Corporations and Australian Securities and Investments Commission Amendment Regulation 2013 (No 1) [Select Legislative Instrument No 192, 2013] [F2013L01431]-Continuing matters [2014] AUSStaCSDLM 30 (12 February 2014)

• Corporations and Australian Securities and Investments Commission Amendment Regulation 2013 (No. 1) [Select Legislative Instrument No. 192, 2013] [F2013L01431]
• Provision of reasons for decisions

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Corporations and Australian Securities and Investments Commission Amendment Regulation 2013 (No. 1) [Select Legislative Instrument No. 192, 2013] [F2013L01431]

Purpose	Amends procedures relating to the proceedings and conferences undertaken by the Takeovers Panel, requires the Australian Securities and Investments Commission to disclose to the minister its use of specified information gathering powers, and specifies the date from which directors' reports become subject to Corporations Regulations relating to certain disclosure requirements
Last day to disallow	4 March 2014
Authorising legislation	Australian Securities and Investments Commission Act 2001 and Corporations Act 2001
Department	Treasury

ISSUE:

Provision of reasons for decisions

The ES for the instrument states that one of its purposes is to remove the requirement for the Takeovers Panel to include reasons with any notice that the panel has decided not to conduct proceedings in relation to an application (under sections 656A, 657C or 657EA of the Corporations Act 2001, which generally relate to review of decisions). The ES states that the current requirement 'may cause undue delay to the communication of a decision', and notes that (a) 'it is not intended to alter the general practice of the panel to provide reasons for its decisions' and (b) 'the panel will continue to be subject to the requirement to provide reasons under the Administrative Decisions (Judicial Review) Act 1977' (ADJR Act). However, the ES does not make clear how in practice the current requirement may lead to undue delay in notifying decisions, and it is also unclear why complete removal of the requirement is necessary (as opposed to, say, providing an exemption for the requirement to provide reasons where undue delay might arise), particularly if it is not intended to alter the general practice of providing reasons. While the committee acknowledges that the right to request reasons under the ADJR Act will remain, this would presumably require a party to make application to the decision maker, and to this extent the amendment may reduce transparency by increasing the formalities for a person affected by a decision who wishes to know the reasons for that decision [the committee requested further information from the Assistant Treasurer].

ASSISTANT TREASURER'S RESPONSE:

The Assistant Treasurer advised that the removal of the requirement to give reasons in this case improved the timeliness with which the panel is able to provide a decision not to conduct proceedings to the parties and the market (though with a brief outline of the reasons), with detailed reasons to follow shortly thereafter. The Assistant Treasurer advised that he regarded the panel's standard practices and the general right of parties to request reasons for panel decisions as likely to be sufficient to achieve the appropriate dissemination of reasons without the need for an explicit obligation in the regulations. However, the government would consider if further amendments were necessary if the current regulation led to any undesirable outcomes.

COMMITTEE RESPONSE:

The committee thanks the Assistant Treasurer for his response and has concluded its interest in the matter.