Allens

Industrials

Our experienced Industrials legal team regularly publishes articles and updates – the full list of publications appears below. These publications provide a snapshot of the latest legislation, court cases, policy changes and contentious issues. If you'd like to be notified when we add new 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.

For publications in other legal areas see our recent publications page.

Industrials Publications

  • Client Update: Greater ACCC scrutiny of contentious mergers

    8 August 2017

    ACCC Chairman Rod Sims has outlined that the ACCC will adopt a more intensive information-gathering approach when reviewing contentious mergers. Partner Jacqueline Downes and Associate Lovelle D'Souza report. 

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  • Food Law Bulletin

    26 July 2017

    In this editionwe look at a case demonstrating a major shift in community sentiment away from sugar; proposed new import rules triggered by the frozen berries saga; and how the ACL review might impact the food and beverage industry.

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  • Report: 2017 Private Equity mid-year briefing

    18 July 2017

    The first half of 2017 has been one of the most active buy out periods for private equity in Australia since the financial crisis. With fundraising conditions remaining positive, plenty of committed capital needing to be invested and the announcement of a number of large and high profile transactions involving financial sponsors, we believe that PE activity will remain robust for the remainder of the year.

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  • Focus: Employment & Safety

    5 June 2017

    We consider redundancy payments when employees are not offered suitable alternative roles; whether payroll providers can be liable as an accessory when a client breaches modern award conditions; and whether employers should consider voluntary job swaps before dismissing employees whose positions have become redundant.

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  • Focus: A class divide? The Boart Longyear creditors' scheme

    29 May 2017

    The NSW Court of Appeal has considered whether different groups of secured creditors should be placed into separate classes for the purposes of voting on a proposed creditors’ scheme of arrangement. Partners Christopher Prestwich and Tom Highnam report. 

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  • Client Update: Amendments to PPS lease law - what you need to know

    22 May 2017

    Legislation has come into force that will amend the Personal Property Securities regime. The amendments are designed to reduce the PPSA's impact on the equipment hiring industry. Previously hirers' equipment leases and bailment arrangements of an indefinite term, or short term leases of a year or more were deemed to be PPS leases, and security interests. If they were not perfected by registration, the owner of the equipment could lose priority, and could lose the equipment altogether if the lessee or bailee became insolvent. Many hirers were caught inadvertently. Now, those arrangements will only be caught if they are initially for two years or more, or the lessee or bailee ends up holding the equipment for two years or more. Partners Nicholas Creed and Ben Farnsworth explain.

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  • Focus: Employment & Safety

    8 May 2017

    In this issue: we look at how post-employment restraints can be unenforceable if a company does not comply with the employment contract itself; a decision of the Federal Court that confirms an employee who is on long-term sick leave must continue to have regular contact with their employer; and a successful appeal against a Fair Work Commission decision because the Commission did not consider whether an employer should have had legal representation.

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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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  • Focus: Employment Law

    3 April 2017

    In this issue we look at the timeframes for employers to comply with the Federal Government's Code of Tendering and Performance Building Work 2016; the court's view of where right of entry discussions with workers can take place; and a company's duty of care to its employees in an 'unforeseeable' situation like an attempted murder.

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  • Report: Our look ahead to the private equity market in Australia

    3 April 2017

    With the current exit cycle coming to an end for many sponsors, and large amounts of dry powder waiting to be deployed, we’re expecting an uptick in new investment activity in Australia by private equity sponsors. There are some key trends and sectors to look out for in 2017. The Private Equity team at Allens reports.

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  • Focus: The latest from the High Court on contractual interpretation

    30 March 2017

    There is an ongoing controversy as to whether, in construing a contract, the 'true rule' in Codelfa mandates that a contract be ambiguous (on its face) before a court may consider evidence of surrounding circumstances. The High Court this week had an opportunity to consider this issue. Although its decision did not expressly resolve the controversy, it may be seen as a (further) departure from the 'ambiguity gateway' approach. Partner, Malcolm Stephens and Senior Associate, Jaime McKenzie report.

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  • Client Update: House of Representatives passes misuse of market power Bill

    29 March 2017

    The House of Representatives yesterday passed the Government's Bill to broaden the misuse of market power prohibition and the Bill will be introduced to the Senate shortly. The Bill, as passed, removes the mandatory factors the courts would have had to consider in determining whether conduct was anti-competitive (as opposed to vigorous, competitive conduct). The new prohibition, if passed by the Senate, will not commence unless the ACCC has the power to authorise conduct that may otherwise breach the new prohibition. The Government proposes to introduce a further Bill shortly giving the ACCC this power. Partner Kon Stellios and Senior Associate Lisa Lucak report.

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  • Focus: Is hourly billing for liquidators back?

    21 March 2017

    The NSW Court of Appeal has recently considered the basis on which liquidators' 'reasonable remuneration' should be determined. Partner Chris Prestwich, Senior Associate Przemek Kucharski and Lawyer Kane Kersaitis report on the decision in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr.

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  • Focus: Anti-bribery & corruption: Key questions for boards and executives

    6 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 first of a five-part series, Partners Rachel Nicolson and Peter Haig, Senior Associate Tim Farhall and Lawyer Shamistha Selvaratnam look at the key questions that Australian boards and senior executives should be asking themselves about anti-bribery regulation and compliance practice in 2017.

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  • Client Update: Franchisors and holding companies liable under Vulnerable Workers Bill

    2 March 2017

    The Federal Government has introduced a Bill that will make franchisors liable for breaches of employment law by franchisees. Partner Simon Dewberry and Managing Associate Andrew Stirling report.

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  • Focus: Supply chains in the spotlight: Establishing an Australian Modern Slavery Act

    21 February 2017

    The Australian Government has announced the launch of a broad inquiry into establishing a Modern Slavery Act in Australia. The inquiry will consider whether the introduction of anti-slavery legislation would strengthen and improve Australia's current regime to combat slavery. If introduced, a Modern Slavery Act would have significant implications for Australian businesses and their suppliers abroad. Partner Rachel Nicolson, Associate Freya Dinshaw and Lawyer Shamistha Selvaratnam report.

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  • Focus: Forge-ing ahead - the treatment of fixtures under the PPSA

    21 February 2017

    The Court of Appeal has confirmed that under the Personal Property Securities Act 2009 (Cth) 'fixtures' are to be understood in the same way as at general law and the same common law test applies to determining whether goods affixed to land have become fixtures (ie part of the land). In unanimously upholding a 2016 decision of the Supreme Court of New South Wales, the appeal decision serves as yet another remainder of the importance of registering security interests on the Personal Property Securities Register, including those arising under equipment leases. Partner Kim Reid, Senior Associate Przemek Kucharski and Associate Jonathon New, who acted for the successful party in this matter, report.

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  • Focus: The Rolls-Royce bribery case and its implications in Australia

    30 January 2017

    A Deferred Prosecution Agreement in the United Kingdom, which will see the Rolls-Royce company pay more than £500 million to settle charges of foreign bribery, is the most significant UK DPA to date. It is likely to influence the approach and expectations of the Australian Government and law enforcement agencies, which are considering a suite of measures aimed at facilitating a more effective response to corporate crime, particularly those that encourage self-reporting of foreign bribery. Partners Rachel Nicolson and Peter Haig, Senior Associate James Campbell and Lawyer Malak Johnson report.

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  • Food Law Bulletin

    21 December 2016

    In this edition we look at the ACCC's case against Heinz's Shredz product and what it means for advertising of high-sugar foods; litigation relating to the health claims of a2 milk; and the new safe harbour provisions for country of origin labelling.

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  • Focus: Disclosing privileged documents to regulators

    16 December 2016

    In Cantor v Audi, the Federal Court denied Australian class action plaintiffs access to documents exchanged between Volkswagen AG and a foreign regulator. The case provides insights into what you should consider before providing privileged documents to a regulator. This is critical in an era of increasing regulatory action and class actions in which plaintiffs seek to piggy back off global regulatory investigations and proceedings. Partner Alex Cuthbertson, Senior Associate Monisha Sequeira and Lawyer Alex Lee report on the decision.

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  • Focus: Take care with agency arrangements - Flight Centre decision

    14 December 2016

    The High Court today handed down its decision in the high-profile ACCC proceedings against Flight Centre. The High Court allowed the ACCC's appeal from the Full Federal Court, finding that Flight Centre competed with airlines in the sale of international airline tickets and attempted to induce three major airlines to enter price-fixing arrangements. Partner Carolyn Oddie, Managing Associate Robert Walker and Lawyer Darcy McLennan consider the implications.

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  • Focus: A blow to class action judgments achieving finality

    12 December 2016

    Ordinarily, a party cannot raise in later proceedings issues which it could and should have raised in earlier proceedings. This principle recognises the public interest in resolving disputes with finality. In a recent decision, the High Court considered how that principle applies in the context of group proceedings. The judgment sounds a cautionary note that a successful class action defendant cannot rely on mere failure by members of a class action to opt out of group proceedings to establish that these members are subsequently prevented from raising other claims in relation to the same factual circumstances in new proceedings. Partner Belinda Thompson and Lawyer Alex Lee examine the decision and its implications.

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  • Focus: Employment Law

    6 December 2016

    In this issue we look at the Fair Work Ombudsman's decision to prosecute a sham contracting offence even after the employer had rectified the underpayments; the enforceability of post-employment restraint of trade clauses; how a new ABCC will look like after its journey through the Senate; and the importance of negotiating an enterprise agreement only with employees who have commenced work.

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  • Client Update: Amending the misuse of market power prohibition

    1 December 2016

    On 1 December 2016 the Federal Government introduced a Bill to Parliament to amend section 46 of the Competition and Consumer Act 2010 (Cth), which prohibits the misuse of market power. The Bill adopts the recommendations of the Harper Review.

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  • Focus: Increased whistleblower protections, and more to come...

    24 November 2016

    The Federal Parliament has passed an industrial relations bill that includes significant increases to the whistleblower protections applicable to unions and employer organisations. In what would be a comprehensive overhaul of Australia's whistleblower laws, the Federal Government has separately agreed to support the introduction of equivalent (or better) whistleblower protections in the public and private sectors. Partner Rachel Nicolson, Senior Associate Chris Holland and Lawyer Karina Plain report.

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  • Focus: Employment Law

    10 October 2016

    In this issue: we look at whether employers have a right to direct employees to perform higher duties; an employer's consultation obligations during a redundancy process; how an employer's failure to give a balanced view to employees resulted in it being forced to the bargaining table; and a decision that casts doubt on the effectiveness of set-off clauses in contracts for employees who are covered by a modern award.

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  • Client Update: An opportunity for greater certainty for class action defendants

    5 October 2016

    Class action settlement negotiations are often hindered by uncertainty about the number and identity of potential claimants. A recent decision of the Supreme Court of NSW has paved the way for defendants to achieve greater certainty in respect of unregistered class members at an earlier stage than had previously been the case. Partner Jenny Campbell, Associate Daniel MacPherson and Lawyer Hugo Dupree report. 

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  • Focus: Employment Law

    19 September 2016

    In this issue: we look at how redundancies can breach enterprise agreement provisions; whether union officials can exercise their right of entry entitlements before or after work; reasonable notice terms in employment contracts; and the processes a labour hire company should follow before dismissing an employee.

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  • Unravelled: Financial Services Class Actions

    6 September 2016

    Our class actions team recently published our Class Action Risk 2016 report. The objective of the report is to look behind the headlines and hype that often surrounds class actions to provide a more holistic and objective assessment of class action risk for our clients. This is particularly important in an environment in which the press surrounding class actions has often heralded a developing crisis for Australian business.

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  • Client Update: Beware the risks of converting casuals to permanent employees

    16 August 2016

    A Full Bench of the Fair Work Commission has ruled that prior service as a casual counts as service when calculating redundancy pay. The decision is completely at odds with what employers would expect. Partner Simon Dewberry, Managing Associate Andrew Stirling and Senior Associate Tristan Garcia report.

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  • Focus: Extending the reach of Australia's cartel laws and the first criminal prosecution

    28 July 2016

    Recent decisions handed down in separate cartel proceedings confirm that Australian courts will take a broad approach to the extraterritorial ambit of Australia's competition laws. This means that more foreign businesses could be caught by Australia's criminal and civil cartel laws. These decisions coincide with the commencement of the first criminal cartel case in Australia. Partner Kon Stellios and Senior Associate Amanda Richman report on these developments and their implications.

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  • Client Update: Protecting innovation without patents - data exclusivity and market exclusivity

    19 July 2016

    Developments in patent law and the consequential limitations on patentability for biologic medicines mean that data exclusivity and market exclusivity can be the primary protection afforded to originator biologic medicines. This is most stark in the US where patent protection for biologic medicines can be very limited. This seems to be the reason that the US has twelve years of exclusivity, and is pressing for other nations to have similar protection. In the TPP agreement, Australia has committed to providing a comparable outcome in the market to eight years of exclusivity but is robustly resisting extending its current five years of statutory protection. Partner Sarah Matheson and Special Counsel Ric Morgan report.

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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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  • Focus: Supreme Court of WA sends EPC contractor back to arbitration

    13 July 2016

    In Samsung C&T Corporation v Duro Felbuera Australia Pty Ltd [2016] WASC 193, the Supreme Court of Western Australia had to carefully consider the role that Australian courts play when there is a dispute over the existence and scope of an arbitration agreement. The key issue was whether a jurisdiction clause in a term sheet was inconsistent with there being an agreement to arbitrate disputes arising under the term sheet. However, the court was also required to consider the extent to which it should determine whether an arbitration agreement existed, and whether a dispute fell within its scope, in circumstances where an arbitral tribunal had already been asked to rule on its own jurisdiction to hear the same dispute. Partner Jeremy Quan-Sing and Law Graduate Lily Hands report.

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  • Focus: Workplace Relations

    11 July 2016

    In this issue we look at a Fair Work Commission decision that highlights the issue of costs in relation to a vexatious claim; the consequences for employment law in the wake of the Coalition's return to power; and an enforceable undertaking to reimburse a large number of underpaid employees.

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  • Food Law Bulletin

    7 July 2016

    In this edition we look at a New Zealand Court of Appeal case that helps to clarify the meaning of 'health claim' under the Food Standards Code; an update on the Country of Origin Labelling regime; changes to the laws relating to the importation of food into Australia introduced by new Biosecurity legislation; and new Food & Drug Administration guidelines for nutrition information labelling for food sold in the US.

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  • Focus: Predictive coding endorsed again by English High Court

    29 June 2016

    In its second decision on predictive coding this year, the English High Court has again accepted the use of this innovative technology in discovery, this time in a contested application. Partner Duncan Travis, Managing Associate Kate Austin and Law Graduate Yi-Ling Ng examine the case and its implications.

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  • Special Report: Understanding the opportunities and navigating the legal frameworks of distributed ledger technology and blockchain

    17 June 2016

    Authored by a multidisciplinary team from Allens, Blockchain Reaction is designed to assist business stakeholders, decision makers and in-house counsel across a variety of sectors to understand the technology and how it is being used, as well as navigate the regulatory and legal opportunities and challenges.

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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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  • Focus: Workplace Relations

    1 June 2016

    In this issue we look at the problems of overselling a company's performance to attract new staff; new Federal Government policy that will make franchisors and parent companies responsible for their franchisees' and subsidiaries' breaches of the Fair Work Act; and the importance of following procedural fairness when dismissing an employee.

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  • Client Update: Defending unfair preference claims: set-off and security revisited

    26 May 2016

    A recent Federal Court decision has highlighted two grounds on which creditors should consider defending unfair preference claims which are brought by liquidators. Partner Chris Prestwich and Lawyer Tim Chiang look at a case that deals with what constitutes an unsecured debt and the extent to which creditors are able to set off unfair preference claims.

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  • Client Update: Revisions to FIRB Guidance Note 23: clarity for foreign government investors

    26 May 2016

    Recent reforms to the Foreign Acquisitions and Takeovers Act 1975 (Cth) introduced new provisions that deem foreign government investors of the same country to be 'associates' of each other. These provisions have created practical difficulties for foreign government investors who risk unintentionally breaching the Act because they are unaware of the existence and extent of holdings of other foreign government investors from the same country. Revisions to Guidance Note 23 released by the Foreign Investment Review Board have sought to address these practical issues. Partner Wendy Rae and Associate Nicholas Kefalianos review the key changes to the Guidance Note.

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  • Focus: Australia and Singapore enter into Comprehensive Strategic Partnership

    17 May 2016

    The Australian and Singaporean governments have recently concluded discussions on a landmark agreement that will see the two countries cooperating across a range of strategic initiatives, including in the areas of trade and economics, innovation, education, people and defence. The Comprehensive Strategic Partnership builds on the already strong relations between Australia and Singapore and is expected to provide new cross-border investment opportunities through enhanced bilateral relations. Singapore-based Managing Associate, Jessica Choong, reports.

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  • Focus: Workplace Relations

    5 May 2016

    In this issue we look at an adverse action case; why a redundancy does not necessarily constitute a termination; the importance of a consistent process to deal with bullying in the workplace; the fairness of a dismissal for failing workplace drug tests; and when a company can prevent an employee from going to work for a competitor.

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  • Focus: Car rental agreement crashes out under the unfair contract terms regime

    27 April 2016

    In proceedings brought by the ACCC, the Federal Court declared a number of terms in Europcar Australia’s 2013 standard rental agreement to be unfair, and therefore void. Partner John Hedge and Lawyer Jessica Rusten review the unfair contracts terms regime, and consider the implications of this latest decision for business contracts to which the regime will extend later this year.

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  • Focus: Full Federal Court blocks US depositions for Australian class action

    18 April 2016

    The Full Federal Court has ordered an anti-suit injunction against the applicant and a group member in the Treasury Wine Estates shareholder class action, preventing the taking of oral depositions from US-based employees under US court procedures. Partner Duncan Travis and Associate Michela Agnoletti report on a decision that emphasises the importance of the Federal Court's case management of class action litigation.

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  • Client Update: ACCC successfully appeals air cargo cartel - the widening of 'market in Australia'

    23 March 2016

    The ACCC has won an appeal in the Full Federal Court in the air cargo cartel case against Air New Zealand and Garuda. Those airlines were found to have engaged in price fixing conduct within a 'market in Australia' even though the point of competition was outside the country. The case clarifies and potentially expands the circumstances in which conduct engaged in overseas may be caught by Australia's competition laws. Partner John Hedge and Lawyer Jessica Rusten report.

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  • Client Update: Productivity Commission kicks off inquiry into superannuation

    17 March 2016

    The Productivity Commission has released an issues paper inviting submissions on the criteria that should be used to assess the efficiency and competitiveness of Australia's superannuation system. This will be of interest not only to superannuation trustees but also to service providers, including fund managers, who may be put under greater scrutiny. Submissions are due by 20 April 2016. Partner Michelle Levy and Senior Associate Simun Soljo look at the issues paper.

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  • Focus: Anti-bribery and corruption regulation developments in 2016

    16 March 2016

    2016 looks to be a busy year for directors, executives and legal and compliance teams who need to be aware of developments in Australian anti-bribery law and compliance practice. Partner Rachel Nicolson, Senior Associate Dora Banyasz and Lawyer Tom Bland report.

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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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