ASIC Corporations (Unsolicited Offers—Foreign Bids) Instrument 2026/103

The instrument revolves around a small number of statutory concepts, each defined within the instrument and each narrowing the exemption’s application.

• Division 5A of Part 7.9 of the Act: The instrument repeatedly references Division 5A as the regulatory regime from which the exemption operates (s 5, s 7). The Simplified outline summarises that Division 5A regulates unsolicited offers to purchase financial products and that such offers generally require an offer document including the market value of the product (s 5). The instrument does not reproduce Division 5A’s text; it operates by declaring an exemption from that Division for offers meeting the instrument’s criteria.

• Unsolicited offer: The instrument adopts the Act’s existing categories by defining “unsolicited offer” to mean offers covered by section 1019D of the Act and invitations covered by section 1019F (s 6). The instrument therefore treats the Act’s pre-existing definitions as the operative thresholds for what counts as an “unsolicited offer”.

• Foreign takeover bid: The instrument defines “foreign takeover bid” by reference to (a) being regulated by laws or rules that apply to acquisition of control or a substantial interest in a foreign company and that are in force in an eligible foreign country, and (b) involving an offer or invitation to purchase securities from all holders in the same class or all holders except prescribed excluded persons (s 6, definition of foreign takeover bid). The class-wide nature of the offer is therefore an element of the concept.

• Foreign compromise or arrangement: This concept covers compromises, arrangements or statutory mergers between a foreign company and its members or any class of them, where the process is regulated by laws or rules in an eligible foreign country (s 6, definition of foreign compromise or arrangement). The instrument explicitly includes statutory merger mechanisms however described.

• Relevant regulatory requirements: For foreign compromises or arrangements, this means the laws or rules referred to in the definition of foreign compromise or arrangement; for foreign takeover bids, it means the laws or rules referred to in the definition of foreign takeover bid (s 6). In effect the instrument ties the exemption to the existence of an external regulatory regime in an eligible jurisdiction and to the person’s reasonable belief that the foreign process complies with that regime.

• Eligible foreign country: The instrument lists 18 jurisdictions by name, from Belgium to the United States of America (s 6). The list is exhaustive for the instrument’s purposes; only offers governed by laws or rules in one of those listed jurisdictions can qualify for the exemption.

• Reasonable belief: The operative trigger is that the unsolicited offer must be “made under a foreign takeover bid or foreign compromise or arrangement which the person reasonably believes is made in accordance with the relevant regulatory requirements” (s 7). The instrument imposes a subjective-objective threshold , the person’s belief must be reasonable , but it leaves the content of that reasonableness standard undefined in the instrument.

• Temporal scope: The instrument commences under s 2 and expressly sunsets through repeal at the start of 1 April 2031 (s 8). It also removes the prior 2015 instrument in full (Schedule 1).

These core concepts together define a targeted exemption: only unsolicited offers that are (1) for securities of a “foreign company”; (2) made under a foreign takeover bid or foreign compromise or arrangement regulated in one of the named eligible foreign countries; and (3) where the offeror reasonably believes the foreign process complies with the foreign regulatory requirements, are eligible to avoid Division 5A obligations (s 6-7).

Primary parties affected

• Offerors: The instrument directly affects “a person” who makes an unsolicited offer with respect to securities of a foreign company by allowing that person to avoid Division 5A obligations if the statutory conditions are met (s 7). The text is framed in permissive terms , “A person does not have to comply” , so the immediate regulatory relief accrues to the person making the offer.

• Offerees (holders of securities): Holders of securities of the foreign company who receive an unsolicited offer are affected indirectly because the exemption allows the offeror to decline to provide the Division 5A offer document content that would otherwise typically accompany an unsolicited offer, including market value information referenced in the Simplified outline (s 5). The instrument does not alter the rights of offerees under foreign law; it only alters the requirement under Australian Division 5A.

• ASIC and regulators: ASIC is the maker of the instrument (s 3) and remains the regulator of Australian corporations law. The instrument changes the set of matters ASIC may enforce domestically against persons making unsolicited offers in these cross-border circumstances, insofar as Division 5A compliance is concerned. The instrument does not create a new ASIC power; it narrows application of Division 5A by way of exemption.

• Entities subject to foreign takeover regimes: Foreign companies targeted by foreign takeover bids or subject to foreign compromises or arrangements are indirectly affected, because Australian law (Division 5A) will not require particular disclosure steps in relation to unsolicited offers that fall under the instrument. Those foreign companies and their advisers will therefore need to consider whether the foreign process and any related communications will serve as the primary regulatory vehicle for shareholder information.

Secondary and peripheral impacts

• Australian counterparties and intermediaries: Australian financial intermediaries, custodians, brokers and advisers engaged in facilitating the transfer of securities of a foreign company may encounter altered documentation expectations from their clients (offerors or offerees) when an Australian offeror relies on the instrument to avoid Division 5A requirements. The instrument does not directly regulate these intermediaries but it changes the compliance posture and due diligence expectations for cross-border unsolicited offers.

• Legal advisors and compliance teams: Lawyers and compliance professionals advising on cross-border transactions will need to evaluate whether a proposed unsolicited offer meets the instrument’s definitions and conditions, and to advise on evidentiary steps to demonstrate the “reasonable belief” required (s 7 and s 6). That creates additional advisory work even as it reduces the need to prepare Division 5A offer documents.

• Territories and parts of eligible countries: The definitions allow the relevant foreign laws or rules to be “in force or apply in or in a part of an eligible foreign country” (s 6). This phrase extends the instrument’s practical reach to offers regulated at a subnational level within an eligible foreign country, which may bring regional regulatory schemes within scope.

Who is not covered

• Offers regulated in non-listed jurisdictions: An unsolicited offer made under a foreign takeover bid or compromise regulated by laws or rules in countries not enumerated in the eligible foreign country list will not qualify for this exemption (s 6). The instrument’s list is exhaustive; if the foreign law regime sits outside that list, the exemption is not available.

• Offers not made under a class-wide foreign takeover bid or foreign compromise or arrangement: The definitions require the foreign takeover bid to be directed to “all holders of securities in the foreign company in the same class” or an equivalent class-wide group (s 6). Offers that are selective or targeted to a narrower group of holders may not fall within the definition and therefore will remain subject to Division 5A.

• Offers in relation to securities of entities not described as a “foreign company” in the relevant context: The instrument repeatedly refers to “securities of a foreign company,” but it does not define “foreign company.” The absence of a definition in this instrument means eligibility may depend on other legal definitions, or on the factual circumstance; the instrument itself does not resolve that point.

The distribution of costs and benefits therefore concentrates regulatory relief on bidders who undertake class-wide foreign processes in one of the enumerated jurisdictions, while shifting potential informational and procedural costs onto offerees and advising professionals who must assess cross-border regulatory alignment and document a reasonable belief.

Primary duty removed

• Exemption from Division 5A obligations: The core mechanical effect is the removal of the duty to comply with Division 5A of Part 7.9 of the Corporations Act in respect of certain unsolicited offers (s 7). The instrument states the removal in the negative (“does not have to comply”), so it converts a previously applicable requirement into an optional one where the conditions are met.

Ongoing duties and decision rights that the instrument leaves intact or implicitly creates

• Duty to form and hold a reasonable belief: The person proposing to rely on the exemption must “reasonably believe” that the foreign takeover bid or foreign compromise or arrangement “is made in accordance with the relevant regulatory requirements” (s 7). The instrument imposes an evidential posture on the offeror to form a reasonable belief. The instrument does not prescribe how that belief is documented, or what particular material must be relied on to make the belief reasonable. The duty is to hold the reasonable belief at the time the unsolicited offer is made in reliance on the exemption.

• Right to rely on the exemption: Provided the statutory conditions are met, the offeror has the right to avoid Division 5A compliance obligations for that unsolicited offer (s 7). The instrument frames the exemption as a permissive right, not a mandated obligation: a person may choose whether to rely on the exemption.

• No modification of other legal duties: The instrument does not state that it displaces other duties under the Corporations Act or other Australian law. It removes only the obligation to comply with Division 5A for eligible unsolicited offers (s 7). Any other duties that would otherwise apply under the Act or other legal regimes remain in force, unless changed by other provisions.

• Duty of ASIC to make the instrument under delegated power: The instrument records it is made by an ASIC delegate under subsection 1020F(1) of the Act (s 3). That locates the enabling authority for the exemption.

• Decisional discretion at offeror level: The instrument gives the person making the offer discretion whether to proceed under Division 5A or to rely on the exemption, provided the person can form the required reasonable belief (s 7). That is a decision-right internal to the offeror’s compliance calculus.

Operational duties implied by silence

• Record-keeping and evidence: The instrument is silent about administrative formalities to record reliance on the exemption. That silence implies that any practical duty to keep records or to produce evidence of a reasonable belief will arise through enforcement or dispute processes under the Corporations Act rather than from the instrument itself. The offeror therefore faces a compliance choice: document the basis for the belief to mitigate future risk, or accept heightened uncertainty.

• Temporal duties: The exemption applies at the time the unsolicited offer is made and the person reasonably believes the foreign bid or arrangement is regulated as required (s 7). The instrument does not create continuing obligations after the offer is made, except to the extent other law requires action.

Rights of offerees and other parties

• No new statutory rights are created for offerees by this instrument. Rather, offerees may lose the statutory benefit of receiving Division 5A offer documents in cases where the offeror validly relies on the exemption. The instrument does not provide alternative disclosure requirements for offerees in the Australian context.

• The instrument does not create a private right of action or specify remedies linked to misuse of the exemption. Any legal interest an offeree has in challenging an offeror’s reliance on the exemption would therefore derive from the Corporations Act and general law rather than from the instrument itself.

In sum, the instrument rescinds a targeted statutory duty for eligible offerors, conditions that rescission on the offeror’s reasonable belief about foreign regulatory compliance, and leaves in place the wider legal framework and any duties external to Division 5A.

The instrument does not itself specify penalties, sanctions or administrative enforcement procedures. Its operative effect is to grant a conditional exemption from compliance with Division 5A of Part 7.9 of the Corporations Act (s 7). As an exemption rather than a positive power to penalise, the instrument’s text contains no standalone enforcement or penalty provisions.

Implications for enforcement under existing law

• Enforcement under the Corporations Act: Because the instrument operates within the framework of the Corporations Act (and is made under subsection 1020F(1) of that Act, s 3), any consequences for an incorrect reliance on the exemption will arise under the Corporations Act or other applicable laws, rather than under this instrument. The instrument itself does not alter the enforcement powers or penalties that exist elsewhere in the Act; it limits application of Division 5A only where the conditions are met. The instrument does not specify which other provisions of the Act would be relevant in the event of a breach.

• Challenge to “reasonable belief”: If a person claims the exemption but a regulator or another party contests that the person did not reasonably believe the foreign procedure complied with the relevant regulatory requirements, any regulatory action or litigation would proceed under the Act or general law and would need to address that factual and legal issue. The instrument does not prescribe procedural steps for proving or disproving the asserted reasonable belief.

• ASIC’s role: ASIC made the instrument (s 3). The instrument does not assign ASIC a new investigatory function in relation to the exemption, nor does it set out a notification or prior approval process. However, ASIC retains its standard enforcement and investigatory tools under the Corporations Act if it chooses to review alleged misuse of the exemption.

Practical enforcement and sanction risks

• Uncertain evidentiary threshold: Because the instrument does not state how an offeror should document or prove the “reasonable belief,” enforcement hinges on external standards of reasonableness applied by courts or regulators if a dispute arises. That can create litigation risk for both offerors and offerees.

• No automatic immunity: The instrument does not grant immunity from any other legal consequences of an offer; a person that relies on the exemption inappropriately remains potentially open to other liabilities under the Corporations Act or general law. The instrument does not extinguish those other liabilities.

• Sunset as enforcement limitation: The instrument’s repeal at the start of 1 April 2031 (s 8) means the exemption is time-limited. Offers made after repeal would not be covered; offers made during the instrument’s life but subject to later challenges may be assessed under the law that applied when the offer was made, but the instrument does not address post-repeal liabilities.

In short, the instrument itself contains no penalty clauses. It narrows the pool of circumstances in which particular Division 5A obligations will be enforceable, but it leaves the full suite of Corporations Act enforcement options intact for disputes about improper reliance on the exemption.

Direct interaction with the Corporations Act

• Scope: The instrument is an instrument under the Corporations Act, made under subsection 1020F(1) (s 3). Its entire effect is to exempt certain unsolicited offers from Division 5A of Part 7.9 of the Act (s 7). It therefore operates as a statutory carve-out within the existing Act rather than as an amendment to the Act itself.

• Reliance on Act definitions: The instrument imports the Act’s existing concepts by reference , it defines “unsolicited offer” to include offers or invitations covered by sections 1019D and 1019F of the Act (s 6). The instrument therefore interoperates with those sections; whether an Australian offer is an “unsolicited offer” for instrument purposes depends on the Act’s definitions.

• Silent on other Act provisions: The instrument does not purport to modify any other procedural or disclosure obligations in the Act beyond Division 5A. Other obligations, criminal offences, civil penalties and general duties in the Act therefore remain applicable to the extent they otherwise apply. The instrument does not create a shield against separate Corporations Act liabilities.

Cross-border regulatory interplay

• Tied to foreign regulatory regimes: The exemption is expressly conditional on the foreign takeover bid or foreign compromise or arrangement being “regulated by or under a law or other rules … in force or apply in or in a part of an eligible foreign country” (s 6). The instrument therefore presupposes the existence of an external regulatory framework and ties the Australian exemption to the conformity of the foreign process with that framework. The instrument does not render foreign law operative in Australia; instead it accepts foreign regulatory coverage as the trigger to relax Australian requirements.

• Eligible country list restricts cross-border reach: The list of eligible foreign countries in s 6 is exhaustive for the instrument’s purposes. Transactions regulated in jurisdictions not listed cannot rely on the exemption, which constrains cross-border interactions to the enumerated jurisdictions only.

• No mutual recognition mechanism specified: Although the instrument effectively recognises foreign takeovers and arrangements as adequate substitutes for Division 5A in specified circumstances, it does not establish a formal mutual recognition process, equivalence assessment, or approval step. The instrument relies on the subjective-objective standard of the offeror’s reasonable belief rather than on a statutory determination of equivalence between foreign and Australian regimes.

Interaction with foreign law and private rights

• No displacement of foreign obligations: The instrument does not alter any foreign regulatory obligations. It only affects the Australian requirement in Division 5A for eligible unsolicited offers (s 7). The foreign process’s information and consent mechanisms remain governed by the foreign law that regulates the foreign takeover bid or compromise or arrangement.

• Impact on private contractual arrangements: Where Australian contracts or commercial arrangements incorporate Division 5A-style disclosure requirements by reference, the instrument does not automatically override those contractual terms. Parties remain able to contract for additional disclosure even where the instrument removes the statutory Division 5A obligation.

Interaction with prior instruments

• Repeal of 2015 instrument: Schedule 1 repeals ASIC Corporations (Unsolicited Offers,Foreign Bids) Instrument 2015/1070 in full. That means the 2015 instrument no longer operates once this instrument commences (Schedule 1). The new instrument therefore replaces the prior instrument entirely; any terms or practices under the 2015 instrument are superseded by this instrument as of its commencement date (s 2, Schedule 1).

Other legal regimes

• Administrative law considerations: As a legislative instrument, it is subject to the usual administrative law framework, including any review rights applicable to ASIC’s use of delegated powers and any judicial review of ASIC actions that rely on or interpret the instrument. The instrument itself contains no administrative appeals or review mechanisms.

• Evidence in proceedings: The instrument does not prescribe particular evidentiary rules but may become material evidence in disputes about whether Division 5A applied at the time an unsolicited offer was made. Courts or tribunals resolving such disputes will treat the instrument as a lawful legislative instrument made under the Act (s 3).

Overall, the instrument creates a specific carve-out from a specified part of Australian law, conditional on a factual legal nexus with a named set of foreign regulatory regimes. It operates alongside, rather than replacing, the remainder of the Corporations Act and other legal obligations.

This instrument contains its own limited amendment history within the text supplied.

• Repeal of the 2015 instrument: Schedule 1 expressly repeals ASIC Corporations (Unsolicited Offers,Foreign Bids) Instrument 2015/1070 in full (“The whole of the instrument: Repeal the instrument.”). That is the only express amendment or repeal action recorded in the instrument.

• Commencement and repeal dates: The instrument commences on the later of registration and 1 April 2026 (s 2) and is repealed at the start of 1 April 2031 (s 8). These dates establish a bounded operational life of roughly five years unless replaced or extended by subsequent instruments or legislative action.

• Authority under the Act: The instrument cites subsection 1020F(1) of the Corporations Act 2001 as the enabling power (s 3). The instrument therefore stands as an exercise of a power delegated to ASIC under that specific Act provision.

No other amendments, transitional provisions, variations, or staged commencements are included in the text supplied. The instrument does not include savings or transitional provisions dealing with offers commenced prior to commencement beyond the standard operation of the law at the time. The document’s structure is brief: a Preliminary part (including definitions and outline), a single substantive Part 2 providing the exemption (s 7), and a Repeal Part (s 8 and Schedule 1).

Because the instrument repeals the 2015 instrument in its entirety, the 2015 instrument’s terms cease to have effect on this instrument’s commencement. The instrument does not set out how matters in progress under the 2015 instrument should be treated; the text supplies no transitional rules. Any transition questions therefore would be resolved by reference to general legislative and administrative practice and the timing of the instrument’s commencement (s 2), but the instrument itself does not articulate transitional mechanisms.

Given the finite five-year period before repeal in 2031 (s 8), users should anticipate either renewal, replacement or legislative amendment if the policy choice set out here is intended to continue beyond that date. The instrument does not itself include any mechanism for automatic extension.

The instrument text contains no litigation history. There are no cases, decisions, or tribunal determinations cited in the instrument, and the instrument does not reference any judicial consideration of the matters it addresses.

Implications of the absence of recorded litigation history in the instrument

• Novelty and predictable disputes: The absence of any litigation history in the instrument does not mean litigation will not arise. Points of dispute that litigation could address include the meaning and proof of “reasonable belief,” the interpretation of “foreign company,” the class-wide offer requirement in the “foreign takeover bid” definition, and the practical sufficiency of foreign regulatory regimes for Australian purposes. The instrument itself identifies those as operative concepts but provides no adjudicative guidance; hence future cases may be needed to clarify borderline questions.

• Repeal of prior instrument: Because the instrument repeals the 2015 instrument in full (Schedule 1), any pre-existing litigation that relied on provisions of the 2015 instrument would no longer be able to cite it as current authority for offers made after this instrument’s commencement. The instrument does not summarize or preserve any judicial interpretation of the 2015 instrument. If any litigation under the 2015 instrument exists, it is not referenced here.

• Enforcement and factual disputes: If a regulator or private litigant challenges an offeror’s claim that Division 5A does not apply because of the exemption, dispute resolution will occur under the Corporations Act or general law and will likely involve factual inquiries into whether the foreign takeover bid or arrangement was in fact regulated by the foreign regime and whether the offeror’s belief was reasonable. The instrument provides the statutory framework but foresees no adjudicative standards.

Because the instrument itself contains no litigation record or references to cases, any practitioner seeking precedent or judicial guidance will need to look beyond this instrument to domestic case law on comparable issues or to interpretive decisions about Division 5A and cross-border takeover recognition , subject matter not contained within the instrument text supplied here.

The instrument is compact but contains several operational and legal pitfalls that arise from its structure and silences. Each of the following “gotchas” is grounded in the instrument’s text.

1. Reliance on an unarticulated “reasonable belief” standard (s 7).

   • The instrument conditions the exemption on a person’s reasonable belief that the foreign takeover bid or foreign compromise or arrangement is made in accordance with the relevant regulatory requirements (s 7). The instrument does not define what constitutes reasonableness in this context, whether the belief must be based on documentary confirmation, legal opinions, regulatory clearances, or other evidence. Practitioners should note the evidentiary risk: a later finding that the belief was not reasonable would remove the exemption’s benefit for that offer.

2. Eligible foreign country list is closed and specific (s 6).

   • The list in s 6 sets out 18 eligible foreign countries. If the foreign regulatory regime is outside that list, the exemption is unavailable. There is no delegable discretion in the instrument to add countries. Offers regulated in a non-listed jurisdiction remain subject to Division 5A.

3. Scope restricted to class-wide offers (s 6).

   • The foreign takeover bid definition requires offers to be made to all holders in the same class or all such holders except those excluded under the foreign regime (s 6). Selective or partial offers which do not meet this class-wide description may not qualify for the exemption.

4. “Securities of a foreign company” remains undefined in this instrument.

   • The instrument repeatedly refers to “securities of a foreign company” (s 7 and s 6 definitions) but does not define “foreign company.” That raises a legal risk for offers involving entities on the border between domestic and foreign character, or where classification depends on other statutory definitions not set out here. The instrument does not resolve which legal test applies for “foreign company” status.

5. No prescribed documentary or notification process.

   • The instrument does not require notification to ASIC, filing, or contemporaneous evidence to support the claimed reasonable belief. That leaves the offeror to decide how aggressively to document compliance. The absence of a formal process increases post-event evidentiary disputes.

6. Potential informational gap for offerees (s 5 and s 7).

   • The instrument’s Simplified outline observes that Division 5A generally requires an offer document including market value information (s 5). By allowing the offeror to avoid Division 5A, the instrument also permits situations where offerees may not receive the market value disclosure they would have received under Division 5A. Offerees receiving offers under a foreign procedure may therefore face an information shortfall compared with the Australian standard.

7. Temporal uncertainty around commencement and repeal (s 2, s 8).

   • The instrument commences on the later of registration and 1 April 2026 (s 2), and it is repealed at the start of 1 April 2031 (s 8). Practitioners must track the exact registration date and ensure offers falling in the transitional period between registration and 1 April 2026 are assessed correctly. After repeal, offers cannot rely on the exemption.

8. Repeal of the 2015 instrument could disrupt transitional expectations (Schedule 1).

   • The instrument’s full repeal of the 2015 instrument removes any legacy terms from that instrument. If market participants were operating under assumptions based on the 2015 instrument, those assumptions may need to be revisited. The new instrument contains no transitional rules preserving pre-existing reliance paths.

9. No express protection against other liabilities.

   • The instrument removes Division 5A obligations only; it does not insulate offerors from other corporations law liabilities or civil claims that might arise from an unsolicited offer. The instrument is silent on whether reliance on the exemption is admissible evidence of good faith in other proceedings.

10. Interaction with subnational foreign laws.

    • The phrase “in or in a part of an eligible foreign country” (s 6) brings subnational regulatory rules into scope, but the instrument does not explain how to determine whether a subnational law qualifies as “in force or apply” for these purposes. That creates uncertainty when a foreign takeover bid is regulated at a regional or state level within an eligible country.

Each of these points derives directly from the instrument’s wording and silences. They create practical compliance choices and litigation risks that should be addressed when planning to rely on the exemption.

This section offers a practical compliance checklist grounded in the instrument’s text. The instrument does not prescribe an administrative process, so compliance is about meeting the statutory conditions and creating a defensible documentary record.

1. Confirm the offer is an “unsolicited offer” as defined in the Act.

   • The instrument applies only to an “unsolicited offer” as the Act defines it (offers covered by s 1019D or invitations covered by s 1019F) (s 6). Before relying on the exemption, confirm that the particular communication meets the Act’s definition of an “unsolicited offer.” The instrument imports those Act references rather than restating them.

2. Confirm the subject securities are “securities of a foreign company.”

   • The exemption applies to unsolicited offers “with respect to securities of a foreign company” (s 7). The instrument does not define “foreign company.” Determine which statutory or factual test will be used to classify the issuer as a foreign company and document the basis for that classification.

3. Establish that the offer is made under a qualifying foreign takeover bid or foreign compromise or arrangement.

   • For a foreign takeover bid, ensure the arrangement is regulated by laws or rules that apply to acquisition of control or a substantial interest in the foreign company and that the offer involves all holders in the same class (s 6, definition of foreign takeover bid).
   • For a foreign compromise or arrangement, ensure the process is between a foreign company and its members (or a class of them) and regulated by foreign law or rules (s 6).
   • Document how the foreign process satisfies these definitional elements, including copies of the foreign statutory provisions, regulatory rules, or official guidance that show the foreign procedure is regulated as required.

4. Verify the foreign regime is in an eligible foreign country.

   • The foreign laws or rules must be “in force or apply in or in a part of an eligible foreign country” (s 6). Check the instrument’s list of eligible countries and confirm the foreign regulatory regime is located in one of those jurisdictions (s 6, eligible foreign country list). If the relevant foreign regulator or law applies only in a non-listed jurisdiction, the exemption will not be available.

5. Form and document a reasonable belief that the foreign process complies with the relevant regulatory requirements.

   • The exemption applies only where the person “reasonably believes” the foreign takeover bid or compromise or arrangement is made in accordance with the relevant regulatory requirements (s 7). Although the instrument does not prescribe how to form that belief, best practice is to create contemporaneous documentation supporting the belief. That might include:
     • Legal opinions from counsel on the foreign regulatory regime.
     • Confirmations or filings from the foreign regulator showing that the process is governed by the relevant rules.
     • Internal minutes, due diligence reports, or adviser sign-offs explaining the basis for the belief.
   • Retain records demonstrating steps taken to verify the foreign regulatory status and the class-wide nature of the offer.

6. Decide whether to rely on the exemption and incorporate that decision into the transaction record.

   • Because the instrument frames the exemption as optional (“does not have to comply”), the offeror should consciously decide whether to proceed under Division 5A or to rely on the exemption. Document the decision-making process and the reasons for choosing the exemption.

7. Advise offerees and advisers about likely absence of Division 5A material.

   • If relying on the exemption, practical fairness and risk management suggest notifying offerees and relevant intermediaries that the offer is being made under a foreign takeover or compromise and that Australian Division 5A offer documents will not be provided. Although not required by the instrument, such notification can reduce surprise and may mitigate reputational or contractual disputes.

8. Consider parallel or residual Australian legal obligations.

   • The instrument removes only Division 5A obligations for eligible offers. Other Corporations Act duties, market rules, or contractual obligations may continue to apply. Coordinate with counsel to identify any remaining Australian law compliance obligations.

9. Track timing: commencement and sunset.

   • The instrument commences on the later of registration and 1 April 2026 (s 2). Confirm the exact registration date and ensure offers are dated and timed to fall within the instrument’s operative period if reliance is intended. The instrument is repealed at the start of 1 April 2031 (s 8), so plan for the sunset and any likely successor arrangements.

10. Revisit prior practice under the 2015 instrument.

    • The instrument repeals the 2015 instrument in full (Schedule 1). If relying on precedents or practice notes based on the 2015 instrument, reassess those in light of the new instrument’s precise definitions and any differences.

11. Maintain a litigation and enforcement posture.

    • Anticipate that third parties or regulators may later contest the reasonableness of the belief or the classification of the foreign procedure. Keep contemporaneous files and legal opinions that would be admissible in any administrative or judicial review.

12. Coordinate with cross-border advisers.

    • Given the instrument ties Australian exemption to foreign regulatory regimes, involve foreign legal advisers to obtain and confirm documentary evidence of regulatory cover and of the scope of foreign laws or rules being invoked.

Following these steps will not guarantee immunity from challenge, but they will align practice with the instrument’s textual conditions and provide a contemporaneous record to support a claim that Division 5A did not apply because the offer was made under a qualifying foreign takeover bid or foreign compromise or arrangement and the person reasonably believed the foreign process complied with the relevant regulatory requirements (s 7).