ASIC Submission Collective action by investors

AICD lodged a submission with the Australian Securities and Investments Commission (ASIC) on 20 April in response to its Consultation Paper 228, Collective action by investors: Update to RG 128.

The consultation paper proposes amendments to ASIC’s existing regulatory guide on collective action by investors. The proposed changes are a sensible attempt to recognise that there is increasing engagement between investors and companies on a range of governance issues that should not be caught by the takeover and substantial holding provisions of the law.

While we have congratulated ASIC on what is, in our view, a balanced and clear update to the existing regulatory guide, simply identifying examples of conduct that ASIC regards is “less likely” to be examined by ASIC as constituting potential collective action is unlikely to provide significant comfort to investors as there is still a risk that engaging in the conduct will nonetheless expose them to possible prosecution. For this reason, we have urged ASIC to consider issuing a new Class Order that extends relief to these types of conduct.