A fine balancing act – navigating the future of public and private markets
On 4 June 2025, the Australian Securities and Investments Commission (ASIC) released more than 50 of the nearly 90 submissions it received in response to its February 2025 discussion paper on the evolving dynamics between Australia’s public and private capital markets. ASIC’s paper examined the health and future of Australia’s markets – in particular, declining public listings, the rapid growth of private credit and the structural influence of superannuation funds.
Respondents to ASIC’s paper have warned that liquidity constraints and valuation volatility in public markets – driven by burdensome initial public offering (IPO) frameworks and stringent disclosure requirements – could erode investor confidence and limit access to capital. At the same time, the surge in private credit and superannuation-driven inflows of capital raises governance, sustainability and reputational concerns without the benefit of robust oversight or transparent data.
ASIC has distilled feedback from the submissions into themes that will guide its next steps in improving the attractiveness of Australia’s public markets, while carefully adjusting any settings in private markets.
A key theme is that perhaps less oversight is required over public markets (including streamlining IPO processes and reforming disclosure requirements) – and more oversight is required over private markets, although any regulation of private markets in particular must be informed by industry and international standards.
ASIC has noted a range of actionable items and will share its roadmap for public and private markets in the third and fourth quarter of 2025. See item below for ASIC’s trial shorter timetable for fast-track IPOs which is the first of its regulatory initiatives coming out of the discussion paper.
Many thanks to Justin Mannolini (Partner), Cassandra Lee (Lawyer) and Adam Sibum (Lawyer) for their contribution to this insight.
ASIC trials shorter timetable for fast-track IPOs
In response to the discussion paper on the evolving dynamics between public and private markets, ASIC has announced a two-year trial, which started on 10 June 2025, of a shorter IPO timetable for eligible entities listing on the ASX via the fast-track listing process (which is available to entities that will have a market capitalisation greater than $100 million upon listing and no ASX imposed escrow). The trial aims to reduce the need for supplementary and replacement prospectuses and exposure period extensions, and the risk that market volatility and consequential pricing changes may impact investor interest in the IPO.
Under the trial, eligible entities can provide a Pathfinder prospectus or product disclosure statement (PDS) to ASIC on a confidential basis at least 14 days prior to formal lodgement for review and ASIC will endeavour to complete its review in that 14-day period. ASIC will then generally not need to extend the seven-day exposure period to 14 days after lodgement other than where material new information comes to light or is included in the lodged prospectus or PDS.
Conditions for the trial include:
The Pathfinder must not differ in any material respect from the lodged prospectus or PDS other than for final pricing, offer amount and related metrics or financial information and as otherwise agreed with ASIC.
Normal ASIC review processes may apply in situations where there is an extended delay between the informal review completing and formal lodgement.
A Pathfinder review by ASIC does not endorse the contents of the Pathfinder or preclude ASIC or a third party from taking action in respect of the lodged prospectus or PDS or the offer it contains.
ASIC has also announced a class no-action position where it does not intend to take action for a contravention of subsections 727(3) or (6) where a person accepts an application for non-quoted securities offered under a disclosure document during the trial without waiting for the exposure period to lapse (which aligns the process for prospectuses with PDSs).
ASIC will monitor the effectiveness of the trial and may modify or withdraw it at any time.
ASX refreshes its guidance on its listing criteria
ASX has issued further updates to Guidance Note 1 (GN1) which clarify and modernise key aspects of the listing process and reinforce existing policy, including:
Fast-track eligibility – the fast-track listing process is only available at ASX’s discretion to entities with a minimum market capitalisation of $100 million and where no mandatory escrow applies, with near-final draft documents required for consideration.
Appropriate structure and operations – ASX provided some further insight into what constitutes an appropriate structure and operations for listing, providing specific positive and negative factors for early-stage technology, biotech and medical technology companies and encourages early engagement for overseas-based applicants.
Listing eligibility guidance – ASX outlined additional factors that may lead to refusal of admission, including concerns about jurisdiction, false or misleading information, disproportionate adviser fees, lack of credible fundraising plans and prior rejection by other exchanges.
Streamlined admission process – ASX introduces clearer requirements for financial disclosures, confirms that waivers of the $1.5 million working capital requirement are unlikely to be granted and sets out a more defined process for the commencement of trading, generally three business days after all conditions are met.
A recent G+T Insight considers the updated guidance in more detail.
A bridge too far: the Federal Court’s decision on correcting misrepresentations via a data room
The recent Federal Court decision in Bridging Capital Holdings Pty Ltd v Self Directed Super Funds Pty Ltd [2025] FCA 314 has brought into focus the established practice on M&A transactions in Australia of allowing the entire contents of a data room to qualify warranties given under a sale and purchase agreement (provided they comply with the contractual disclosure standard).
The case ultimately turned on whether misrepresentations made in the sale process were corrected by documents uploaded to the data room. It should not be seen as a departure from established practice here in Australia.
A recent G+T Insight considers the decisions and the key takeaways for sellers and buyers.
Treasury’s new foreign investment portal now fully live
On 28 May 2025, Treasury’s new Foreign Investment Portal became live for the lodgement and management of applications for review of relevant transactions by the Foreign Investment Review Board (FIRB).
The portal has been live for submitting compliance reports under existing no objection notifications since 24 February 2025.
The portal must now be used to:
submit foreign investment proposals and compliance reports
communicate with Treasury
make submissions
apply for waivers
pay fees
view outcomes.
Treasury has also advised that the previous FIRB Application Portal will only be accessible until 30 June 2025, and so all applicants should download all historical submissions or draft proposals before 30 June 2025.
See Treasury’s media release and update for further information.
Update on new reporting requirements
Mandatory climate-related financial disclosure
In-scope reporting entities are now required (on a phased-in basis) to prepare annual sustainability reports in parallel with their financial reports under Chapter 2M of the Corporations Act 2001 (Cth). For the largest group of reporting entities, disclosure obligations commenced from their first reporting period on or after 1 January 2025.
A recent G+T Insight provides a comprehensive overview of the new requirements under the Corporations Act, the Australian Accounting Standards Board (AASB) sustainability standards and the Australian Auditing and Assurance Standards Board (AUASB) assurance standards and the associated guidance from ASIC in RG 280 Sustainability Reporting.
Consolidated entity disclosure statements
Listed and unlisted Australian public companies must now include a “consolidated entity disclosure statement” in their annual financial reports which discloses either:
details of each entity within the company’s consolidated group, if the accounting standards require the company to prepare consolidated financial statements, or
if the accounting standards do not require the company to prepare consolidated financial statements, a statement to that effect.
The updates apply to annual financial reports for financial years commencing on or after 1 July 2024.
On 19 May 2025, ASIC updated its Information Sheet 284 (INFO 284) to reflect recent legislative amendments that clarify the tax residency disclosure requirements where entities are resident in more than one jurisdiction, as well as when an entity is an ‘Australian resident’ for the purposes of the consolidated entity disclosure statement, including partnerships and trusts.
ACCC releases final report on the Digital Platform Services Inquiry
On 23 June 2025, the ACCC released its final report on the Digital Platform Services Inquiry (DPSI) which marks the conclusion of the ACCC’s five-year inquiry into markets for the supply of digital platform services in Australia and their impacts on competition and consumers.
The report found that there continues to be significant risk of consumer and competition harms on digital platforms and has reiterated support for measures including:
an economy-wide unfair trading practices prohibition
an external dispute resolution body for digital platform services
a new digital competition regime.
ACCC Chair Gina Cass-Gottlieb, emphasised: “A lack of competition in digital markets can lead to higher prices, less choice, lower quality or even greater harvesting of personal data, ultimately impacting everyday users… It is timely to progress a new digital competition regime in Australia which will increase contestability, benefit both local and foreign companies that rely on access to these platforms to conduct business in Australia, and support a growing economy.”
See ACCC media release.
NSW Court of Appeal provides guidance on director’s duties under the Corporations Act
In Sunnya Pty Ltd v He [2025] NSWCA 79, the NSW Court of Appeal provided important guidance on a director’s duty to act in ‘good faith’ and for ‘a proper purpose’ under section 181 of the Corporations Act 2001 (Cth). The court observed that:
The duties to act in ‘good faith’ and for ‘a proper purpose’ are separate duties – that is, it is possible for a director to act in the belief that particular conduct is in the best interests of the company, albeit while pursuing an improper purpose.
Dishonesty is distinct from an absence of good faith.
Proving that the director, officer or employee accrued a benefit (or that the corporation suffered a detriment) is not a requirement when demonstrating an improper purpose.
Drawing upon the language of the “business judgment rule” in section 180(2) of the Corporations Act, the court also observed that an ‘honest belief as to purpose’ in connection with section 181 will only be satisfied where that belief is rational.
This case illustrates the interrelated subjective and objective elements to the duties under the Corporations Act – indeed, the court described those terms as “unhelpful and distracting”.
Many thanks to Justin Mannolini (Partner), Cassandra Lee (Lawyer) and Adam Sibum (Lawyer) for this summary.