The following sets out information in summary form regarding Panel proceedings generally. Detailed information is set out in the Panel’s Procedural Rules and Procedural Guidelines.
When the Panel will consider a matter
The Panel can only consider a matter in response to an application (i.e. it cannot act on its own volition). However, the Panel may refer a matter to ASIC for ASIC to consider whether to make an application to the Panel.1
Who can make an application
|Section||Type of application||Who can apply|
|657C||Declaration or order||
|656A||Review of a decision of ASIC|
|657EA||Review of a Panel decision||
Panel proceedings generally
The Panel is expressly required2 to act:
- as fairly and reasonably and
- with as little formality and
- having regard to the time available before the decision must be made, in as timely a manner
as the requirements of the Panel's governing legislation, and a proper consideration of the matters before the Panel, permit.
The Panel has published Procedural Rules3 which govern Panel proceedings. The Panel’s Procedural Guidelines accompany the Procedural Rules and have been prepared to assist market participants, parties and advisers in understanding the Panel’s processes.
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.
It is an offence if a person gives information or evidence that is false or misleading in a material way in written submissions to the Panel or while appearing before the Panel in proceedings.6
Length of Panel proceedings
Applications to the Panel move very quickly and therefore parties and their advisers need to be prepared.
The time a matter takes from application to conclusion will depend on a number of factors, including:
- the availability of Panel members – conflict checks may take time depending on the identity and number of parties and their advisers
- whether the Panel decides to conduct proceedings – matters will usually take longer if the Panel decides to conduct proceedings
- the complexity of the matter – more complex or document-intensive matters take longer and
- the urgency of the application – timing constraints involved in a transaction may be relevant to the proceedings.
If the Panel decides not to conduct proceedings on a matter, the matter will usually conclude approximately 1 – 2 weeks after the application is made.
If the Panel decides to conduct proceedings, the matter will usually conclude approximately 2 – 4 weeks after the application is made. Matters can take shorter or longer than this, depending on the circumstances and the urgency involved.
Appointment of sitting Panel
As soon as possible following receipt of an application, the substantive President of the Panel appoints three members from the full Panel membership to be the “sitting Panel” to consider the matter. The substantive President, and the selected Panel members, must ensure that they do not have any material conflicts.
The sitting Panel's first tasks are to decide whether to conduct proceedings and whether to make any interim orders (to preserve the status quo). The substantive President may also make interim orders, which usually occurs when interim orders are so urgent that they cannot wait until the appointment of a sitting Panel.
A party (other than the applicant) may make preliminary submissions about whether the Panel should conduct proceedings in relation to an application. A party is not entitled to make rebuttal submissions to a preliminary submission unless the Panel agrees to accept such submissions. Preliminary submissions should be brief (generally no more than 2 pages).7
Conducting proceedings – brief and submissions
The Panel must decide whether to conduct proceedings as soon as practicable after receiving an application.8
If the Panel decides to conduct proceedings, a brief is provided to parties as soon as practicable after the Panel decides to conduct proceedings. If the Panel decides not to conduct proceedings, a brief will not be issued.
The brief sets out a general description of the matters to be examined and the key issues or questions that the Panel requires be addressed, invites the parties to make submissions on those issues or questions, and sets out the timetable for parties to make submissions and rebuttal submissions. A sample brief is available on the Pro-formas page.
If a virtual data room has been established for the matter (which is the usual case where the Panel has decided to conduct proceedings), the brief will also outline the procedures for using the virtual data room for the purposes of making submissions and receiving access to the other parties’ submissions.
Parties are usually provided with 2 business days from receipt of a brief to provide submissions and 1 business day from receipt of submissions to provide rebuttal submissions. However, shorter or longer times may be allowed. The Panel may also require that certain documents be provided prior to submissions.
While the time period for submissions and rebuttals is short, the Panel expects that parties will be truthful and accurate in their communications with the Panel.9
A party required to provide a document, or who has accepted an invitation to make a submission, must do so by the time specified by the Panel. If a document or submission is provided after the time specified by the Panel, the Panel may continue with the proceedings without regard to the document or submission.
Considerations of the Panel – unacceptable circumstances?
In deciding issues raised in an application (other than an application for review of an ASIC decision), the Panel has to decide whether unacceptable circumstances have occurred. This requires the Panel to consider legal and policy issues as required in section 657A of the Corporations Act. In particular, the Panel has to consider whether the circumstances are unacceptable in light of the principles referred to in section 602 of the Corporations Act.
The sitting Panel also considers whether there has been or will be a contravention of Chapters 6, 6A, 6B or 6C of the Corporations Act. However, even if it determines that there has been or will be a contravention, it does not have to make a declaration of unacceptable circumstances: it is required to consider the section 602 principles and any other policy matters that it considers relevant and the public interest. On the other hand, if the Panel does not find a contravention of Chapters 6, 6A, 6B or 6C, it can still make a declaration of unacceptable circumstances, particularly in light of the section 602 principles. For more information see guideline 5.10 of the Panel’s Procedural Guidelines, the summary of takeover provisions in Australia page and Guidance Note 1: Unacceptable Circumstances.
Declaration and orders
If the Panel declares circumstances unacceptable, it may make any order (except an order directing a person to comply with a requirement of Chapter 6, 6A, 6B or 6C) it thinks appropriate to:
- protect the rights or interests of any person affected or likely to be affected by the circumstances or
- ensure that a takeover bid or proposed takeover bid in relation to securities proceeds (as far as possible) in a way that it would have proceeded if the circumstances had not occurred.10
The Panel must not make an order if it is satisfied that the order would unfairly prejudice any person.11 Before finalising the declaration and any final orders, the Panel will seek submissions on the form of those documents.
The parties have the right to seek a review of a Panel decision by another Panel (referred to as a “review Panel”). A decision not to make a declaration or orders can only be reviewed with the substantive President’s consent (see section 657EA(2) of the Corporations Act).
An application for review of a Panel decision must not be made later than 2 business days after the date on which that decision was made.
The Panel treats reviews as a de novo consideration of the matter on the merits. This means that the review Panel considers afresh the circumstances in the application being reviewed, any new circumstances raised (which may have arisen subsequent to the initial decision) and makes what it considers to be the correct or preferable decision.12
In addition, de novo reviews of ASIC decisions for exemptions and modifications of Chapter 6 (and of Chapter 6C during a takeover) are made to the Panel.
Confidentiality and media canvassing restrictions
The Panel has established rules to protect confidential information disclosed in the course of proceedings and to prevent issues before the Panel being publicly debated during the course of proceedings. Specifically, the Panel’s Procedural Rules 2020 provide as follows:
- Rule 18(1) requires that a person (whether or not a party) must not use or disclose any confidential information provided to it in the proceedings (including information disclosed in an application, a preliminary submission or a submission to the Panel), except in the proceedings itself (as permitted under the Procedural Rules 2020) or as required by law or the rules of a securities exchange.
- Rule 19(1) requires that a party must not directly or indirectly cause, participate in or assist the canvassing in any media of any issue that is before (or likely to be before) the Panel in proceedings:
- until the proceedings are determined or the time limit within which an application may be made for review of a Panel decision13 has expired, whichever is longer and
- if a request is made, or proposed to be made, to vary, revoke or suspend any final orders, from the time the person becomes aware of the request or proposed request until it is determined by the Panel.
The media canvassing restrictions in rule 19(1) do not prevent statements that give some information about the process – identifying the parties, the subject matter of the proceeding, the broad nature of the unacceptable circumstances alleged or the orders sought, or describing any decision of the proceedings – to the extent such matters have been disclosed publicly by the Panel.14
The Panel takes these rules seriously and expects parties to do likewise. Parties are expected to ensure that their “Representatives” (including directors, officers, employees, agents, contractors, service providers and advisers) comply with the confidentiality and media canvassing restrictions.15
The Notice to Become a Party includes an undertaking under section 201A of the ASIC Act to the effect that the proposed party will comply with the confidentiality obligations and media canvassing restrictions in rules 18 and 19 respectively.
If a party has a concern about commercially sensitive information, they should contact the Panel Executive to discuss reasonable measures by which the Panel can keep such information confidential.
- 1ASIC Regulation 18
- 2Under ASIC Regulation 13
- 3Made under section 195 of the ASIC Act
- 4ASIC Regulation 16
- 5Section 195(4) of the ASIC Act
- 6Section 199 of the ASIC Act
- 7See rules 9(1) of the Panel’s Procedural Rules 2020 and guideline 4.5 of the Panel’s Procedural Guidelines for further information
- 8Under ASIC Regulation 20(a)
- 9See also section 199 of the ASIC Act
- 10Section 657D(2) of the Corporations Act
- 11Section 657D(1) of the Corporations Act
- 12See rule 14(2) of the Panel’s Procedural Rules 2020
- 13Under section 657EA of the Corporations Act
- 14See rule 19(2) of the Panel’s Procedural Rules 2020
- 15See rules 5 (definition of “Representatives”), 18(3) and 19(4) in the Panel’s Procedural Rules 2020