Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

AUSTRALIAN SECURITIES COMMISSION REGULATIONS (AMENDMENT) 1994 NO. 443

STATUTORY RULES 1994 No. 443

Issued by the Authority of the Attorney-General

Australian Securities Commission Act 1989

Australian Securities Commission Regulations (Amendment)

Section 251 of the Australian Securities Commission Act 1989 (the Act) empowers the GovernorGeneral to make regulations, not inconsistent with the Act, prescribing matters which are required or permitted by the Act to be prescribed by regulations, or necessary or convenient to be prescribed by regulations for carrying out or giving effect to the Act. Subsection 195(2) of the Act provides that the regulations may deal with the making of submissions or the giving of evidence to an inquiry conducted by the Corporations and Securities Panel (the Panel); the right (if any) to appear, or be represented, at an inquiry; and the matters to be taken into account by the Panel when making a decision in the course of an inquiry.

In accordance with the Heads of Agreement and the draft Corporations Agreement between Commonwealth, State and Territory Ministers having responsibilities in relation to corporate regulation, the Attorney-General consulted the relevant State and Territory Ministers. The Ministerial Council for Corporations approved the proposed amendments to the extent that they relate to matters within its deliberative function under the heads of Agreement and the draft Corporations Agreement.

The purpose of the regulations is to complement amendments to the Act and the Corporations Law included in Schedule 4 of the Corporations Legislation Amendment Act 1994. The amendments in the Act are designed to better equip the Panel to fulfil its legislative charter of making timely commercial decisions in relation to takeovers. The regulations outline in detail the procedures for the conduct of inquiries by the Panel. In brief those procedures:

•       replace a party's right to an oral hearing with a right to furnish written submissions to the Panel and provide the Panel with a discretion as to whether to take oral evidence. In certain circumstances there is a right to appear before and address the Panel;

•       allow a person who appears at an inquiry to have another person to assist and a person who so assists is entitled to address the Panel; and

•       provide a comprehensive guide for the conduct of inquiries by the Panel.

The objectives of the Panel procedures are to ensure that:

•       the procedures followed in an inquiry held by the Panel are fair and reasonable; are conducted with as little formality and in as timely a manner as the requirements of the regulations and the national scheme law and a proper consideration of the matters before the Panel permit; and

•       a decision resulting from an inquiry into the occurrence of unacceptable circumstances can be made by the Panel before the acquisition of the interest relating to the occurrence takes place.

Under subsection 195(3) of the Act, the rules of procedural fairness, to the extent that they are not inconsistent with the provisions of the Act and the regulations made under it, apply to an inquiry.

Details of the regulations are contained in the Attachment

The regulations commenced on 1 January 1995. This is the date of commencement for the provisions of the Act inserted by Schedule 4 of the Corporations Legislation Amendment Act 1294.

ATTACHMENT

AUSTRALIAN SECURITIES COMMISSION REGULATIONS (AMENDMENT)

Regulation 1

Regulation 1 provides that the regulations commence on 1 January 1995.

Regulation 2

The Australian Securities Commission Regulations are amended as set out in these Regulations (the ASC Regulations).

Regulation 3

This regulation inserts a new heading "Part 1 - Preliminary". The prior citation and interpretation provisions (previous regulations 1 and 2) are included in Part 1.

Regulation 4

This regulation inserts a new heading "Part 2 - General". Previous regulations 3-8 and 11-12 are included in Part 2.

Regulation 5

This regulation omits previous regulation 9 (Summons to witnesses to appear before the Panel).

New regulation 42 (which is described below) performs the same function. The form of the summons (Form 3) is amended by proposed regulation 8 (see below).

Regulation 6

This regulation omits previous regulation 10 (allowances and expenses payable for attendance at hearings of the Panel).

New regulation 43 (which is described below) performs the same function in relation to inquiries. Schedule 2 continues to comprise a schedule of witnesses fees and allowances for expenses.

Regulation 7

This regulation inserts a new part, Part 3, which is entitled Panel Procedures.

New Part 3 - Panel Procedures

The Corporations Legislation Amendment Act 1994 - (CLAA) repeals the provisions of Part 10 of the Australian Securities Commission Act 1989 (the ASC Act) which entitle the Panel to hold hearings and substitutes a power to hold inquiries (subsection 188(1)).

An inquiry is to be conducted in accordance with (in order of priority) the requirements of Division 3, the regulations and the Panel (subsection 195(1)).

Subsection 195(2) specifically empowers the making of regulations dealing with:

(a)       the making of submissions or the giving of evidence to or at an inquiry; and

(b)       the right (if any) to appear, or be represented, at an inquiry; and

(c)       the matters to be taken into account by the Panel when making a decision in the course of an inquiry.

New Part 3 of the ASC Regulations contains six divisions which comprise provisions relating to preliminary matters, applications, inquiries, submissions, conferences and other matters.

New Division 1 - Preliminary

New Regulation 13 - Objects of this Part

New regulation 13 sets out the objects of new Part 3.

Briefly, these are to ensure that:

•       the procedures followed in an inquiry held by the Panel are fair and reasonable, are conducted with as little formality and in as timely a manner as the requirements of the regulations and national scheme law and a proper consideration of the matters before the Panel, permit; and

•       a decision resulting from an inquiry into the occurrence of unacceptable circumstances can be made by the Panel before the acquisition of the interest relating to the occurrence takes place.

Subsection 195(3) of the ASC Act, inserted by item no. 20 of Schedule 4 to the CLAA, provides that the rules of procedural fairness, to the extent that they are not inconsistent with the provisions of the Act and the Regulations made under it, apply to an inquiry.

As the approach adopted in subsection 195(3) towards procedural fairness is not common, an 'objects clause' has been included to assist interpretation.

New Regulation 14 - Application of this Part

New regulation 14 provides that the procedures prescribed by Part 3 of the Regulations (Panel Procedures) apply to an inquiry in addition to the requirements of a relevant national scheme law.

New Regulation 15 - Interpretation

New regulation 15 is an interpretive provision providing definitions of the following terms for the purpose of Part 3: application, brief, business day, decision, inquiry, intervener, party and submission.

New Regulation 16 - Powers of Panel

Section 733 of the Corporations Law empowers the Panel, on application from the Australian Securities Commission (the ASC), to make declarations that certain conduct in relation to a takeover was unacceptable or that an acquisition in relation to a takeover was unacceptable.

Having made such a declaration the Panel may then, on an application from the ASC, make any order under section 734 of the Corporations Law that it thinks is necessary or desirable to protect the rights or interests of any person affected by the acquisition or conduct or to ensure that a takeover proceeds in a manner in which it would have proceeded if that acquisition had not taken place or the conduct had not been engaged in. The Panel is also empowered to make an interim order.

It is envisaged that in many cases the Panel will consider applications for both a declaration and an order at the same inquiry and will ask parties to address both issues in their submissions to it. It may also be the case that the Panel will wish to consider whether it should make an interim order while it is considering whether to make a declaration and/or order.

New regulation 16 provides specific incidental powers which will assist in these and other circumstances. Thus new paragraph 16(1)(a) empowers the Panel to direct that 2 or more related matters are to be considered at a joint inquiry.

In addition, new subregulation 166(1) entitles the Panel to identify the issues it will consider in an inquiry paragraph 16(1)(b)) and to give detailed directions to progress the matter. The subregulation enables the Panel to give directions about the manner in which a matter may be presented, either orally or in writing (in some circumstances a per-son has the right to address the Panel) and the duration of time in which a person may address the Panel and give evidence at-an inquiry (new paragraph 16(1)(c)); the documents which must be lodged (new paragraph 16(1)(d)) and the time for lodging documents with the Panel and extension of that time (new paragraphs 16(1)(e) and

This new regulation also empowers the Panel to invite a person who is not a party or an intervener to make a submission to the Panel (new paragraph 16(1)(g)); permits the amendment or withdrawal of information, evidence or a document provided to the Panel (new paragraph 16(1)(h)); and empowers the suspension or deferral of an inquiry (new paragraphs 16(1)(i) and

As noted above, subsection 195(3) of the ASC Act provides that the rules of procedural fairness, to the extent that they are not inconsistent with the provisions of the Act and the regulations, apply in relation to an inquiry.

New subregulation 16(2) supplements this. It provides that in the performance of its functions and the exercise of its powers in relation to an inquiry, the Panel is not bound by the rules of evidence but it must consider all relevant information contained in submissions and other evidence provided to the Panel and must act fairly and reasonably, with as little formality and in as timely a manner as Part 3, the relevant national scheme law and a proper consideration of the matters before the Panel permit.

New Regulation 17 - Conduct of inquiries

Sub-regulation 17(1) provides a general statement that, subject to the part, the procedure to be followed in an inquiry is to be determined by the Panel. This general statement ensures that the Panel retains control of the inquiry.

The Panel is required (subject to new subregulation 17(3)), as soon as practicable after it makes a decision as a result of an inquiry, to give written notice of the decision, and of the reasons for the decision, to each party and to each intervener (new subregulation 17(2)).

New sub-regulation 17(3) provides that if for any of the reasons provided in subregulation 32(2) (confidentiality, suspected commission of an offence, unfair prejudice to a person's reputation, public interest concerns) the Panel believes a party's interests will be adversely affected by providing reasons to another party or an intervener, reasons or notice of reasons must not be so given.

The word "decision" is defined in new regulation 15 to mean a decision of the Panel to make a declaration, an order or an interim order or to continue an interim order.

The word "intervener" is defined in regulation 15 to mean a person whose submission is to be considered under new regulation 24 in the inquiry. Briefly, this means a person who has been invited by the Panel to express an interest in the inquiry and whose written submission the Panel has decided to consider.

Thus all persons who have been given the opportunity to make submissions to the Panel in respect of an inquiry are required (subject to new subregulation 17(3)) to be given notice of any declaration, order or interim order that the Panel decides to make as a result of the inquiry.

New Division 2 - Applications

New Regulation 18 - Reference of matters to the Commission by the Panel

Under the Corporations Law, the ASC may make applications for declarations of unacceptable conduct/acquisitions under section 733 and for orders under section 734. No other persons may make such applications and the Panel cannot make declarations or orders of its own motion without an application, from the Commission.

Given that the Panel is a peer review body made up of people within the markets, it may be that in some cases the Panel will become aware of cases where it considers that it might be appropriate for it to conduct an inquiry into whether a declaration or order should be made.

New subregulation 18(1) empowers the Panel to refer matters to the Commission to enable the Commission to consider whether an application should be made under section 733 and/or section 734 of the Corporations Law.

The Commission is not, of course, bound to make such an application on receipt of a reference from the Panel.

Such a reference is required in writing and in sufficient detail to allow the Commission to make a decision in relation to the matter (new subregulation 18(2)).

New Regulation 19 - Making of applications

To make the Panel's task easier, applications are generally required to be in a consistent form and contain certain specified information.

For this reason new subregulation 19(1) sets out the requirements for applications by the ASC. They relate to form, signature, dating and copies, and require that the application contain sufficient information to permit a proper consideration of the matters or documents by the Panel.

An application which does not comply with those requirements may be made, however, if it is in accordance with the written requirements of the Panel in relation to the application (new subregulation 19(2)).

New Regulation 20 - Consideration of applications

The Panel must, as soon as practicable after receipt of an application, decide whether or not to hold an inquiry in relation to it and, if the Panel decides to hold an inquiry, prepare a brief in accordance with the proposed regulation. The purpose of the brief is to identify for the parties the issues that the Panel wishes them to address in submissions. It thus enables the Panel to give directions as to the information it wishes to receive (new regulation 20).

New Division 3 - Inquiries related to applications by Commission

New Regulation 21 - Notice of decision

If the Panel decides to hold an inquiry, it must notify its decision to the Commission and the persons to whom the application relates, as soon as practicable (subregulation 21 (1)). If the Panel decides that it will not. hold an inquiry it is required to notify the Commission as soon as practicable but to only notify those persons who are the subject of the Commission's application, where the Commission has already notified such persons of its application (new subregulation 21(2)(a) and (b)).

New paragraph 21(2)(c) provides that if the Panel decides not to hold an inquiry, then reasons for this decision must be included in the notice.

New Regulation 22 - Decision to hold inquiry

New subregulation 22(1) provides that if the Panel decides to hold an inquiry, then it must, within 5 business days of receipt of the application, give a copy of its brief to each party and invite them to lodge a written submission addressing the issues identified in the brief. In this way the Panel is able to control the content of the information that it receives.

In addition, new subregulation 22(3) provides that if the Panel decides to hold an inquiry, it is empowered to give written notice of the decision to any body or a person who is not a party.

New subregulation 22(3) provides that, within five business days after giving notice to a nonparty, the Panel must give that person a copy of the brief and an invitation to the person to lodge a submission with the Panel addressing such issues in the brief as are specified in the invitation. This new regulation is subject to regulation 32 which provides that the Panel must not give a copy of a brief or part of a brief, or information in a brief if it is satisfied that it is not desirable to do so having regard to confidentiality, the suspected commission of an offence, unfair prejudice to a person's reputation and the public interest.

Thus, where the Panel believes that a particular person who is not a party could usefully provide information to it or clearly has an interest in the subject matter of the inquiry, it is able to seek a submission from such a person and also provide a brief unless it considers it undesirable to do so.

New Division 4 - Submissions

New Regulation 23 - Expressions of interest by non-parties

New regulation 23 provides that the Panel may notify persons (other than particular persons referred to in proposed subregulation 22(2)), or the public at large, that it has decided to hold an inquiry (new subregulation 23(1)) and invite such a person to give, within 3 business days of the date of the notice, a written expression of interest stating the nature of the person's interest in the inquiry and the reasons why the Panel should consider a written submission from the person (new subregulation 23(3)).

The form of the notice is thus within the discretion of the Panel. For example, one way that the Panel could give notice is through public advertisement. This regulation enables the Panel to canvass the views of persons who, although not parties, are nonetheless affected by the subject matter of the inquiry.

New subregulation 23(2) indicates that the Panel's notice must include a description of the nature of the inquiry. New subregulation 23(3) lists matters which must be included in the non-party's response.

New subregulation 23(4) provides that the period of 3 business days for the response of the nonparty may be varied by the Panel.

New Regulation 24 - Panel may accept submissions from persons expressing interest

The Panel must acknowledge receipt of an expression of interest (see new regulation 23) as soon as practicable after receipt (new subregulation 24(1)) and must then decide on the basis of the expression of interest whether to invite the person to make a written submission on the subject matter of the inquiry.

If it decides, within its discretion, to consider a written submission, the Panel is required (subject to new regulation 32) to give the person a copy of the Panel's brief (new subregulation 24(2)) and invite the person to lodge a written submission addressing the issues identified in the brief (new sub-regulation 24(3)).

If it decides not to consider any written submission of the person in the inquiry, the Panel must advise the person accordingly and provide reasons (new subregulation 24(4)).

A person whose submission is to be considered under new regulation 24 is defined as an "intervener" (new regulation 15). This term is used later in the new regulations for example, in new regulation 28, which prescribes the time limits for lodging submissions.

New Regulation 25 - Submissions

New regulation 25 sets out the form and content of submissions to be made by persons to an inquiry.

Of particular importance is the requirement that the submission address the issues identified in the Panel's brief as to be addressed by the parties and that it contain sufficient information to permit a proper consideration by the Panel of those issues (new paragraphs 25(1)(b) and (e)). It is to be noted that regulation 33 will allow a person to rely on matters contained in a public document which is publicly available by specifying places where the document is publicly available rather than lodging a copy of the document with the submission.

New Regulation 26 - Disregard of certain submissions

The Panel is empowered to disregard any matter in a submission that is not in accordance with the form and content requirements in the regulations or is frivolous or vexatious (new subregulation 26(1)) and must disregard any matter in a submission that is not relevant to the inquiry (new subregulation 26(2)).

Thus, the Panel does not need to have regard to matters in a submission that are outside those identified in the Panel's brief.

New Regulation 27 - Abuse of Panel procedures to be noted

The Panel is empowered by new paragraph 26(1)(b) to disregard any matter in a submission that is frivolous or vexatious.

If the Panel disregards a submission for this reason it is required to place on the submission a note stating that the Panel has disregarded the submission and giving the reasons for its belief that the submission is frivolous or vexatious. (new regulation 27).

New Regulation 28 - Lodgment and distribution of submissions

Responses by the parties to the Panel's request for submissions are governed by strict time limits which depend on whether the inquiry relates to:

•       an application for a declaration (s. 733) or both a declaration and an order (s. 734); or

•       an application for an order only.

It is envisaged that, in many cases, the Commission will apply for both a declaration and an order at the same time and that the Panel will consider both applications at a joint inquiry. There may, however, be cases where applications for declarations are considered separately from applications for orders. As inquiries in relation to applications for orders are likely to involve less complex issues than those associated with applications for declarations, the time limits for lodging written submissions in respect of such inquiries are shorter.

Further, time limits vary depending on whether the person lodging the submission is a party or an intervener, reflecting the fact that a party's interest in the inquiry is likely to be more direct than that of an intervener.

New subregulation 28(1) governs the time limits (calculated from receipt of the Panel's brief) for initial submissions by parties and interveners:

•       3 days for an intervener and 5 days for a party in the case of an application for a declaration or declaration and order;

•       2 days for both parties and interveners in the case of an application for an order.

If the Panel is satisfied that it is not desirable to give a copy of a submission, part of a submission or information contained in a submission to a person it must not do so (new subregulation 32(1)).

Otherwise, the Panel must give a copy of the initial submission to each party and intervener (new subregulation 28(2)).

A person receiving a copy of a submission in relation to an application is entitled to lodge a single submission (and no more than one submission) in rebuttal but not include in it material that is not necessary to support the rebuttal (subregulation 28(3)).

A rebutting submission relating to a declaration or a declaration and order will be required to be lodged with the Panel within five business days of receipt of the submission and in the case of an order will be required to be lodged within two business days of receipt (subregulation 28(4)). The Panel will be able to permit a longer period for lodgement.

Generally, persons have only one opportunity to rebut material contained in other submissions (new subregulation 28(5) prevents an attempt to submit later addenda to a rebutting submission). However, under new regulation 30, the Panel is able to invite a party to make a further submission, including a further rebutting submission.

New Regulation 29 - Panel to notify parties of proposed orders

If the Panel proposes to make an order under section 734, the Panel is required to give written notice of the proposal to each party and intervener inviting the lodging of submissions (new subregulations 29(1) and (2)). Such a submission must be lodged with the Panel not more than 2 business days after receipt of the notice (new subregulation 29(3)). The submission must comply with the formal requirements for submissions in paragraphs 25(1)(a), (c), (d) and (e) (new subregulation 29(4)).

New Regulation 30 - Panel may invite further submissions

It is envisaged that, following consideration of submissions received by parties and interveners, the Panel may require further elaboration of certain issues which could usefully be provided by way of further written submissions.

New subregulation 30(1) therefore empowers the Panel to request a party or an intervener to lodge a submission that addresses specified matters at any time during an inquiry.

The Panel must not give a copy of a submission or information in a submission to any person if it is satisfied that it is not desirable to do so (new subregulation 32(1)). However, in other cases the Panel may give a copy of the further submission to each other party and intervener (new subregulation 30(4)). Parties do not have a right to receive copies of such further submissions.

A party receiving a copy of a further submission may lodge a single submission in rebuttal but not include in it material that is not necessary to support the rebuttal (new subregulation 30(5)).

Discretion is given to the Panel to set the time limit for lodging the further submission and the submission in rebuttal (new subregulations 30(2) and (5)) and submissions must comply with the formal requirements for submissions in new paragraphs 25(1)(a), (c) (d) and (e) (new subregulation 30(3)).

New Regulation 31 - Panel may invite submissions - interim orders

The Panel may make interim orders either before making a declaration or, having made a declaration, before making a final order under sections 733A and 733B of the Corporations Law. The Panel makes such orders of its own motion and there is no provision for applications by the Commission or the other parties in relation to interim orders. The Panel is not required to give the parties an opportunity to make submissions to it before making interim orders.

Interim orders will in most cases need to be made very quickly to preserve the status quo in relation to a takeover situation. It is envisaged, therefore, that the Panel will not in all cases have the time to invite the parties to make submissions.

For this reason new subregulation 31 (1) empowers (but does not require) the Panel for the purposes of section 733A or 733B to request a person to lodge a submission that addresses matters specified in the request. Thus, the Panel may seek the views of persons it considers will have an interest in the matter on whether it should make an interim order or continue an existing interim order.

The Panel may specify the time limit for lodging the submission (new subregulation 31(2)) and, subject to new regulation 32, the Panel is empowered to give a copy of the submission to any person the Panel believes has an interest in the matters addressed in the submission (new subregulation 31(4)). Given the time constraints associated with interim orders the parties are not, however, given the opportunity to rebut material in any such submission that they receive.

The submission is required to comply with the formal requirements of new paragraphs 25(1)(a), (c), (d) and (e) (new subregulation 31(3)).

New Regulation 32 - Panel not to divulge certain information

While the Panel's brief and all submissions made by the parties and interveners to an inquiry will generally be made available to the other parties and interveners, given the commercial sensitivity of many takeover situations, there may be circumstances where the Panel considers it not appropriate to disseminate a particular submission or its brief or part of the brief to certain parties and interveners.

For this reason, new subregulation 32(1) requires the Panel not to give a copy of the brief or a submission, or part of the brief or a submission, or information contained in the brief or a submission to any person if the Panel is satisfied that it is not desirable to do so.

The criteria which the Panel must address when deciding whether to give the brief or a submission (or part thereof) or information to a person are listed in new subregulation 32(2). These include whether the information is of a confidential nature or relates to the commission of an offence, unfair prejudice to a person's reputation if the submission or information is distributed and whether it is in the public interest for the Panel to decide not to distribute the document.

New Regulation 33 - Public documents in support of applications or submissions

A person relying on matters contained in a published document that is publicly available in support of an application or a written submission may lodge a notice that, inter alia, specifies one or more places where the document is available to the public (new regulation 33) instead of lodging a copy of the document

New Regulation 34 - Submissions that are not lodged in time

If a person does not lodge a document with the Panel by the time limit specified in Part 3 of the Regulations, the Panel may proceed with the inquiry without regard to the document

Division 5 - Conferences

New Regulation 35 - Purpose of conferences

The Panel is empowered to conduct a conference for an inquiry to clarify matters arising from documents it possesses, or to resolve inconsistent statements or otherwise inform itself on matters relating to the inquiry (new subregulation 35(1)). It may, however, make a decision based solely on written submissions and need not hold a conference.

For the purpose of the regulations a conference is taken to be part of an inquiry (new subregulation 35(2)).

New Regulation 36 - Persons who may be present at a conference

New regulation 36 provides that any person who would be the subject of a declaration pursuant to subsection 733(3) of the Corporations Law or an order pursuant to subsection 734(2) of the Corporations Law is entitled to be present at a conference in an inquiry which relates to the application for the declaration or order. Under new regulation 39 (see below) a person who attends the conference has the right to address the Panel.

As noted at the end of new regulation 36 there are three sections in the Australian Securities Commission Act 1989 which also specify persons who are entitled to attend an inquiry, as follows:

•       subsection 189(2) provides that a person must not attend an inquiry unless he or she is a member of the Panel, or of the Australian Securities Commission (or a staff member approved by the Panel) or a person entitled to be present under a direction given by the Panel;

•       under subsection 191(2) a person may appear and give evidence to the Panel if required by summons to do so, or if the Panel decides in its discretion to allow a person to appear;

•       under subsection 194(4) a person appearing at an inquiry is entitled to have another person present to assist and a person who does so assist is entitled to address the Panel.

New Regulation 37 - Conduct of conferences

The President of the Panel may convene a conference within 5 business days of receipt of the last written submission or the last date for lodging a written submission, whichever is the earlier (new subregulation 37(1)).

The President must determine when and where the conference is to convene and must give written notice of that time and place to any person who may attend the conference except a person who is entitled to attend the conference to assist another person under subsection 194(4) of the ASC Act.

New regulation 38 - Procedures at conferences

The procedure to be followed in an inquiry is to be determined by the Panel (new subregulations 17(1) and 35(2)). As a conference is part of an ' inquiry, the length of the conference and the amount of time each party has to give oral evidence to the Panel is within the Panel's discretion.

Before the conference, the Panel is required to give to each person who is to attend (apart from a person who is assisting under subsection 194(4) of the ASC Act) a statement setting out the matters which the Panel proposes to raise and any other matter of which the Panel wishes the person to be aware for the purposes of the conference (new subregulation 38(1)).

Subject to the discretion of the Panel, issues other than those identified in the Panel's statement are not to be considered at the conference. This will enable the Panel to control the evidence it receives during a conference (new subregulation 38(2)).

The Panel is required to keep a transcript of the proceedings of a conference (new subregulation 38(3)).

If a person who may attend a conference does not attend it, the Panel may conduct the conference in the absence of the person but it must consider any written submission the person has lodged before the conference, addressing the matters referred to in the Panel's statement (new subregulation 38(4)).

New Regulation 39 - Persons who may address the Panel at a conference

Any person who attends a conference has a right to address the Panel (new subregulation 390A

A person's address to the Panel must refer only to the matters set out in the Panel's statement (required by new regulation 38) given to a person prior to attending the conference.

A person who is entitled to assist another person under subsection 194(4) of the Act may only address such issues as the person whom they are assisting is entitled to address (new subregulation 39(3)).

The Panel has the overriding right to invite a person to address it on any matters (new subregulation 39(4)). Thus while persons are generally restricted in their addresses to the Panel to issues specified in the statement issued by the Panel, the Panel will be able to invite such persons to address it on other issues.

New Regulation 40 - Witnesses

A person attending a conference must not ask a witness about a matter unless it is in relation to a matter which the person may address to the Panel under new regulation 39 (ie issues specified in the Panel's statement) (new subregulation 40(1)).

Nor must a witness make a statement on a matter unless the witness or the person who called the witness is entitled to address the Panel under new regulation 39 (ie in relation to issues specified in the Panel's statement) (new subregulation 40(2)).

New Regulation 41 - Misbehaviour at conferences

The Panel is empowered to exclude from a conference a person whose behaviour has a seriously disruptive effect on the conference.

Division 6 - Other matters

New Regulation 42 - Summons to witnesses to appear before the Panel

Subsection 192(1) of the ASC Act empowers a member of the Panel to summons a person.

New regulation 42 provides that, for this purpose, Form 3 is prescribed. It will perform the same function as previous regulation 9.

New Regulation 43 - Allowances and expenses payable for attendance at inquiries the Panel

Subsection 192(6) of the ASC Act provides that a person who, pursuant to a summons issued under section 192, appears at an inquiry is entitled to be paid the prescribed allowances and expenses (if any).

New regulation 43 provides that the entitlement to be paid, allowances and expenses, is in accordance with Schedule 2. It performs the same function as previous regulation 10.

Regulation 8

Schedule 1

This regulation:

•       amends die heading of Schedule 1 by inserting the word "Forms"; and

•       amends the references to the relevant regulations which appear in the heading of Form 3 to bring them into line with these proposed regulations.

Regulation 9

This regulation amends the references to the relevant regulations which appear in the heading of Schedule 2 to ensure that they are consistent with these proposed regulations.