ASX Waives Goodbye to Delayed Disclosures: A New Era of Real-Time Transparency

The Australian Securities Exchange (ASX) has recently implemented sweeping changes to its waiver disclosure framework, reducing disclosure delays from the current 5-8 weeks to just one business day. This reform represents a pivotal shift from the delayed publication system towards real-time transparency, directly addressing investor concerns about market fairness and regulatory oversight. 

The catalyst: James Hardie controversy 

The reform follows intense scrutiny of the James Hardie-Azek acquisition, where the ASX granted a waiver permitting James Hardie to issue 35% of its shares as scrip consideration without shareholder approval. This waiver was in line with published ASX guidance but was particularly significant as it allowed the company to far exceed the standard 15% threshold under Listing Rule 7.1, which typically requires shareholder consent for larger share placements. Relevantly, the deal also did not require shareholder approval under other listing rules or Australian laws, meaning that the effect of the waiver was that the transaction could proceed without shareholder approval being obtained. 

The controversy intensified when the waiver’s disclosure came several weeks after approval, sparking widespread investor backlash. Critics directed their disappointment at the ASX, questioning its willingness to approve waivers that enabled what investors viewed as unfavourable transactions that diluted local shareholder interests. The delayed disclosure exposed a fundamental flaw in the system - material regulatory decisions affecting shareholder rights could remain known only to boards and insiders, whilst the broader market remained completely uninformed. 

Previous system deficiencies 

Previously, the waiver regime published details only through a bi-monthly register, usually 5-8 weeks post-approval. While listed entities must disclose waivers independently under their continuous disclosure obligations (and some waivers required disclosure as part of the waiver conditions imposed by the ASX), this practice lacked consistency and created information asymmetries that undermined market confidence.

It could be argued that this delayed approach conflicted with the spirit of Listing Rule 3.1, which mandates immediate disclosure of market-sensitive information. The disconnect between waiver timing and continuous disclosure obligations has long frustrated investors and regulators alike, creating a two-tier information system where some market participants operate with superior knowledge. 

The new framework 

From September 2025, the ASX will implement three core requirements under revised Guidance Note 17: 

1. one business day disclosure: listed entities must announce the nature, effect and rationale for any waiver within one business day of ASX approval; 
2. upfront draft preparation: listed entities must submit a draft ASX announcement with their waiver application, enabling immediate release upon approval; and 
3. confidentiality protections: where disclosure would prejudice incomplete or confidential proposals, listed entities may delay disclosure until the matter ceases to be confidential or incomplete but must disclose no later than when the underlying transaction is announced. All waivers will still appear in the ASX waivers register despite the confidentiality status. 

Strategic implications for listed entities 

The new disclosure requirements will fundamentally reshape how listed entities approach waiver applications and manage regulatory compliance, creating both immediate operational pressures and longer-term strategic considerations.

The condensed timeline demands systematic process redesign: 

• front-loaded preparation: draft announcements must be crafted alongside waiver applications, demanding enhanced foresight and cross-functional coordination between legal, corporate affairs and executive teams, as well as company secretaries for release; and 
• in-principle advice: where a listed entity is concerned that early disclosure may impact a transaction, the entity should consider seeking in-principle advice before submitting a formal waiver application. 

Beyond operational adjustments, the reforms demand a strategic recalibration of board decision-making and risk assessment, requiring directors to more carefully evaluate reputational and market risks when seeking significant waivers, particularly those circumventing traditional shareholder approval requirements (as opposed to when finally approving a transaction). 

Market impact and outlook 

This reform aligns waiver disclosure with the continuous disclosure framework established under Listing Rule 3.1, creating a more coherent regulatory environment. Previously, the system allowed some material regulatory decisions to remain hidden for weeks whilst other market-sensitive information required immediate disclosure, creating an inconsistency that undermined equal information access principles. The elimination of information delays will serve to reinforce investor confidence in Australian capital markets. 

Beyond regulatory compliance, these changes signal a broader cultural shift towards proactive transparency and accountability in corporate governance. The reforms create opportunities for listed entities to demonstrate governance excellence and build stronger investor relationships through enhanced communication, whilst providing all investors with access to material regulatory decisions. 

Conclusion 

The real-time waiver disclosure regime represents the most significant transparency reform in ASX governance in recent years. While creating additional compliance obligations for listed entities, these changes should ultimately strengthen investor confidence by ensuring all participants have timely access to material regulatory decisions. Coupled with recent regulatory changes (discussed by us here), these reforms position Australia’s capital markets for greater market integrity and continued growth.   

Our expert team at Bird & Bird is happy to assist with any questions relating to listed companies. For queries, please contact Chris Clarke, Partner at chris.clarke@twobirds.com, Aaron Chan, Special Counsel at aaron.chan@twobirds.com and Chloe Corne, Associate at chloe.corne@twobirds.com.