Legislative framework and history

The legislative history is outlined below.

1961

The first takeover provisions included in Australian law (sections 184 and 185 and Tenth Schedule)
Each state enacted uniform legislation over the period 1961-1962

1968 - 1972

The Company Law Advisory Committee, chaired by Sir Richard Eggleston, was established in 1967 to consider corporate and securities law reform
The second Eggleston Report considered that some regulation of takeovers was necessary to ensure fair treatment of shareholders and enunciated four guiding principles that were reflected in subsequent legislation

1979

Introduction of the National Companies and Securities Commission (NCSC) as the first federal body responsible for administering corporate and securities law

1981

First co-operative scheme underpinning corporate regulation in Australia
Included the Companies (Acquisition of Shares) Code, which for the first time contained most of the provisions that are present in the current Chapter 6
The NCSC was empowered to declare unacceptable particular acquisitions of shares and particular conduct in the context of takeovers
The Court was granted powers to make orders in the event that the NCSC made a declaration of unacceptable conduct
Amendments were made to the Code, including via the Statute Law (Miscellaneous Amendments) Act (No 1) 1982 (Cth) (which included giving the NCSC power to make certain orders if it made a declaration) and the Companies and Securities Legislation Amendment Act 1986 (Cth)

1 January 1991 – the establishment of a stand-alone Panel

Uniform legislative scheme referred to as the Corporations Law
Introduced the first national corporate and securities law regulator, the Australian Securities Commission (ASC)
To overcome criticisms levelled against the NCSC for acting as a ‘prosecutor, judge and jury’ (see Edwards Report), the NCSC’s power to make declarations in relation to unacceptable conduct in the context of a takeover was transferred to the Corporations and Securities Panel (CSP)
Applications to the CSP could be made only by the ASC

1994

Reforms to allow the CSP to make “speedy commercial decisions” including by removing a party’s entitlement to appear at a hearing and providing that information or evidence be given to the Panel by lodging written submissions
Introduced a requirement that the Panel observe the rules of procedural fairness, to the extent not inconsistent with the provisions of the legislation and the regulations made under it
Jurisdiction expanded to allow the making of a declaration based on the actions of target directors

13 March 2000 – a new Panel regime

Repealed and substituted a new Chapter 6 of the Corporations Act 1989 (Cth), which included s602 (in the form of current s602 of the Corporations Act) and s657A (subsequently amended)
A number of amendments were enacted providing the Panel with a general dispute resolution function in relation to takeovers
The CSP replaced the courts as the primary forum for resolving disputes about a takeover bid during the bid period
Applications to the CSP could be made by any interested party
The CSP was given power to review ASIC takeover exemption and modification decisions in relation to Chapter 6 (and Chapter 6C during a bid) and to conduct internal merits review of decisions on unacceptable circumstances

2001 – the current governing laws

Replacement legislative scheme that, in effect, re-enacted the Corporations Law as a single federal law capable of operating throughout Australia (with the benefit of a referral of powers by the States to overcome High Court decisions finding aspects of the previous scheme unconstitutional)
This is the current legislation governing corporations, with the primary legislation empowering and regulating the operations of the Panel being Part 6.10 of the Corporations Act, Part 10 of the ASIC Act and Part 3 of the ASIC Regulations
The CSP was renamed the Takeovers Panel via the Financial Services Reform Act 2001 (Cth)

2007

Inserted s602A and amended ss 657A and 657D of the Corporations Act to give the Panel broad and flexible powers to perform the role envisaged for it, after two Federal Court decisions interpreted the limits of the Panel’s jurisdiction

2013, 2015

Amendments to improve the efficient operations of the Panel including by facilitating the use of technology in conducting Panel conferences, removing the requirement to provide reasons at the time of notifying a decision not to conduct and permitting Panel members to participate in proceedings while overseas