Helen Coonan (NSW, Liberal Party, Minister for Communications, Information Technology and the Arts) Share this | Hansard source

I thank Senator Murray for the question and I am certainly excluding him from any allusion to being a ‘wild boy from the west’! I note that he certainly does take a very keen interest in these matters. I do not want to comment too much on the specifics of Alinta and the proposed management buyout of that company, although I do agree that some of the matters in respect of the Alinta arrangements are certainly ones that are now under scrutiny—at least under investigation—by the regulator. I am aware that Alinta’s chair, CEO, three other executives and the company’s former adviser, Macquarie Bank, were involved in a proposal for a management buyout of Alinta and that the CEO and chair resigned as directors in response to concerns about possible conflicts of interest. Those conflicts apparently look to be very real. Macquarie, of course, has publicly denied that it used any information obtained in its advisory role to further the management buyout proposal. I am also aware that questions have been raised by commentators, including Mr Kohler, as to whether the Alinta board disclosed the offer to the market soon enough to meet continuous disclosure obligations, so that is obviously another matter under scrutiny.

The regulator announced on 18 January 2007, and this has now been put on its website, that it had been making appropriate inquiries regarding developments with Alinta and Macquarie. It believes the laws in relation to directors’ duties—that is, the framework—are clear and they apply to all forms of takeovers. A very key aspect of those duties is that it is the responsibility of directors to ensure the market is properly informed and that people act appropriately, that directors have a duty to avoid creating a conflict of interest between the directors’ personal interests and those of the company and shareholders. The law also requires financial service licensees and, in this case, Macquarie to manage any conflicts of interest. When ASIC identifies any conduct it reasonably believes might step outside the boundaries of the law, it can and will act. This certainly flags that ASIC is on the case, and it is a matter for ASIC, with great respect, to determine whether contraventions of the Corporations Act have in fact occurred and to take appropriate action based on the evidence before it. It is clear, I would submit to the Senate and to Senator Murray, who has asked the question, that there are very clear provisions in the existing law that deal with directors’ duties, disclosure and conflicts of interest. It is a matter that I think is entirely and appropriately a matter for the regulator. There does not appear to be any doubt as to the legal obligations and clarity of the law surrounding directors’ duties. It is appropriate that ASIC should do its work.