In this edition, we discuss new clearing and settlement rules introduced by the Australian Securities and Investments Commission (ASIC) targeting the Australian Securities Exchange (ASX), a discussion paper on the dynamics between public and private markets, a decision by the Federal Court of Australia which highlights the limitations of whistleblower protections and the Takeovers Panel’s decision to decline to conduct proceedings in relation to the affairs of Invest Blue Pty Ltd (Invest Blue).
In Over the Horizon, we discuss the recent release of gender pay gap data by the Workplace Gender Equality Agency (WGEA).
Regulatory
ASIC makes clearing and settlement rules targeting ASX
On 25 February 2025, ASIC announced that it had made new clearing and settlement rules requiring the ASX to provide its clearing and settlement services on a transparent and fair basis, with a requirement to publish a comparison of fees against international providers. ASIC has stated that the ASX will have to take all reasonable steps to: (1) ensure that the pricing of its services is transparent, fair and reasonable; (2) provide access to its covered services (including data) on commercial, transparent and non-discriminatory terms; and (3) ensure that its core technology systems are designed and developed in a way that facilitates third-party access. The new clearing and settlement rules will commence on 24 May 2025, and marks ASIC’s inaugural use of these powers since they were enlivened in May 2024.
ASIC seeks feedback on the dynamics between public and private markets
On 26 February 2025, ASIC released ‘Australia’s evolving capital markets: A discussion paper on the dynamics between public and private markets’, which seeks feedback on the issues and implications arising from changes in the structure of Australia’s capital markets, which have seen a gradual drift from public to private ownership (in line with trends overseas). ASIC’s focus areas include: (1) sustained healthy public equity markets; (2) efficient capital allocation and confidence in private markets (3) balancing access and protection for retail participation in private markets; and (4) maintaining transparency and monitoring the financial market amidst new developments. ASIC Chair, Mr Joe Longo, noted that “the critical point for ASIC is whether there is a need for interventions to address risk or adjustment to how regulation operates to take advantage of opportunities important for the attractiveness of our capital markets.” Feedback on the discussion paper is due by 28 April 2025.
Legal
Federal Court ruling highlights limitations of whistleblower protections
On 21 February 2025, the Federal Court of Australia dismissed claims brought by Mr Ryan Mount, the former acting chief executive officer of Dover Castle Metals Pty Ltd (DCM), against DCM and its directors. Mr Mount was summarily dismissed three weeks into his 12-month contract after sending emails to directors and making reports relating to safety concerns and the failure of employees to follow directions to minimise the risk of injury and informing the board of directors that he would be legally obliged to seek regulatory intervention if workers continued to ignore his directions. Mr Mount alleged that, among other things, these reports were covered by the whistleblower protections in the Corporations Act 2001 (Cth) (Corporations Act). While Her Honour, Katzmann J, noted that Mr Mount had a reasonable basis for his suspicions, various communications that he sent did not attract these protections because they were sent to persons other than officers or senior managers of DCM and/or did not contain ‘disclosures’ of information (as opposed to, for example, requests for documents or assistance). Ultimately, the Court found that DCM was not entitled to summarily dismiss Mr Mount, but he had wholly mitigated his loss by obtaining alternate employment and therefore was not entitled to an award of damages. The case highlights the importance of understanding the specific criteria that must be satisfied before whistleblower protections can be claimed and establishing an effective policy for receiving and managing whistleblower reports.
Takeovers Panel declines to conduct proceedings on an application in relation to the affairs of Invest Blue
On 26 February 2025, the Panel announced that it would not conduct proceedings on the application from Kanenaro Pty Ltd ATF Denaro Family Superannuation Fund (Kanenaro) in relation to the affairs of Invest Blue. As discussed in a previous edition of Boardroom Brief, Kanenaro sought orders unwinding a share purchase agreement between Invest Blue and Ironbark Investment Partners Pty Ltd. The Panel concluded that there was no reasonable prospect that it would make a declaration of unacceptable circumstances on the application, noting that: (1) Invest Blue had fewer than 50 members on the date when the share purchase agreement was entered into; (2) it was unlikely that the Panel would make a finding that there had been a deliberate strategy to reduce Invest Blue’s number of shareholders with a view to taking Invest Blue outside the scope of Chapter 6 of the Corporations Act and deprive shareholders of the relevant statutory protections; and (3) the application was not timely. On 28 February 2025, the President of the Panel announced that it had declined to grant his consent to review the Panel’s decision to decline to conduct proceedings.
Over the horizon
WGEA releases latest gender pay gap data
On 4 March 2025, the WGEA published its ‘Employer Gender Pay Gaps Report’, reporting on 2023-24 gender pay gap data of 7,800 private sector employers and 1,700 corporate groups. The WGEA sets a target range of both average and median total remuneration gender pay gaps (i.e. calculated including payments above base salary such as superannuation, performance bonuses, overtime and allowances) within and including +/-5%, which it notes that only 15.3% of employers are currently achieving. The data published by the WGEA, including average and median total remuneration gender pay gaps, gender composition per pay quartile, and average total remuneration, may serve as a useful comparison tool for Boards. By obtaining an understanding of the drivers of an organisation’s gender pay gap, directors can provide a voluntary ‘employer statement’ that gives context to the organisation’s results, communicates the key causes and explains how the Board plans to take action to address remuneration disparity – which could go some ways towards retaining key employees.