This Continuous Disclosure Policy comprises 3 parts:
| Part 1: | The Legal Position. This section describes Alumina's principal disclosure obligation and the consequences of a failure to disclose information. |
| Part 2: | Materiality Guidelines. This section provides practical assistance in assessing when matters may require disclosure by using qualitative tests of materiality. |
| Part 3: | Reporting Processes. This section describes the system to be followed in identifying potentially discloseable information, reporting it internally and, if required, disclosing it to ASX. |
As a public listed company, Alumina Limited (Alumina) is required to comply with a continuous disclosure obligation contained in the Listing Rules of Australian Stock Exchange Limited (ASX). This continuous disclosure obligation is complemented by requirements under the Corporations Act.
Under Listing Rule 3.1, Alumina is required to notify the ASX immediately it is or becomes aware of:
any information concerning it that a reasonable person would expect to have a material effect on the price or value of the Company's securities.
Alumina must not release this information to any other person (such as the media) until it has given the information to ASX and received an acknowledgement that ASX has released the information to the market (Listing Rule 15.7).
Disclosure under Listing Rule 3.1 is not required where each of the following conditions is satisfied:
Alumina must meet its continuous disclosure obligation as soon as one of the requirements is no longer satisfied. For example, if the information is inadvertently leaked and is therefore no longer confidential, disclosure of the information to ASX will be required.
From 1 January 2003, a new Listing Rule 3.1B requires Alumina to provide information to ASX if ASX asks Alumina to provide information to it to correct or prevent a false market.
Further amendments which took effect on 1 January 2003 provide that the confidentiality limb of the exception to Listing Rule 3.1 will not be satisfied where ASX forms and indicates to Alumina its view that the information has ceased to be confidential. This means the exception no longer applies, and the information must be released to the ASX.
Under ASX Listing Rule 19.12, Alumina becomes aware of information if a director or executive officer of Alumina has, or ought reasonably to have, come into possession of information in the course of the performance of their duties as a director or executive officer of Alumina.
The words emphasised import into this obligation its twofold character: the disclosure obligation applies not only to information of which the directors or officers are actually aware, but also information which those persons ought reasonably to have.
Accordingly, whenever a director or executive officer is in possession of information which may have a material effect on the price or value of Alumina's shares, it is critical that the information is immediately communicated in accordance with this policy.
The measure used in Listing Rule 3.1, whether a reasonable person would expect the information to have a material effect on the price or value of the Company's securities, is the subject of a deeming provision in the Corporations Act (Section 677) and that same deeming provision applies to Listing Rule 3.1. As a result, a reasonable person is taken to expect particular information to have a material effect on the price or value of any of the Company's securities if the information would, or would be likely to, influence persons who commonly invest in such securities in deciding whether to acquire or dispose of the securities.
Materiality guidelines are set out in Part 2 of this policy.
Alumina is not required to disclose information which is generally available. Information is generally available if:
Information is also generally available if it consists of deductions, conclusions or inferences made or drawn from the information referred to above.
Alumina has appointed Stephen Foster, General Counsel and Company Secretary as the officer who is to have primary responsibility for administration of the Company's continuous disclosure policy. His responsibilities include:
Alumina will contravene its continuous disclosure obligation if it fails to notify ASX of information required by Listing Rule 3.1 to be disclosed.
If Alumina contravenes this obligation by failing to notify the ASX of information, Alumina may be guilty of an offence under the Corporations Act (Section 674).
If the Company contravenes its continuous disclosure obligations, it may face criminal and civil liability under the Corporations Act. The Australian Securities and Investments Commission (ASIC) can also institute proceedings under the ASIC Act.
Alumina's officers, including its directors, employees or advisers who are involved in a contravention by the Company may face civil liability and, if they aid or abet or in any way knowingly concerned in the Company's contravention, may be criminally liable under the Criminal Code.
ASIC and ASX jointly administer the continuous disclosure regime for listed disclosing entities in Australia. ASX is responsible for administering the Listing Rules while ASIC is responsible for enforcing the Corporations Act.
Contravention of its continuous disclosure obligation may also lead to unwanted publicity for Alumina.
The ASX has issued a Guidance Note in relation to the operation of Listing Rule 3.1. The Guidance Note sets out ASX's general approach to continuous disclosure. It should not be regarded as a definitive statement of the application of Listing Rule 3.1 in every case, and should not be considered as legal advice.
The Guidance Note states that a reasonable person would not expect information to be disclosed if it would result in unreasonable prejudice to the company or an inordinate amount of detail being disclosed. In enforcing the Rule, the ASX will balance the needs of the market and the interests of the company, bearing in mind the ASX's market information principle.
Any information which is not confidential does not qualify for the exception described in section 2.2 above. It is therefore essential that information which is to be withheld is and remains subject to strict confidentiality obligations and is not leaked.
If the information has been leaked, even in breach of a duty of confidentiality, it loses the quality of confidence which attracts the exemption from general disclosure. That information will have to be disclosed if a reasonable person would expect it to have a material effect on the price or value of the Company's securities - regardless of the fact that it falls within any of the categories in paragraph (c) of section 2.2 above (eg, is a trade secret or relates to an incomplete proposal or negotiation).
Difficulties may arise in determining when an idea, exploratory meeting or proposal under development is sufficiently complete or definite to warrant disclosure.
The ASX states in the Guidance Note that it expects listed companies to consider making a holding announcement, imposing a trading halt or a suspension in trading of the Company's securities if a proposal is insufficiently complete or definite to warrant disclosure.
Despite the fact that Listing Rule 3.1 is a benchmark for legal obligations and liability, ASX takes the view that it should not be interpreted in a restrictive or legalistic fashion.
The ASX suggests a number of practices to be followed in relation to Listing Rule 3.1:
In addition to complying with Listing Rule 3.1, Alumina also needs to comply with other disclosure requirements contained in the ASX Listing Rules.
For example, the Listing Rules require disclosure of:
From 1 July 2003, Alumina will be required to lodge all announcements to the ASX electronically.
To assist directors and employees in identifying matters which may require disclosure, the following guidelines are provided which include certain preliminary thresholds. The purpose of these guidelines is to identify matters which can then be considered more fully as to whether or not disclosure is required.
All of the matters which will require consideration under these guidelines will not necessarily require disclosure. Conversely, it is important to remember that a matter may be disclosable even if it does not come within the following categories.
Where a matter is potentially disclosable, the General Counsel and Company Secretary, Stephen Foster (and, in his absence, the Assistant Company Secretary, Colin Hendry), should be informed as soon as possible.
The tests are qualitative:
These matters may include, but are not limited to, matters:
Listing Rule 3.1.3 provides the following specific examples of matters that may need to be disclosed under Listing Rule 3.1:
Alumina's reporting system will encompass:
The following regular reporting is provided by employees within the Company and is reviewed for a variety of functional reasons. These reports should assist in identifying the occurrence of any significant event. However, directors and employees should not wait for, or rely on, regular reporting to advise of an important event that may require disclosure under continuous disclosure requirements.
Each director is also required to consider prior to each Board meeting whether they possess any information which may require disclosure by Alumina under its continuous disclosure obligations. It is a standing agenda item at each Board meeting that the directors raise and consider any information which potentially may require disclosure and note and discuss any Public Announcements made since the previous Board meeting.
If it is decided that the exception provisions of Listing Rule 3.1 apply to a particular piece of information that is being reviewed for potential disclosure, then this decision is to be documented by the Company Secretary. The documentation on the decision will:
The agenda of each Board meeting will contain an item titled "Continuous Disclosure" for information and discussion purposes. Under this agenda item, the Board is provided with a copy of any documented decision not to disclose material, or potentially material, information which has arisen since the previous meeting together with any other outstanding documented decisions not to disclose arising from earlier periods. The Board will consider these issues and review their status.
If, in the performance of your duties as a director or executive officer of Alumina, you become aware of information that may have a material effect on the price or value of Alumina's shares, you should immediately notify that information to Stephen Foster (Company Secretary and General Counsel), either by phone on (03) 8699 2604 or by email at stephen.foster@aluminalimited.com.
It is critical to Alumina's effective compliance with its continuous disclosure obligation that information is communicated by its directors and executive officers as soon as they become aware of that information.
In all circumstances, should you have any doubt as to whether the information requires disclosure, you should err on the side of caution and notify that information to Stephen Foster.
When a matter is reported, the General Counsel and Company Secretary will discuss the significance of the matter and possible disclosure responses with the Managing Director and, if the matter is sufficiently significant, the Board of Directors. If the matter is required to be disclosed, the General Counsel and Company Secretary and Managing Director will discuss the proposed disclosure with the Chairman prior to the Company Secretary disclosing the information to ASX. The Company Secretary will then advise the Managing Director when an acknowledgement has been received from ASX that the information has been released to the market, to enable the information to be released to the media (if appropriate).
To improve access to investors of material information about the Company, when acknowledgement is received from ASX that information disclosed to it has been released to the market, the General Counsel and Company Secretary will also notify his personal assistant who will arrange for it to be posted on Alumina's website. The information is to be posted in an area of the website separate from promotional material.
The General Counsel and Company Secretary will also forward a copy of all announcements to all Directors, advise all Alumina employees of the announcement (via e-mail) and distribute the announcement to various third parties through media and other channels.
When an event occurs that is a matter of fact and which has been appropriately approved in accordance with Company policy, such as a new executive appointment, the General Counsel and Company Secretary will, after obtaining the approval of the Managing Director to the form of the disclosure to the ASX, disclose the information to the ASX and advise the Managing Director and his personal assistant when an acknowledgement has been received from ASX that the information has been released to the market, to enable the information to be released to the media and posted on the Company's website.
From time to time, it may be necessary to respond to the unauthorised disclosure of information or market rumours concerning the Company. To ensure a consistent response from the Company to such occurrences, all instances of unauthorised disclosure or rumours should be reported to the General Counsel and Company Secretary or the Managing Director as soon as they become known.
When a matter is reported, the General Counsel and Company Secretary will discuss the significance of the matter and possible disclosure responses with the Managing Director and, if the matter is sufficiently significant, the Board of Directors.
In the case of unauthorised disclosure of information, even if the information is not considered material and, therefore, would not have been required to be disclosed, it will be made available to investors on the Company's website.
If the information the subject of the unauthorised disclosure is considered material, the General Counsel and Company Secretary will co ordinate, together with the Chairman, the development of a disclosure response to ASX. The General Counsel and Company Secretary will notify the Managing Director and his personal assistant when the Company receives an acknowledgement from ASX that the information has been released to the market, to enable the information to be released to the media and posted on the Company's website.
Any queries directed to an employee about an unauthorised disclosure of information or a market rumour by the ASX, media, analysts, brokers, shareholders or the public must be referred to the General Counsel and Company Secretary or, in his absence, the Managing Director.
To ensure that Alumina approaches its continuous disclosure obligation consistently, and information is not released publicly prior to its disclosure to ASX, it is important that:
The following process has been determined for the ongoing review of Alumina's compliance with its continuous disclosure obligations:
The General Counsel and Company Secretary will arrange for regular training sessions to be conducted for directors and employees to provide information about the Company's continuous disclosure obligation, describe the operation of this policy and raise awareness of the principles underlying continuous disclosure.
Each new employee of the Company is to be given a copy of this policy.
In summary, it is the responsibility of each director and executive officer of Alumina to communicate any information regarding Alumina that may have a material effect on the price or the value of Alumina's securities as soon as that director or executive officer becomes aware of that information.
If you are in any doubt as to whether the information should be disclosed, you must disclose that information to the Company Secretary in accordance with this policy, and it will then be more fully considered by those responsible for deciding whether or not disclosure to the ASX is necessary.
A failure by Alumina to make timely disclosure of information that may have a material effect on the price or value of Alumina's securities may result in criminal or civil liability for Alumina, its directors and executive officers.
If, at any time, directors or executive officers have any queries regarding their information reporting obligations, or Alumina's continuous disclosure obligation, they should contact Stephen Foster on +61 3 8699 2604 or by email at stephen.foster@aluminalimited.com.