EXPLANATORY STATEMENT
Procedural Rules
Issued by the Takeovers Panel
Legislative Provisions
Section 195 of Australian Securities and Investments Commission Act 2001 (Cth) provides that the Takeovers Panel may determine the procedural rules to be followed in its proceedings.
The Panel has determined to adopt the procedural rules set out in the Annexure (Rules).
The Rules will come into operation on 1 June 2010 at which time the Procedural Rules dated 18 June 2004 (as amended) (Legislative Instrument – F2006B00082) (Former Rules) are repealed. The Former Rules apply to an application made to the Panel before the Rules come into operation.
The Procedural Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth).
Purpose and Operation
The Rules set out the procedure and related guidance for applications made to the Panel. The objectives of the Rules are to promote procedural fairness, timely and cost-effective completion of proceedings, obtaining the best available information and not unnecessarily delaying commercial transactions.
The Rules apply to each application and proceeding of the Panel, except to the extent that the Panel directs otherwise.
The following provides an outline of the key areas covered by the Rules:
• Paragraph 2 (All Documents) sets out the requirements regarding the form of Panel documents and details of persons to whom such documents must be provided.
• Paragraph 3 (Application) sets out the requirements for lodging an application as well the requirements for having an application withdrawn. It also deals with aspects relating to the review of ASIC decisions.
• Paragraph 4 (Parties) deals with the requirement for persons wishing to become a party (including the requirement to lodge a Notice of Appearance). It also deals with the requirements relating to legal representation in Panel proceedings.
• Paragraph 5 (Sitting Panel) sets out the procedures for dealing with conflicts.
• Paragraph 6 (Sourcing information) sets out the procedures for providing submissions. It also deals with aspects relating to material upon which the Panel can act on and sets out the requirements relating to conferences.
• Paragraph 7 (Decisions) deals with the making of Panel decisions.
• Paragraph 8 (Orders) sets out the requirements relating to applications for orders.
• Paragraph 9 (Court referrals) deals with the referral by Panel of matters to Court.
• Paragraph 10 (Miscellaneous) discusses the role of the executive and includes certain definitions and interpretative provisions which apply to the Rules.
• Annexure A contains the pro-forma Notice of Appearance and Annexure B contains the pro-forma application.
Consultation
On 1 October 2009, the Panel released a consultation draft of the Procedural Rules for public comment. The draft was published on the Panel’s website (www.takeovers.gov.au) and comments from interested persons were sought by 26 October 2009.
The Panel received 5 submissions in response. Consistent with the Panel's published policy on responding to submissions, the Panel has prepared a Public Consultation Response Statement which sets out the Panel's response to the public consultation process and its conclusions on the main comments received from respondents. A copy of this paper will be available on the Panel’s website.