Corporations Law 2 Essay Example

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CORPORATE LAW 21

THE CORPORATE LAW 2

THE CORPORATE LAW 2

Insert grade course

September 21, 2011.

Assessment 1: Schemes on Takeovers

Introduction

Members’ schemes of arrangement under Part 5.1 of the Corporations Act are a device for attaining an obligatory arrangement with shareholders on structural change within a company or a corporate group. They may be utilized to realize alterations in capital arrangement, the rights of members or else the affiliation linking corporate bodies. They can as well be tailored to new or multifaceted corporate changes or be employed for group reconstructions. Members’ schemes have as well evolved in recent years as a means of realizing transformations of corporate management. They are generally utilized for this function, in non-hostile situations, in preference to a takeover bid under Chapter 6 of the Corporations Act. In the period from January 1, 2008 to July 1, 2009, there were 78 takeover bids in relation to listed entities (being 73 off-market and 5 on-market bids), compared with 58 members’ schemes. The use of schemes to alter corporate management has received judicial as well as regulatory recognition.

The Advisory Committee was asked by the former Government, in the context of a wider reference, to offer advice on a specific facet of members’ schemes, namely the ‘headcount’ test for shareholder approval. The Committee did put into consideration that it would be helpful to reflect on this matter in the context of a wider review of whether the members’ scheme requirements function in an effectual and suitable way, as well as with suitable safeguards, to enable corporate restructuring. The Committee ad in mind the increasing and changing use of members’ schemes, together with their use as a means to attain change of corporate management, along with the fact that the relevant requirements of the Corporations Act have mainly remained unaltered for several years.

CAMAC published a discussion paper in June 2008 and invited comment from interested parties. The paper offered background material on the use of member’s schemes for change of control as well as other corporate reorganizations, analyzed the current legal position in Australia and sought to classify a variety of issues that have arisen in practice and may benefit from further consideration. The aim was to consider the effectiveness and suitability of the current legislative and regulatory strategy to the enablement of corporate restructuring. This report discusses the with CAMAC’s position in relation to the use of schemes of arrangement for takeovers.

Change of Control

I do agree with the CAMAC’s position since schemes might be utilized for a variety of functions, including effecting a change of control within a company or a corporate group. If utilized to this end, a scheme can be compared with a variety of control through a bid or a reduction of share capital. The major general characteristic of schemes, bids and reductions of capital is that, once approved (schemes or reductions of capital) or successful (where a bidder achieves the required acquisition threshold), they bind all shareholders, including non-participating or dissident shareholders. Relying on their terms, the can be utilized to realize majority or complete control. These statutory arrangements are not subject to the restrictions on the share expropriation under the Gambotto principles1. Schemes have been increasingly utilized to attain changes of control, notwithstanding moves over the last decade to overcome hardships in realizing complete control via a bid. According to ASIC, since the beginning of year 2007, almost as many schemes have been employed for this function with listed bodies as have takeover bids.

The use of schemes to attain a change of control has been recognized in case law, government commentary and regulatory practices. There is no legislative equivalent in the scheme requirements of the Eggleston principles or the specific ‘equality of opportunity’ regulations that apply to bids. However, in exercising its common powers over schemes, a court may regard as, together with other factors, a range of issues that bear specifically upon the interests of shareholders in a change of control scheme. For example, the court can consider whether to approve a change of control scheme that contains ‘lock-up’ devices (like break fees, no-shop and no-talk arrangements) entered into between the target company and the intending controller, given that these arrangements, in a number of situations, could coerce shareholders into agreeing to a scheme or reduce the likelihood of an auction for control. Moreover, the court may need to be satisfied that the proposed scheme has been well assessed by the target company through due diligence. The court might as well require being satisfied that transfer of control, or other schemes that vest shares in transferees make satisfactory arrangements to make sure that divested shareholders will be paid (performance risk). The court might not approve a transfer of control scheme if not satisfied either that the scheme is not for the purpose of avoiding any of the requirements of Chapter 6 of the Corporations Act (the purpose test) or that ASIC has offered a ‘no objection’ statement.

The purpose test does not exclude the use of a scheme to attain a change of control given that there is a bona fide money-making reason for selecting the scheme route, counting that the arrangement is too multifaceted to be established simply through a bid or that the scheme can realize a clear ‘all or nothing’ result within a shorter time than may be sensible under a bid, even one with a minimum acceptance condition. The major question ASIC puts into consideration in determining whether to lodge a ‘no objection’ statement is whether shareholders are adversely affected by any change of control being implemented by as scheme rather than a bid. To do this, ASIC applies the Eggleston principles to schemes. ASIC will not objet to making use of a scheme to change control, given that the shareholders receive equivalent (though not necessarily identical) treatment and protections compared with a bid regarding disclosure, ,the decision-making process, as well as sharing in the benefits of the scheme2.

A ‘no objection’ statement from ASIC precludes the court from considering the takeover avoidance purpose issue under s 411(17) (a). Moreover, any consideration of the purpose test will take place at the second court hearing. Nevertheless, even where there is a ‘no objection statement, a court might still be able to think about the takeover evasion purpose issue in the exercise of its wide-ranging judgment whether to endorse a scheme.

It is important that CAMAC maintains its neutral position in regard to the use of schemes of arrangement for takeovers since ASIC has broad powers to exempt or modify most of prescriptive and proscriptive provisions for bids. On the other hand, ASIC’s provision and consent powers with schemes are restricted to the disclosure requirements. According to Damain & Rich, ASIC’s role is schemes can be expanded to give it general exemption and modification powers for the scheme requirements, equivalent to those it has for bids. This would as well bring about the query whether any appeal from ASIC’s exercise of those powers ought to be to the Administrative Appeals Tribunal or to the Takeovers Panel. A contrasting view is that the ASIC exception and amendment powers under the bid provisions reveal the need to add flexibility to very comprehensive and multifaceted takeover requirements, which in a number of cases could function in an unsuitable and unplanned manner. Contrary to this, the scheme bureaucratic provisions are not of the same level of intricacy or likely to have obstinate outcome, that would require corresponding ASIC common exception and amendment powers 3(Corporations and Markets Advisory Committee, 2009).

One possibility would be to give ASIC the power to exempt companies within a wholly-owned corporate group from having to act in accordance with with the shareholder disclosure provisions when effecting a merger or other form of corporate restructuring within that group by way of a scheme, provided that all the shares are held by the parent company. Nevertheless, an ASIC exemption power of this nature may be unnecessary if the further step is taken of introducing a short-form merger procedure for wholly-owned corporate groups that would not require shareholder approval.

I do agree with the neutral position that CAMAC took in regard to the use of schemes of arrangement for takeovers as well as the reforms that it recommended. We understand that schemes of arrangement keep on being a well-liked technique of structuring friendly takeovers. Schemes are also a conventional mechanism for achieving internal reconstructions like demergers, de-mutualisations as well as changing the key listing or jurisdiction of incorporation of a company (also called‘re-domicile’ schemes). CAMAC has continued to ignore calls from a number of opponents who have lobbied over recent years against the use of schemes to facilitate friendly takeovers. CAMACs position is that schemes have a legitimate place as an alternative to a Chapter 6 takeover bid for change of control transactions. This is in agreement with ASIC’s policy. It is in the view of CAMAC that the statutory framework for schemes, together with the ASIC review process and judicial oversight, is sound and offers suitable protections to make sure that changes of control through schemes occur in an efficient, competitive and informed manner. CAMAC has recommended the elimination of the headcount test for the endorsement of schemes, on the basis that it offers small shareholders uneven influence and potentially facilitates them to defeat a scheme. CAMAC considers that decisions on a key corporate issue like a scheme proposal ought to be determined by the number of shares voted, and not the number of shareholders who vote, and that the interests of small shareholders in schemes are already adequately protected. CAMAC supports this reform recommendation and note that a stand-alone scheme approval test of 75% of shares voted would be consistent with the voting threshold for other significant corporate proposals that may chiefly affect shareholders. These include changes to a company’s constitution as well as other proposals that call for endorsement through special resolution. CAMAC also recommends the expansion of the scheme requirements to both listed and unlisted managed investment schemes. This would permit changes of control or other reformations of managed investment schemes to be undertaken in an easier, more transparent and rationalized method, rather than the current strategy whereby unit-holders are required to pass an exceptional declaration altering the constitution of their managed investment scheme to authorize a termination or transfer of units, as well as a separate declaration to allow the intending regulator to obtain more than 20% of the units. It would also offer greater assurance of result, mainly in the case of stapled structures, as the scheme meetings of the corporation and the managed investment scheme would potentially run at the same time. Extending the scheme of arrangement provisions to listed managed investment schemes will also better protect the interests of unit-holders, counting through ASIC participation and court review of a projected scheme 4(Colla, 2010).

The other reason as to why I do agree with the CAMAC’s neutral position is because when the committee invited comments on whether the required standard for formulation of an expert’s opinion for a scheme (whether it is in the best interests’ of the shareholders) should be more consistent with that for a bid (whether it is fair and reasonable), the committee’s ruling was fair, effective and just. Though there were differing opinions in this matter, the committee realized that the assorted issues raised in regard to information provisions for schemes and liability and defenses for disclosure were portion of a wider debate regarding the effectual communication of monetary and other information to investors as well as the market in general. The committee required that information in the explanatory statements to shareholders to be presented in a clear, concise and effective manner so as to help in endorsing the preparation of scheme documents in a form more likely to be read and understood by shareholders. The content of disclosure should focus more on the information and meaning to be conveyed and discourage companies from including marginal or other information that may result in longer and less understandable documents, bearing in mind that more and not less material is needed so as to reduce likely liability. It is as well required to attain consistency with the provisions for other disclosure documents. “Directors have a duty under the Corporations Act to disclose to the company material personal interests on a matter relating to the company. Accordingly, ASIC would expect all directors to have provided the company with all relevant information when a margin loan is entered into over securities in the company”5.

The Committee is in support of the general code that the incorporation by reference in scheme documents of suitable material (like information of secondary importance or detail of other documents), the real meaning of which has been summarized in the documentation sent to shareholders, can be consistent with and assist to endorse clear, concise and effective disclosure. The effectiveness of disclosure can be improved if shareholders are not confronted with comprehensive or multifaceted explanatory information, given that the information referred to is readily available for those who wish to evaluate it and the essence of the scheme is explained in the short-form document. The position held by CAMAC is ok since the inclusion in the explanatory statements of an ‘information roadmap’ that offers an outline and explanation of the crucial features of the scheme and the reasons for it, and identifies where further information is readily available, may help shareholders in understanding the proposal, while being consistent with the provision of information in a clear, concise and effective manner 6(Corporations and Markets Advisory Committee, 2008).

In reference to ASIC exemption and modification powers, the Committee do not see a need to expand ASIC’s exemption and modification authority in relation to a planned scheme, considering the ASIC’s current role in the scheme approval process, the role of the court, and the absence of any proposals that would increase the complexity of the scheme process. As a matter of general strategy, the Committee is neutral on the question whether changes of corporate control ought to continue by a scheme or by a bid in situations where both course of action would be open. In some situations, a scheme is required so as to achieve other changes related to the change of control. In hostile circumstances, a bid would be the only way open. Bids and schemes have their own procedural protections. Given advances in judicial understanding of section 411 (17)(a) and the exhibited demand in the market for carrying out change of control dealings through schemes as well as bids, the requirements accomplishes no real purpose. It ought to be repealed. Moreover, given those developments, it is not a must for the Committee to go further and offer a purposive statement, as proposed by a number of respondents (Corporations and Markets Advisory Committee, 2009).

The Committee does not see a need to mandate the Eggleston principles in section 602 for schemes. These codes were established in the context of Chapter 6 bids, to protect shareholders where a bidder can bypass the directors of the target company and make an offer directly to them. They are not essentially suitable in the context of schemes, even where control may be at stake. A scheme proposal comes from the company itself, whose directors have a duty to act in the best interests of the company in putting forward the scheme, and both the court and ASIC have a protective role. The role of ASIC in reviewing schemes as well as in offering an objection or no objection statement at the second court hearing is helpful and ought to be maintained. Since ASIC has a role in schemes under section 411 (17)(b), it may be requested by the court to appear at any stage of a particular scheme application to help the court with on any relevant issues and the Committee is pleased with ASIC responding to such requests. It is the Committee’s believe that this is a significant step in assisting the court accomplish its role in reviewing proposed schemes, together with determining whether affected parties will be properly protected if the scheme is pursued 7(Corporations and Markets Advisory Committee, 2009).

Assessment 2: Insider Trading

Introduction

On January 28, 2010, the Minister for financial Services, Superannuation and Corporate Law declared proposed changes to the law to enhance the powers of the Australian Securities and Investments Commission (ASIC). The Minister released a proposal paper on February 3, 2010, with reforms intended to augment the security of susceptible investors, in addition to enhancing the fee regime for acquiring copies of the member register of a company. The Corporations Amendment (No. 1) bill 2010 (the Bill) amends the Corporations Act as well as the Corporations Regulations to change the manner in which to change the way people access information kept on company registers. The measures demand that all people seeking a copy of the register of members to submit an application to the company, indicating how they will use the register. The measures will as well provide that where a register is maintained on a computer tat it ought to be possible to be inspected on a computer. Lastly the measures will offer for the Corporations Regulations to prescribe the formats in which a copy of the register can be provided. The Bill also amends the Corporations Act and the ASIC Act to:

  • boost the enormity of criminal penalties that can be forced for breaches of the insider trading and market exploitation requirements of the Corporations Act;

  • allow for telecommunications interception warrants to be functional in the course of examination into those offences;

  • improve ASIC’s search warrant authority to allow ASIC to submit an application for a search warrant under the ASIC Act without first having to give out a notice to produce the material; and

  • Shed light on criminal legal responsibility in section 1041B of the Corporations Act in accordance with the provisions of the Criminal Code Act 1995 (Criminal Code).

Adjustment to the ASIC Regulations will eliminate requirements that at present grant that persons who make an off market offer are excused from the unconscionable behavior requirements where they make certain disclosures. The Corporations Act will also be adjusted to elucidate the planned submission of accessible legislation to substantiate that off
market offers to buy fiscal products must stay open for more than one month. This section of the paper will discuss the main changes relating to insider trading introduced under the Corporations Amendment (No. 1) Act 2010 8(The Treasury, 2010).

Insider Trading Laws

The insider trading laws put restrictions on the timing of share sales and purchases by directors. These restrictions may be in force when a director is under pressure, is forced to sell shares of the company in response to a margin call under a margin loan arrangement. A director in possession of price-sensitive information is forbidden from dealing in the company’s shares, whether or not to satisfy a margin call, so long as that information is not disclosed. The entry by a director into a margin loan arrangement that might lead to a forced sale of those shares might put the director in an untenable position under the insider trading laws. A director having the knowledge of inside information may not defend himself against the fact that the trading was triggered by a margin call, that the trading was reacting to a pressing financial need, that the director decided to trade for reasons other than reliance on the inside information or that the trading was contrary to the inside information (for example, where the information indicated that the shares were underpriced).

Changes relating to insider trading

Australian insider trading law, unlike other overseas jurisdictions with well developed insider trading laws, no longer makes a distinction between ‘primary’ and ‘secondary’ insiders. Other jurisdictions regard primary insiders as those who have acquired inside information due to some connection with the relevant company (for instance directors, employees or shareholders) and who have derived the inside information by virtue of that connection. Secondary insiders on the other hand are those who have inside information but do not have any specific connection to the relevant company, but who knowingly receive the relevant information directly or indirectly from a primary insider. Before 1991, there was a distinction between the primary and secondary insider in Australia, but this was abolished in the reforms which followed the Griffiths Report, on the basis that the need to guarantee market integrity was not served by making a distinction between various kinds of insiders. Market integrity along with investor confidence is considered to significant for the proper and efficient functioning of Australia’s securities markets. Insider trading is regarded as a great threat to the efficiency and integrity of securities markets, with the potential to considerably reduce investor confidence and in turn reduce participation. In fact, this is the principal legislative rationale for the prohibition on insider trading in Australia. Even the belief by investors and market participants that company insiders have an informational advantage and unjust chances to trade in company shares is regarded to minimize investor confidence in the integrity of securities markets. Consequently, almost all convicted insider traders would be considered as “primary” insiders, regardless of the elimination of that provision from the legislation9.

Regarding the nature of inside information, Australian insider trading laws no longer contain any provisions of specificity or precision10. Section 1042A of the Corporations Act now defines ‘information’ to include: (a) issues of possibility and other issues that are inadequately exact to justify being made known to the public, and (b) matters relating to the intentions or likely intentions of a person. This wide, inclusive definition is quite different from that contained in the legislation preceding both the Corporations Act and the Corporations Law, which demanded the alleged insider trader to possess ‘specific information’. This is not the cases in most of the foreign jurisdictions, where the inside information is required to be specific or precise so that rumors do not amount to inside information and therefore so that trading on the basis of rumors is not caught by the insider trading laws of those countries. CAMAC revisited this matter in its 2003 report on insider trading, but decided that it would not be suitable to amend the law to impose a provision that information be specific since it would then narrow the application of the legislation and generate artificial distinctions between what constitutes and what does not constitute inside information11. This position has been confirmed by ASIC in its consultation paper on the “Responsible Handling of Rumors” which shows that the regulator assumes the perception that trading on the basis of rumors can definitely result to insider trading, and has also been established in the recent CAMAC Report on Market Integrity. The effects of this amendment is that almost all convicted insider traders in Australia have traded on the basis that they have information that seems to be fairly specific. The two outstanding exceptions are Mr. Rene Rivkin12 and Mr. Bart Doff13 who traded on the rather vague (and not relatively accurate) information that Qantas and Impulse Airlines were about to merge as communicated to them by the decision-making chairperson of Impulse Airlines 14(Overland, 2011).

Another vaunted change to insider trading laws was the introduction of civil penalty proceedings under the Financial Services Reform Act 2001. The accessibility of civil penalty proceedings was anticipated to help in conquering apparent complexities in taking legal action against insider trading by offering a substitute system with a lesser standard of proof, based on the balance of probabilities and using civil rules of evidence15. Nevertheless, there have been very few civil penalty proceedings for insider trading undertaken since they became available. A good example of the unsuccessful civil proceedings where the respondents admitted liability is the ASIC v Citigroup and the case of ASIC v Petsas and Miot. Thus civil penalty proceedings have almost not offered the fillip that might have been anticipated.

The FSR Act amendments to the Corporations Act also adjusted the nature of the relevant financial products caught by insider trading prohibition. Before the establishment of the FSR Act, insider trading was prohibited in relation to ‘securities’. The prohibition on insider trading now applies to all ‘Division 3 financial products’, which are defined under section 1042Aof the Corporations Act. Therefore, a number of ‘financial products’ which were not beforehand subject to insider trading laws have now been brought within the domain of the proscription. This reform was propelled by the desire to make sure that conduct which amounts to an offence in relation to certain financial products ought not to, from a policy viewpoint, be acceptable in relation to other financial products – particularly provided that it was a plan of the FSR Act to control ‘functionality similar’ financial products in the same way. All financial products that are tradable on a market (and some which are not) are now subject to the prohibition on insider trading 16(Overland, 2011).

The Federal Government recently altered the maximum criminal penalties for insider trading pursuant to the Corporations Amendment (No.1) Act 2010, which has received assent but has not yet been proclaimed. The current maximum penalty for insider trading is:

  • For a natural person – a fine of 2,000 penalty units ($220,000) or 5 years’ imprisonment, or both; and

  • For a body corporate – a fine of 10,000 penalty units ($1,100,000).

The new maximum penalties for insider trading will be:

  • For a natural person – ten years’ imprisonment, or a fine of the greater of:

  • 4,500 penalty units ($495,000); or

  • Three times the total value of benefits obtained from the offence; or both.

  • For a body corporate – a fine of the greater of:

  • 45,000 penalty units ($4, 950,000);

  • Three times the total value of benefits obtained from the offence; or

  • 10% of the body corporate’s annual turnover during the 12 month in which the offence was committed.

It is very clear that the Federal Government wishes to discourage potential insider traders from employing this behavior and proposals which will correctly defend monetary markets from illegal activity warrant extensive support. Nevertheless, the realistic impact of escalating the utmost penalties which may be forced on those convicted of insider trading ought to be cautiously considered.

I do agree with the statement mentioned in the assessment two since in wide terms, the consequence of the 2010 amendment act is to result to adjustments to the Corporations Act 2001, the ASIC Act 2001 as well as the Telecommunications (Interception and Access) Act 1979 (“TIA”). In doing so, it touches upon three areas of ASIC’s roles:

  • The provisions relating to right of entry to corporation registers;

  • Extra exploratory powers for ASIC; and

  • An augment in the punishments which can be forced for breaches of the market exploitation and insider trading requirements of the Corporations Act 2001.

As the requirements relating to the penalty increases speak for themselves, main center of attention will be given to the provisions involving the company registers as well as the supplementary exploratory powers which will be bestowed upon ASIC.

In reference to access to company registers, there has been a direct relation between the requirements concerning the admittance to company registers and the increasing practice of making spontaneous offers to buy securities off market. Considering this, the makers of such offers have been using the company register requirements to acquire right of entry to the names and addresses of shareholders and then making use of those names and addresses to make unsolicited offers to purchase shares. ASIC has had extremely restricted success in controlling this specific practice. For their part, the companies whose shares have been the subject of such offers have articulated worry regarding being enforced to present copies of their company registers in situations where they assert the register will be used for an inappropriate reason. In reaction to this, the 2010 amendment act has introduced changes to Part 2C.1 of the Corporations Act 2001. The results of these changes are to require a person seeking a copy of a register to apply to the company and state the reason for which they intend to use the information contained in the register. The corporation can then deny access to a copy of the register where the reason stated by the claimant is one of the inappropriate reasons referred to in the Corporations Regulations 2001. Division 5A of Part 7.9 contains the requirements of the Corporations Act 2001 which tackle spontaneous offers to acquire monetary products off market. While the efficiency of this meticulous reform remains to be seen, it appears probably that it will have a noteworthy impact on the practice of making spontaneous offers to acquire securities off market 17(Brereton, 2011).

Apart from amending the company register requirements, the 2010 amendment act as well contains extra search warrant powers which have been conferred upon ASIC. Regarding this, a new subsection 35(1) is to be inserted into the ASIC Act 2001. This provision will allow ASIC to submit an application to a magistrate for a warrant where there are sensible basis to suppose that there are or may be at a particular hypothesis, books whose invention may be necessary. The second extra analytical power enclosed in the 2010 amendment act relates to telecommunications interception and access. In that view, those familiar with ASIC’s past performance in the areas of insider trading and market manipulation would be conscious that they have found these issues tremendously hard to examine. They have been condemned for not bringing unlawful trials as a result of some of their more high profile inquiries. The contradicting dispute to this condemnation is that insider trading as well as additional market offences are hard to examine since they frequently engage multifaceted networks of intelligent people and technological sophistication. The nonexistence of a paper trail and dealings happening in real time mean that telephone discussions are time and again the only substantiation of the allegation that an offence has taken place. In reaction to these intricacies, the 2010 amendment act will have the result of embracing the market bad behavior requirements from Part 7.10 of the Corporations Act 2001 into the list of grave offences for the reason of section 5D of the TIA. By doing this, ASIC will not be supplied with the same sort of powers as those conferred upon the AFP, but in its place will be able, as part of combined examinations between ASIC and the AFP gain right of entry to proof collected through telephone interceptions for use in both inquiries and trials relating to the market misdemeanors requirements contained in the Corporations Act 2001 (Brereton, 2011).

References:

[2.78]-[2.79] of the Explanatory Memorandum to the FSR Bill; ss1317L and 1332 of the Corporations Act.

Ampolex Ltd v Perpetual Trustee Trading Co (Canberra) Ltd (1996) 20 ACSR 649, 658 per Rolfe J; R v Hannes [2000] NSW CCA 503, per Spigelman CJ at [28].

ASIC Regulatory Guide 142 at [RG 142.19]

Brereton J. Barrister, (2011). ASIC’S GROWING SPHERE OF INFLUENCE. Victorian Bar. Viewed on September 21, 2011 from http://www.listgbarristers.com.au/site_media/uploads/justin_brereton/asic%27sgrowingsphere.pdf

CAMAC, Insider Trading Report (2003) at [3.7].

Colla A. (2010). Welcome (and overdue!) scheme reforms on the horizon. March 2010 edition of Mergers & Acquisitions newsletter. Retrieved September 19, 2011 from http://www.minterellison.com/NL_201003_MAb/

Corporations and Markets Advisory Committee (2008). Members’ schemes of arrangement Discussion Paper. Sydney, NSW

Corporations and Markets Advisory Committee (2009). Aspects of Market integrity, issue paper. Sydney, NSW

Corporations and Markets Advisory Committee (2009). Members’ schemes of arrangement Report. Sydney, NSW.

Gambotto v WCP Ltd (1995) 182 CLR 432, 127 ALR 417. See Re NRMA Ltd (2000) 33 ACSR 595 at p. 58-59.

Joint ASIC/ASX Media Release accompanying Companies Update 02/08.

Michael G., (1998) “Insider Trading Enforcement: Where Are We Now and Where Do We Go From Here?” 16 Company and Securities Law Journal 607. This comment was cited and endorsed by Mason J in R v Firns (2001) 38 ACSR 223, 234.

Overland J. (2011). The Past, Present and Future Regulation of Insider Trading. Viewed on September 21, 2011 from http://www.clta.edu.au/professional/papers/conference2011/Article%20-%20CLTA%202011%20Past%20Present%20and%20Future%20Regulation%20Insider%20Trading%20Final.pdf

R v Doff [2005] NSWSC 50.

R v Firns [2001] NSWCCA 191, 21 May 2001; R v Hannes [2002] New South Wales Supreme Court 1182; R v McDermott (unreported, District Court of Western Australia, Kennedy DCJ, 1 August 2003); R v Sweet-man (unreported, District Court of Queensland, Criminal Division, Shanahan DCJ, 17 December 2004)

R v Rivkin [2003] NSWSC 447.

The Griffiths Report, at [3.34] to [3.36]; Corporations and Markets Advisory Committee, Insider Trading Discussion Paper, June 2001 at [0.20].

The Treasury, (2010). Exposure Draft — Corporations Amendment (No 1) Bill 2010. Australian Government.

1 Gambotto v WCP Ltd (1995) 182 CLR 432, 127 ALR 417.

2 ASIC Regulatory Guide 142 at [RG 142.19]

3 Corporations and Markets Advisory Committee (2009). Members’ schemes of arrangement Report

4 Colla A. (2010). Welcome (and overdue!) scheme reforms on the horizon.

5 Joint ASIC/ASX Media Release accompanying Companies Update 02/08.

6 Corporations and Markets Advisory Committee (2008). Members’ schemes of arrangement Report

7 Corporations and Markets Advisory Committee (2009). Members’ schemes of arrangement Report

8 The Treasury, (2010). Exposure Draft — Corporations Amendment (No 1) Bill 2010

9 R v Firns [2001] NSWCCA 191, 21 May 2001; R v Hannes [2002] New South Wales Supreme Court 1182; R v McDermott (unreported, District Court of Western Australia, Kennedy DCJ, 1 August 2003); R v Sweet-man (unreported, District Court of Queensland, Criminal Division, Shanahan DCJ, 17 December 2004)

10 Ampolex Ltd v Perpetual Trustee Trading Co (Canberra) Ltd (1996) 20 ACSR 649, 658 per Rolfe J; R v Hannes [2000] NSW CCA 503, per Spigelman CJ at [28].

11 CAMAC, Insider Trading Report (2003) at [3.7].

12 R v Rivkin [2003] NSWSC 447

13 R v Doff [2005] NSWSC 50.

14 Overland J. (2011). The Past, Present and Future Regulation of Insider Trading.

15 [2.78]-[2.79] of the Explanatory Memorandum to the FSR Bill; ss1317L and 1332 of the Corporations Act.

16 Overland J. (2011). The Past, Present and Future Regulation of Insider Trading.

17 Brereton J. Barrister, (2011). ASIC’S GROWING SPHERE OF INFLUENCE.