Respondent
...
Enhanced Ownership Disclosure
for Listed Entities in Australia
Treasury Consultation Paper on the Treasury Laws
Amendment Bill 2024: Enhanced Disclosure of
Ownership of Listed Entities
Submission by Clayton Utz
Sydney Perth
Clayton Utz Clayton Utz
Tel: +61 2 9353 4000 Tel: +61 8 9426 8000
Level 15, 1 Bligh Street Level 27, QV. 1 Building, 25 St Georges Terrace
Sydney, New South Wales Perth, Western Australia
Melbourne Darwin
Clayton Utz Clayton Utz
Tel: +61 3 9286 6000 Tel: +61 8 8943 2555
Level 18, 333 Collins Street 17-19 Lindsay Street
Melbourne, Victoria Darwin, Northern Territory
Canberra Brisbane
Clayton Utz Clayton Utz
Tel: +61 2 6279 4000 Tel: +61 3 9286 6000
Level 10, NewActon Nishi, 2 Phillip Law Street Level 28, Riparian Plaza, 71 Eagle Street
Canberra, ACT 2601 Brisbane, Queensland
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This submission is lodged by Clayton Utz lawyers.
Any questions by the Treasury in relation to this submission should be directed in the first instance to Rod Halstead, details below:
The contributors to this submission are as follows:
Rory Moriarty Lisa Houston
Partner, Sydney Senior Associate, Brisbane
+61 2 9353 4764 +61 7 3292 7114 rmoriarty@claytonutz.com lhouston@claytonutz.com
Stephanie Daveson Adrian Vosk
Partner, Brisbane Senior Associate, Melbourne
+61 7 3292 7108 +61 3 9286 6579 sdaveson@claytonutz.com avosk@claytonutz.com
Liz Humphry Tash Tourabaly
Partner, Perth Senior Associate, Perth
+61 8 9426 8471 +61 8 9426 8445 lhumphry@claytonutz.com ttourabaly@claytonutz.com
Andrew Walker Victoria Hu
Partner, Melbourne Senior Associate, Sydney
+61 3 9286 6943 +61 2 9353 4553 awalker@claytonutz.com vhu@claytonutz.com
Rod Halstead Alana Dunn
Director Strategic Corp/M&A, Sydney Lawyer, Sydney
+61 2 9353 4126 +61 2 9353 4688 rhalstead@clyatonutz.com adunn@claytonutz.com
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Contents
1. Chapter 1 - Opening Comments .................................................................. 3
2. Chapter 2 - Key Submissions ...................................................................... 4
3. Chapter 3 - Responses to Treasury Consultation Question .................. 10
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Consultation Paper on the exposure draft of the Treasury Laws Amendment Bill 2024:
Enhanced Disclosure of Ownership of Listed Entities (‘Exposure Draft’)
Submission by Clayton Utz
1. Chapter 1 - Opening Comments
1. Clayton Utz welcomes the opportunity to respond to the Treasury’s request for submissions
in relation to the amendments to the Corporations Act relating to enhanced disclosure
ownership for listed entities. We acknowledge the importance that appropriate disclosure
of derivative instruments plays in the efficient, competitive and informed conduct of the
Australian financial markets. In so doing, however, we recognise:
(a) the importance of preserving the effective use of derivative instruments as a
means of enabling market participants and investors to manage risk, acquire
economic interests in listed entities and the associated market activity;
(b) the important role that the use of derivatives can play in supporting acquisitions
of entities in the Australian financial markets; and
(c) the importance of ensuring that activities in relation to the use of derivative
instruments and the control of entities should take place in a transparent and
efficient market.
2. We support the proposed amendments insofar as they are consistent with these objectives.
Improving transparency is undoubtedly a goal that should be supported. It is important in
strengthening market integrity and confidence as greater transparency contributes to a
fairer and more accountable market environment. However, there are 2 important
considerations to emphasise:
(a) These amendments relate to matters which are directly relevant to the operation
of financial markets in Australia as indicated above, and they should not
adversely impact the transparent and efficient operation of those markets.
(b) It is critical that the amendments are enacted and implemented in a manner that
provides certainty in relation to the operation of these amendments in practice.
Market participants must know with certainty those steps which may or may not
be taken or implemented, or in respect of which disclosure is required.
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3. These above themes are reflected in our substantive submission.
4. Before responding to the consultation questions in Chapter 3 of these submissions, in
Chapter 2, we make the following core submissions to Treasury in relation to the proposed
amendments.
2. Chapter 2 - Key Submissions
1. Introduction
1.1 The submissions which we wish to make in relation to the substantive amendments
proposed in the Exposure Draft are as follows.1
2. Significant Expansion to the Scope of the 20% Threshold in Section 606
2.1 The Exposure Draft provides for a significant expansion to the scope of the 20% threshold
in respect of the acquisition prohibition in section 606 so as to include in a person's relevant
interests for the purposes of the 20% takeover threshold in that section, interests arising
under physically settled derivatives in respect of which section 608(8) does not apply and
interests deemed to exist under derivatives which may only be settled on a cash basis.
Once enacted, a person will need to take into account these deemed interests, which arise
under s 608(8) and the proposed sections 608A and 608B, held by that person and their
associates in determining the extent of their relevant interests for the purposes of the 20%
threshold. This consequence can be seen from the proposed sections 608A(1), 608B(6)
and 1710(2), the repeal of s 609(6) and briefly in the Explanatory Materials at paragraph
1.32.
2.2 This extension should be reflected in the masthead description of the Exposure Draft, which
at the moment is titled "Enhanced disclosure of ownership of listed entities". The proposals
go significantly beyond that. Indeed, much of the debate in relation to the application of the
Act to derivatives has focussed upon disclosure of the same (see, for example, the
Takeovers Panel's Guidance Note 20) and not inclusion as relevant interests for the
purposes of the section 606 takeovers prohibition. The consultation with respect to the
Exposure Draft needs to be extended to address the expanded scope of relevant interests
for the purposes of section 606, and be the subject of further Consultation Questions in that
regard. Moreover, there may also be a need for ASIC to review and make consequential
1 Note that all references to sections are to sections in the Corporations Act 2001 (Cth) or to sections in the Exposure Draft. All references to the Act are to the Corporations Act 2001 (Cth).
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amendments to, the numerous Legislative Instruments/Class Orders that it has made and
which are relevant to Chapter 6, for example to clarify the operation of exceptions to the
relevant interest prohibition in respect of warrants in ASIC Corporations (Warrants:
Relevant Interests and Associations) Instrument 2023/687.
2.3 We comment on the manner in which a deemed non-physically settleable derivative based
holding percentage is likely be determined in paragraphs 4.2, 4.3, and 4.4 of this Chapter
2 below and the challenges which arise. These challenges are substantially more
significant when it is recognised that the same principles will be applied for determining the
relevant percentage for the purposes of section 606. We comment on the importance of
there being certainty in paragraph 2(b) of Chapter 1.
2.4 There may be issues in adopting in Australia principles which are used in other jurisdictions
for the purposes of provisions which may be equivalent to section 606, where the relevant
percentage threshold is significantly higher.
3. The Concept of Relatable Derivative Based Holdings
3.1 This is expressed to be based on the application of section 608(8) and the application of
the concepts described in paragraphs 5.163 to 5.166 of ASIC Regulatory Guide 5 (‘RG 5’).
These latter concepts are based on the assumption that the person who is the acquirer (i.e.
in the bought position) has knowledge about the relevant interest in the shares concerned,
as held by the writer (i.e. the person in the sold position).
3.2 The circumstances in which this will exist are not readily clear because, generally speaking
the person who is the acquirer (i.e. the person in the bought position) will not seek to obtain
this information. Any knowledge arising from the writer (i.e. the person in the sold position)
filing a substantial shareholder notice may not be of assistance, notwithstanding that the
writer might have acquired those interests at the time the derivative is entered into, as both
parties will be required to file their respective notices within the same 2 business day period.
Further, the relevant interest of the writer (i.e. the person in the sold position), may not be
readily identifiable as that person may only come on to the register after the end of the 2-
business day disclosure period, and indeed in most cases any physical holding will be held
in the name of a custodian and therefore may not be identifiable. Indeed, ASIC recognises
the difficulty of identifying the details of relevant interests of the person in the sold position
in RG 5 at paragraphs 5.178 to 5.180. We doubt if drafting of proposed amendments in
reliance on the ASIC Guidance Note, will be appropriate.
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3.3 In a practical sense, these deficiencies may not be significant as disclosure is likely to be
required in any event under section 608A, although the consequences may be that little will
be disclosed in the category of relatable derivative-based holdings.
4. Cash Only Settled Derivatives
4.1 The extension of the proposed regime to these derivatives, to be called deemed non-
physically settleable derivative-based holdings, is understandable in the context of the
proposed enhanced disclosure, which, for example, is the focus of the Takeovers Panel's
Guidance Note 20. However, the inclusion of these derivatives in the concept of relevant
interests for the purposes of section 606 is a significant expansion of that concept. As
indicated earlier, this needs to be the subject of specific consultation.
4.2 We understand why the determination of the extent of the relevant interests, or voting
power, and the impact on substantial interest disclosure in respect of deemed non-
physically settleable derivative-based holdings is considered to be best determined by
ASIC as reflected in section 608B(3). However, given the significance of ASIC's
determination in the context of section 606 and with respect to market informational
efficiency in relation to substantial holding notices, it is imperative that the extent of the
interests arising from these derivatives can be ascertained in advance with certainty and
are determined in a consistent manner. See our comments in paragraphs 2.1 and 2.2 of
this Chapter 2.
4.3 As referred to in paragraph 1.76 of the Explanatory Materials, we understand that there are
jurisdictions that already require the disclosure of cash-settled equity derivatives and hence
precedents to which ASIC may refer to which our attention has been drawn. See for
example, the Directive 2004/109/EC issued by the European Commission and EU
regulation 2015/761 (EU Regulation). The directive sets out conditions for the notification
of significant shareholdings and the aggregation of voting rights and the EU Regulation
provides for mechanics, methodology and principles for converting cash-settled derivatives
into disclosable deemed security holdings. In particular, the EU Regulation provides that
the quantum of deemed cash settled interests is to be disclosed:
(a) in a linear way (i.e. $1 of cash payable corresponds with a deemed interest in
$1 in the underlying security) in the case of equity derivatives with a linear,
symmetric pay-off profile in line with (i.e. linked to) the underlying security
(Article 5(1)); or
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(b) in accordance with ‘generally accepted standard pricing models’ for
derivatives that do not have a linear, symmetric pay-off profile in line with (i.e.
linked to) the underlying security (Article 5(2)). The EU Regulation proposes
a definition and minimum required characteristics for a ‘generally accepted
standard pricing model’.
4.4 A lot turns on the content of the legislative instrument under the proposed section 608B(3)
and its ability to influence the consistency, comparability and reliability of the determination
and disclosure of the deemed non-physically settleable derivative-based holding
percentage. For example, when valuing an option to purchase securities that can be settled
wholly in cash and with a non-linear pay-off profile, both the Black-Scholes and binomial
option pricing models may be regarded as ‘generally accepted standard pricing models’ to
determine the value of the derivative and in turn the deemed non-physically settleable
derivative-based holding percentage. This may lead to material inconsistency in
disclosures. Any inconsistency or lack of clarity in the methodology for determining and
reporting deemed non-physically settleable derivative-based holding percentages, may
cause distortion in the market (undermining informational efficiency), may mislead market
participants and work contrary to the section 602 objectives of achieving an efficient,
competitive and informed market.
4.5 We understand that ASIC will, and consider it appropriate that ASIC does, consult
extensively with respect to this matter and that there may be a need to provide flexibility
with respect to the approaches to be adopted. We look forward to the opportunity to
participate in this consultation. We assume that consequently the commencement of these
provisions will not occur until that consultation has been adequately completed.
5. Chapter 6C Bodies
5.1 We welcome the resolution of the uncertainty as to whether the substantial holding
disclosure provisions apply to shares in a foreign entity which are quoted on the ASX in
Australia. We note that column 3 at item 5 of the table in section 671A refers in this context
to a voting share in the body. We assume that this is intended to include interests held in
the form of Chess Depositary Interests (CDIs) which we understand are intended to confer
a beneficial interest in the holder of the CDI recognising that the legal title to the relevant
shares is held by the relevant ASX custodian entity which exercises the voting rights
attached to shares to which the CDIs relate. Share interests which are held in companies
formed outside of Australia and are quoted on the ASX are commonly held in the form of
CDIs. This should be confirmed and appropriately recognised.
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6. Revised Substantial Holdings Disclosure Regime
6.1 We do not have any submissions to make generally in relation to the proposed substantial
holding disclosure regime, sections 671B to 671BD, recognising that it is based on the
expanded concept of deemed relevant interests under proposed in sections 608A and
608B. We have read the comments in the Explanatory Materials relating to the proposal
that the substantial holding information must be provided in the manner (if any) approved
by ASIC and in the form approved by ASIC (including a machine-readable form, (if any)).
We submit guidance should be provided, including if necessary, by ASIC, as to how ASIC
proposes to achieve consistency, standardisation and continuous improvement concerning
information available to the market in terms of having a specific form or format of substantial
holder notices.
6.2 It is imperative that the form in which information is to be provided, which will be approved
by ASIC, should be promulgated by ASIC in advance so that market participants are aware
of what is required. The ability to lodge these notices with certainty and in the required time
periods is critical to ensure a fully informed and efficient market. The disclosure must be in
a form that enables the market to readily understand the circumstances of the substantial
holding that is disclosed. To these ends, is it anticipated that ASIC would develop revised
Forms 603, 604 and 605 for disclosure of substantial holdings? See our further comments
in relation to Consultation Question 6 in Chapter 3 below.
7. Freezing Orders
7.1 We have read the paragraphs in the Explanatory Materials in relation to the proposed
power to be granted to ASIC to make wide-ranging orders, described as Freezing Orders,
and we see why it is proposed that ASIC should be provided with these powers. However,
that should not provide ASIC with the ability to make orders that affect the substantive
rights of market participants without appropriate checks and balances.
7.2 The Explanatory Materials seek to provide support for the ability to make these proposed
orders by reference to sections 72 and 73 of the Australian Securities and Investments
Commission Act 2001 (Cth). The circumstances to which those sections apply are quite
different to the circumstances in which it is proposed that these Freezing Orders might be
made. If it is intended that provisions should be included to enable ASIC to obtain relevant
information, the provisions should be drafted to that effect. The suggestion in paragraph
1.160 on the Explanatory Materials, that copies of an order should be given to the person
in respect of whom the order has been made, potentially after having been made, provides
no substantive protection to the person to whom the order is directed.
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7.3 The Takeovers Panel already has the power to make orders of the kind now proposed
where unacceptable circumstances exist as a consequence of a failure to comply with the
substantial holder notice provisions and regularly makes such orders. ASIC has an
unqualified right to make an application to the Panel to seek such an order. The Panel's
procedures ensure that relevant parties are provided with an opportunity to put their
position to the Panel prior to an order being made. There is no need to duplicate these
provisions.
7.4 If it is considered appropriate to give ASIC specific powers in relation to these matters,
appropriate checks and balances should be in place. This could include, for example, that
ASIC follow procedures similar to those specified in sections 1317DAB to 1317DAJ, where
ASIC seeks to impose infringement notices for failure to comply with continuous disclosure
obligations. Alternatively, a party in respect of whom an order is made could be given a
right of review to the Takeovers Panel or the Federal Court. Section 656A and the following
provisions, already provide the Panel with the power to review certain decisions made by
ASIC. It would be logical to expand this to include the review of decisions by ASIC with
respect to Freezing Orders, having regard to the specific expertise which the Takeover
Panel has in relation to the disclosure of substantial holdings and the consequences of the
failure to do so. That would be preferable to a right of review to the Federal Court or the
Administrative Review Tribunal.
8. Disclosure Notices and Registers
8.1 The proposed section 672BA(4) gives ASIC the power to require that disclosure under a
‘disclosure notice’ be accompanied by a copy of the documents and statements referred to
in that subsection, except to the extent otherwise specified by ASIC. Given that the
documents and statement required substantially replicate that to be given in the form of a
substantial holdings notice (refer to section 671B(4)), we submit that this provision should
also be extended to disclosure notices submitted by other permitted parties.
8.2 Despite the rationale in paragraph 1.113 of the Explanatory Materials in respect of privacy
concerns and regulatory burdens, we make a similar submission in relation to proposed
section 672BA(1)(b) requiring the disclosure of associate information, which is limited to
circumstances where the direction is given by ASIC. This is particularly important as the
disclosure of associates’ interests is relevant in determining whether the person and their
associates may have failed to lodge a substantial holding notice where required or have
potentially breached section 606.
9. Transitional Provisions
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9.1 The transitional provisions appear to us to be substantially in order, see for example,
section 1710(2). However, for the purposes of the proposed section 672DA(6), which
revises the form in which a ‘key person’ must maintain its relevant interest register under
section 672DA(1), clarity is required as to:
(a) whether any previous register maintained under the current section 672DA(6)
will be deemed to be in the approved form;
(b) whether the obligation to maintain a new form of the relevant interests register
will apply retrospectively to all information the ‘key person’ previously held in
its relevant interests register and, hence, whether the key person is obliged to
update the form of relevant interests register for all historical information; and
(c) whether the obligation to maintain a new form of relevant interests register will
only apply prospectively to new information the ‘key person’ receives.
3. Chapter 3 - Responses to Treasury Consultation Questions
Question 1: The draft Bill proposes the repeal of s609(6) and redefines ‘derivatives’ in s608A.
What impact would the expanded definition of relevant interests in s608A and 608B have on ownership transparency and regulatory burden? What impact will the removal of this exclusion have?
The repeal of section 609(6) is not necessary for enhanced disclosure purposes as that provision already does not apply for disclosure purposes by virtue of section 671B(7) and paragraph (a)(ii) of the definition of “substantial holding” in section 9. The repeal is, therefore, only relevant for the extension of the concept of relevant interests for the purposes of the section 606 takeovers prohibition.
We do not follow the suggestion that section 608A redefines “derivatives”. The term derivatives is used in sections 608A(1)(b) and 608B(1)(b), and there does not appear to be any amendment to the definition of derivative in section 9, which imports section 761D (read together with regulation 7.1.04 of the Corporations Regulations 2001 (Cth)).
The proposed repeal of the exception in section 609(6), if required, is complementary to the proposed extension of relevant interests for the purposes of section 606. The expanded definition of relevant interests in section 608A will provide greater transparency than arises under the operation of section
608(8). The effect of ownership transparency on the expanded definition in section 608B will depend on the determinations to be made by ASIC for the purposes of section 608B(3). We have commented on this in paragraphs 4.2, 4.3, and 4.4 of the Key Submissions at Chapter 2 above.
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Question 2: Subsection 608(8) is key in defining one of the categories of derivate-based interests that must be disclosed under the proposed amendments to Chapter 6C. The draft Bill assumes subsection 608(8) operates as outlined in ASIC Regulatory Guide 5 (RG 5) Relevant interests and substantial holding notices, at (RG 5.163-5.166) where ASIC observes in effect that the provision:
• is not intended to be limited to arrangements regarding designated parcels of
underlying securities; and
• should be applied on the basis that the person who has a relevant interest in
underlying securities will satisfy their relevant obligations by applying the securities
they have a relevant interest in (even for example if they have less than the number
held at the time).
Questions
• Is the operation of the provision outlined in the regulatory guidance sufficiently clear
and followed in practice?
• Would the legislation benefit from expressly clarifying the operation of subsection
608(8) in any way – for example, specifying the relevant assumption to be made
regarding how a counterparty will satisfy their obligations for the purposes of
applying the provision?
• If it were to do so, should the assumption depend on the reason the relevant interest
arises?
For the reasons explained in paragraph 3 of the Key Submissions in Chapter 2, we believe that the explanation outlined in RG 5.143 to 5.166 is of limited value. In any event, section 608(8) has a very broad application and is an integral part of the legislative regime for determining a person’s relevant interests. We do not believe that the legislation would benefit from expressly clarifying the operation of that provision to the extent suggested in the Explanatory Materials.
Question 3: In relation to the disclosure of non-physically settled derivatives, the draft Bill proposes ASIC be empowered to make a legislative instrument to determine either:
• the number of issued securities in which the other person is taken to have a relevant
interest; or
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• the method of working out the number of issued securities the other person is taken
to have a relevant interest in.
The ability for ASIC to determine a specific number is intended to cover the situation whereby
ASIC may need to remove certain derivatives from consideration and thereby determine the value to be zero.
Questions
• Is this approach preferable to enabling ASIC to exclude particular kinds of
derivatives from the beneficial ownership disclosure requirements? If not, what
alternative approach would be better?
• Should ASIC have additional flexibility in the way it prescribes, or allows parties to
a derivative to determine, the number of underlying securities a person is deemed
to have an interest in?
Whilst we understand the rationale for the approach adopted with respect to the determinations to be made by ASIC pursuant to section 608B(3), we are not able to determine what the impact of this will be until the approach to be adopted by ASIC is available for consultation. Further, please see our comments at paragraphs 4.2, 4.3, and 4.4 of the Key Submissions at Chapter 2 in respect of the importance of wide consultation and consistency in the approach to determining deemed non- physically settleable derivative-based holding percentages for disclosure purposes and more importantly for the purposes of section 606.
Question 4: The draft Bill includes provisions intended to ensure that arrangements and interests that simultaneously meet the definition of more than one category of derivative-based relevant interest are not double counted. Are all instances of potential double counting effectively avoided under current drafting?
Although the provisions will require disclosure of relevant interests by the taker (i.e. the person in the bought position) and the writer (i.e. the person in the sold position), that disclosure is appropriate to ensure disclosure of interests held in differing circumstances. We do not believe that this would involve inappropriate double counting, and to our understanding, we consider the current bill otherwise avoids instances of double counting.
Question 5: The draft Bill intends to attribute the new deemed relevant interests to the party to the transaction that is in the bought position. Is that intention achieved, or is further clarity required?
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We believe that it is appropriate to attribute the newly deemed relevant interest provisions to the taker
(person in the bought position) and that the intention is achieved in the current Exposure Draft.
Question 6: The draft Bill proposes providing ASIC with the power to approve the form in which substantial holder notices are lodged, removing a legislative obstacle to moving towards machine readable lodgements.
Questions
• What processes would be involved in meeting a requirement that substantial holder
notices be lodged in machine readable format?
• What impact would carrying-out these processes have on businesses?
• What impact would requiring substantial holder notices to be lodged in machine
readable format have on transparency of market operations?
The objective of a substantial shareholder notice is to enable the market to understand the circumstances in which the relevant interest has arisen, the nature of the relevant interest that arises and is to be disclosed, and the voting power to which that relevant interest relates. This is necessary to ensure a properly informed and efficient market. We expect ASIC (and potentially together with the
ASX) will adopt revised Forms 603, 604 and 605 and for those forms to be in machine-readable and dynamic electronic and editable form. For example, we suggest the forms allow for editable qualitative information fields and are available on, and can be submitted electronically through, the ASX markets platform. This will be especially important in easing regulatory burden and facilitating more timely and efficient notification of the market of substantial holdings for the following reasons:
• We expect the revised substantial holding regime will increase the frequency of substantial
holding notifications and the metrics to be reported in substantial holding notices in respect
of the 5 proposed disclosure percentage categories. The concept of a ‘disclosable
movement’ in section 671BC triggers increased disclosure obligations for variations within
each of the 5 proposed disclosure percentage categories.
• Where the legislative instrument contemplated under s 608B(3) reflects a model where the
deemed non-physically settleable derivative-based holding percentage is based on the
closing value at the end of each trading day of the underlying security to which the
derivative is linked, daily recalculation of that percentage may be required.
Further, if ‘generally accepted standard pricing models’ are permitted to determine deemed non- physically settled holding percentages as contemplated in the EU Regulation, having machine
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Question 7: The Explanatory Memorandum outlines relevant considerations regarding how
ASIC should balance the rights of third parties with the desire to ensure compliance with the disclosure obligations in exercising its expanded freezing powers.
Questions
• Does the guidance strike the right balance?
• Is the guidance in the Explanatory Memorandum sufficient or should ASIC be
required to give preference to a particular approach by the legislation?
See our comments in paragraph 7 of the Key Submissions in Chapter 2 above.
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