Footnotes

Chapter 1 - Introduction

[1]        Department of the Treasury, Corporations Amendment (Takeovers) Bill 2006 — Explanation, September 2006, p. 1.

[2]        The Exposure Draft and explanatory statement can be found on the Department of the Treasury's website at www.treasury.gov.au.

Chapter 2 - Background

[1]        Parts of this summary are edited extracts taken from the Takeovers Panel's website, About the Panel, www.takeovers.gov.au (accessed 7 February 2007).

[2]        Mr Simon McKeon, President, Takeovers Panel, Committee Hansard, 1 December 2006, p. 6.

[3]        Ms Marian Kljakovic, Acting Manager, Market Integrity Unit, Corporations and Financial Services Division, Markets Group, Department of the Treasury, Committee Hansard, 1 December 2006, p. 23.

[4]        Ms Marian Kljakovic, Acting Manager, Market Integrity Unit, Corporations and Financial Services Division, Markets Group, Department of the Treasury, Committee Hansard, 1 December 2006, p. 23.

[5]        In certain circumstances section 655A allows ASIC to exempt a person from, or modify the application of, Chapter 6 provisions. Section 656A allows such decisions to be reviewed by the Panel. Similarly, section 656A allows the Panel to review decisions made by ASIC relating to its power to modify the substantial shareholding provisions under section 673 of the Act.

[6]        Corporations Act 2001, s. 657EA.

[7]        Corporations Act 2001, s. 657EB.

[8]        Australian Securities and Investments Commission Regulations 2001, reg. 13.

[9]        These are made with respect to section 195 of the Australian Securities and Investments Commission Act 2001.

[10]      Corporations Act 2001, s. 658C and Australian Securities and Investments Commission Act 2001, s. 195, respectively.

[11]      Glencore International AG v Takeovers Panel [2005] FCA 1290 and Glencore International AG v Takeovers Panel [2006] FCA 274.

[12]      A cash settled equity swap is an agreement whereby the investor (in this case Glencore) does not initially acquire an interest in any shares but essentially allows the investor to purchase the shares shortly after the swap is settled. It operates as an arrangement between an investor and a bank whereby the bank (for a fee) agrees to pay the investor an amount equal to the difference between the value of a given number of shares at the time of the closing out of the swap, and the value of those shares at the time when the arrangement was entered into. Under such an arrangement the investor does not acquire any interest in any shares. In order to hedge its risk under such an arrangement, a bank might buy the relevant shares. The agreement allows the swap to be settled which creates an incentive for the bank to minimise its exposure and divest its share holding. The investor would know this and be in an ideal position to acquire the shares at a price likely to be lower than the market price. Mr Lucas, Vice-Chairman, Financial Services Institute of Australasia, gave the committee a 'real-life' example of cash settled equity swaps, Committee Hansard, 1 December 2006, pp 19–20.

[13]      Corporations Act 2001, ss. 657A(2).

[14]      Section 608 sets out what a relevant interest in securities is. It states the basic rule of 'holding, or controlling voting or disposal of, securities'.

[15]      Glencore International AG v Takeovers Panel [2006] FCA 274 at para 85.

[16]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 9, p. 3.

[17]      As required by paragraph 657A(2)(a) of the Corporations Act 2001.

Chapter 3 - Issues raised in evidence

[1]        Ms Marian Kljakovic, Acting Manager, Market Integrity Unit, Corporations and Financial Services Division, Markets Group, Department of the Treasury, Committee Hansard, 1 December 2006, p. 23.

[2]        Corporations Amendment (Takeovers) Bill 2007, new sections 9 and 602A.

[3]        Department of the Treasury, Submission 6, p. 2.

[4]        Mr Simon McKeon, President, Takeovers Panel, Committee Hansard, 1 December 2006, p. 7.

[5]        Mr Nigel Morris, Director, Takeovers Panel, Committee Hansard, 1 December 2006, p. 7.

[6]        Ms Marian Kljakovic, Acting Manager, Market Integrity Unit, Corporations and Financial Services Division, Markets Group, Department of the Treasury, Committee Hansard, 1 December 2006, p. 25.

[7]        Mr Jeremy Kriewaldt and Mr Tony Hartnell, Submission 2, p. 14.

[8]        Mr Jeremy Kriewaldt and Mr Tony Hartnell, Submission 2, p. 14.

[9]        Australian Institute of Company Directors, Submission 1, p. 1.

[10]      Mr Alan Shaw, Submission 1, p. 2.

[11]      Mr Bryan Firth, 'Election puts puff into rewriting Takeover Panel's powers', The Australian, 20 September 2006, p. 38.

[12]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 9, p. 3.

[13]      Ms Marian Kljakovic, Acting Manager, Market Integrity Unit, Corporations and Financial Services Division, Markets Group, Department of the Treasury, Committee Hansard, 1 December 2006, p. 25.

[14]      Takeovers Panel, Supplementary Submission, p. 1.

[15]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 9, pp 4–5, emphasis added.

[16]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 9, p. 6.

[17]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 9, p. 6.

[18]      Financial Services Institute of Australasia, Submission 5, p. 3;  Mr Alan Shaw, Submission 1, p. 2; and Mr Jeremy Kriewaldt and Mr Tony Hartnell, Submission 2, p. 13.

[19]      Corporations Amendment (Takeovers) Bill 2007, new subsections 602A(2) and (3).

[20]      Explanatory Memorandum, p. 5.

[21]      Explanatory Memorandum, p. 5.

[22]      Corporations Amendment (Takeovers) Bill 2007, new paragraph 657A(2)(a).

[23]      Explanatory Statement, Corporations Amendment (Takeovers) Bill 2006, 8 August 2006, p. 2.

[24]      Mr Jeremy Kriewaldt and Mr Tony Hartnell, Submission 2, p. 16.

[25]      Corporations Amendment (Takeovers) Bill 2007, new paragraph 657A(2)(b).

[26]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 9, p. 1.

[27]      Australian Institute of Company Directors, Submission 1, p. 2.

[28]      Mr Bryan Firth, 'Election puts puff into rewriting Takeover Panel's powers', Australian, 20 September 2006, p. 38.

[29]      Mr Bruce Dyer, Counsel, Takeovers Panel, Committee Hansard, 1 December 2006, p. 14.

[30]      Ms Marian Kljakovic, Acting Manager, Market Integrity Unit, Corporations and Financial Services Division, Markets Group, Department of the Treasury, Committee Hansard, 1 December 2006, p. 23.

[31]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 9, p. 5.

[32]      Explanatory Memorandum, p. 5.

[33]      Department of the Treasury, Submission 6, p. 3.

[34]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 9, p. 1.

[35]      Corporations Act 2001, para 657D(1)(a).

[36]      New paragraph 657D(1)(a).

[37]      Explanatory Memorandum, p. 6.

[38]      Australian Institute of Company Directors, Submission 1, p. 2.

[39]      Mr Jeremy Kriewaldt and Mr Tony Hartnell, Submission 2, p. 20.

[40]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 9, p. 6.

[41]      Financial Services Institute of Australasia, Submission 5, p. 3.

[42]      Department of the Treasury, Submission 6, p. 1.

[43]      Ms Marian Kljakovic, Acting Manager, Market Integrity Unit, Corporations and Financial Services Division, Markets Group, Department of the Treasury, Committee Hansard, 1 December 2006, p. 27.

[44]      Corporations Committee, Business Law Section, Law Council of Australia, Submission 9, pp 6–7.