Hasty disclosure? ASX's new waiver regime
27 August 2025
Ahead of the Deal - Australian M&A Briefing
Key insights
- With effect from 11 August, ASX will require a listed entity that is granted a waiver from a requirement of the Listing Rules to disclose the nature and effect of the waiver and the entity's reasons for seeking the waiver within one business day of ASX granting the waiver.
- Waiver applicants will need to submit to ASX a draft statement for release to the market that outlines the nature and effect of the waiver and the entity's reasons for seeking the waiver when they make a waiver application.
- If the waiver relates to a confidential and incomplete proposal or negotiation, disclosure must be made when the matter ceases to be confidential or incomplete – that is at the same time as the underlying proposal or deal is announced – although ASX will still publish such waivers in its waivers register.
- ASX suggests that applicants who do not wish for ASX to publish the waiver in their waivers register should only seek in-principle relief at first instance.
In what appears to be a reaction to insistent lobbying and the press regarding the recent James Hardie-AZEK transaction (and the waiver of Listing Rule 7.1 that ASX granted to facilitate it), ASX has used its compliance update publication to announce a significant change in its expectations regarding the disclosure of Listing Rule waivers.
Prior Approach
Until now, there has been no general requirement that a listed entity receiving a waiver disclose that waiver.
Listing Rule 18.1 provides that ASX will publish its waivers periodically. Details of waivers granted are usually published on the ASX website twice monthly in the form of a waivers register. There has typically been a period of approximately 5 to 8 weeks between when a waiver is granted and when it is published in the waivers register by ASX.
In addition, ASX has sometimes required as a condition of a waiver that the applicant must itself disclose that it has been granted a waiver and the terms and conditions of the waiver
New Approach
From 11 August 2025, ASX will require all listed entities to disclose the nature and effect of any waiver that has been granted to them and their reasons for seeking the waiver as a normal condition of a waiver. This disclosure must be made within one business day of ASX granting the waiver.
Entities that have received a waiver in relation to a confidential and incomplete proposal or negotiation will not be required to disclose the waiver until the matter ceases to be confidential or incomplete. The intention is to ensure that the waiver is disclosed no later than when the underlying proposal or deal is announced.
Despite this, all waivers will still be published by ASX in its waivers register in the ordinary course, regardless of whether the matter has ceased to be confidential or incomplete.
If the timing of publication of the waiver by ASX in the waivers register is a cause for concern, ASX suggests that an applicant for a waiver should consider seeking in-principle advice in the first instance and then making a formal application for the waiver at a later time.
Waiver applicants will need to provide ASX with a copy of their draft statement for release to the market setting out the nature and effect of the waiver and the reasons for seeking it when they submit their waiver application to ASX.
ASX Guidance Note 17 will be amended to reflect these changes, along with some other minor self-explanatory updates.
Commentary
In our view, it is unsatisfactory that ASX has used the compliance update publication (which is hard to find, difficult to use and rarely accessed by those other than legal practitioners) to announce such a significant change in policy without market consultation. The fact that it has come into effect so soon after the compliance update was public also means that listed entities do not have time to consider impacts on ongoing deal timetables.
Furthermore, to suggest that an application cannot be made on a confidential basis essentially because ASX will publish the waiver anyway seems to undermine the system of confidential waiver applications. As most market participants know, seeking in-principle advice is rarely the same as having received the waiver itself and the potential need to do so, in circumstances where a simple waiver application would previously have sufficed, will add additional cost and complexity to the Listing Rule waiver process.
