In this edition, we examine the crackdown by the Australian Securities and Investments Commission (ASIC) on non-lodgement of financial reports by previously grandfathered companies and the record industrial relations civil penalty awarded by the Federal Court against Qantas Airways Ltd (ASX: QAN) (Qantas). We also consider the Takeovers Panel’s decision not to conduct proceedings in relation to the affairs of PointsBet Holdings Limited (ASX: PBH) (PointsBet) and an application to the Panel in relation to the affairs of Twinza Oil Limited (Twinza).
In Over the Horizon, we discuss the policy debate over proposed changes to the thresholds to qualify as a ‘sophisticated investor’ under the Corporations Act 2001 (Cth) (Corporations Act).
Regulatory
ASIC launches crackdown on non-lodgement of financial reports by previously grandfathered companies
ASIC has commenced a broad surveillance program targeting previously ‘grandfathered’ companies that have failed to lodge financial reports. Grandfathered companies were large proprietary companies that met specific criteria, including being classified as such since 1995 and having their financial statements audited for every financial year since then. These companies were previously exempt from lodging financial reports with ASIC, but this exemption ceased in 2022. Despite this, ASIC has identified that over half of previously grandfathered companies did not lodge financial reports for either FY23 and FY24. ASIC’s surveillance program is expected to run until the first quarter of 2026 and directors should ensure their organisations are fully compliant to avoid regulatory action.
Legal
Federal Court awards record penalty against Qantas for Fair Work Act breaches
On 18 August 2025, the Federal Court imposed a record $90 million penalty on Qantas for 1,820 breaches of the Fair Work Act 2009 (Cth) by unlawfully outsourcing ground handling roles during the COVID-19 pandemic. In an earlier judgment on liability, the Court found that the outsourcing was designed to prevent the employees exercising workplace rights and was carried out with knowledge that protected industrial action was underway. The penalty, the largest civil penalty ever awarded for a breach of this legislation, follows a separate $120 million settlement for affected workers. The decision underscores that workforce restructuring during periods of financial pressure must still comply with statutory protections and that contraventions may have significant financial ramifications. Directors should ensure oversight of workforce strategy includes rigorous legal and reputational risk assessment, particularly where cost-saving measures intersect with employee rights. For a more detailed analysis of the decision, refer to our dedicated G+T Insight article.
Takeovers Panel declines to intervene in competing bids for PointsBet
On 18 August 2025, the Takeovers Panel declined to conduct proceedings on an application from betr Entertainment Limited (ASX: BBT) (betr) in relation to the affairs of PointsBet. As discussed in a previous edition of Boardroom Brief, PointsBet is 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. In these proceedings, brought by betr, it submitted that it was unacceptable for MIXI to declare its cash bid unconditional and commence processing payments while the other Panel proceedings were ongoing. betr also submitted that a confidentiality deed entered into by MIXI and PointsBet in relation to MIXI’s proposed acquisition of PointsBet had not been disclosed to the market. The Panel considered that the commercial status and timing of MIXI’s offer and betr’s bid allowed PointsBet shareholders an opportunity to consider the merits of, and participate in, either offer. The Panel was also not satisfied that the circumstances of the confidentiality deed should have been disclosed to the market. The Panel concluded there was no reasonable prospect it would make a declaration of unacceptable circumstances and declined to conduct proceedings. The Panel will publish its reasons in due course.
Takeovers Panel application challenges Twinza creditors’ scheme of arrangement
On 21 August 2025, the Panel received an application from WM Clough Pty Ltd seeking orders that Twinza must obtain ordinary shareholder approval before issuing shares under a proposed creditors’ scheme of arrangement that would result in ordinary shareholders having their voting power in Twinza diluted from 100% to 5%. The applicant alleges that this proposed issue of shares would be contrary to the principles in section 602 of the Corporations Act given that the ordinary shareholders of Twinza will not be given any opportunity to either participate in the transaction or vote on whether the transaction is to proceed. The Panel has not yet decided whether to conduct proceedings.
Over the Horizon
Sophisticated investor thresholds: delayed but still on the agenda
The Federal Government continues to sit on ASIC’s requests to raise the ‘sophisticated investor’ thresholds, despite ASIC recommending almost two years ago that they be increased from $2.5 million to $4.5 million in net assets and from $250,000 to $450,000 in annual income, to reflect two decades of inflation. Concerns over retail investor protection will need to be balanced against the risk that higher thresholds could restrict capital inflows for small ASX-listed companies or companies seeking to list on the ASX, already facing significant structural challenges in the current regulatory environment. Further, if the Federal Government were to adopt ASIC’s recommendations, middle to high income earners (earning between $250,000 to $450,000) would become relatively constrained in their investment options, limited largely to retail offers of shares or real property. This may have flow-on effects in both the property market and the economy more broadly if less funding is available for innovative start-ups and small ASX-listed companies, limiting access to growth capital and constraining broader productivity gains. Boards should monitor ongoing regulatory discussions regarding capital-raising avenues and stay engaged with policymakers as the debate over thresholds continues.