The Takeovers Panel and unacceptable circumstances

The Panel began as the Corporations & Securities Panel, established under section 171 of the Australian Securities and Investments Commission Act 1989, and was continued by section 261 of the ASIC Act 2001. Two pieces of law govern it: Part 6.10 of the Corporations Act, and Part 10 of the ASIC Act, which holds most of the machinery for setting it up and running its proceedings.

The Panel says its powers are directed, broadly, at two main kinds of dispute: whether unacceptable circumstances exist, and reviews of certain ASIC decisions. It publishes Guidance Notes setting out policy it considers relevant in control transactions.

The Act gives the power in plain terms. Section 657A(1) says the Panel “may declare circumstances in relation to the affairs of a company to be unacceptable circumstances”, and may do so “whether or not the circumstances constitute a contravention of a provision of this Act.” The Panel itself says there is no definition of unacceptable circumstances, and that its ability to make a declaration is broad.

Section 657A(2) still sets limits. The circumstances must appear unacceptable because of their effect on the control, or potential control, of the company or another company, or on the acquisition of a substantial interest in one; or unacceptable having regard to the purposes of Chapter 6 in section 602; or because they involve a past, present, future or likely contravention of a provision of Chapter 6, 6A, 6B or 6C. The Panel may only make, or decline to make, a declaration if it considers that doing so is not against the public interest.

Before a declaration, the Panel must give the people it would relate to, each party and ASIC an opportunity to make submissions. A declaration must be in writing and published in the Gazette, and the people it relates to are given a copy and a written statement of reasons.

Once it has declared circumstances unacceptable, the Panel may make orders under section 657D, though not an order it is satisfied would unfairly prejudice any person. In the Panel’s description, they protect the rights of people or groups, especially target company shareholders, during a bid, and aim to let the bid proceed as far as possible as it would have without the unacceptable circumstances. Contravening an order made under section 657D or 657E is an offence, and an offence of strict liability.

The Panel acts only on an application. Section 657C(2) lists who may make one:

• the bidder;
• the target;
• ASIC;
• any other person whose interests are affected by the relevant circumstances.

An application needn’t follow a set form, but the Panel’s Procedural Rules 2020 say what it must contain, including page limits for submissions and documents such as a Notice to Become a Party. If it falls short, the Panel, or the President before a Panel is appointed, may require an amended one. The Rules and the Procedural Guidelines with them came into effect on 1 April 2021 and apply to every application made on or after that date.

The Panel’s page, read on 9 October 2026, gives the fee as A$2,400 for an application, payable under the Corporations (Fees) Act 2001 and its Regulations. The applicant is sent an invoice.

The Panel prefers applications through its online system; if that is unavailable, they go to the Panel Executive by email at takeovers@takeovers.gov.au, and the applicant should confirm receipt as soon as possible. A copy must also go to others under rules 10(3) to (5), including ASIC.

Under section 657EA the Panel reviews its own decisions on unacceptable circumstances afresh. A review Panel is made up of different members, and an original decision can be reviewed only once.

Under section 656A it can also review ASIC decisions on whether to grant exemptions from, or modifications to, Chapter 6, or, during a takeover, Chapter 6C. That reaches ASIC’s relief from the 20 per cent rule and, while a bid runs, from the substantial holding rules. RG 9 notes that going ahead with a bid on terms that cut against the policy behind the minimum bid price rule can expose a bidder to a declaration of unacceptable circumstances. The rule itself is in takeover bids, step by step.