Panel Publishes Two Policies for Comment - Substantive Unacceptability Enforcement and Remedies [02/03/2001] The Takeovers Panel

Friday, 2 March 2001

Panel Publishes Two Policies for Comment - Substantive Unacceptability Enforcement and Remedies

The Takeovers Panel has today released for public comment, two policies relating to its role as the determiner of unacceptable circumstances in takeovers.

The first is a guide to the Panel's view on issues it will take into consideration in determining whether particular circumstances are unacceptable.

The second is a discussion on the remedies that the Panel has at its disposal in ensuring that takeovers disputes are settled quickly and efficiently and that they "get back on track" as quickly as possible.

The President of the Panel Mr Simon McKeon said that the two policies are important guides to how the Panel will approach the issues which will be at the heart of most matters that come before the Panel.

In its discussion of substantive unacceptability, the Panel points out that its unacceptable circumstances declaration power is primarily a policy based power and that the important considerations are whether the principles of the takeovers provisions, set out in s602 of the Corporations Law (Law) , have been breached or followed, and whether there's been harm to the market or shareholders. Thus, while the Panel is required to consider whether circumstances involve a contravention of the Law, and a contravention may constitute unacceptable circumstances, not all contraventions of the Law necessarily constitute unacceptable circumstances.

The Panel pointed to the wide and flexible powers that the legislature has given to it in relation to takeovers. The Panel says in its policy that its role is not punitive, but that there may be costs involved in rectifying unacceptable circumstances. In those cases, the Panel says, it will make orders that impose those costs on parties where they are necessary to rectify the harm caused by the unacceptable circumstances.

Comments are sought on the policies by 12 April 2001. The policies are available on the Panel's website at http://www.takeovers.gov.au/Policy/010228_PS4.htm, and http://www.takeovers.gov.au/Policy/010228_PS1.htm .

Comments may be sent by hard or electronic copy to:

Nigel Morris
Director, Corporations and Securities Panel
Level 47 Nauru House, 80 Collins Street, Melbourne VIC 3000
Ph: +61 3 9655 3501
nigel.morris@takeovers.gov.au