Clayton Utz lodges its submission on ASX's new continuous disclosure guidance

On 17 October 2012, ASX released a Consultation Paper on the proposed new Guidance Note 8: Continuous Disclosure (GN8). Clayton Utz has now lodged its submission on the new guidance note with ASX. The submission reflects our views as trusted advisers to listed companies and also the views of many of our clients who we consulted with when preparing the submission.

We broadly support the revised GN8 as it goes a long way to recognising the commercial reality that listed companies face in complying with the continuous disclosure regime. However, we do believe that there is scope for further improvement in order to provide listed companies with greater clarity and increased certainty in complying with their continuous disclosure obligations.

Some of the key submissions we made are:

ASIC's position: there is a need for ASIC to formally give listed companies comfort that from an enforcement perspective, ASIC agrees with and supports the various policy positions, interpretations and exercises of discretion adopted by ASX in revised GN8. As ASIC has the enforcement responsibilities in relation to continuous disclosure, we believe there is a real risk that the positions being adopted by ASX in this revised guidance will not be effective if they are not expressly adopted by ASIC.

Rumourtrage: GN8 places a heavy burden on listed entities in situations where there is speculation about information in relation to the company and requires entities to proactively address the issue of market rumours which have the ability to create a false market for its securities, as soon as they become aware of the issue.

There is however no attempt in GN8 to seek to level the playing field between the listed company on the one hand, and those who leak information to the market or spread rumours, on the other.

Listed entities would welcome an explicit positive statement from ASX that, if it considers a false market has occurred in relation to an entity's securities, and that false market is attributable to market participants spreading untruthful rumours about listed securities, it will refer this to ASIC for consideration.

Limits on the ability of the listed entity to decide what is material information: One of the key themes in GN8 is that listed entities are required to form their own assessment of whether information is likely to be material to the entity's share price. However, in a number of instances, ASX has given itself the ability to form this assessment regardless of the views of the listed entity. The change of most concern in this regard is the new rights ASX has to compel an entity to disclose information if ASX considers a false market exists, regardless of whether the information is material, the cause of a false market or necessary to correct any false market. There is a concern that these powers are unnecessarily broad and detract from the ability of listed entities to effectively manage their own continuous disclosure obligations.

A copy of the full submission can be accessed here. We would like to thank the many clients who took the time to discuss their views on GN8 with us. We will provide a further update once ASX responds to the submissions it has received and finalises GN8, which it expects to do by the end of March 2013.

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