Submission to Continuous Disclosure Consultation

22 December 2023

The Business Council of Australia welcomes the opportunity to make this submission to the review of the operation of the amendments made to the Continuous Disclosure Regime by the Treasury Laws Amendment
(2021 Measures No.1) Act 2021 (Amending Act). The amendments introduced a requirement for plaintiffs to prove that companies and their officers acted with 'knowledge, recklessness or negligence' to be successful in a civil penalty proceeding for breaches of continuous disclosure laws. The reforms to the continuous disclosure framework were initially introduced in May 2020 on a temporary basis by executive order before they were made permanent through legislation in 2021.

The BCA is strongly supportive of the existing framework, which has brought Australia more into line with comparable jurisdictions, although Australia is still widely regarded as imposing more onerous disclosure
obligations on a relative basis. The 2021 amendments have brought about a better balance between investor protection via private right of action and discouraging opportunistic shareholder class actions, providing a level of comfort that directors that have acted with due care and good faith are not exposed to personal liability.

The BCA submits that the current arrangements have supported and provided greater assurance to an already strong commitment on the part of our members to meeting disclosure obligations, leading to better informed and more efficient and effective securities markets. It is important that disclosure obligations do not put Australia at a relative disadvantage as a venue for the public listing of leading and new companies and the raising of capital via public markets compared to competing jurisdictions or increase the scope for class actions that reduce value for shareholders, including superannuation fund members.

The BCA offers the following responses to the questions posed in the consultation paper.

Read the full submission here.

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