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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 was 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 Aquila Resources 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 QC AC 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 Greenhill Caliburn Pty Limited 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 GrainCorp 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 AC 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 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:

  1. as fair and reasonable; and
  2. conducted with as little formality; and
  3. 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.