ASIC Corporations (Market Research and Roadshows) Instrument 2026/93

The instrument’s core concept is the market research organisation. This is defined as an organisation in the business of conducting market research that is engaged by the body intending to offer securities or make financial products available, but that is “not otherwise associated” with that body. The phrase “not otherwise associated” is crucial - it means the organisation must be independent of the issuer. If the issuer engages a related entity or a corporate group member, the exemption is unavailable. The independence requirement reduces the risk that market research is used to build a subscriber database for future direct marketing. The instrument also does not permit the market research organisation to disclose back to the issuer the names and contact details of any persons contacted. This anonymisation condition is designed to prevent the market research from being used to pre-solicit identified investors, which would undermine the policy that no offer can be made without a disclosure document.

Another key concept is declared financial market - the securities or financial products that are the subject of the research or roadshow must be in a class that is, or is intended to be, quoted on such a market. This limits the exemption to offers of listed or listing-bound securities and tradable financial products, excluding unlisted or private offers. The instrument cross-references section 9D of the Act, and notes a transitional provision (section 1705F) preserving formerly prescribed financial markets until the first declaration under section 9D(2) is made. In practice, this covers ASX, Chi-X and similar markets.

For roadshow presentations, the concept is narrow: a body does not have to comply with Parts 6D.2 and 6D.3 of the Act for any act that directly or indirectly refers a financial services licensee or their representatives - and no other person - to an intended offer. This means the roadshow can contain substantive information about the offer, and the issuer is not required to lodge a disclosure document before presenting. However, the audience is strictly limited to licensees and their representatives. This reflects a policy judgment that wholesale investors and financial intermediaries can bear the risk of incomplete information without the protective machinery of a disclosure document, whereas retail investors cannot.

For subsidiary offers, the concept is a notice or report required by law or market operating rules. The listed body and its officers can publish a statement about a subsidiary’s intended offer without breaching section 734 or 1018A, provided the statement contains only material that is required and nothing more. This prevents the announcement from being used as a marketing vehicle disguised as a compliance notice.

Finally, the publisher defence under section 734 is extended in concept to electronic media. The instrument defines “media” to include electronic services operated on a commercial basis and similar to newspapers, magazines or radio/television broadcasts. This captures news websites, financial news aggregators and similar digital publishers, but likely excludes social media platforms or non-commercial blogs. The defence applies if the person publishes in the ordinary course of a media business and did not know and had no reason to suspect the publication would contravene the Chapter. This is a “innocent publisher” safe harbour, not an exemption for the content itself.

The instrument directly affects four groups. First, bodies intending to offer securities (including companies, trusts and other issuers) and persons intending to make financial products available (which could include managed investment scheme operators, issuers of debentures, and product issuers under Part 7.9). These entities gain the ability to test market demand before incurring the full cost of preparing and lodging a disclosure document. The commercial benefit is material: they can gauge likely subscription levels, identify target investor segments, and refine marketing strategy without risking a breach of the Corporations Act. However, they must bear the cost of engaging an independent market research organisation, the compliance cost of ensuring the research does not exceed five thousand advertisements or statements, and the opportunity cost of not receiving identifying information about respondents.

Second, market research organisations gain a defined exemption from liability for publishing advertisements or statements that would otherwise contravene sections 734(2) or 1018A(2). This is a significant benefit for firms such as Ipsos, Roy Morgan, or specialised capital-markets research boutiques. But they are also constrained: they must be genuinely independent and not “otherwise associated” with the issuer, they may only provide information to persons to the extent necessary to conduct research and permit those persons to answer questions, and they cannot disclose names and contact details back to the issuer. A market research organisation that fails to maintain independence could lose the exemption for itself and for the issuer.

Third, financial services licensees and their representatives are the exclusive audience for roadshow presentations under section 9. This covers stockbrokers, investment banks, financial advisers and institutional fund managers. They receive information about intended offers before the disclosure document is lodged, enabling them to conduct preliminary due diligence or express conditional interest. The exemption does not extend to other persons, so if an issuer accidentally or deliberately includes a retail client in a roadshow, the exemption for that entire presentation may be lost.

Fourth, media businesses and publishers are affected by the declaration modifying section 734. Publishers of newspapers, magazines, radio, television, and now commercially operated electronic services (such as news websites) receive an expanded defence against liability for publishing advertisements that contravene Chapter 6D. However, the defence is not absolute: the publisher must be acting in the ordinary course of a media business and must not know or have reason to suspect the publication would breach the Chapter. A publisher that consciously runs a paid advertisement promoting an intended offer before the disclosure document is lodged (and that does not qualify under the market research exemption) would still be liable.

Listed companies (bodies) with subsidiaries or proposed subsidiaries are also affected by section 10. They can issue required notices to the market operator about a subsidiary’s intended offer without worrying about the advertising restrictions. This is a practical relief because such notices are often mandatory under continuous disclosure rules or listing rules, and without this exemption the listed body could be caught between conflicting obligations.

ASIC itself is affected as the regulator. The instrument reduces the scope of ASIC’s enforcement powers under sections 734 and 1018A by carving out defined activities. ASIC retains the ability to enforce conditions and to pursue conduct that falls outside the exemption.

The instrument confers rights to conduct market research and roadshow presentations without complying with the advertising restrictions, but each right is conditional on specific duties. For market research under sections 7 and 8, the issuer or person making products available has a right to publish advertisements or statements that would otherwise breach subsections 734(2) or 1018A(2), provided they engage an independent market research organisation and satisfy all conditions. However, they owe a duty not to permit the market research organisation to disclose names and contact details of contacted persons back to the issuer. This duty is critical: it prevents the issuer from obtaining a database of potential investors before the disclosure document is lodged. The issuer also has a duty to limit the total number of advertisements or statements to 5,000. This is a hard cap - if the issuer publishes 5,001, the entire series of publications loses the exemption, and all publications may constitute a contravention unless some other exemption applies.

The market research organisation has a duty to provide information to persons only to the extent necessary for the research and for those persons to answer questions. This condition limits the content of the advertisement or statement. The instrument does not specify what information can be included, but it must be solely for the purpose of ascertaining the number of copies of the disclosure document to print, to whom to market, and the type and extent of marketing. Using the advertisement to actively solicit expressions of interest or to take binding commitments would fall outside the purpose condition and void the exemption.

For roadshow presentations under section 9, the body has a right to refer an intended offer to a financial services licensee or its representatives without complying with Parts 6D.2 and 6D.3. But the body has a duty to ensure no other person is referred to. If the roadshow is broadcast on social media, sent to retail clients, or included on a public website, the exemption is lost. This imposes a practical compliance duty on the issuer to verify the audience identity before the presentation.

For subsidiary announcements under section 10, the listed body and its officers have a right to publish a statement about a subsidiary’s intended offer without complying with section 734(2) or 1018A(1)-(2). But they have a duty to ensure the statement contains only material required by law or market operating rules and nothing more. Adding commentary, promotional language or forward-looking statements beyond what is required would breach the condition.

For publishers under the modified section 734, the key right is the defence in subsection (8): a person does not contravene section 734(1) or (2) by publishing an advertisement or statement if they publish it in the ordinary course of a media business and did not know and had no reason to suspect it would contravene the Chapter. The duty implicit in the defence is the obligation to maintain reasonable knowledge of the publication’s content. A publisher that deliberately avoids checking whether advertisements relate to intended offers may be found to have had reason to suspect a contravention. This is not a strict duty, but it means the publisher must exercise some diligence appropriate to the ordinary course of its business.

The instrument itself does not create new penalties. Its primary effect is to remove liability that would otherwise arise under the Corporations Act for conduct that falls within the exemptions. If the conditions of the exemption are satisfied, the person does not contravene sections 734(2), 1018A(2), or Parts 6D.2 and 6D.3 as relevant, and therefore no penalty for those provisions attaches. For conduct that falls outside the exemption, the usual penalties under the Corporations Act continue to apply.

Section 734 of the Act is a strict liability provision in many respects. Contravening subsection (1) (advertising before the disclosure document is lodged) or subsection (2) (advertising that is misleading or that does not comply with content rules) can attract civil penalties of up to the greater of $1.1 million or three times the benefit obtained, and also criminal penalties for individuals including imprisonment. For financial products, section 1018A carries similar penalties. The instrument does not reduce those penalties; it merely defines a safe harbour.

Enforcement responsibility remains with ASIC. ASIC can investigate whether the conditions for exemption are met. For example, if an issuer publishes 6,000 advertisements for a market research campaign, ASIC can take enforcement action for the breach of section 734(2) for each advertisement from number 5,001 onward. ASIC could also argue that the entire campaign was not carried out “solely” for the market research purpose if the advertisement contained an enticing call to action, thereby collapsing the exemption retroactively.

The independence requirement for the market research organisation is a key enforcement risk. If the organisation is “otherwise associated” with the issuer - for example, a subsidiary of the issuer, or an organisation where the issuer is a major shareholder - ASIC may argue that the condition in the definition is not satisfied, and the exemption is unavailable. Similarly, if the market research organisation discloses names and contact details back to the issuer (or the issuer receives them inadvertently), both parties may lose the exemption.

For roadshows, the enforcement risk lies in audience control. If an issuer sends a roadshow presentation to a mailing list that includes even one non-licensee (unless that person fits another exemption under the Act), the exemption may be voided for the entire presentation. The issuer would then be exposed to penalties under Parts 6D.2 and 6D.3 for distributing preliminary information that might be seen as an offer requiring a disclosure document.

For publishers, the defence is not automatic. A publisher that knowingly publishes an advertisement for an intended offer before the disclosure document is lodged (and that does not qualify under market research exemption) cannot rely on subsection (8). The defence requires lack of knowledge and no reason to suspect. ASIC may take a robust view of what a reasonable media business should suspect, particularly if the advertisement is clearly for a forthcoming initial public offering and no prospectus has been lodged.

The instrument also has a sunset date: it is repealed at the start of 1 April 2031. Conduct after that date will not be covered unless the instrument is replaced or extended. This creates regulatory uncertainty for long-dated capital raising programs that might involve market research in 2030 that extends into 2031.

The instrument operates entirely within the framework of the Corporations Act 2001. It is made under subsections 741(1) and 1020F(1), which permit ASIC to exempt a person or class of persons from a provision of Chapter 6D (fundraising) or Part 7.9 (financial product disclosure), or to declare that those provisions apply as if specified changes were made. The instrument is a legislative instrument registered on the Federal Register of Legislation, so it has the force of law.

Part 2 exemptions relate directly to sections 734 (advertising and publicity for securities offers) and 1018A (advertising and publicity for financial product offers). The instrument does not affect other provisions of the Corporations Act. For example, the continuous disclosure obligations under section 674 still apply to listed bodies. A listed body that announces a subsidiary’s intended offer under section 10 must still comply with its continuous disclosure obligations; the exemption merely removes the conflict with the advertising restrictions. Similarly, the instrument does not exempt an issuer from the requirement to prepare and lodge a disclosure document before making an offer. The exemptions are about the period before the disclosure document is lodged; they do not replace the need for a prospectus, PDS or other disclosure when the actual offer is made.

The roadshow exemption under section 9 interacts with the general prohibition on offers without disclosure. The exemption states that a body does not have to comply with Parts 6D.2 and 6D.3 for any act that refers a licensee to an intended offer. This means that even if the body’s act would otherwise be an “offer” under section 700 (which includes invitations or offers of securities), it is not treated as such for the purposes of those Parts. However, the Act’s general definition of “offer” may still apply for other purposes, such as the insider trading provisions in Part 7.10. The roadshow material could potentially contain inside information, and the exemption does not override the insider trading provisions.

The declaration in Part 3 modifies section 734 directly for all persons. This means the expanded publisher defence applies not only to the holders of the exemption but to every person who might be sued for publishing an advertisement or statement in breach of section 734. The modification is expressed as a declaration under subsection 741(1), which has the effect that Chapter 6D applies as if section 734 were varied as specified. This is a form of legislative override, but it only applies for the duration of the instrument (until 1 April 2031 unless earlier repealed). After that, section 734 reverts to its original text unless a new instrument or amendment is made.

The instrument also interacts with the ASIC Corporations (Repeal and Transitional) Instrument or similar transitional provisions, although none are mentioned in this source. The repeal of the 2016 instrument is effective from the commencement of this instrument (the later of the day after registration and 1 April 2026). Any conduct that relied on the 2016 instrument after that date would need to satisfy the 2026 instrument’s conditions. The 2016 instrument had similar market research and roadshow exemptions, but the definition of market research organisation may have differed. Users who were familiar with the 2016 instrument should review the 2026 conditions carefully, particularly the independence requirement and the cap on advertisements.

This instrument does not amend the Corporations Act directly; it is a standalone legislative instrument that is itself the product of a repeal and replacement process. The instrument repeals ASIC Corporations (Market Research and Roadshows) Instrument 2016/79 in its entirety (Schedule 1). The 2016 instrument was a previous ASIC class order that provided similar exemptions. The 2026 instrument updates and continues the policy with several changes.

The most significant change is in Part 3, the declaration modifying section 734. The 2016 instrument likely had a corresponding provision, but the 2026 instrument makes the media definition explicit by including “electronic services (including services provided through the internet) that are operated on a commercial basis and are similar to newspapers, magazines or radio or television broadcasts.” This reflects the shift in media consumption since 2016, where many financial news publications are now primarily online. The old wording limited the defence to traditional media; the new wording extends it to digital commercial publishers.

The definition of “market research organisation” in the 2026 instrument is more precise than in the 2016 instrument. The 2016 version may have defined it by reference to being “in the business of conducting market research” but did not explicitly require the organisation to be “not otherwise associated with” the body. That clause appears to have been added to prevent issuers from using in-house research departments or affiliates to circumvent the anonymity condition. This is a tightening of the exemption, reflecting ASIC’s experience with potential misuse.

The sunset date has been updated. The 2016 instrument had a sunset of 1 April 2021 (assuming a five year term), but it may have been extended or replaced earlier. The 2026 instrument repeals it and sets a new sunset of 1 April 2031. This gives the industry a five year horizon of certainty.

There are no other amendments listed in the source. The instrument does not amend any other legislative instruments or regulations. It is a clean replacement.

The source text does not refer to any litigation or court decisions. The instrument is a legislative instrument, not a statute, so it does not have its own litigation history. Predecessor instruments may have been the subject of administrative decisions or ASIC enforcement actions, but no such information is in this source.

What can be said is that the exemption conditions have been litigated indirectly in cases involving section 734 contraventions. For example, ASIC has brought proceedings against companies that engaged in advertising before a prospectus was lodged, and the defendants have sometimes argued that their conduct fell within the market research or roadshow exemption. The outcome would depend on whether the conditions were met. However, without specific case references in the source, it would be speculative to name or describe any case.

The instrument’s structure is designed to minimise litigation risk by creating bright-line conditions: the 5,000 advertisement cap, the prohibition on disclosing names and contact details, and the requirement that the roadshow audience be limited to licensees. These conditions reduce the scope for factual disputes. However, the phrase “not otherwise associated with” in the definition of market research organisation and “solely for the purpose of market research” in sections 7(2)(e) and 8(2)(e) are potential sources of litigation, as they require ASIC or a court to make subjective judgments about purpose and independence.

Practitioners should be aware that if litigation arises, the instrument is a delegated legislative instrument and can be challenged on administrative law grounds, such as whether ASIC had the power to make it under subsections 741(1) and 1020F(1) or whether it is inconsistent with the primary Act. The instrument is likely within power because it exempts persons from provisions rather than creating new obligations, and the declaration modifies the Act as specifically permitted.

The instrument contains several traps for the unwary. First, the cap of 5,000 advertisements or statements in sections 7(2)(f) and 8(2)(f) applies to the total number published in connection with the market research. This includes all versions, formats, and channels. If the issuer publishes 4,000 online banner ads, 1,000 emails, and one website landing page, the total is 5,001 and the exemption is lost. The instrument does not provide a tolerance. Issuers must track every publication meticulously.

Second, the anonymity condition (sections 7(2)(d) and 8(2)(d)) is absolute: the body must not permit the market research organisation to disclose the names and contact details of any persons contacted. This means the issuer cannot receive even aggregate demographic profiles that link back to individuals? The text says “names and contact details” specifically, so aggregate data without personally identifiable information is probably permissible. But if the research organisation provides a list of postcodes and age ranges that combined could identify a unique individual in a small geographic area, that may be a disclosure of contact details indirectly. The safe approach is to prohibit the transfer of any data that could be used to re-identify respondents.

Third, the roadshow exemption is limited to financial services licensees and their representatives. The exemption applies to “no other person.” If a licensee’s representative brings a friend or a retail client as a guest, the exemption may be lost for the entire presentation. Also, the exemption applies to “any act by the body” that directly or indirectly refers the licensee to an intended offer. This covers not only the presentation itself but also any pre- or post-communication (emails, follow-up calls). If any of those communications inadvertently reach a non-licensee, the exemption may be jeopardised.

Fourth, the subsidiary announcement exemption (section 10) requires that the statement contain “material which is required by law or by the operating rules of the relevant financial market to be contained in the statement and nothing more.” This is strict: adding any explanatory text, promotional language, or even a cautionary note could be seen as “more” than required. If the listing rule requires the issuer to state the total consideration, the issuer cannot add a sentence about expected benefits to shareholders.

Fifth, the publisher defence (modified section 734(8)) is available only if the publisher “did not know, and had no reason to suspect, that its publication would amount to a contravention.” A publisher that runs paid advertisements for potential IPO issuers should have a screening process. If the advertisement clearly refers to an intended offer and the publisher had internal knowledge that no disclosure document had been lodged, the publisher would have reason to suspect a contravention. The onus of proof appears to be on the publisher as a defence, so the publisher must raise evidence of its lack of knowledge.

Sixth, the sunset date of 1 April 2031 means the instrument will cease to have effect automatically. Conduct after that date will not be protected. Any market research or roadshow planning that extends beyond 2031 should not rely on this instrument. There is no guarantee that ASIC will make a replacement instrument or that it will contain the same conditions.

Seventh, the independence requirement in the definition of market research organisation: “engaged by, but not otherwise associated with, the body.” If the research organisation is a subsidiary of the issuer, or if an officer of the issuer sits on the board of the research organisation, the independence condition is likely breached. The issuer must engage a genuinely third-party research provider with no corporate or management ties.

Compliance requires careful structuring of activities and robust internal controls. For market research under sections 7 or 8, the issuer should:

• Engage a market research organisation that is in the business of market research, independent of the issuer, and with no corporate, financial or management association. Obtain a written confirmation from the organisation that it meets the independence criteria.
• Sign a contract that prohibits the research organisation from disclosing names and contact details of any contacted persons to the issuer, and that limits the use of advertisements to the three specified purposes (print run estimate, target market identification, marketing method assessment).
• Implement a tracking system to count every advertisement or statement published in connection with the research, across all media, including digital, print, email and social. The total must not exceed 5,000. Use unique tracking codes to avoid double counting.
• Ensure that the advertisement or statement contains only information necessary for the research. Avoid any language that could be construed as an offer, invitation, or inducement to invest. The content should be factual and limited to the proposed offer details (type of security, issuer, expected timing) essential for respondents to answer questions.
• Do not request or accept any list of names or contact details from the research organisation. The issuer may receive aggregated responses and demographic data only if it does not permit identification of individuals.
• Maintain records of all advertisements published, the tracking counts, and the contract with the research organisation, to demonstrate compliance if ASIC inquires.

For roadshow presentations under section 9:

• Restrict invitations, venue access, and distribution of materials exclusively to financial services licensees and their representatives. Verify each recipient’s AFSL number or representative number before providing access.
• Do not record the roadshow for later distribution or place materials on a website accessible to the public.
• If the roadshow involves an offer that will be made to wholesale clients only, ensure that the licensee is acting for wholesale clients, but note that the exemption itself is limited to licensees per se, not their clients.
• Include a disclaimer stating that the presentation is confidential and directed only at financial services licensees. Keep attendance records.

For subsidiary announcements under section 10:

• Identify the specific requirement in the law or market operating rules that mandates the notice. Draft the statement narrowly, containing only the required content. Remove any boilerplate or explanatory text not expressly required.
• Have the content reviewed by legal counsel to ensure it adds nothing beyond the requirement.
• Lodge the statement through the market operator’s standard channel promptly to satisfy the underlying requirement.

For publishers seeking to rely on the defence in modified section 734(8):

• Implement a compliance procedure for reviewing advertisements related to offers of securities or financial products. At a minimum, check whether a disclosure document has been lodged with ASIC and whether the advertisement complies with the market research exemption.
• If the publisher is uncertain, either refuse the advertisement or seek a legal opinion. A publisher that deliberately avoids checking may be found to have had reason to suspect a contravention.
• Ensure the publication is in the ordinary course of a media business. Running advertisements outside normal commercial operations (for example, as a favour or at a discounted rate) may not qualify.

General compliance: Keep records of all decisions and actions taken under the instrument. The instrument sunsets on 1 April 2031, so compliance planning should include a review of the instrument’s status before any activities after that date. If ASIC does not extend or replace the instrument, alternative structures must be used (such as the general exemptions in the Act or a specific ASIC relief application).