosure document is taken to be the replacement document for the purposes of the application of this Chapter to events that occur after the lodgment.
Note: This subsection means, for example, that offers made after lodgment of the replacement document must be accompanied by copies of the replacement document and not the original disclosure document.
[
CCH Note:
S 719(5) will be amended by No 69 of 2020, s 3, Sch
[
1108], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Section does not apply to 2-part simple corporate bonds prospectus
719(6)
This section does not apply to a 2-part simple corporate bonds prospectus.
History
S 719(6) inserted by No 100 of 2014, s 3, Sch 1
[
30].
SECTION 719A
LODGING SUPPLEMENTARY OR REPLACEMENT DOCUMENT
-
2-PART SIMPLE CORPORATE BONDS PROSPECTUS
CCH Note:
Section 719A is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Need for a supplementary or replacement document
719A(1)
If the person making an offer of simple corporate bonds under a 2-part simple corporate bonds prospectus becomes aware of:
(a)
a misleading or deceptive statement in the 2-part simple corporate bonds prospectus; or
(b)
an omission from the 2-part simple corporate bonds prospectus of information required by section
713C
,
713D
or
713E
; or
(c)
a new circumstance that:
(i)
has arisen since the 2-part simple corporate bonds prospectus was lodged with ASIC; and
(ii)
would have been required by section
713C
,
713D
or
713E
to be included in the 2-part simple corporate bonds prospectus if it had arisen before the 2-part simple corporate bonds prospectus was lodged;
that is materially adverse from the point of view of an investor, the person may:
(d)
if the statement, omission or circumstance relates to the base prospectus component of the 2-part simple corporate bonds prospectus:
(i)
include material in an offer-specific prospectus that supplements or modifies the base prospectus; or
(ii)
lodge a replacement document with ASIC; or
(e)
if the statement, omission or circumstance relates to the offer-specific prospectus component of the 2-part simple corporate bonds prospectus
-
lodge a supplementary or replacement document with ASIC.
Note 1: Section
728
makes it an offence to continue making offers after the person has become aware of a misleading or deceptive statement, omission or new circumstance that is materially adverse from the point of view of an investor unless the deficiency is corrected.
Note 2: Because of section
713E
, a 2-part simple corporate bonds prospectus may be taken to include information in another document. This should be taken into account when considering whether the prospectus is deficient.
Note 3: A base prospectus may be supplemented or modified by the offer-specific prospectus for a particular offer, see subsection
713D(7)
.
Note 4: The power to issue a supplementary or replacement document is not limited to the situations dealt with in this section.
Note 5: This section applies to a document that has already been previously supplemented or replaced.
Note 6: See section
720
for the consents that need to be obtained before lodgement.
[
CCH Note:
S 719A(1) will be amended by No 69 of 2020, s 3, Sch 1[1109] and
[
1110], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (c)(i), (d)(ii) and (e) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
719A(2)
If the person making the offer becomes aware that information in the base prospectus component of the 2-part simple corporate bonds prospectus is not worded and presented in a clear, concise and effective manner, the person may lodge a replacement document with ASIC.
Note: A base prospectus may be supplemented or modified by the offer-specific prospectus for a particular offer, see subsection
713D(7)
.
[
CCH Note:
S 719A(2) will be amended by No 69 of 2020, s 3, Sch 1[1111], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
719A(3)
If the person making the offer becomes aware that information in the offer-specific prospectus component of the 2-part simple corporate bonds prospectus is not worded and presented in a clear, concise and effective manner, the person may lodge a supplementary or replacement document with ASIC.
[
CCH Note:
S 719A(3) will be amended by No 69 of 2020, s 3, Sch 1[1111], by substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Form of supplementary document for offer-specific prospectus
719A(4)
At the beginning of a supplementary document for an offer-specific prospectus, there must be:
(a)
a statement that it is a supplementary document; and
(b)
an identification of the offer-specific prospectus it supplements; and
(c)
an identification of any previous supplementary documents lodged with ASIC in relation to the offer; and
(d)
a statement that it is to be read together with:
(i)
the offer-specific prospectus it supplements; and
(ii)
any previous supplementary documents; and
(iii)
the base prospectus that covers the period during which the offer is made.
The supplementary document must be dated. The date is the date on which the document is lodged with ASIC.
[
CCH Note 1:
S 719A(4) will be amended by No 69 of 2020, s 3, Sch 1[1112]
-
[
1114], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (c),
"
the Registrar
"
for
"
ASIC
"
last occurring and inserting
"
meet any requirements of the data standards and
"
after
"
document must
"
(effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Form of replacement document for a base prospectus
719A(5)
At the beginning of a replacement document for a base prospectus, there must be:
(a)
a statement that it is a replacement document; and
(b)
an identification of the base prospectus it replaces.
The replacement document must be dated. The date is the date on which the document is lodged with ASIC.
[
CCH Note:
S 719A(5) will be amended by No 69 of 2020, s 3, Sch 1[1115] and
[
1116], by inserting
"
meet any requirements of the data standards and
"
after
"
document must
"
and substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Form of replacement document for an offer-specific prospectus
719A(6)
At the beginning of a replacement document for an offer-specific prospectus, there must be:
(a)
a statement that it is a replacement document; and
(b)
an identification of the offer-specific prospectus it replaces.
The replacement document must be dated. The date is the date on which the document is lodged with ASIC.
[
CCH Note:
S 719A(6) will be amended by No 69 of 2020, s 3, Sch 1[1117] and
[
1118], by inserting
"
meet any requirements of the data standards and
"
after
"
document must
"
and substituting
"
the Registrar
"
for
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
Consequences of lodging a supplementary document for an offer-specific prospectus
719A(7)
If a supplementary document is lodged with ASIC in relation to an offer-specific prospectus, the offer-specific prospectus is taken to be the offer-specific prospectus together with the supplementary document for the purposes of the application of this Chapter to events that occur after the lodgement.
Note: This subsection means, for example, that offers made after lodgement of the supplementary document must be accompanied by copies of both the original offer-specific prospectus and the supplementary document.
Consequences of lodging a replacement document for a base prospectus
719A(8)
If a replacement document is lodged with ASIC in relation to a base prospectus, the base prospectus is taken to be the replacement document for the purposes of the application of this Chapter to events that occur after the lodgement.
Note: This subsection means, for example, that offers made after lodgement of the replacement document must be accompanied by copies of the replacement document and not the original base prospectus.
Consequences of lodging a replacement document for an offer-specific prospectus
719A(9)
If a replacement document is lodged with ASIC in relation to an offer-specific prospectus, the offer-specific prospectus is taken to be the replacement document for the purposes of the application of this Chapter to events that occur after the lodgement.
Note: This subsection means, for example, that offers made after lodgement of the replacement document must be accompanied by copies of the replacement document and not the original offer-specific prospectus.
History
S 719A inserted by No 100 of 2014, s 3, Sch 1
[
31].
SECTION 720
720
CONSENTS NEEDED FOR LODGMENT
CCH Note:
Section 720 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
The lodgment of a disclosure document, or a supplementary or replacement document, for the offer of a body
'
s securities requires the consent of:
Consents required for lodgment
|
[
operative
]
|
|
Type of offer
|
People whose consent is required
|
|
Issue offers |
|
1 |
offer of securities for issue (other than an offer of simple corporate bonds under a 2-part simple corporate bonds prospectus) |
every director of the body |
|
|
every person named in the document as a proposed director of the body |
|
Simple corporate bonds issue offers |
|
1A |
offer of simple corporate bonds under a 2-part simple corporate bonds prospectus |
every director of the body |
|
|
every person named in the document as a proposed director of the body |
|
sale offers (sale by controller) |
|
2 |
offer of securities for sale that needs a disclosure document because of subsection 707(2) |
if seller an individual
-
that individual
if seller a body
-
every director of the body |
|
sale offers (sale amounting to indirect issue) |
|
3 |
offer of securities for sale that needs a disclosure document because of subsection 707(3) |
every director of the body whose securities are offered for sale
if seller an individual
-
that individual
if seller a body
-
every director of the body |
|
sale offers (sale amounting to indirect sale by controller) |
|
4 |
offer of securities for sale that needs a disclosure document because of subsection 707(5) |
if seller an individual
-
that individual
if seller a body
-
every director of the body
if individual controls the body whose securities are offered for sale
-
that individual
if body controls the body whose securities are offered for sale
-
every director of the controlling body |
[
CCH Note:
S 720 will be amended by No 69 of 2020, s 3, Sch 1[1119], by inserting
"
with the Registrar
"
after
"
The lodgment
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 720 amended by No 69 of 2023, s 3, Sch 4[100] and
[
101] (effective 15 September 2023).
S 720 amended by No 100 of 2014, s 3, Sch 1
[
32] and
[
33].
S 720 heading omitted by No 122 of 2001, s 3, Sch 3, Pt 1
[
27].
SECTION 721
OFFER MUST BE MADE IN, OR ACCOMPANIED BY, THE DISCLOSURE DOCUMENT
CCH Note:
Section 721 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Offers using prospectus alone
721(1)
Offers of securities for which a prospectus is being used must be made in, or accompanied by, the prospectus.
Note 1: Subsection 727(1) makes it an offence to make an offer of securities unless the offer is made in or accompanied by the disclosure document and subsection 723(1) makes it an offence to issue securities unless they are applied for on a form that was issued in or together with the disclosure document.
Note 2: Section 736 makes it an offence to make unsolicited offers in a way that amounts to securities hawking.
Note 3: Section 728 makes it an offence for a person to offer securities if the disclosure document is deficient in a way that is material from the point of view of an investor.
History
S 721(1) amended by No 117 of 2001, s 3, Sch 1
[
249].
721(1A)
Subsection (1) does not apply to the extent that subsection (2) allows a profile statement to be used instead of a prospectus.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A), see subsection 13.3(3) of the
Criminal Code
.
History
S 721(1A) inserted by No 117 of 2001, s 3, Sch 1
[
250] (effective 15 December 2001).
Offers using prospectus and profile statement
721(2)
An offer of securities may be made in, or accompanied by, a profile statement if:
(a)
under subsection 709(3), ASIC has approved the making of offers of that kind with a profile statement instead of a prospectus; and
(b)
the profile statement complies with the requirements specified in ASIC approval.
721(3)
If the offer that is made to a person is made in or accompanied by a profile statement, the person making the offer must give the person a copy of the prospectus free of charge if the person asks for it.
Offers using offer information statement
721(4)
Offers for which an offer information statement is being used must be made in, or accompanied by, the offer information statement.
Note 1: Subsection 727(1) makes it an offence to make an offer of securities unless the offer is made in or accompanied by the disclosure document and subsection 723(1) makes it an offence to issue securities unless they are applied for on a form that was issued in or together with the disclosure document.
Note 2: Section 736 makes it an offence to make unsolicited offers in a way that amounts to securities hawking.
Note 3: Section 728 makes it an offence for a person to offer securities if the disclosure document is deficient in a way that is material from the point of view of an investor.
Offence
721(5)
A person commits an offence if the person intentionally or recklessly contravenes subsection (1) or (4).
History
S 721(5) inserted by No 117 of 2001, s 3, Sch 1
[
251].
SECTION 722
APPLICATION MONEY TO BE HELD ON TRUST
CCH Note:
Section 722 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
722(1)
If a person offers securities for issue or sale under a disclosure document, the person must hold:
(a)
all application money received from people applying for securities under the disclosure document; and
(b)
all other money paid by them on account of the securities before they are issued or transferred;
in trust under this section for the applicants until:
(c)
the securities are issued or transferred; or
(d)
the money is returned to the applicants.
722(2)
If the application money needs to be returned to an applicant, the person must return the money as soon as practicable.
722(3)
An offence based on subsection (1) or (2) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 722(3) inserted by No 117 of 2001, s 3, Sch 1
[
252].
SECTION 723
ISSUING OR TRANSFERRING THE SECURITIES UNDER A DISCLOSURE DOCUMENT
CCH Note:
Section 723 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
723(1)
Applications must be made on form included in, or accompanied by, disclosure document.
If an offer of securities needs a disclosure document, the securities may only be issued or transferred in response to an application form. The securities may only be issued or transferred if the person issuing or transferring them has reasonable grounds to believe that:
(a)
the form was included in, or accompanied by:
(i)
the disclosure document; or
(ii)
if subsection 721(2) allows a profile statement to be used
-
the prospectus or the profile statement;
when the form was distributed by the person issuing or transferring the securities; or
(b)
the form was copied, or directly derived, by the person making the application from a form referred to in paragraph (a).
723(2)
Minimum subscription condition must be fulfilled before issue or transfer.
If a disclosure document for an offer of securities states that the securities will not be issued or transferred unless:
(a)
applications for a minimum number of the securities are received; or
(b)
a minimum amount is raised;
the person making the offer must not issue or transfer any of the securities until that condition is satisfied. For the purpose of working out whether the condition has been satisfied, a person who has agreed to take securities as underwriter is taken to have applied for those securities.
Note 1: Under section 722, the application money must be held in trust until the issue or transfer of the securities.
Note 2: This subsection prevents the issue or transfer of the securities not only to those who apply for them in response to the disclosure document but also to those who do not need to apply for them (for example, because they are to take the securities under an underwriting agreement).
723(3)
Issue or transfer void if quotation condition not fulfilled.
If a disclosure document for an offer of securities states or implies that the securities are to be quoted on a financial market (whether in Australia or elsewhere) and:
(a)
an application for the admission of the securities to quotation is not made within 7 days after the date of the disclosure document; or
(b)
the securities are not admitted to quotation within 3 months after the date of the disclosure document;
then:
(c)
an issue or transfer of securities in response to an application made under the disclosure document is void; and
(d)
the person offering the securities must return the money received by the person from the applicants as soon as practicable.
History
S 723(3) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
426] (effective 11 March 2002).
723(4)
Strict liability offences.
An offence based on subsection (1), (2) or (3) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 723(4) inserted by No 117 of 2001, s 3, Sch 1
[
253] (effective 15 December 2001).
SECTION 724
CHOICES OPEN TO PERSON MAKING THE OFFER IF DISCLOSURE DOCUMENT CONDITION NOT MET OR DISCLOSURE DOCUMENT DEFECTIVE
CCH Note:
Section 724 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
724(1)
If a person offers securities under a disclosure document and:
(a)
the disclosure document states that the securities will not be issued or transferred unless:
(i)
applications for a minimum number of the securities are received; or
(ii)
a minimum amount raised;
and that condition is not satisfied within 4 months after the date of the disclosure document; or
(b)
the disclosure document states or implies that the securities are to be quoted on a financial market (whether in Australia or elsewhere) and:
(i)
an application for the admission to quotation is not made within 7 days after the date of the disclosure document; or
(ii)
the securities are not admitted to quotation within 3 months after the date of the disclosure document; or
(c)
the person becomes aware that:
(i)
the disclosure document contains a misleading or deceptive statement; or
(ii)
there is an omission from the disclosure document of information required by section
710
,
711
,
712
,
713
,
713C
,
713D
,
713E
,
714
or
715
;
that is materially adverse from the point of view of an investor; or
(d)
the person becomes aware of a new circumstance that:
(i)
has arisen since the disclosure document was lodged; and
(ii)
would have been required by section
710
,
711
,
712
,
713
,
713C
,
713D
,
713E
,
714
or
715
to be included in the disclosure document if it had arisen before the disclosure document was lodged; and
(iii)
is materially adverse from the point of view of an investor;
the person must deal under subsection (2) with any applications for the securities made under the disclosure document that have not resulted in an issue or transfer of the securities. For the purpose of working out whether a condition referred to in paragraph (a) has been satisfied, a person who has agreed to take securities as underwriter is taken to have applied for those securities.
[
CCH Note:
S 724(1) will be amended by No 69 of 2020, s 3, Sch 1[1120], by inserting
"
with the Registrar
"
after
"
lodged
"
in para (d)(i) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 724(1) amended by No 100 of 2014, s 3, Sch 1
[
34].
S 724(1) amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
426A].
724(1A)
An offence based on subsection
(1)
is an offence of strict liability.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 724(1A) inserted by No 117 of 2001, s 3, Sch 1
[
254].
724(2)
The person must either:
(a)
repay the money received by the person from the applicants; or
(b)
give the applicants:
(i)
the documents required by subsection
(3)
; and
(ii)
1 month to withdraw their application and be repaid; or
(c)
issue or transfer the securities to the applicants and give them:
(i)
the documents required by subsection
(3)
; and
(ii)
1 month to withdraw their application and be repaid.
Note: Sections
719
and
719A
deal with lodging supplementary and replacement documents. Section
728
makes it an offence for a person to offer securities if the disclosure document is deficient in a way that is material from the point of view of an investor.
History
S 724(2) (Note) amended by No 100 of 2014, s 3, Sch 1
[
35].
724(3)
The documents to be given are set out in the following table:
Documents to be given
|
[
operative
]
|
|
Circumstances
|
Documents
|
1 |
the sole disclosure document is a prospectus (other than a 2-part simple corporate bonds prospectus) |
a supplementary or replacement prospectus that corrects the deficiency or changes the terms of the offer |
1A |
the disclosure document is a 2-part simple corporate bonds prospectus |
a supplementary or replacement document that corrects the deficiencies or changes the terms of the offer |
2 |
the disclosure documents are a prospectus and a profile statement and subsection (1) applies to the prospectus |
a statement that sets out the changes needed to the prospectus to correct the deficiency or change the terms of offer; and
a statement that the person is entitled to a copy of the prospectus free of charge |
3 |
the disclosure documents are a prospectus and a profile statement and subsection (1) applies to the profile statement
Note that item 2 and this item may both apply to the offer. |
a supplementary or replacement profile statement that corrects the deficiency or changes the terms of the offer |
4 |
the disclosure document is an offer information statement |
a supplementary or replacement offer information statement that corrects the deficiency or changes the terms of the offer |
History
S 724(3) amended by No 100 of 2014, s 3, Sch 1
[
36] and
[
37].
SECTION 725
EXPIRATION OF DISCLOSURE DOCUMENT
CCH Note:
Section 725 is modified by the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
725(1)
If a person offers securities under a disclosure document and the disclosure document passes its expiry date, the person must deal with applications for the securities under the document in accordance with subsections (2) and (3).
725(1A)
An offence based on subsection (1) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 725(1A) inserted by No 117 of 2001, s 3, Sch 1
[
255].
725(2)
If an application is received on or before the expiry date, the person may issue or transfer securities to the applicant.
Note: Subsection 723(1) (when read with subsections 719(4) and (5)) requires the person issuing or transferring the securities to have reasonable grounds to believe that the application form was included in, or accompanied by, a disclosure document that was current at the time.
725(3)
If an application is received after the expiry date, the person must either:
(a)
return any money received by the person from the applicant; or
(b)
give the applicant:
(i)
a new disclosure document; and
(ii)
1 month to withdraw their application and be repaid; or
(c)
issue or transfer the securities to the applicant and give them:
(i)
a new disclosure document; and
(ii)
1 month to withdraw their application and be repaid.