ASIC Corporations (Equality of Treatment Impacting on the Acquisition of Scheme Interests and CCIV Shares) Instrument 2023/697

The instrument rests on a small set of legal and operational concepts which determine its coverage and limits. Those concepts appear repeatedly across ss 4-8 and shape the permissible conduct.

• Relief framed "to the extent that" (scope). Each relief provision states that the relevant entity "does not have to comply with" a specified paragraph of the Corporations Act "to the extent that it would prevent" doing particular things (ss 5-8). This formulates relief as limited and conditional. The entity remains subject to the Act and must assess whether compliance with the identified paragraph would, in practice, prevent the conduct listed.

• Non-resident and territory distinctions. The instrument repeatedly uses "non-resident" defined functionally by registered address outside Australia and New Zealand and, for Australian passport funds, outside each host economy of the fund (ss 5(a), 6(a)). That geographic delimitation is central to when an offer may lawfully be withheld under the instrument.

• Two alternative operational routes where offers to non-residents are excluded. For listed schemes where ASX Rule 7.7 (Issues to Australian and New Zealand holders and overseas holders) as at 1 December 2019 applies, the responsible entity must comply with the applicable components of that rule (s 5(a)(i)). For unlisted schemes where the offer is renounceable, the responsible entity or corporate director must appoint a nominee to sell the rights and to distribute net proceeds to each non-resident (ss 5(a)(ii), 6(a)(i), 7(a)). In all other cases, the entity must make a contemporaneous determination that offering to the non-resident would be unreasonable, based on enumerated criteria (ss 5(a)(iii), 6(a)(ii), 7(b)).

• "Unreasonable" determination criteria. Where the entity takes the "other case" route and determines an offer would be unreasonable, Parliament (through the instrument) limits the factors to be considered. Those factors are: (A) the number of members in the relevant place, (B) the number and value of interests or shares that may be issued in the relevant place, and (C) the cost of complying with legal requirements and regulatory requirements applicable to making the offer in the relevant place (ss 5(a)(iii)(A)-(C), 6(a)(ii)(A)-(C), 7(b)(i)-(iii)). These enumerated factors create a structured discretion rather than an open-ended one.

• Priority offerees and staged notifications. The instrument permits offers that give some members an earlier notification deadline to accept (priority offerees) even though those priority offerees will not receive interests earlier than other members (ss 5(b), 6(b)). The conditions are threefold: the terms require the priority offerees to notify acceptance by an earlier date (s 5(b)(i)), interests will not be issued to priority offerees before the earliest date on which interests may be issued to the other members (s 5(b)(ii)), and issuance to priority offerees must be in accordance with the terms (s 5(b)(iii)). This allows differential timing of acceptance windows without differential issuance timing.

• Differential complaints handling. The instrument explicitly permits different complaint-handling for members who acquire as wholesale clients compared to other members (ss 5(c), 6(c)). The relief therefore extends beyond offer mechanics to consumer relations functions.

• Interaction with other ASIC instruments and Corporations Act provisions. The instrument references and conditions relief on complying with other instruments (ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547: ss 5(d), 6(d)) and on constitutionally mandated sale rules that depend on notionally in-force subsections made so by specified ASIC instruments (s 8(a)-(b)). The instrument is therefore modular: it grants relief only where certain prescribed alternate procedures are followed.

• Temporal limit. The instrument will cease to have effect from 1 October 2028 (s 9). This establishes a sunset date, creating a finite planning horizon for entities relying on the relief.

Those concepts define the legal mechanism: the instrument converts prescribed operational workarounds (ASX rule compliance, appointment of nominee, reasonableness determinations based on enumerated criteria, administrative sequencing, and alternative complaint-handling) into lawful departures from particular equal treatment provisions of the Corporations Act for the named entities.

The instrument targets four primary classes of actors and the members or investors associated with them:

1. Responsible entities of registered schemes. Where the responsible entity would otherwise be required by paragraph 601FC(1)(d) of the Corporations Act to treat members identically in relation to offers, the instrument permits specific departures for offers to non-residents, staged acceptance procedures for priority offerees, differential complaint handling for wholesale acquisitions, use of the ASIC purchase plan instrument, and acquisition on trust upon forfeiture subject to constitutionally required sale mechanics (s 5; s 8).

2. Corporate directors of retail CCIVs. The corporate director of a retail corporate collective investment vehicle (retail CCIV) receives parallel relief from paragraph 1224D(2)(b). The relief mirrors that for responsible entities of registered schemes with geographic exclusions (Australia, New Zealand and host economies for passport funds), the nominee sale route for renounceable offers, the "unreasonableness" route, priority offeree arrangements, differential complaints handling, and compliance with ASIC purchase plan rules (s 6).

3. Corporate directors of wholesale CCIVs. Corporate directors of wholesale CCIVs receive relief from paragraph 1224D(3)(b). The wholesale CCIV relief is narrower on the geography limb: it permits not making an offer to a member with a registered address outside Australia and New Zealand (s 7). For renounceable offers the nominee sale and distribution mechanism is mandatory; otherwise the corporate director must determine unreasonableness using the enumerated three-factor test (s 7(a)-(b)).

4. Members or investors of those schemes and CCIVs. The instrument affects who must be offered interests or shares and how offers may be structured. It enables a responsible entity or corporate director to exclude certain members from primary offers, to change the timing of acceptance windows for priority offerees, and to handle complaints differently for members who acquire as wholesale clients (ss 5-7). Where non-resident members are excluded from an offer but the offer is renounceable, they receive a net cash distribution from the sale of their rights (ss 5(a)(ii), 6(a)(i), 7(a)).

Secondary consequences flow to stakeholders who interact with these entities. Stock exchanges and their listing rules appear as a compliance condition for one branch of the relief: if included on ASX and Rule 7.7 as at 1 December 2019 applies, the responsible entity must comply with those aspects of Rule 7.7 applicable to the offer (s 5(a)(i)). The instrument also cross-references ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547 as an authorised way to offer and issue interests or shares for schemes and retail CCIVs (ss 5(d), 6(d)).

The instrument does not amend the Corporations Act definitions themselves; it relies on the Act’s terms such as "wholesale client" as defined in s 761G (s 4). It also leaves other statutory duties intact except where expressly relieved to the limited extent stated. Finally, the instrument is temporary. Entities that plan to rely on the relief must factor in its repeal at the start of 1 October 2028 (s 9) and the amendment history recorded in the endnotes.

The instrument modifies duties and clarifies rights by disappling (subject to limits) certain statutory equal-treatment obligations. The changes are operationally specific. Below are the principal duties modified and the rights conferred or clarified.

Duties modified (the instrument permits non-compliance in specified circumstances):

• Duty to make offers equally under paragraph 601FC(1)(d). A responsible entity will not have to comply with that paragraph to the extent it would prevent any or all of the actions listed in s 5. The listed actions include not making offers to non-residents (with a prescribed geographic definition), offering to priority offerees under controlled timing arrangements, handling complaints differently for wholesale acquisitions, and issuing under the ASIC purchase plan instrument (s 5).

• Duty to make offers equally under paragraph 1224D(2)(b). A corporate director of a retail CCIV is similarly relieved to the extent that compliance with paragraph 1224D(2)(b) would prevent the specific actions listed in s 6.

• Duty to make offers equally under paragraph 1224D(3)(b). A corporate director of a wholesale CCIV is relieved in relation to not making offers to non-resident members, subject to the renounceable nominee route or the "unreasonableness" determination criteria in s 7.

• Duty in relation to acquiring forfeited interests under paragraph 601FG(1)(a). A responsible entity need not comply with paragraph 601FG(1)(a) to the extent it would prevent acquiring interests on trust for members on forfeiture where the constitution requires any sale be made in accordance with specific subsections notionally in force by other ASIC instruments (s 8).

Rights clarified or created (subject to Act and instrument conditions):

• Right not to make offers to non-residents in specified circumstances. The instrument authorises not making an offer to a member with a registered address outside Australia and New Zealand (with additional host economy carve-outs for Australian passport funds and retail CCIVs in some provisions), provided the entity follows the alternative procedures (ASX rule compliance, nominee sale and distribution net of expenses, or a reasonableness decision per enumerated factors) (ss 5(a), 6(a), 7).

• Right to appoint a nominee and distribute net proceeds where the offer is renounceable. For unlisted schemes or sub-funds where the offer is renounceable, the responsible entity or corporate director must appoint a nominee to sell the rights and distribute to each non-resident their proportion of the proceeds net of expenses (ss 5(a)(ii), 6(a)(i), 7(a)). The instrument therefore confers a discrete operational right to substitute a cash distribution for in-specie allotment in renounceable offers.

• Right to stage acceptance timetables for priority offerees. The instrument permits offers that require priority offerees (who would be acquiring as wholesale clients) to notify acceptance earlier than other members. That earlier notice date is permitted provided issuance is not earlier than the earliest date on which interests may be issued to other members and issuance to priority offerees must follow the offer terms (ss 5(b), 6(b)).

• Right to treat complaints differently for wholesale acquisitions. The instrument permits differential complaint handling for members who acquire as wholesale clients (s 5(c), s 6(c)). That is an operational right to vary complaints procedures between client segments.

• Right to rely on ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547. Where a responsible entity or retail CCIV corporate director offers through the ASIC purchase plan instrument, the entity may do so without breach of the equal-treatment paragraphs identified (ss 5(d), 6(d)).

Constraints on the rights and duties:

• The relief is expressly qualified. Each provision is phrased to apply only "to the extent that" the identified paragraph of the Act would prevent the listed conduct. Entities thus retain their residual statutory obligations except where the instrument creates a narrowly tailored pathway to avoid specific Acts’ requirements.

• Procedural or substantive conditions apply. For ASX-listed schemes, the instrument fixes the relevant version of ASX Rule 7.7 as at 1 December 2019 (s 5(a)(i)). For renounceable offers the instrument mandates a nominee sale and net distribution. For the "other" case an entity must rely on enumerated reasonableness factors. For priority offerees, the instrument requires that issuance not occur earlier for priority offerees than for other members and that the offers specify the earlier notice date (ss 5(a)(i)-(iii), 5(b)(i)-(iii)).

• Time limit. The instrument expires on 1 October 2028 (s 9), after which the relief will no longer be available unless replaced or re-enacted.

In practice, these modified duties and conferred rights convert a default statutory equality duty into a bounded menu of alternatives, each carrying its own operational requirements and constraints that an entity must satisfy before it can lawfully withhold offers, vary acceptance timetables, handle complaints differently, or acquire forfeited interests on trust.

The instrument itself does not create new criminal offences or civil penalties; it is a legislative instrument that modifies the application of particular Corporations Act provisions by dispensing with compliance "to the extent that" those provisions would prevent specified conduct. Enforcement therefore remains within the Corporations Act and general administrative oversight frameworks. Key enforcement and compliance points to note from the instrument’s text and structure are:

• Compliance oversight remains with regulators that enforce the Corporations Act. The instrument is made under the Act (s 3) and interacts with specified Act provisions (for example paragraphs 601FC(1)(d), 601FG(1)(a), 1224D(2)(b) and 1224D(3)(b)). Any contravention of the Act outside the scope of the instrument would remain subject to the Act’s enforcement mechanisms. The instrument does not displace the Act’s wider enforcement architecture; it narrows application of the named paragraphs in specified circumstances.

• The relief is conditional and fact-specific. Because the instrument permits non-compliance only "to the extent" compliance would prevent the listed action (ss 5-8), regulators reviewing conduct that relies on the instrument will likely assess whether the entity correctly applied the instrument’s alternative compliance routes. For example, where an entity excludes non-resident holders via the "other case" route, regulators will be able to review whether the enumerated factors (number of members in the relevant place; number and value of interests; cost of legal/regulatory compliance in that place) were properly considered and documented (s 5(a)(iii), s 6(a)(ii), s 7(b)). Factual misapplication could leave the entity exposed to ordinary Act-based enforcement.

• Administrative and contractual disputes remain possible. The instrument allows appointment of a nominee to sell renounced rights and to distribute proceeds net of expenses (ss 5(a)(ii), 6(a)(i), 7(a)). If a nominee’s actions or the net distribution calculation are contested by non-resident members, that dispute would not be resolved within the instrument and could give rise to civil claims or regulatory complaints under the Act or under scheme constitutions.

• Obligations affected by other regulatory frameworks. Where the instrument conditions relief on compliance with ASX Rule 7.7 as at 1 December 2019 for listed schemes, failure to comply with those aspects of Rule 7.7 applicable to the offer could result in ASX regulatory action. The instrument does not provide relief from ASX listing rule obligations; rather, it requires compliance with the relevant rule components as the alternative route for relaxation of the equal treatment obligation (s 5(a)(i)).

• No express penalty modification. The instrument does not purport to alter penalty regimes attached elsewhere in the Act. It is an exemption instrument that changes the application of particular paragraphs, not an amending Act that changes penalty sections. Entities therefore should treat the instrument as enabling certain conduct that, if undertaken properly under the instrument’s terms, will not be a breach of the specified paragraphs; but conduct outside those terms or outside the instrument’s scope remains enforceable.

• Repeal creates future enforcement risk. The instrument’s repeal at the start of 1 October 2028 (s 9) creates a cliff: conduct undertaken after repeal that would otherwise require compliance with the Act’s equal-treatment paragraphs will no longer be sheltered by this instrument, unless another instrument or legislative amendment provides replacement relief.

Because the instrument confers relief in a conditional way that logs alternative compliance pathways, enforcement focus is likely to fall on recordkeeping, the factual basis for "unreasonable" determinations, adherence to the renounceable nominee sale and net distribution mechanics, and observance of the ASX Rule 7.7 compliance requirement where invoked. The instrument does not itself specify monitoring, reporting or penalty clauses, so enforcement will proceed under pre-existing Corporations Act mechanisms and any relevant external regimes (for example ASX listing rules or contractual dispute resolution pathways).

The instrument is constructed to operate in a network of other legislative and regulatory texts. The text explicitly references particular provisions of the Corporations Act, at least two other ASIC legislative instruments, and ASX listing rules. The most important interactions are as follows.

Interplay with the Corporations Act 2001

• The instrument is made under subsections 601QA(1) and 1243(2) of the Corporations Act (s 3). It relieves entities from compliance with specified paragraphs of the Act: 601FC(1)(d) (responsible entity equal treatment duty), 1224D(2)(b) (retail CCIV corporate director equal treatment duty), 1224D(3)(b) (wholesale CCIV corporate director equal treatment duty) and 601FG(1)(a) (acquiring forfeited interests duty) to the extent those paragraphs would prevent the allowed conduct (ss 5-8). The instrument therefore operates by narrowing the practical application of these Act paragraphs for the covered entities and circumstances.

• The instrument depends on other sections of the Act for substantive terms. For example, "wholesale client" is defined in s 761G of the Act and is incorporated by reference into the instrument by s 4. Similarly, the instrument does not define "registered scheme", "responsible entity", "retail CCIV" or "wholesale CCIV"; these are Act-defined concepts that determine coverage.

Interaction with ASX listing rules

• Where a scheme is included in ASX’s official list and the offer is one to which Rule 7.7 of ASX’s listing rules as at 1 December 2019 applies, the responsible entity must comply with the requirements of that rule that are applicable to the relevant offer and issue of interests (s 5(a)(i)). The instrument therefore recognises ASX Rule 7.7 as an alternative compliance route. Compliance with ASX Rule 7.7 is not excused by the instrument; instead the instrument requires it where invoked.

Interaction with other ASIC instruments

• The instrument expressly permits offering and issuing interests or shares under ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547 (ss 5(d), 6(d)). That instrument establishes a specific simplified process for small issues to existing holders; the present instrument permits entities to rely on that ASIC instrument without triggering the equal-treatment paragraphs from which relief is given.

• Section 8 of this instrument ties relief on acquiring forfeited interests to constitutional sale requirements that are notionally in force because of other ASIC instruments: subsection 601GAA(8) as notionally in force because of ASIC Corporations (Managed Investment Product Consideration) Instrument 2025/629, and subsection 601GAD(9) as notionally in force because of ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693 (s 8(a)-(b)). That reference makes the availability of the s 8 relief dependent on the contents and operation of those other ASIC instruments and on the scheme constitution including the required sale mechanics.

Other regulatory regimes and private law

• The instrument does not displace private law obligations. If a scheme constitution or member agreement contains provisions that are more protective of member rights than the instrument, the constitution or agreement will continue to govern in addition to the instrument’s limitations. The instrument does not amend contract law or constitutionally entrenched member rights; it only modifies how certain Act paragraphs apply.

• The instrument’s permission to handle complaints differently for members who acquire as wholesale clients (s 5(c), s 6(c)) interacts with any external dispute resolution frameworks applicable to the entity (for example, industry ombudsmen), although those external frameworks are not mentioned in the instrument. Entities therefore need to check consistency between any differential complaints handling adopted under the instrument and obligations to external dispute resolution bodies or other consumer protection regimes.

Temporal interaction and amendment history

• The instrument is temporary with a statutory sunset at the start of 1 October 2028 (s 9). Endnotes record amendments made in 2025 (see Endnotes 3 and 4). The instrument’s operative effect must therefore be read against a moving background of other ASIC instruments and listing rules and with attention to the 2028 repeal date. Entities relying on the instrument should track amendment instruments and the status of referenced ASIC instruments because s 8 relief, for example, depends on those other instruments being notionally in force.

In sum, the instrument works as a targeted statutory exemption that is designed to fit within the existing Corporations Act framework and specified regulatory instruments. It does not override ASX listing rule obligations where those are invoked. It conditions some relief on other ASIC instruments and on scheme constitutions, and it leaves external legal and regulatory obligations intact.

The compiled version supplied shows the instrument as amended up to F2025L01176, with a compilation date of 27 September 2025. The endnotes in the compilation provide the authoritative amendment history and links to the instruments that affected this instrument. The main legislative history points recorded in the compilation are:

• Registration and commencement. The instrument (ASIC Corporations (Equality of Treatment Impacting on the Acquisition of Scheme Interests and CCIV Shares) Instrument 2023/697) was registered on 11 September 2023 and commenced on 12 September 2023 (Endnote 3). The instrument is therefore in force from 12 September 2023 subject to subsequent amendments.

• Amending instruments in 2025. The compilation records two amending instruments:

  • ASIC Corporations and Credit (Amendment and Repeal) Instrument 2025/590, registered 11 September 2025 and commenced on 12 September 2025 (Endnote 3). Endnote 4 records that subparagraph 5(a)(ii) (the second occurring instance) was amended by 2025/590.
  • ASIC Corporations (Amendment and Repeal) Instrument 2025/630, registered 26 September 2025 and commenced on 27 September 2025 (Endnote 3). Endnote 4 records that section 8 was amended by 2025/630.

• Compilation annotations. The compilation notes that the effect of uncommenced amendments is not shown and that certain provisions may be notionally in force because of other instruments. For example, s 8 refers to subsections notionally in force because of ASIC Corporations (Managed Investment Product Consideration) Instrument 2025/629 and ASIC Corporations (Discretions for Setting the Issue Price and Withdrawal Price of Interests in Managed Investment Schemes) Instrument 2023/693 (s 8(a)-(b)). Those cross-references mean that later ASIC instruments interact with the availability of the s 8 relief and must be understood in the amendment context.

• Endnote indexing. Endnote 4 provides a table of which provisions were affected by amendment and how they were changed. It records specifically: subparagraph 5(a)(ii) (second occurrence) amended by 2025/590 and section 8 amended by 2025/630.

Practically, this recorded amendment history means that entities relying on the instrument must verify the current compiled text at the time of reliance and check for subsequent instruments that may further modify the instrument or the instruments it references. Because s 8 connects to subsections described as notionally in force due to other ASIC instruments, any change in those instruments will affect the scope of s 8 relief. The instrument’s sunset (s 9) remains unchanged in the compilation: it is repealed at the start of 1 October 2028.

The instrument itself contains no references to judicial decisions or litigation. The compilation’s endnotes list amending instruments and legislative history but do not record any court challenges or tribunal determinations. Accordingly, there is no litigation history embedded in the instrument text.

That absence of recorded litigation does not mean that issues arising from the instrument cannot be litigated in future. Based on the provisions and the discretionary determinations the instrument authorises, several dispute types are foreseeable, without naming or presuming any existing case law:

• Judicial review of "unreasonable" determinations. The instrument permits responsible entities and corporate directors to determine that making an offer to non-residents would be unreasonable using three enumerated factors (number of members in the relevant place; number and value of interests; cost of compliance) (ss 5(a)(iii), 6(a)(ii), 7(b)). If an entity excludes non-residents on that basis, affected members could challenge the factual basis for the determination, its reasonableness, or whether the correct statutory route was followed. Such a challenge would be a fact-sensitive dispute over the adequacy of the underlying decision-making and recordkeeping.

• Contractual or constitutional disputes. The instrument allows entities to appoint nominees under renounceable offers and distribute net proceeds to excluded non-resident holders (ss 5(a)(ii), 6(a)(i), 7(a)). Disputes could arise over whether the appointment and sale complied with a scheme constitution, whether net proceeds were correctly calculated, or whether the sale process met standards required by that constitution or by general law.

• Regulatory enforcement proceedings. Where entities rely on the ASX Rule 7.7 route (s 5(a)(i)) or comply with the ASIC purchase plan instrument (ss 5(d), 6(d)), failures to comply with those alternative obligations could lead to regulatory sanction by ASX or ASIC under their respective powers. Any enforcement proceedings would turn on the specific compliance failures alleged.

• Interpretation disputes about the instrument’s scope. Because the instrument repeatedly uses the phrase "to the extent that" a paragraph of the Act "would prevent" specified conduct, interpretation controversies could arise over when that hypothetical prevention exists and what standard of causation or materiality applies. Litigation could seek to define the boundary between conduct properly sheltered by the instrument and conduct that remains in breach of the Act.

At present, the compilation records no litigation. Entities should therefore treat the instrument as untested in the courts and plan for legal uncertainty where the instrument authorises discretionary acts (for example, "determines that it would be unreasonable") or substitutes administrative procedures for statutory duties. Robust documentation of decision processes, reliance on objective metrics where possible, and careful adherence to the instrument’s mandated alternative routes will reduce legal exposure, but they will not immunise an entity from future litigation risk should disputes arise.

Practitioners must watch several concrete pitfalls when relying on this instrument. The instrument is carefully worded and conditional; misreading or incomplete implementation creates exposure.

1. Relief is not absolute; it applies only "to the extent that" compliance with the identified paragraph would prevent the listed conduct (ss 5-8). This is not a blanket licence to exclude classes of members. Entities must still assess whether the Act would, absent the instrument, actually prevent the specified conduct. If the Act would not prevent the conduct, the instrument’s relief is not necessary, but incorrect reliance on the instrument when the Act’s paragraph still applied could produce regulatory risk.

2. Documentation of "unreasonable" determinations is critical. Where the entity takes the "other case" route (not an ASX Rule 7.7 or renounceable nominee path), it must determine that making the offer would be unreasonable having regard to three enumerated factors (number of members in the relevant place; number and value of interests; cost of complying with legal and regulatory requirements) (s 5(a)(iii), s 6(a)(ii), s 7(b)). The instrument limits the factors to these items. A gotcha is relying on additional, non-enumerated factors or failing to record the factual basis for the three enumerated factors. Regulators or courts will likely look for contemporaneous records that show how the factors were measured and weighted.

3. ASX Rule 7.7 route is tied to a historic cut-off date. For listed schemes the instrument requires compliance with Rule 7.7 as at 1 December 2019 (s 5(a)(i)). That date is fixed. The gotcha is assuming that later versions of ASX Rule 7.7 apply; the instrument does not permit that. Entities must read ASX Rule 7.7 as it stood on 1 December 2019 and apply the applicable requirements of that version.

4. Renounceable offers require an appointed nominee and net distribution. For unlisted schemes or sub-funds with a renounceable offer, the instrument mandates appointing a nominee to sell the rights and distribute each non-resident’s proportion of the proceeds net of expenses (ss 5(a)(ii), 6(a)(i), 7(a)). The practical pitfalls are (a) choosing and documenting the nominee, (b) ensuring the sale is conducted on appropriate commercial terms, (c) accurately calculating expenses to be netted out, and (d) communicating and effecting the payment to non-residents. Mistakes in any of these steps can lead to disputes and regulatory queries.

5. Priority offerees system must preserve simultaneous issuing dates. The instrument permits earlier acceptance notification deadlines for priority offerees but prohibits issuing interests to them before the earliest date on which interests may be issued to other members (ss 5(b)(i)-(iii), 6(b)(i)-(iii)). A common operational error would be to treat earlier notification as a de facto earlier allocation or issue date. Systems must separate acceptance-window opens/closings from issuance timing and ensure compliance with the issuance timing constraint.

6. Differential complaint handling may conflict with external rules. The instrument permits different complaint handling for members who acquire as wholesale clients (ss 5(c), 6(c)). The gotcha is assuming that differential internal handling is unconstrained. External dispute resolution schemes or jurisdictional consumer protection laws may impose overlapping obligations. Entities should map their complaints-handling changes against any external dispute-resolution membership conditions or consumer protection duties.

7. s 8 relief depends on external ASIC instruments and constitution terms. Relief to acquire forfeited interests on trust where constitutional sale rules apply is contingent on subsections notionally in force because of other ASIC instruments (s 8(a)-(b)). If those other instruments are amended, or if the constitution does not in fact require sale in accordance with them, the s 8 relief will not be available. The gotcha is assuming s 8 applies without confirming the constitution and the status of the referenced ASIC instruments.

8. Temporary nature and planning gap. The instrument expires at the start of 1 October 2028 (s 9). Entities using these reliefs must plan for the instrument’s discontinuation and for any gap between its repeal and any replacement regulatory mechanism, including the need to adapt offers and operations thereafter.

9. Reliance on definitions outside the instrument. "Wholesale client" is defined by s 761G of the Act and incorporated by reference (s 4). The gotcha is assuming that a particular client is a wholesale client without verifying the Act’s definition. Similarly, the instrument uses "non-resident" operationally as persons with a registered address outside specified territories; entities must treat registered address records as dispositive for instrument purposes.

10. No change to other Act obligations or penalties. The instrument does not alter penalty schemes or other duties in the Act. A mistaken belief that the instrument creates broader legal cover could lead to regulatory breaches and penalties unrelated to the instrument’s targeted exemptions.

In practice, the safe approach is conservative: make contemporaneous records of any reasonableness determinations, document nominee appointments and sale processes, segregate acceptance and issuance timings for priority offerees, align complaint-handling changes with external obligations, confirm constitutions and the status of referenced ASIC instruments for s 8, and plan for the instrument’s repeal.

Compliance requires a structured operational and governance response because the instrument grants relief only if entities follow the specified alternative procedures or make determinations under limited criteria. Below is a practical, step-by-step compliance checklist for responsible entities and corporate directors relying on the instrument.

1. Confirm the regulatory basis and scope of relief.

   • Record the statutory paragraphs from which relief is sought (for example 601FC(1)(d), 1224D(2)(b), 1224D(3)(b), 601FG(1)(a)) and confirm that, absent the instrument, compliance with those paragraphs would prevent the proposed conduct (refer to s 3 and ss 5-8).
   • Keep the instrument text version used and date-stamp reliance.

2. Identify the class of entity and scheme type.

   • Determine whether the entity is a responsible entity of a registered scheme, corporate director of a retail CCIV, or of a wholesale CCIV (ss 5-7).
   • Verify the scheme’s status on ASX or off-market and whether it is an Australian passport fund for host economy considerations (s 5(a)).

3. For offers to non-residents, choose and document the permitted route.

   • ASX-listed route: If the scheme is on ASX and Rule 7.7 as at 1 December 2019 applies to the offer, confirm precisely which requirements of that version of Rule 7.7 apply and document compliance with those requirements (s 5(a)(i)). Do not assume later versions apply.
   • Renounceable offer route: If the offer is renounceable and the scheme is not on ASX, appoint a nominee to sell renounced rights and document the nomination, sale process, and the method for calculating and distributing each non-resident’s proportion of proceeds net of expenses (ss 5(a)(ii), 6(a)(i), 7(a)). Ensure contractual terms for the nominee clearly record the duty to act for the non-resident holders and the fee/expense structure.
   • Other case (unreasonableness) route: If neither of the above applies, conduct and document a reasonableness assessment strictly referencing the three required criteria: (A) number of members in the relevant place, (B) number and value of interests to be issued there, (C) cost of complying with legal/regulatory requirements in that place (ss 5(a)(iii), 6(a)(ii), 7(b)). Use contemporaneous data, quantitative thresholds where appropriate, and rationale tying the facts to each factor.

4. Priority offerees mechanics.

   • If offering to priority offerees, frame the offer terms to require the priority offerees to notify acceptance by an earlier date than other members (s 5(b)(i), s 6(b)(i)).
   • Ensure issuance timing is the same earliest date for priority offerees and other members; explicitly specify in documentation that interests will not be issued to priority offerees before the earliest date interests may be issued to other members (s 5(b)(ii), s 6(b)(ii)).
   • Preserve audit trails showing acceptance notifications and the timing of any issuance.

5. Complaints handling.

   • If the entity intends to treat complaints by wholesale-acquisition members differently, develop a documented complaints-handling policy that specifies the differences and the rationale tied to wholesale client features (s 5(c), s 6(c)).
   • Cross-check this policy against any external dispute-resolution obligations or membership of industry ombudsman schemes; document any overlaps and steps taken to maintain compliance with those bodies.

6. Use of ASIC purchase plan instrument.

   • Where the entity intends to use ASIC Corporations (Share and Interest Purchase Plans) Instrument 2019/547, document the application of that instrument to the offer and ensure the offer terms comply with its requirements (ss 5(d), 6(d)).

7. Forfeiture acquisitions (s 8).

   • If relying on s 8 relief to acquire forfeited interests on trust, confirm the scheme constitution requires sale in accordance with the relevant notionally in-force subsections (601GAA(8) and/or 601GAD(9)) and confirm the status of ASIC instruments that notionally bring those subsections into force (2025/629 and 2023/693) (s 8(a)-(b)).
   • Document the constitutional provision and the basis on which s 8 applies in the particular forfeiture.

8. Recordkeeping and governance.

   • Maintain contemporaneous records for every offer decision that relies on the instrument: the identity of the affected members, the chosen compliance route, the factual basis for any "unreasonable" determination, the appointment and terms of any nominee, and communications to members.
   • Seek board approval or formal governance sign-off for the use of the instrument in significant offers or where discretionary determinations are made. The instrument’s wording vests decision-making with the responsible entity or corporate director; formal governance provides an audit trail.

9. Communications and disclosure.

   • Prepare member communications explaining the operational consequence (for example, that non-resident holders will receive net proceeds from renounced rights) and the legal basis (cite the instrument where appropriate).
   • For renounceable offers, provide clear disclosure of estimated expenses to be netted from proceeds and the method for calculating distributions. Keep records of distributions.

10. Monitor external instruments and the sunset.

    • Track the amendment history of this instrument and the referenced instruments (ASX Rule 7.7 as at 1 December 2019, ASIC Instrument 2019/547, and the instruments noted in s 8). Endnote 3 lists later amending instruments in 2025 which affected subparagraph 5(a)(ii) and s 8 (Endnote 4).
    • Plan for the instrument’s repeal at the start of 1 October 2028 (s 9). Consider transitional amendments to constitutions or operational processes that will be required after repeal if the current practices will no longer be permissible.

11. External legal review.

    • Given the conditional nature of relief and the potential for interpretation or enforcement questions, secure legal advice for significant offers or any novel factual scenarios. Advice should confirm that the chosen route is factually and legally supported and should document regulatory compliance steps.

Following this checklist will not eliminate legal risk but will align operational practice with the instrument’s terms. The emphasis should be on contemporaneous decision-making records, narrow adherence to the specified alternative procedures, and communication with members so that distributions and exclusions are transparent and defensible.