ASIC Moves to Modernise Pre-IPO Advertising: What It Means for Equity Capital Markets Participants

Current Position – Limited Exceptions

The Corporations Act broadly prohibits issuers from advertising or publishing statements that directly or indirectly refer to an offer, or intended offer, of securities that would require a formal disclosure document (such as a prospectus), unless a specific exemption applies.

The current regime permits issuers to make public statements about a proposed offer of securities before a disclosure document is lodged, but distinguishes between offers of securities that are already quoted (e.g. a secondary capital raising conducted under a prospectus) and those that are not (e.g. offers of securities under an IPO).

• For quoted securities, the exceptions are much more expansive and permit pre-lodgement statements to be made, provided that certain information is included alongside the statement.

• For offers of unquoted securities (including IPOs), the exception is much narrower – It allows only a prescribed set of basic, factual statements to be included (and nothing more). There are other limited exceptions available under ASIC Legislative Instrument relief.

This regime was designed to ensure that investors (particularly retail investors) make their investment decisions based on the disclosure document, rather than on any advertising campaign or other publicity carried out before formal disclosure is made.

However, ASIC has recognised that in practice these restrictions are out of step with modern information-sharing practices and the more permissive advertising regimes governing crowd-sourced equity funding, product disclosure statement offers and post-lodgement advertising, as well as comparable international frameworks.

ASIC's Proposed Changes

On 4 August 2026, ASIC released Consultation Paper 390, proposing a material extension to the existing relief for pre-lodgement advertising and publicity for offers of unquoted securities.

Under the proposed changes, the distinction between offers of quoted and unquoted securities would be removed. This will allow issuers to publish statements about offers of unquoted securities prior to lodging a disclosure document on the same basis that currently applies to offers of quoted securities, that is, provided the advertisement or publication includes details of the following:

• the identity of the issuer and, where applicable, the seller of the securities;

• that a disclosure document will be made available when the securities are offered; and

• an indication of where and when the disclosure document is expected to be made available;

• that the person should consider the disclosure document in deciding whether to acquire the securities; and

• that applicants would need to complete the application form accompanying the disclosure document.

Importantly, the above information would become a minimum content requirement rather than an exhaustive list of what may be communicated before lodgement. This would shift the current prohibitive regime to a more permissive framework, allowing issuers to make broader pre-lodgement communications, while ensuring existing investor protections continue.

ASIC also proposes to withdraw the existing Legislative Instrument relief for pre-lodgement advertising in respect of offers of unquoted securities to employees and existing shareholders, as that relief would be superseded by the proposed reforms. However, the existing Legislative Instrument for roadshow presentations and market research would remain in place.

Stakeholders are encouraged to provide feedback on the proposed reforms by 11 September 2026.

Balancing Flexibility and Investor Protections

ASIC's proposed reforms are a positive development.

One of the practical difficulties under the existing framework is that issuers have been unable to meaningfully respond when media speculation arises about a potential offer or IPO. Even where that speculation is inaccurate or incomplete, the breadth of the current regime has effectively prevented issuers from responding publicly to correct the record before a disclosure document is lodged.

The proposed reforms would allow issuers to provide accurate and appropriate information to the market, ensuring the market is not operating on the basis of speculation alone and improving the quality of information available to investors during the pre-lodgement period.

Importantly, existing investor protections remain firmly in place. The prohibitions on misleading or deceptive conduct and on making false or materially misleading statements that could induce a person to apply for securities under sections 1041H and 1041E of the Corporations Act, continue to apply to statements made about any potential offer of securities. As such, while issuers will have greater scope to communicate with investors before lodging a disclosure document, they must continue to ensure that those communications are accurate and not misleading or deceptive.