In this edition, we discuss the infringement notices issued by the Australian Securities and Investments Commission (ASIC) in relation to greenwashing in the superannuation industry and the reasons for the Takeovers Panel’s decisions to decline to conduct proceedings in relation to the affairs of Elanor Commercial Property Fund (ASX:ECF) (ECF) and PointsBet Holdings Ltd (ASX:PBH) (PointsBet).
In Over the Horizon, we consider ASIC’s roadmap on advancing Australia’s evolving public and private capital markets.
Regulatory
ASIC targets greenwashing in the superannuation industry
On 6 November 2025, ASIC announced that H.E.S.T Australia Ltd, the trustee for the HESTA superannuation fund, (HESTA) had paid $37,560 to comply with two infringement notices issued by ASIC. The regulator alleged that HESTA made misleading statements in paid advertisements implying it would remove all investments in carbon emitters by 2050 when its target was to achieve net zero emissions across its investment portfolio by that date.
ASIC separately announced on the same day that Prime Super Pty Ltd, the trustee for the Prime Super Superannuation Fund, had paid $18,780 to comply with an infringement notice issued by ASIC after stating in its annual report that it entirely excluded investments in manufacturers of tobacco products, while holding indirect exposures to companies involved with tobacco manufacturing.
Although payment of an infringement notice is not an admission of guilt or liability, these announcements emphasise that scrutiny of sustainability-related statements continues to be an enforcement priority for ASIC. ASIC’s Information Sheet 271 offers helpful guidance for issuers and promoters of sustainability-related products on avoiding misleading or deceptive greenwashing practices.
Legal
Takeovers Panel publishes reasons for declining to conduct proceedings in relation to the affairs of ECF
On 7 November 2025, the Takeovers Panel published its reasons for declining to conduct proceedings in relation to ECF. As noted in a previous edition of Boardroom Brief, the application concerned alleged information deficiencies in the bidder’s statement released by LDR Assets Pty Ltd as trustee for the LDR Assets Trust (Lederer) in connection with its off-market takeover bid for ECF. The Panel emphasised that parties should resolve disclosure deficiencies in a bidder’s statement through negotiation and direct communication, rather than immediate recourse to Panel proceedings. It also cautioned participants about media canvassing and confidentiality after details of the outcome appeared in the press before the public release of its decision. Ultimately, negotiations between ECF and Lederer progressed, resulting in Lederer lodging a replacement bidder’s statement that addressed substantially all disclosure concerns raised in the application on 10 September 2025. Accordingly, the Panel concluded that there was no reasonable prospect of it making a declaration of unacceptable circumstances and declined to conduct proceedings.
Takeovers Panel publishes reasons for declining to conduct proceedings on two applications in relation to the affairs of PointsBet
On 5 November 2025, the Takeovers Panel published its reasons for declining to conduct proceedings on applications by PointsBet and by betr Entertainment Limited (ASX:BBT) (betr) in relation to the affairs of PointsBet. As discussed in a previous edition of Boardroom Brief, PointsBet was subject to two competing off-market takeover offers: a recommended cash offer from MIXI Australia Pty Ltd (MIXI) and an unsolicited all-scrip reverse takeover offer from betr.
The first application, lodged by PointsBet, alleged that betr’s bidder’s statement contained disclosure issues, particularly around the value of the consideration offered and the absence of assumptions and sensitivities explaining that value. It also alleged that the bidder’s statement contained “a clear inducement to encourage acceptance” in contravention of the collateral benefits prohibition in section 623 of the Corporations Act 2001 (Cth) via an $80 million selective share buy-back for accepting PointsBet shareholders. The Panel noted that the selective share buy-back structure was complex and novel, but concluded that it was not unacceptable and potentially pro-competitive to the extent that structural and sequencing issues were appropriately addressed. It ultimately accepted undertakings provided by betr to address identified disclosure and procedural deficiencies in relation to the bid and buy-back.
The second application, lodged by betr, alleged that MIXI was seeking to exploit the procedural consequences of ongoing Panel proceedings by declaring its own takeover bid unconditional and stating that it would commence processing payments to accepting PointsBet shareholders. It further alleged that MIXI had, in effect, ‘locked up’ existing acceptances while the outcome of those proceedings was unknown and pressured PointsBet shareholders to accept its offer without being able to properly consider betr’s competing offer. The Panel noted that PointsBet shareholders would have approximately a week to consider the competing bids and was not satisfied that the circumstances raised in the application were contrary to an efficient, competitive and informed market.
Over the Horizon
ASIC roadmap seeks to unlock future opportunities of Australia’s public and private markets
On 5 November 2025, ASIC released a report outlining a roadmap to unlock opportunities and tackle emerging risks as Australia’s public and private markets evolve in response to a rapidly changing financial landscape. The report recognises that competition for international capital is fierce and clearly welcomes private credit as a growing part of Australia’s financial system. However, it stresses that sustainable growth and investor confidence depend on strong foundations, with appropriate regulation playing a key role. Key focus areas identified by the regulator include:
Private markets: taking advantage of the structural change to global private markets while addressing its unique challenges including transparency, capital access for smaller entities and investors and aligning incentives with accountability.
Data reporting and transparency: providing regulators and the industry with greater visibility to monitor and supervise developments, maintain market integrity and increase investor confidence.
Superannuation: ensuring that regulation and prudential standards provide members with protection from governance weaknesses, particularly where superannuation funds hold private market products.
Public markets: ensuring that Australia’s public markets innovate to remain efficient and attractive for global investment, including by making targeted adjustments for initial public offerings, listings and market participants.
Australia has a clear opportunity to leverage its mature financial system and capitalise on the increasing availability of global private capital. However, a consistent theme throughout the ASIC roadmap is the need for accountability practices and regulatory oversight to be developed simultaneously. Boards, particularly of entities seeking to take advantage of the opportunities of private capital in the short term, should regularly assess whether their organisations may have governance weaknesses in this area. ASIC will certainly have a keen eye on compliance practices over the next 12 to 18 months.