THE CORPORATIONS LAW

CHAPTER 6 - TAKEOVERS

PART 6.10 - REVIEW AND INTERVENTION

Division 2 - The Corporations and Securities Panel

Subdivision B - Unacceptable circumstances

SECTION 657A   DECLARATION OF UNACCEPTABLE CIRCUMSTANCES  

657A(1)  (Power to make declaration)  

The Panel may declare circumstances in relation to the affairs of a company to be unacceptable circumstances. Without limiting this, the Panel may declare circumstances to be unacceptable circumstances whether or not the circumstances constitute a contravention of a provision of this Law.

Note:

Sections 659B and 659C deal with court proceedings during and after a takeover bid.

657A(2)  (Circumstances under which declaration made)  

The Panel may only declare circumstances to be unacceptable circumstances if it appears to the Panel that the circumstances:

(a)  are unacceptable having regard to the effect of the circumstances on:

(i) the control, or potential control, of the company or another company; or

(ii) the acquisition, or proposed acquisition, by a person of a substantial interest in the company or another company; or

(b)  are unacceptable because they constitute, or give rise to, a contravention of a provision of this Chapter or of Chapter 6A, 6B or 6C.

The Panel may only make a declaration under this subsection, or only decline to make a declaration under this subsection, if it considers that doing so is not against the public interest after taking into account any policy considerations that the Panel considers relevant.

657A(3)  (Relevant factors)  

In exercising its powers under this section, the Panel:

(a)  must have regard to:

(i) the purposes of this Chapter set out in section 602; and

(ii) the other provisions of this Chapter; and

(iii) the rules made under section 658C; and

(iv) the matters specified in regulations made for the purposes of paragraph 195(3)(c) of the Australian Securities and Investments Commission Act 1989.

(b)  may have regard to any other matters it considers relevant.

In having regard to the purpose set out in paragraph 602(1)(c) in relation to an acquisition, or proposed acquisition, of a substantial interest in a company, body or scheme, the Panel must take into account the actions of the directors of the company or body or the responsible entity for a scheme (including actions that caused the acquisition or proposed acquisition not to proceed or contributed to it not proceeding).

657A(4)  [Submissions]  

The Panel must give an opportunity to make submissions in relation to the matter to:

(a)  each person to whom a proposed declaration relates; and

(b)  each party to the proceedings; and

(c)  ASIC.

657A(5)  [Declaration in writing]  

The declaration must be in writing and published in the Gazette.

657A(6)  [Obligation to notify]  

As soon as practicable, the Panel must give each person to whom the declaration relates:

(a)  a copy of the declaration; and

(b)  a written statement of the Panel's reasons for making the declaration.

657A(7)  [Functions and powers not limited]  

This section does not require the Panel to perform a function, or exercise a power, in a particular way in a particular case.