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About the Panel
The Takeovers Panel is the primary forum for resolving disputes about a takeover bid until the bid period has ended. The Panel is a peer review body, with part time members appointed from the active members of Australia's takeovers and business communities.
The Panel is established under section 171 of the Australian Securities and Investments Commission Act (the ASIC Act). It is given various powers under Part 6.10 of the Corporations Act (the Act). The Panel has a full time Executive based in Melbourne to assist members of the Panel and the takeovers community, to draft policy, and provide continuity to the Panel in its decisions.
The Panel has wide powers. Its primary power is to declare circumstances in relation to a takeover, or to the control of an Australian company, to be unacceptable circumstances.
The Panel has the power to make orders to protect the rights of persons (especially target company shareholders) during a takeover bid and to ensure that a takeover bid proceeds (as far as possible) in a way that it would have proceeded if the unacceptable circumstances had not occurred.
The Panel also has various review powers.
The policy principles that the Panel aims to advance are those set out in s602 of the Act. They essentially include the four "Eggleston Principles" and an additional principle that the acquisition of control of listed companies or listed managed investment schemes, take place in an efficient, competitive and informed market.
The Panel is required to give an Annual Report to the Minister, for him or her to lay before each House of Parliament, under s183 of the ASIC Act.
The Australian Panel is similar, and yet very different to those in various other jurisdictions which have takeovers panels. The most commonly known jurisdiction is the UK, which has the London Panel on Takeovers and Mergers. There are also takeovers Panels in Ireland, South Africa, and Hong Kong. Singapore has a Securities Industry Council, which administers a Takeovers Code in a very similar manner to London.
The Panel is funded by a specific appropriation from the Parliament in the appropriation for the The Treasury.
Executive
An important role for the Executive is to liaise with market practitioners, discussing current and prospective takeovers matters and policy issues in order to provide a real time perspective on the Panel’s Guidance Notes and decisions as they may apply to current or prospective takeovers.
However, the Panel's Executive are not delegates of the Panel and, therefore, do not perform any of its discretionary or adjudicative roles. In other words, the Panel Executive do not make decisions in Panel proceedings regarding the merits of an application or circumstances – those decisions are made by sitting Panel members. Advice which the Panel Executive may give as to its assessment of any real or hypothetical circumstances discussed with market participants, or parties, is not binding on the Panel or on any sitting Panel. The Panel Executive routinely prefaces any discussions with market practitioners with such a disclaimer.
Panel Members
Panel members are appointed by the Governor General, on the nomination of the Minister, under s172 of the ASIC Act. There is a minimum of five members. The members are currently all part time members. They are nominated by the Minister on the basis of their knowledge or experience in one or more of the following fields:
- business;
- the administration of companies;
- the financial markets;
- law;
- economics;
- accounting.
The state Ministers may give the Federal Minister submissions on nominations to the Panel. The Panel is intended to have an appropriate mix of professions, business expertise, geographical and gender representation.
The Governor-General may also appoint one member to be the President of the Panel under s173 of the ASIC Act (the "substantive President"). Various provisions in the Act and the ASIC Act make references to the President and his or her functions. When members of the Panel sit to consider proceedings (a "sitting Panel"), the substantive President may be the President of that Panel, or he or she may appoint another member to be the "sitting President" of that Panel.
Current Members
The following are currently members of the Panel.
| Name | Organisation | Location | |
|---|---|---|---|
| 1 | Mr Simon McKeon, (President) | Macquarie Capital Advisers Limited | Melbourne |
| 2 | Mr Martin Alciaturi | Macquarie Capital Advisers Limited | Perth |
| 3 | Mr Guy Alexander | Allens Arthur Robinson | Sydney |
| 4 | Mr Michael Ashforth | Macquarie Capital Advisers Limited | Perth |
| 5 | Mr Tom Bathurst QC | Sydney Bar | Sydney |
| 6 | Mr David Bennett AC QC | Sydney Bar | Sydney |
| 7 | Mr Garry Besson | Gilbert & Tobin | Sydney |
| 8 | Mr Graham Bradley | Company Director | Sydney |
| 9 | Ms Catherine Brenner | Company Director | Sydney |
| 10 | Mr Geoff Brunsdon | Company Director | Sydney |
| 11 | Ms Diana Chang | Chang Pistilli & Simmons | Sydney |
| 12 | Mr Stephen Creese | Newcrest Mining Limited | Melbourne |
| 13 | Mr Ewen Crouch | Allens Arthur Robinson | Sydney |
| 14 | Mr Peter Day | Company Director | Melbourne |
| 15 | Mr James Dickson | Piper Alderman | Adelaide |
| 16 | Mr Hamish Douglass | Magellan Financial Group | Sydney |
| 17 | Ms Susan Doyle | Company Director | Sydney |
| 18 | Ms Sarah Dulhunty | Blake Dawson | Sydney |
| 19 | Ms Paula Dwyer | Company Director | Melbourne |
| 20 | Mr John Fast | Company Director | Melbourne |
| 21 | Mr David Friedlander | Mallesons Stephen Jaques | Sydney |
| 22 | Mr John M Green | Company Director | Sydney |
| 23 | Mr Rod Halstead | Clayton Utz | Sydney |
| 24 | Mr Peter Hay | Lazard | Melbourne |
| 25 | Mr Robert Johanson | Grant Samuel | Melbourne |
| 26 | Mr David Jones | New Zealand Takeovers Panel | New Zealand |
| 27 | Mr John Keeves | Johnson Winter & Slattery | Adelaide |
| 28 | Mr Byron Koster | Corrs Chambers Westgarth | Sydney |
| 29 | Ms Francesca Lee | OZ Minerals Ltd | Melbourne |
| 30 | Mr Rodd Levy | Freehills | Melbourne |
| 31 | Mr Alastair Lucas | Goldman Sach JB Were | Melbourne |
| 32 | Mr Andrew Lumsden | Corrs Chambers Westgarth | Sydney |
| 33 | Ms Alice McCleary | Consultant | Adelaide |
| 34 | Ms Vickki McFadden | Non Executive Company Director | Sydney |
| 35 | Mr Peter Mason AM | UBS Investment Bank | Sydney |
| 36 | Ms Sophie Mitchell | RBS Morgans | Brisbane |
| 37 | Mr Simon Mordant | Caliburn Partnership Pty Ltd | Sydney |
| 38 | Mr Norman O'Bryan SC AM | Barrister | Melbourne |
| 39 | Mr John O'Sullivan | Credit Suisse (Australia) Limited | Sydney |
| 40 | Mr Mark Paganin | Clayton Utz | Perth |
| 41 | Prof Ian Ramsay | The University of Melbourne | Melbourne |
| 42 | Mr Mike Roche | Deutsche Bank AG | Sydney |
| 43 | Dr Nora Scheinkestel | Company Director | Melbourne |
| 44 | Mr Peter Scott | UBS AG | Melbourne |
| 45 | Ms Jennifer Seabrook | Gresham Partners | Perth |
| 46 | Ms Jane Sheridan | Arnold Bloch Leibler | Melbourne |
| 47 | Mr Laurie Shervington | Minter Ellison | Perth |
| 48 | Mr Andrew Sisson | Balanced Equity Management Pty Ltd | Melbourne |
| 49 | Mr Robert Sultan | Norton Rose | Melbourne |
| 50 | Mr Anthony Sweetman | UBS AG | Sydney |
| 51 | Ms Alison Watkins | Bennelong Group | Melbourne |
| 52 | Mr Simon Withers | Company Director | Perth |
| 53 | Ms Karen Wood | BHP Billiton | Melbourne |
| 54 | Ms Heather Zampatti | Bell Potter Securities Limited | Perth |
Panel Member Alumni
Corporations & Securities Panel and Takeovers Panel Alumni
The following are previous members of the Panel.
| Name | Membership | Location |
|---|---|---|
| Mr Ross Adler | 1991 - 1999 | Sydney |
| Ms Robyn Ahern | 2000 - 2009 | Perth |
| Ms Elizabeth Alexander AM | 1991 - 2009 | Melbourne |
| Ms Ilana Atlas | 2001 - 2004 | Sydney |
| Justice Robert Austin | 2001 - 2006 | Sydney |
| Justice Annabelle Bennett | 2000 - 2003 | Sydney |
| Mr Anthony Burgess | 2001 - 2004 | Sydney |
| Mr Michael Burgess | 2000 - 2003 | Adelaide |
| Ms Carol Buys | 2001 - 2007 | Sydney |
| Mr Denis Byrne | 1997 - 2007 | Brisbane |
| Mr Peter Cameron | 2003 - 2006 | Sydney |
| Mr Ian Clark | 1991 - 1994 | Melbourne |
| The Hon. Mr Jerrold Cripps QC | 1994 - 1999 | Sydney |
| Ms Luise Elsing | 2001 - 2004 | Sydney |
| Mr David Elsum AM | 1991 - 1999 | Melbourne |
| Mr Ronald Evans AM | 1991 - 1999 | Melbourne |
| Ms Kathleen Farrell | 2001 - 2010 | Sydney |
| Mr William Gibson | 1994 - 1997 | Sydney |
| Mr David Gonski AO | 2001 - 2007 | Sydney |
| Ms Teresa Handicott | 2001 - 2010 | Brisbane |
| Mr Brett Heading | 1997 - 2009 | Brisbane |
| Ms Meredith Hellicar | 1999 - 2008 | Sydney |
| Mr Warwick Higgs | 1991 - 1999 | Sydney |
| Mr David Hoare | 1991 - 1994 | Sydney |
| Mr Stuart Hornery AO | 1991 - 1997 | Sydney |
| Mr Braddon Jolley | 2001 - 2010 | Sydney |
| Mr Peter Jooste QC | 1991 - 1998 | Perth |
| Mr Graham Kelly | 1999 - 2000 | Sydney |
| Ms Judith Kelly | 1994 - 1999 | Northern Territory |
| Mr John King | 2002 - 2007 | New Zealand |
| Mr Andrew Knox | 2002 - 2005 | Brisbane |
| Dr Tro Kortian | 2001 - 2004 | Sydney |
| Ms Alison Lansley | 2001 - 2010 | Melbourne |
| Ms Irene Lee | 2001 - 2010 | Sydney |
| Ms Helen Lynch AM | 1994 - 1997 | Sydney |
| Mr Donald Magarey | 1994 - 1999 | Sydney |
| Ms Maria Manning | 2000 - 2003 | Brisbane |
| Ms Louise McBride | 2000 - 2006 | Sydney |
| Mr Kevin McCann AM | 2001 - 2010 | Sydney |
| Ms Marie McDonald | 2001 - 2010 | Melbourne |
| Ms Marian Micalizzi | 2000 - 2009 | Brisbane |
| Mr Russell Miller | 1991 - 1998 | Sydney |
| The Hon Mr Justice Trevor Morling | 1994 - 1996 | Sydney |
| Mr Peter O'Donohue | 1991 - 1997 | - |
| Mr John O'Neill AO | 1999 - 2000 | Sydney |
| Ms Robyn Pak-Poy | 2001 - 2007 | Adelaide |
| Mr John Pascoe AM | 1994 - 1999 | Sydney |
| Mr Chris Photakis | 2001 - 2009 | Sydney |
| Mr Scott Reid | 2001 - 2004 | Sydney |
| Ms Maxine Rich | 2000 - 2003 | Sydney |
| Ms Fiona Roche | 1999 - 2003 | Perth |
| Mr Trevor Rowe AM | 2000 - 2003 | Sydney |
| Justice Kim Santow AO | 2001 - 2006 | Sydney |
| Dr Kerry Schott | 1994 - 1997 | Sydney |
| Mr Jeremy Schultz | 2000 - 2006 | Adelaide |
| Ms Celia Searle | 2002 - 2005 | Perth |
| Mr Michael Sharpe AM | 1994 - 1999 | Sydney |
| Mr Valentine Smith | 2000 - 2000 | Tasmania |
| Mr Graham Stanford | 1991 - 1999 | - |
| Mr Leslie Taylor | 2000 - 2006 | Sydney |
| Mr Michael Tilley | 2000 - 2005 | Melbourne |
| Mr Geoffrey Torney | 1991 - 1997 | Melbourne |
| Mr Gary Watts | 2006 - 2006 | Adelaide |
| Mr Dean Wills AM | 1991 - 1994 | Sydney |
| Mrs Nerolie Withnall | 1999 - 2010 | Brisbane |
| Professor Peter Wolnizer | 1994 - 1999 | Sydney |
| Mr Peter Young | 2000 - 2003 | Sydney |
Role of the Panel
The provisions of the CLERP Act, effective 13 March 2000, give the Panel an expanded role from that which it had had prior to CLERP. Section 659AA of the Act describes the post-CLERP Panel as the primary dispute resolution forum for takeover bids during the lifetime of those bids.
Primary Dispute Resolution Forum
Under s659B of the Act, private parties to a takeover no longer have the right to commence civil litigation, or seek injunctive relief from the courts in relation to a takeover, while the takeover is current. The disputes which were previously resolved in the civil jurisdiction of the courts will be resolved by the Panel.
Unacceptable Circumstances
The Panel has an expanded jurisdiction over cases of unacceptable circumstances. A wider range of persons may apply to the Panel for a declaration of unacceptable circumstances under s657A of the Act than prior to CLERP.
Review of some ASIC and Panel Decisions
The Panel has the power to review certain decisions of the Australian Securities and Investments Commission (ASIC) to grant exemptions or modifications during the life of a takeover. This function had previously been carried out by the Administrative Appeals Tribunal. The ASIC decisions which the Panel may review are its decisions to exempt or modify Chapter 6 of the Act under s655A of the Act, and decisions under s673 of the Act, to modify the substantial shareholding provisions (if those decisions are made in relation to a takeover target). These powers are set out in s656A of the Act.
Under s657EA of the Act, the Panel also has a function in reviewing its own, first instance, decisions. However, a Panel reviewing the first instance decision of another Panel would be comprised of a fresh group of members. There can be only one review of an original Panel decision, there isn't a rolling sequence of Panel reviews of reviews.
The Panel has an additional review function if a matter is referred from the court, under s657EB of the Act.
Panel Proceedings
When a matter is referred to the Panel, the Panel must consider whether it will commence proceedings in relation to the matter. If it does, the substantive President of the Panel appoints three members to be the "sitting Panel'. If the substantive President is on any particular sitting Panel then he or she will be the sitting President. The substantive President and the selected Panel members must ensure that the selected Panel members do not have any material conflicts or biases.
The Panel is expressly required under its legislation (Regulation 13) to ensure that its proceedings are:
- as fair and reasonable; and
- conducted with as little formality; and
- conducted in as timely a manner;
as the requirements of the Panel's legislation, and a proper consideration of the matters before the Panel, permit.
The Panel has published Rules (made under s195 of the ASIC Act) which govern Panel proceedings.
Proceedings are primarily determined on written submissions. However, the sitting Panel may convene a conference. The Panel has significant powers at a conference, including the powers to take evidence on oath, subpoena witnesses, examine witnesses or subpoena documents.
Under Regulation 16, the rules of evidence do not apply to Panel proceedings. However, under s195(4) of the ASIC Act, the rules of procedural fairness do apply, to the extent that they are not inconsistent with the Panel's legislation.
Protection of Panel Members
When exercising their statutory functions and powers in relation to Panel proceedings, Panel members have the same immunity and protection from suit in civil actions as that enjoyed by judges under the principles of judicial immunity (see s197(1) of the ASIC Act).
Panel members also have protection from improper advances or other forms of conduct which could constitute a contempt if done in court proceedings. Forms of interference such as threats, intimidation or attacks on the professional competence or impartiality of a Panel member may constitute an offence under s200 of the ASIC Act. Under this section, a person is prohibited from obstructing or hindering the Panel or a member and from disrupting Panel proceedings. Contravention of this prohibition carries a penalty of $5000 and/or 1 year of imprisonment.
Such conduct is also likely to be a crime under Federal and State laws. For example, the Commonwealth Crimes Act 1914 makes it an offence for a person to knowingly and intentionally obstruct, resist, hinder, use violence against, threaten or intimidate public officers. Contravention of this prohibition carries a penalty of 2 years imprisonment.
The Panel regards any improper attempt to influence a Panel member as a very serious matter, and it will normally disclose any such attempts to the parties, to ensure confidence in the Panel's process. The Panel will also consider referring a suspected breach of the Crimes Act 1914 to the Federal Police.
Panel legislation
Two primary pieces of legislation empower and regulate the operations of the Panel. They are, Part 6.10 of the Corporations Act, and Part 10 of the ASIC Act.
Part 6.10 of the Act sets out the primary powers of the Panel in reviewing decisions and in making declarations and orders. Part 10 of the ASIC Act contains most of the machinery provisions for the Panel, including its establishment and the processes of conducting its proceedings.
The Australian Securities and Investments Commission Regulations are secondary legislation which develop the provisions of Part 10 the Australian Securities and Investments Commission Act and give further specific powers to the Panel.
Panel Documents
The Panel intends to issue several types of documents. Currently they include:
1. Statements of Decisions and Reasons
The Panel is required to publish relatively few documents under the Act, these include the ASIC Actual terms of any declaration of unacceptable circumstances under s657A(5). However, the Panel will actually make many decisions, and will have considered reasons for them all. The Panel considers that the market and investors will be best served if the Panel publishes as many of its decisions and policies as possible, and the reasons for its decisions. It considers that this website is the most suitable place for those publications.
The Panel intends to publish on this website:
(a) the text of any declarations of unacceptable circumstances;
(b) the text any decisions not to make such declarations;
(c) the text of any orders made under s657D or s657E of the Act;
(d) the text of any decisions that the Panel makes in reviewing decisions by ASIC, under the Panel's powers under s656A, in reviewing decisions by the Panel, under the Panel's powers under s657EA, or in reviewing a reference from a Court, under the Panel's powers under s657EB of the Act;
(e) the reasons for those decisions.
2. Policies and Procedures
The Panel has a number of discretions in exercising its powers and in conducting its hearings. The Panel intends to set out the factors which will influence how it exercises its discretions, and any general views on such issues as what might constitute unacceptable circumstances under s657A of the Act. The Panel considers that this sort of information will assist market participants and investors. It will provide greater certainty, assist people planning acquisitions, and make the Panel's operations more transparent and predictable.
The Panel will also publish as policies, the procedures that it intends to go through in conducting various of its functions. For example, the Panel will publish documents on how it intends to go about making rules pursuant to s658C of the Act and rules pursuant to s195 of the ASIC Act.
3. Media Releases
The Panel intends to publish three types of media releases.
The first will be releases concerning administrative and Executive matters, such as new staff and new Panel members.
The second will be notifying the public of policy and procedural matters, and stating things of record, such as the making of a declaration of unacceptable circumstances. Most of these will refer back to this website.
The third type of media release will be to alert, at the earliest possible time, the market, investors and participants, to any issue which the Panel considers is urgent enough not to wait for the normal policy consultation and development process, or to the normal times for the completion of proceedings.
The Panel's timeliness in alerting the market and participants to material issues will be a significant factor in determining its success. For example, the Panel may be advised by practitioners in the takeovers industry of an issue of uncertainty as to the interpretation of a particular provision in the Act. The market will likely want an early indication of the Panel's initial and tentative views, and a discussion of the issues that the Panel might consider if an issue was brought before it for a decision on unacceptable circumstances. In such a case, the Panel might review the issues very quickly initially, and bring the matter to the market's, and investors' attention early, to put them on notice that there was a new issue which they should address in their investment thinking. At the same time, the Panel would also normally advise the market of the procedure and timetable that the Panel envisaged it would take in providing a definitive view on the issue.
4. Rules
The Panel is empowered, under s658C of the Act, to make rules to clarify or supplement the operations of the provisions of Chapter 6 of the Act.
The Panel is also empowered under s195 of the ASIC Act, to determine the rules under which Panel proceedings will be conducted.
The Panel intends to publish both these types of rules on this website. The Panel also intends, prior to making rules, to publish requests for public submissions on its rules on this website.
Confidentiality
The Panel is required to keep confidential various information under s127 of the ASIC Act, and it has provisions under s190 of the ASIC Act which allow it to restrict publication of certain information given to the Panel.
In order to promote the maximum candour of persons appearing before it, and in submissions to it, the Panel intends to keep confidential any information which would be commercially sensitive for the persons who provided it to the Panel. The sorts of information might include financial projections of parties, or trade secrets or processes, that they were under no legal or continuous disclosure obligations to disclose.
However, the Panel's inclination will be to publish as much as possible about its decisions and reasons, in order to promote as transparent a process as possible.
Subscription Service/RSS
The Panel publishes its documents on its website. A free subscription service is available to notify interested persons when new items have been posted on this website. To be included on the Panel's mailing list, please register via the Subscribe page. Alternatively, the Takeovers Panel also offers an RSS service.