Corporate Finance Update – Issue 31 – October 2026

Issue 31 of the Corporate Finance Update covers regulatory developments and issues affecting corporate finance activity.

Making schemes easier through early engagement

ASIC’s early engagement with scheme proponents is providing greater commercial and regulatory certainty ahead of first court hearings.

The procedural change, first highlighted in Corporate Finance Update Issue 26, reflects ASIC’s broader commitment to being easier to deal with for those trying to comply with the law, while being harder to avoid for those causing harm.

Engaging with proponents when a scheme implementation agreement is entered into has enabled ASIC to consider material issues earlier and provided proponents an opportunity to address any issues before lodging the draft explanatory statement. ASIC encourages proponents and their advisers to continue raising material issues early, particularly for novel or complex schemes. This has assisted ASIC’s review and reduced uncertainty in the period leading up to the first court hearing.

Most scheme proponents have welcomed the revised process. A small number of unlisted scheme proponents with some of the most novel structures we saw this year did not notify ASIC when they entered into their scheme implementation agreements. Earlier notification would have allowed ASIC and the proponents to address the issues sooner.

While ASIC relies on market announcements to identify listed schemes, unlisted scheme proponents can benefit from early engagement with ASIC by emailing AsicTakeoverMatters@asic.gov.au when they enter a scheme implementation agreement.

Use appropriately licensed independent experts for section 444GA transactions

ASIC is reminding external administrators and advisers to use experts with the requisite Australian financial services (AFS) licence authorisations or risk transaction delays and additional costs.

ASIC recently considered an application for relief from section 606 in connection with a proposed share transfer under section 444GA of the Corporations Act. ASIC raised concerns that the expert did not hold an AFS licence and relied substantially on earlier expert reports, rather than their own valuation and analysis.

An independent expert report (IER) provided to shareholders in connection with a share transfer under section 444GA should generally be prepared by an appropriately qualified expert holding an AFS licence. IERs prepared for these purposes typically constitute financial product advice: see Regulatory Guide 111 Content of expert reports at RG 111.138.

As explained in Corporate Finance Update Issue 23, these reports help shareholders understand why their shares are being transferred without consideration and decide whether to oppose an application for Court approval. They also help ASIC consider related relief from section 606 and may be used as evidence in Court.

The applicant subsequently engaged a licensed expert to prepare a new standalone IER, with the original report not provided to shareholders or relied on for the transaction.

The replacement IER independently assessed shareholders’ residual equity and concluded that it had no value. Following the Court’s approval of the transfer, ASIC progressed the related section 606 relief.

ASIC reminds external administrators and advisors that using an expert without the requisite AFS licence authorisations may cause transaction delays and additional costs if a replacement IER is required. These reports must reflect the expert’s own independent analysis and assessment of the transaction.

Keeping fiduciary outs effective

ASIC has seen more target companies agree to restrictive fiduciary out provisions to secure a control transaction. While deal protection arrangements can facilitate transactions, securing a bidder’s agreement should not come at the expense of an effective fiduciary out.

We remind companies and their advisers that a fiduciary out should be available to directors in practical terms, without unreasonable fetters or constraints. The inclusion of a clause described as a ‘fiduciary out’ does not, of itself, ensure that the board retains sufficient flexibility to discharge its fiduciary and statutory duties. Its effectiveness depends on the conditions governing its use and its interaction with other provisions of the transaction arrangements.

Care is needed where provisions impose requirements on board decision-making, narrowly prescribe a superior proposal, or restrict when the fiduciary out is available. These provisions may prevent directors from responding to other proposals, such as a proposal the board would otherwise consider more favourable to shareholders.

A fiduciary out should also allow directors to engage with a competing proposal that could lead to a superior proposal. Requiring restrictive conditions before discussions or due diligence may prevent a competing proposal from developing.

Targets should carefully assess any proposed restrictions. ASIC will scrutinise the practical and cumulative effect of deal protection arrangements and may intervene or seek changes if they unreasonably limit a board’s ability to respond to competing proposals.

ASIC grants relief for recently listed foreign exempt entity to use low-document disclosure

ASIC has granted relief allowing Canadian company Sigma Lithium Corporation to use its overseas listing and disclosure history to access certain simplified disclosure mechanisms in Australia. Sigma has an ASX foreign exempt listing and is also quoted on Toronto Venture Exchange (TSXV) and Nasdaq Capital Market (Nasdaq). The relief allows Sigma to issue cleansing notices for placements, rights issues and convertible notes during its first three months on ASX. It also allows Sigma to use transaction-specific prospectuses under s713 of the Corporations Act 2001 (Corporations Act).

Consistent with our ongoing work on public and private markets, this relief reflects ASIC’s evolving approach to foreign exempt entities. Previous relief for cleansing notices under s708A(5) generally required the entity to have been quoted on ASX for at least three months.

The decision does not mean that foreign quotation will automatically satisfy the requirements for relief in every case. ASIC will consider the circumstances of each application, including:

• whether the applicant is quoted on an approved foreign market, or if not, the continuous disclosure obligations and regulatory oversight on that market and in that jurisdiction
• the quality and availability of its offshore disclosure
• its compliance history
• the protections available to Australian investors, and
• whether the proposed relief is consistent with the policy underlying the relevant disclosure provisions.

Scheduling members’ meetings over the holiday period

ASIC recommends companies avoid holding members’ meetings from Monday 21 December 2026 to Friday 8 January 2027 (inclusive).

This view is based on the requirements in section 249S of the Corporations Act that companies must give members ‘a reasonable opportunity to participate in the meeting’ and hold the meeting ‘at a time that is reasonable’.

ASIC remakes financial and sustainability reporting and audit legislative instruments

ASIC has consolidated 20 legislative instruments due to sunset in October 2026 into five new instruments, following industry consultation.

Two of the new instruments replace 17 financial and sustainability reporting and auditing instruments, reducing the number of instruments users need to navigate while making the available relief and conditions easier to access and understand. The consolidated instruments generally maintain the substance of the existing relief while incorporating technical and drafting improvements.

The new instruments are:

• ASIC Corporations (Annual and Half-year Reporting) Instrument 2026/468 consolidates 14 relief instruments relating to sustainability and annual and half-year financial reporting obligations for companies, registered schemes, registrable superannuation entities, retail CCIVs and disclosing entities under the Corporations Act;
• ASIC Corporations (Auditing) Instrument 2026/469 consolidates three instruments dealing with auditor independence declarations and audit relief for certain large proprietary companies, and clarifies the notification requirements when a retail CCIV appoints an auditor;
• ASIC Corporations (Wholly-owned Companies) Instrument 2026/533 continues existing financial reporting relief while broader reforms to group reporting relief are progressed;
• ASIC Corporations (Qualified Accountant) Instrument 2026/734 continues to specify which members of professional bodies are recognised as ‘qualified accountants’ for the purposes of issuing certificates that allow a person to be treated as a wholesale client or sophisticated investor under sections 708(8)(c) and 761G(7)(c) of the Corporations Act; and
• ASIC Corporations (Auditing Competency) Instrument 2026/733 approves the 2026 Auditing Competency Standard for Registered Company Auditors for assessing whether an applicant satisfies one of the requirements for registration as a registered company auditor.

You can read further information about these instruments on the Consolidated reporting and audit instruments webpage as well as related ASIC media releases:

• ASIC issues consolidated reporting and auditing relief instruments
• ASIC remakes qualified accountant legislative instrument
• ASIC remakes wholly-owned companies relief instrument
• ASIC approves updated auditing competency standard.

New director ID requirements from 1 July 2027

From 1 July 2027, companies will be required to provide director IDs to ASIC.

Director IDs will be provided through company registration and reporting processes, including annual reviews and when notifying changes to director details.

This will bring together director ID information held by Australian Business Registry Services (ABRS) with company information maintained by ASIC.

The new requirements are intended to support more accurate and reliable company information, make it easier to identify company directors, and help reduce the risk of fraud and identity misuse, including illegal phoenix activity.

Getting ready

Directors can help their company prepare by keeping their director ID secure, providing it to their company, and making sure their details are current and accurate.

Companies and authorised representatives can prepare by:

• checking company and officeholder details are up to date
• confirming all current directors are correctly recorded and former directors have been removed
• updating any incorrect names, addresses, or contact details.

Keeping information up to date now may help avoid delays or issues when the new requirements commence.

The ASIC director ID webpage provides additional information.

ASIC will provide further guidance ahead of commencement.

Future changes to company information and access

From 1 July 2027, officeholders will be able to lodge a service address while continuing to provide residential address information to ASIC through existing reporting obligations.

Service addresses will provide alternatives to publishing residential addresses, while maintaining access to a reliable address so that documents and notices can be served on officeholders.

Under the future arrangements, officeholders and companies will also start to lodge electronic contact addresses, allowing ASIC to communicate with companies and officeholders more efficiently.

Stakeholder consultation

ASIC has concluded consultation on proposed future access settings for information on the companies register and is currently reviewing stakeholder feedback.

Stakeholder engagement with the consultation was strong, with over 140 individuals attending information sessions or roundtable discussions, and over 90 formal submissions received.

Feedback will help guide the design of the future access settings, with a final report expected in March 2027.

Read CP 391: Access to information on the companies register.

ASIC will provide further information and guidance ahead of commencement.