The High Court has published its reasons for its decision in Attorney-General (Cth) v Alinta Limited [2008] HCA 2 (originally announced on 13 December 2007) that section 657A(2)(b) of the Corporations Act was not invalid for purporting to confer the power on the Takeovers Panel to declare circumstances relating to the takeover of a company to be unacceptable.

The High Court unanimously allowed the appeal by the Commonwealth against the invalidity of the section and held that the Takeovers Panel does not exercise the judicial power of the Commonwealth when discharging its functions under section 657A(2)(b). The High Court decided that the Panel’s making of a declaration of unacceptable circumstances under that section does not involve resolution of a controversy about a legal obligation. Instead, it characterised the Panel’s role as the nonjudicial function of considering policy considerations relevant to the public interest: it makes orders about the process to be undertaken with respect to a takeover and what the rights of the parties should be.

The High Court confirmed that an order of a court is necessary for enforcement of compliance with the Panel’s orders.