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

  • 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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  • Focus: Contractors face uphill battle restraining security calls

    7 March 2016

    The Supreme Court of Western Australia has dismissed a subcontractor's application for an interlocutory injunction restraining a call on a bank guarantee. Partners Nick Rudge and Jeremy Quan-Sing and Lawyer Evan Lacey discuss the decision and its implications.

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  • Focus: Double recovery as a challenge to the enforcement of an arbitral award

    1 March 2016

    The Victorian Court of Appeal has refused an application for leave to appeal against the enforcement of an arbitral award. The applicants applied for leave to appeal on the basis that enforcement of the award would be contrary to public policy as it would give effect to 'double recovery' by the respondents. Partner Peter O'Donahoo, Managing Associate Hilary Birks and Lawyer Luke Callaghan report.

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  • Focus: Workplace Relations

    29 February 2016

    In this issue: we look at a dismissal case emanating from poor behaviour at a company Christmas party; the importance of the employment contract in determining whether a reduction in an employee's pay and duties results in dismissal; an employer's difficulty in justifiying a summary dismissal; and the implications of a company's redeployment policy.

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  • Focus: Predictive coding: the future of electronic document production?

    25 February 2016

    A recent decision of the English High Court may pave the way for the use of 'predictive coding' in large scale discovery and regulatory investigations in Australia. Partners Nick Rudge and Duncan Travis, Managing Associate Kate Austin and Associate Emily Giblin look at the benefits and risks of the new software.

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  • Client Update: Polluter pays principle in action

    23 February 2016

    In a recent decision of the Victorian Supreme Court, a Melbourne municipal council was held liable to compensate a landowner for the costs that were incurred by the landowner in the course of complying with a clean-up notice issued under the Environment Protection Act 1970 (Vic), despite the pollution having occurred prior to the commencement of that Act. Partner Chris Schulz and Associate Kate Kirby discuss the key issues raised in the case.

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  • Focus: Australia has lifted certain sanctions on Iran

    18 February 2016

    In response to recent confirmation that Iran has met its international nuclear commitments, the Australian Government has lifted all nuclear-related economic and financial sanctions against that country. Partner Rachel Nicolson, Managing Associate Hilary Birks and Associate Sarah Jenkins report on what has changed and the potential opportunities for Australian businesses.

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  • Focus: High Court decision on retention obligations provides some clarity to liquidators

    14 December 2015

    The High Court has ruled that a liquidator has no obligation to retain monies on account of tax until a notice of assessment has been issued. The decision will provide much needed clarity for liquidators and other statutorily deemed trustees, and agents. Partners Charles Armitage and Christopher Prestwich, Senior Tax Counsel Marc Johnston and Associate Jay Prasad report on the decision.

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  • Focus: COP21 and the Paris Agreement

    14 December 2015

    Over the weekend in Paris, two weeks of negotiations culminated in the adoption by all parties to the United Nations Framework Convention on Climate Change of a conference decision and Paris Agreement to address climate change. The combined Paris Outcome commits parties to limit global temperature rise to 'well below 2°C' with an aspirational target of a 1.5°C limit. Co-Heads of the Allens Climate Change Group, Andrew Mansour and Emily Gerrard (who attended COP21) provide initial comments on the Paris Outcome below.

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  • Focus: Plugging the price drip

    30 November 2015

    The Federal Court has found that Jetstar Airways Pty Ltd and Virgin Australia Airlines Pty Ltd contravened the Australian Consumer Law by engaging in 'drip pricing'. In doing so, the Federal Court differentiated between the types of conduct that will be considered misleading or deceptive under the ACL. Partner Jacqueline Downes, Associate Lisa Lucak and Lawyer Jessica Rusten look at the implications for business.

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  • Focus: Workplace Relations

    19 November 2015

    In this issue we look at the unusual role social media can play in bullying at work; valid dismissals that can be procedurally unfair; consultants' reports and unfair dismissal proceedings; requirements for notices of entry; obtaining permission to appeal in the Fair Work Commission; vague job security clauses being binding on an employer; and low threshold for admitted adverse action.

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  • Focus: Plan Melbourne: refresh of Victoria's metropolitan planning strategy

    16 November 2015

    Housing affordability, climate change and energy efficiency are key focuses of the discussion paper recently released by the Victorian Planning Minster, which aims to 'refresh' the current Melbourne Metropolitan Planning strategy, Plan Melbourne. The paper draws upon the detailed report prepared by the Ministerial Advisory Committee chaired by Professor Roz Hansen. Managing Associate Meg Lee and Associate Kate Kirby discuss the key points.

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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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  • Paper: Agricultural Competitiveness White Paper - key proposals for agribusiness investors

    14 July 2015

    The Federal Government's Agricultural Competitiveness White Paper is focused on increasing the attractiveness of Australia's agribusiness sector as an investment destination. The White Paper contains significant proposals of relevance to both domestic and international agribusiness investors. Of most interest are proposals relating to increasing farm gate returns, the building of key water infrastructure, research and development into agribusiness technology, and improving access to premium markets.

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  • Focus: Cleaning company franchisor cleaned up by ACCC

    30 March 2015

    The Federal Court has awarded a substantial penalty of $500,000 against a franchisor that had contravened both the Australian Consumer Law and the Franchising Code of Conduct. Partner Andrew Wiseman and Law Graduate Catherine Francis report on the implications of the decision for franchisors.

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  • Focus: Changes to the rules governing foreign investment in Australian agriculture

    13 February 2015

    The Australian Government has announced that, from 1 March 2015, acquisitions of agricultural land worth more than A$15 million and any additional acquisitions over and above that amount will require government approval. It will also establish a foreign ownership register of agricultural land. Nevertheless, we expect that Australia will continue to welcome foreign investment in the agricultural sector. Partners Marcus Clark, Jeremy Low and Wendy Rae, and Managing Associate Andrew Wong report.

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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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  • Client Update: More limits on lawyer-driven litigation

    1 December 2014

    Following a decision earlier this year preventing a solicitor from acting in a class action in which the solicitor managed and controlled the representative plaintiff, the Victorian Supreme Court has held that a solicitor and senior counsel should be prevented from acting in a class action in which they had a substantial indirect interest in the litigation funder of the action. Partners Duncan Travis and Matthew McLennan and Associate James Campbell report.

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  • Focus: Insolvency Law Reform Bill - harmonisation not radical reform

    27 November 2014

    The Federal Government has released its package of reforms to Australia's personal and corporate insolvency laws. Included is a draft Bill that proposes to streamline the regulatory framework applying to insolvency practitioners with the aim of increasing efficiency in external administrations and boosting confidence in the competence of practitioners. Partner Chris Prestwich, Senior Associate Angela Martin and Lawyer Kaelah Ford report on some of the key features of the Bill.

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  • Client Update: Withholding tax on the sale of Australian property by foreign residents

    19 November 2014

    Treasury has released a discussion paper on the proposal to introduce a non-final withholding tax on the disposal of 'taxable Australian property' by foreign residents. Partner Katrina Parkyn looks at some of the key areas of discussion.

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  • Focus: The new look of franchising revealed

    13 November 2014

    Just over six months after the release of the Exposure Draft for the new Franchising Code of Conduct, the new-look Code has been finalised and enacted. Partners Tim Golder and Andrew Wiseman and Lawyer Julia Kovarsky report on the practical implications for franchisors.

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  • Focus: Comply or say bye to your franchise!

    23 October 2014

    With the new Franchising Code of Conduct and civil pecuniary penalties set to commence on 1 January 2015, a recent Full Federal Court decision is a timely warning to franchising parties to ensure their practices comply with the Code. Partner Tim Golder and Associate Nadia Guadagno report on this decision and its significant implications for franchising parties.

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  • Client Update: Competition Policy 'Root and Branch' review draft report released

    22 September 2014

    The panel tasked with the 'root and branch' review of competition law and policy has released its draft report. Some of the recommendations are far reaching and may have significant ramifications on competition law enforcement in Australia, including in relation to misuse of market power. Partner Kon Stellios, Associate Lisa Lucak and Knowledge Management Lawyer Julie Playfair report.

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  • Focus: Amendments to BCIPA regime passed in Queensland

    18 September 2014

    The Queensland Parliament has passed amendments to the state's security of payment legislation that aim to address concerns raised by the construction industry about unfairness in the payment claim and adjudication process. Managing Associate Nicholas Ng, Associate Laura Nagy and Lawyer Timothy Leschke report on the key changes and the implications for the industry.

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  • Focus: Section 54 of the Insurance Contracts Act: Putting insureds in the driver's seat

    16 September 2014

    A recent High Court decision highlights the substantial scope of s54(1) of the Insurance Contracts Act 1984 (Cth) to prevent an insurer from denying cover following an insured's non-compliance with certain terms of an insurance policy. The court confirmed that, in certain circumstances, the section can relieve an insured from the consequences of an act or omission which triggers coverage exclusions and limitations. Partner Andrew Maher, Senior Associate Jonathan Light and Lawyer Brydon Wang report.

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  • Focus: Term of mutual trust and confidence not implied into Australian employment contracts

    10 September 2014

    A landmark High Court decision has determined that a term of mutual trust and confidence is not necessary and should not be implied at law into employment contracts in Australia. Special Counsel Eleanor Jewell reports.

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  • Focus: International arbitration update

    9 September 2014

    In this issue we look at an unsuccessful challenge to the enforcement of foreign arbitral awards in the Federal Court of Australia; recent changes to the arbitration rules of the Institute of Arbitrators and Mediators Australia, the International Centre for Dispute Resolution and the London Court of International Arbitration; and a decision of the English High Court enforcing an obligation to engage in friendly discussions as the first step in a multi-tiered dispute resolution clause.

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  • Client Update: Court takes an expansive view of threshold requirement for class actions against multiple respondents

    8 September 2014

    A representative proceeding can only be commenced where seven or more group members have claims against the same person. In proceedings with multiple respondents, there has been conflicting authority as to whether each group member is required to have a claim against each respondent. Last week, in Cash Converters International Limited v Gray, the Full Federal Court appears to have resolved this uncertainty, by confirming that no such requirement exists. Partners Peter O'Donahoo and Jenny Campbell and Associate Thomas Bagley report.

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  • Focus: The ending point for 'starting point'

    1 September 2014

    The Full Federal Court has published its much-anticipated judgment in the AstraZeneca v Apotex appeal. A bench of five judges heard the appeal (in contrast to the usual three judges) in order to be able to clarify, or overrule if appropriate, an earlier Full Court decision relating to the correct test for assessing 'inventive step' - known as the 'starting point' issue. This ruling restores the tighter test for obviousness and should be welcomed by patentees. As Managing Associate Clare Young and Senior Associate Suzy Muller report, the court also provided other useful guidance on infringement of method of medical treatment claims, and on the issue of whether injunctions are always the right remedy for patent infringement.

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  • Focus: Does legal professional privilege apply to communications with third-party commercial advisers?

    14 August 2014

    Parties involved in large-scale commercial transactions with non-lawyer third-party advisers need to be aware that communications with these advisers will rarely be protected by legal professional privilege, following a recent Federal Court decision that confirmed the limits on the extent to which legal professional privilege will apply. Partner Richard Harris and Law Graduate Sibella Matthews report.

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  • Focus: Russia imposes sanctions against Australia

    11 August 2014

    Russia has imposed sanctions against Australia and certain other countries (including EU member states and the US) prohibiting certain food imports, and may impose further sanctions restricting access to its airspace. Partner Rachel Nicolson and Associates Andrew Wilcock and Freya Dinshaw report.

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  • Focus: Another win for arbitration

    7 August 2014

    The Full Court of the Federal Court of Australia has upheld an earlier decision rejecting an application to set aside or not enforce an international arbitral award. The appeal was brought on the grounds that the rules of natural justice were breached in making the arbitral award. Partner Peter O'Donahoo, Special Counsel Nicola Nygh and Associate Catherine Li report on a case that clarifies how the rules of natural justice apply to arbitration in Australia.

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  • Focus: Workplace Health & Safety Quarterly

    5 August 2014

    We look at the circumstances surrounding the prosecution of a business for using hazardous chemicals; the courts move to increase penalties for WHS breaches; a new monetary threshold for principal contractor duties in Victoria; and the growing use of enforceable undertakings as an alternative to prosecutions under model WHS laws.

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  • Client Update: Anti-corruption reforms: a view from the B20 Australia

    25 July 2014

    Anti-corruption was high on the agenda at the B20 Australia summit recently held in Sydney. Allens Partner Rachel Nicolson, a director of the UN Global Compact Network Australia and convenor of its Anti-Corruption Leadership Group, attended the summit and provides an overview of the issues discussed.

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