Head Office & Governance

Our experienced Head Office & Governance team regularly publishes articles and updates - the full list of publications appears below. If you'd like to be notified when we add new Head Office & Governance publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

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Head Office & Governance Publications

  • Client Update: ASX Corporate Governance Principles and Recommendations: 4th edition - what do they mean for you?

    1 March 2019

    The 4th edition of the ASX Corporate Governance Principles and Recommendations focuses strongly on the link between culture, values and community expectations, consistent with the themes that emerged from the Royal Commission. Entities should start to take steps now to address the new and revised principles and recommendations. Partners Kate Towey, Robert Pick and Associate Isaac Wall report.

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  • Focus: Recent developments in non-executive director remuneration

    22 August 2018

    Large listed companies are increasingly imposing minimum shareholding requirements on non-executive directors. Encouraging share ownership by non-executive directors through non-executive director share rights plans is set to increase following a recent ATO class ruling. Managing Associate Shaun Cartoon and Partner Robert Pick consider the key points.

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  • Focus: Corporate governance beyond shareholder interests

    14 August 2018

    The proposed 4th edition of the ASX Corporate Governance Principles & Recommendations includes substantial changes to Principle 3 (Instil the desired culture) to focus squarely on social licence to operate, with stronger reference to stakeholders beyond shareholders, and specific recommendations on whistleblowing and anti-bribery and corruption. While the proposed amendments to Principle 3 have led to heated debate in the press, the proposal reflects the trend in Australia, and internationally, towards embedding corporate social responsibility within company culture, and of regulators' broadening expectations of companies' governance, risk and compliance practices. Partner Rachel Nicolson, Senior Associate Dora Banyasz and Associate Holly Woodcroft report.

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  • Focus: Last minute increase to scheme consideration - a more flexible approach?

    2 May 2018

    A recent Federal Court decision in Re Billabong International Limited shows a pragmatic approach by the court to the question of whether, in a takeover bid effected by way of scheme of arrangement, the bidder can make a last minute increase in the scheme consideration, without having to adjourn the scheme meeting and provide supplementary disclosure to target shareholders. Partners Guy Alexander and Kim Reid and Associate Samantha Naylor Brown comment.

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  • Linklaters Insights: Corporate Update

    7 February 2018

    In the latest edition of UK Corporate Update, our global alliance partner Linklaters examines the recent key issues in corporate governance and company law, including whether companies are using buybacks to inflate executive pay, recent court cases of interest and the progress of corporate governance reforms.

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  • Client Update: ASIC recommends tougher corporate penalties

    24 October 2017

    The ASIC Enforcement Taskforce's latest consultation paper pushes for a tougher penalty regime for corporate and financial sector misconduct, which has been key focus of the Taskforce's Terms of Reference, and indeed of ASIC's reform agenda for some time. Partner Belinda Thompson, Senior Associate Michela Agnoletti and Associate Katie Gardiner look at what the consultation paper proposes.

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  • Focus: Senate calls for rewards and increased protections for whistleblowers

    3 October 2017

    A broadened definition of 'whistleblower', reforms to establish greater protections for whistleblowers and increased sanctions for retaliatory conduct are some of the recommendations by a Senate committee looking into whistleblower protections in the corporate, public and not-for-profit sector. We expect new laws to be introduced that will result in more corporate whistleblowing and companies should start preparing now. Partners Rachel Nicolson and Peter Haig, and Lawyers Zainab Mahmood and Sarah Lunny report.

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  • Focus: Supply chains and modern slavery: reporting on the rise

    18 September 2017

    The release of the Attorney-General's consultation paper on modern slavery in supply chains and the recent interim inquiry report on establishing an Australian Modern Slavery Act reflect how international standards around corporate respect for human rights are becoming enshrined in law. Australian companies, and companies operating in Australia, are likely to see increased supply chain reporting requirements in relation to modern slavery as early as next year. Partners Rachel Nicolson and Peter Haig, Associate Freya Dinshaw and Lawyer Shamistha Selvaratnam report.

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  • Focus: Anti-bribery laws and deferred prosecution agreements

    20 April 2017

    The Australian Government is, via two new consultations, proposing wide-ranging reforms to tackle the challenges that it faces in detecting, and prosecuting, serious corporate crime. Through proposed amendments to foreign bribery laws and the introduction of a Deferred Prosecution Agreement regime, the Federal Government is seeking to remove obstacles to prosecuting foreign bribery and increase the incentives for companies to self-report this and other misconduct. Partners Rachel Nicolson and Peter Haig, Senior Associates Christopher Kerrigan and James Campbell, and Lawyer Malak Johnson report.

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  • Allens insights: The efficacy of e-signatures

    8 April 2017

    There are significant commercial benefits in executing documents electronically, and Allens has adopted e-signature (using DocuSign) as a service to clients. Allens Senior Finance Counsel, Diccon Loxton, has written an article in two parts that examines the efficacy of e-signatures, and concludes that they are effective, including under s127 of the Corporations Act 2001 and (in various circumstances) deeds.

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  • Focus: Sanctions: The 5 questions your board and executives should be asking in 2017

    16 March 2017

    Australian boards and senior executives are expected to maintain oversight of risk and compliance issues including bribery, sanctions, human rights and anti-money laundering. In-house counsel perform a central role in supporting this oversight and maintaining compliance. In the second of a five-part series, Partners Rachel Nicolson and Peter Haig, Senior Associate Christopher Holland and Lawyer Malak Johnson look at the key questions that Australian boards and senior executives should be asking themselves about sanctions in 2017.

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  • Unravelled: The ASIC Enforcement Review Taskforce unloaded

    3 November 2016

    The ASIC Enforcement Review Taskforce members and terms of reference have been announced. The terms of reference are very broad and come as no surprise, with an emphasis on evaluating the adequacy of ASIC's enforcement toolkit. We analyse the key themes that are likely to emerge.

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  • Client Update: E-signature - a case study, but not a test case

    29 September 2016

    A recent New South Wales Court of Appeal decision concerned a guarantee purportedly signed by e-signature without the guarantor's knowledge. It is an interesting case-study, though the decision is really about ostensible authority and ratification. Senior Finance Counsel Diccon Loxton considers its implications.

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  • Unravelled: Not better late - the Prime Trust appeal judgment

    6 September 2016

    The main Prime Trust appeal judgement is relatively well known, but a trust's responsible entities and their officers should look at what the appeal court had to say on other related matters.

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  • Unravelled: Improving the role of the Appointed Actuary

    6 September 2016

    APRA is seeking to improve the role of the Appointed Actuary in general and life insurance companies and has proposed some reforms in a discussion paper released earlier this year.

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  • Linklaters Insights: Investing in Europe: What do Europe's new market abuse rules mean for investors?

    9 August 2016

    If you have investments in European listed companies, you should be aware of the EU's new Market Abuse Regulation and how it may impact you, wherever in the world you are based.

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  • Focus: Shareholder activism: Full Court says no to revolution by resolution

    18 July 2016

    At a time of increasing shareholder activism, a recent decision of the Full Court of the Federal Court has confirmed that activist shareholders have a very limited part to play in the exercise of a board's power in the management of a company. Partners Kim Reid and Julian Donnan and Associate Manu Jaireth report on the decision and what it means for boards of listed companies dealing with activist shareholders.

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  • Allens Accelerate: Preparing for investment

    8 June 2016

    As a startup looking to raise capital, you'll most likely spend a fair bit of time thinking about your pitch to potential investors and, if you're lucky, the terms of any investment.

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  • Unravelled: AMITs are here (at last)

    2 June 2016

    It has taken a while, but out of the dust of an early Federal Budget and double-dissolution election announcement, a new tax attribution regime for 'Attribution Managed Investment Trusts' has emerged relatively intact. While the AMIT regime should generally be welcomed as a positive thing for MITs in terms of certainty and flexibility, it remains to be seen whether it will achieve another of its original aims.

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  • Focus: Being 'professional' under D&O insurance policies

    8 March 2016

    In a recent decision, the Full Federal Court has clarified the scope of a 'professional services' exclusion in a Directors & Officers insurance policy. Partner Andrew Maher and Senior Associate Andrew Lazzaro report on a case that gives some guidance on the relationship between professional indemnity and D&O insurances.

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  • Client Update: Major overhaul of Australia's foreign investment laws: what's new?

    4 December 2015

    The new package of legislation overhauling Australia's foreign investment laws, the first major revision in 40 years, commenced on 1 December 2015. While many features of the previous regime have been retained (and sometimes re-named), there are also a number of significant changes. Partners Jeremy Low, Wendy Rae and Richard Kriedemann and Senior Associate Eve Regnard review the key new elements.

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  • Client Update: ASIC tweaks employee incentive scheme relief

    12 November 2015

    Various amendments to ASIC's employee incentive scheme class order relief have now come into effect. Described by ASIC as 'minor and machinery in nature', the clarifications and improvements were prompted in part by market feedback. Partner Greg Bosmans looks at the changes.

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  • Client Update: Amendments reduce compliance burden for ASX-listed NZ companies

    1 September 2015

    ASX has released a number of proposed amendments to the ASX Foreign Exempt Listing Rules that will significantly lower both the ongoing compliance burden and the admission thresholds for New Zealand companies already listed or seeking a listing on ASX. Partner Robert Pick, Senior Associate Georgie Korman and Associate Harini Amarasinghe report.

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  • Focus: Decision confirms limits on general meeting shareholder activism

    3 August 2015

    A recent Federal Court of Australia decision has reaffirmed that a company's board of directors has the primary role in managing a company, and that there are limits on shareholders' legal ability to control that management. Partner and Co-Leader of Allens' Head Office & Governance team Greg Bosmans and Lawyer Manu Jaireth report on the decision and its ramifications for shareholder activism in listed companies.

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  • Client Update: ASIC to seek recovery of investigation costs

    31 July 2015

    This week, ASIC flagged a change in its approach to the exercise of its power to make orders to recover expenses and costs associated with investigations. Information Sheet 204 indicates that ASIC will be making greater use of this power to seek recovery of its costs from individuals and companies that are the subject of an investigation. While technically the power only exists in relation to proceedings finally determined by a court, it is possible that the change in approach could be applied more broadly, with ASIC seeking to recover investigation costs as part of agreed resolutions to investigations. Partner Richard Harris and Senior Associate Alexandra Mason report.

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  • Focus: Agency arrangements alright - ANZ and Flight Centre succeed in appeals

    31 July 2015

    The Full Federal Court today handed down its decisions in two high-profile appeals in relation to ANZ and Flight Centre. Both cases dealt with the issue of distribution arrangements and price fixing. Partner Carolyn Oddie and Associate Theodore Souris look at the implications for business.

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  • Client Update: The final analysis: Updates to ASX Guidance Note 8 on Continuous Disclosure take effect

    14 July 2015

    Earlier this year, ASX issued a consultation paper on proposed changes to Guidance Note 8 that sought to clarify existing continuous disclosure policy. ASX has now released its consultation response, together with the final version of Guidance Note 8, which took effect on 1 July 2015. While the final version is largely consistent with the proposals in the consultation paper, ASX has also included additional cautionary guidance on engagement with analysts. Partner Emin Altiparmak, Senior Associate Alexandra Feros and Associate Lauren McInnes report.

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  • Focus: Sensible changes proposed to the Australian taxation of ESS interests

    27 March 2015

    Improvements to the Australian taxation of employee share schemes (ESS) have been proposed in new tax legislation before Parliament. One of the important changes is that Australia will be moving back to rights to acquire shares generally being taxed on exercise of those rights. Partner Sarah Bernhardt and Senior Associate Shaun Cartoon, members of Allens' Head Office & Governance team, report on the proposed ESS tax changes and how they may potentially impact on the design of employee share plans from 1 July 2015.

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  • Focus: Proposed Changes to ASX Guidance Note 8 on Continuous Disclosure

    18 March 2015

    The ASX has released a consultation paper on proposed changes to Guidance Note 8 related to analysts and investor briefings, analysts forecasts, consensus estimates and earnings surprises. The proposed changes are mostly clarification to existing policy, but there are some interesting refinements. Partner Guy Alexander and Managing Associate Emin Altiparmak report.

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  • Focus: ASIC releases paper on collective action by institutional investors

    26 February 2015

    ASIC has released its consultation paper on collective shareholder actions, which calls for feedback on a draft update to Regulatory Guide 128. The consultation paper illustrates ASIC's current (albeit preliminary) views on the tension between fostering increased investor engagement, on the one hand, and maintaining the integrity of the takeover and substantial holdings provisions in Chapter 6 of the Corporations Act, on the other. The draft updated RG 128 provides a timely reminder that both investors and relevant entities active in this context (such as companies and funds) need to be particularly conscious of the limitations placed on investor engagement by Chapter 6. Partner Tim Lester and Senior Associate Alex Purtill report.

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  • Unravelled: ASIC's enforcement powers may receive a boost

    5 February 2015

    In preparing its Final Report, the FSI has clearly paid close attention to the report of the Senate Economics References Committee's Report into ASIC's performance and its recommendations designed to strengthen ASIC through a combination of better funding, an enhanced regulatory toolkit and higher penalties, with a view to enabling it to be the 'respected and feared' leader desired by the Senate Committee. The impact of the FSI's recommendations is now likely to be the subject of further submissions to the Government before any decisions are taken.

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  • Focus: Managing shareholder activism - who is in the driver's seat?

    3 February 2015

    The recent New South Wales Supreme Court decision of Molopo Energy Limited v Keybridge Capital Limited reflects the continuing growth of shareholder activism in the Australian corporate landscape. The case is a reminder that boards need to remain aware of developing activist strategies, particularly where attempts are made to usurp the powers vested in the directors. Litigation Partner Kim Reid, Corporate Partner Kate Towey and Senior Associate Jack Power report on this decision and the implications for directors of listed companies in responding to activist shareholders.

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  • Focus: Privacy Commissioner reports on Department of Immigration and Border Protection's data breach

    13 November 2014

    The Australian Privacy Commissioner has released a report into the Department of Immigration and Border Protection having breached the privacy of asylum seekers in February 2014. Partner Michael Pattison and Associate Priyanka Nair report on the Commissioner's findings and the lessons for all organisations on taking 'reasonable steps' to protect the personal information which they hold.

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  • Client Update: High Court examines powers of responsible entities

    7 November 2014

    The High Court has upheld the Full Federal Court's decision in proceedings brought by ASIC against Wellington Capital Ltd. In the process, the court reaffirmed that the powers of a responsible entity are ultimately derived from the scheme's constitution, but the exercise of those powers is constrained by the statutory and fiduciary duties imposed on the responsible entity. As well, the court confirmed that the usual broad plenary power of a trustee (the power to do anything as though it were the absolute legal and beneficial owner of trust property) may not be as broad as one might think. It also made interesting observations about section 231 of the Corporations Act. Partners Marc Kemp and Penny Nikoloudis and Lawyer Patrick Boyle report.

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  • Linklaters Insights: UK Corporate Update

    6 November 2014

    The latest issue of UK Corporate Update covers the Kay Review implementation, persons having significant control, and learning lessons from the past.

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  • Unravelled: Risk management - what, if anything, does the 'three lines of defence' model do?

    5 November 2014

    From 1 January 2015, a new 'common' risk management prudential standard will apply to banks, general insurers and life companies and, in many cases, to other companies in the corporate groups in which those institutions sit. Michael Mathieson looks at the 'three lines of defence' model that APRA proposes to adopt in its associated risk management guidance materials.

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  • Unravelled: Should APRA's prudential standard-making powers extend to directors' duties?

    5 November 2014

    In recent times, APRA has been active in prescribing duties for directors of the institutions it regulates. In light of what has happened, it is worth asking: should the question of directors' duties be excluded from APRA's prudential standard-making powers?

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  • Focus: ASIC's employee incentive scheme class orders - new and improved

    31 October 2014

    After much anticipation, ASIC has released new employee incentive scheme class order relief. Partner Greg Bosmans and Special Counsel Gadi Bloch, members of Allens' Head Office & Governance team, report on the implications for listed and unlisted companies.

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  • Client Update: 100 member rule to be abolished

    24 October 2014

    The 100 member rule for convening company meetings will be abolished under legislative amendments introduced into Parliament this week, following consultation by the Federal Government on draft legislation earlier this year. Proposed streamlining of remuneration disclosure obligations is also still included in the new Bill, but the amendments exclude long-awaited changes to the dividends payment test that were previously proposed. Partner and Head Office & Governance team leader Greg Bosmans, Managing Associate Matt Ireland and Associate Dominic Blaxill discuss the amendments.

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  • Focus: Back to a future for employee share scheme options

    17 October 2014

    Dust off your old employee option plans, as options look set to make a comeback. In consultations with Treasury earlier this year, we were informed that the Federal Government was considering introducing a special tax regime for 'start-ups' but that there was limited appetite to reverse any of the 2009 tax changes that largely resulted in the death of options for Australian employees. So, it was to our pleasant surprise that, on 14 October 2014, the Government announced that, from 1 July 2015, Australia will be moving back to the global norm of employee options granted by all companies generally being taxed on exercise. Special concessions for start-up companies are also proposed. Partner Sarah Bernhardt and Senior Associate Shaun Cartoon, members of Allens' Head Office & Governance team, report.

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  • Focus: New opportunities for charities as 'directness' requirement ruled out

    4 September 2014

    The Federal Court has recently ruled that there is no requirement for a public benevolent institution to provide direct relief to people in need. Its interpretation of the expression 'public benevolent institution' theoretically has the potential to expand eligibility well beyond traditionally accepted boundaries. At an immediate and practical level, the decision raises the question of how far regulators will accept that the boundaries of indirect provision of relief can be stretched. Special Counsel Glenys Hodges and Associate Scott Lang report on the implications of this significant development in the law of charities.

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  • Unravelled: ASIC's enforcement decisions - is litigation the most effective deterrent?

    2 September 2014

    We have previously reported on ASIC's submission to the Financial System Inquiry (FSI), and in particular, its assertion that it needs a broader range of more onerous financial penalties in order to punish and deter corporate wrongdoing. ASIC made similar submissions to the recent inquiry by the Senate Economics References Committee into its performance. The Senate Committee's Report, released on 26 June 2014, does recommend that the penalties currently available to ASIC should be reviewed. However, the report is also highly critical of ASIC's enforcement record, and particularly its reliance on enforceable undertakings. This criticism appears to be founded, at least in part, on the Committee's view that litigation, not out-of-court settlement, is a more effective means of deterrence.

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  • Directors' duties and the interests of 'APRA beneficiaries'

    2 September 2014

    The interim report of the Financial System Inquiry (FSI) asks whether directors in different parts of the financial system should have different duties.

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  • Focus: Shareholder activism in Australia

    24 July 2014

    The past few years have seen a dramatic rise in shareholder activism across Europe and the US. This trend is now becoming increasingly common in Australia. Following an unsuccessful attempt to gain control of the board of ASX-listed Antares Energy Limited by a US-based hedge fund, Partner Tim Lester, together with Litigation Partner Kim Reid, Managing Associate Matt Ireland and Senior Associate Stacey Hahn discuss the lessons learnt and those things directors of listed companies should be doing to prepare for an approach from activist shareholders.

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  • Unravelled: Increasing ASIC's enforcement powers

    8 July 2014

    In its submission to the Financial System Inquiry, the Australian Securities and Investment Commission has again raised the issue of the penalties that are available to it to punish and deter corporate wrongdoing. ASIC's submission recommends that a 'holistic review' be conducted into the availability and adequacy of penalties available under ASIC-administered legislation.

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  • Focus: ASIC on confidential information and briefings

    3 June 2014

    ASIC recently issued a report on the handling of confidential information by listed entities and their advisers, focusing on analyst and investor briefings and unannounced corporate transactions. While the report does not identify any systemic issues, it does highlight a number of areas of concern. Partner Greg Bosmans and Special Counsel Gadi Bloch report.

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  • Focus: Draft legislation released to improve corporate law compliance burden

    17 April 2014

    An exposure draft of proposed legislative amendments designed to reduce the compliance burden for businesses has been released by the Federal Government. The amendments include long-awaited changes to the dividend payment rules, the abolition of the 100 member rule and updates to remuneration disclosure obligations. Partner Wendy Rae, Senior Associate Emin Altiparmak and Lawyer Liz Clark discuss the corporate law aspects, while Partner Martin Fry reports on the tax and franking aspects.

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  • Client Update: Release of 3rd Edition Corporate Governance Principles and Recommendations

    10 April 2014

    The ASX Corporate Governance Council has released the 3rd edition of its Corporate Governance Principles and Recommendations. Although the 3rd edition largely reflects the amendments proposed in the earlier consultation draft released in August 2013, a number of new amendments have been added that will have implications for listed entities' corporate governance practices. Partner Robert Pick and Senior Associate Hannah Biggins discuss these key changes.

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  • Focus: Government moves to abolish ACNC

    4 April 2014

    The Federal Government has taken the first step towards achieving its announced intention of abolishing the Australian Charities and Not-for-profits Commission and transferring some of its functions to the Australian Taxation Office and the yet-to-be-established National Centre for Excellence. Special Counsel Glenys Hodges and Lawyer Scott Lang report on the latest developments.

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  • Linklaters Insights: AGM Alert 2014

    26 March 2014

    In AGM Alert 2014, our alliance partner Linklaters looks at developments that will be of interest to company secretaries and general counsel preparing for the 2014 AGM of a UK listed company. Where relevant, they also cover some issues that are likely to impact on future AGMs.

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