Kumarina and bidders voting in transfer schemes

Transfer schemes are an alternative means of acquiring control of a company to making a takeover bid under the provisions in Ch 6 of the Corporations Act 2001 (Cth). The recent decision Re Kumarina Resources Ltd [2013] FCA 549 overturned long-standing practice in relation to a certain type of transfer scheme. If followed, the decision would allow a “bidder” to vote at scheme meetings where the scheme consideration for the acquisition of the target shares are shares in another company, and the scheme results in a merger. But the bidder is not allowed to vote where the scheme consideration is cash. The article points out the difficulties arising from this decision and argues that it should not be followed. In providing a “no objection” statement, the Australian Securities and Investments Commission (ASIC) has created uncertainty as to the approach it will take towards the bidders being allowed to vote at scheme meetings where the scheme consideration for the acquisition of target shares are shares in another company. The article also points out that in providing the no objection statement in Kumarina, ASIC appears to have ignored breaches of s 606(1) of the Corporations Act. There is a pressing need for ASIC to clarify its position and, in particular, whether or not it will provide a no objection statement in respect of future transfer schemes where a bidder (or its parent company) votes at the scheme meeting.

Power and paradigms : the Dutch response to pressures for shareholder value

In recent years, research aimed at identifying and relating the antecedents and consequences of diffusing organizational practices/ideas has turned its attention to debating the international adoption and implementation of the Anglo-American model of corporate governance, i.e., a shareholder-value-orientation (SVO). While financial economists characterize the adoption of an SVO as necessary and performance-enhancing, behavioral scientists have disputed such claims, invoking institutional contingencies in the appropriateness of an SVO. Our study seeks to provide some resolution to the debate by developing an overarching socio-political perspective that links the antecedents and consequences of the adoption of the contested practice of SVO. We test our framework using extensive longitudinal data from 1992-2006 from the largest listed corporations in the Netherlands, and we find a negative relationship between SVO adoption and subsequent firm performance, although this effect is attenuated when accompanied by greater SVO-alignment among major owners and a firm’s visible commitment to an SVO. This study extends prior research on the diffusion of contested organizational practices that has taken a socio-political perspective by offering an original contingency perspective that addresses how and why the misaligned preferences of corporate owners will affect (i) a company’s inclination to espouse an SVO, and (ii) the performance consequences of such misalignment.This study suggests when board members are considering the adoption of new ideas/practices (e.g., SVO), they should consider the contextual fitness of the idea/practice with the firm’s owners and their interests.

Mind the insolvency gap : lessons to be learned from audit expectations gap theory

There is a general perception that public confidence in the insolvency profession is low as the result of the recent unethical practices of a few high profile liquidators. As a result, the effectiveness of the current regulatory mechanisms has been questioned, leading to a review of the performance of insolvency practitioners and subsequent regulation proposals. The challenge for the insolvency profession is balancing the expectations of the general public whilst ensuring that the obligations and duties imposed upon them are performed to acceptable and realistic standards. It is difficult (if not impossible) for the profession to meet this challenge in the absence of a cohesive framework which identifies those issues that require further regulation as opposed to those that relate to general education on the insolvency process. This paper will examine the audit expectations gap theory in the context of insolvency practitioners and suggests that a model based on this theory provides an effective framework for evaluating the regulation of the insolvency industry.

Tamworth Regional Council Social Plan 2006

The Tamworth Regional Social Plan is a document for collaborative planning involving the three spheres of government, the community and commercial sectors, with the aim of enhancing the quality and fairness of life in Tamworth. The Plan is a way of identifying needs and priorities for community facilities and services for Tamworth. The Social Plan reflects Council’s ongoing commitment to the people of the Tamworth Region and, in particular, the social needs and aspirations of our community. The Local Government (General) Amendment (Community and Social Plans) Regulation 1998 grew out of the 1996 NSW Social Justice Directions Statement “Fair Go, Fair Share, Fair Say” which committed the Department of Local Government to ensuring government services are responsive to community needs and diversity. The regulation is designed to:- • Improve Councils’ ability to take account of community needs when formulating their management plans; • Assist Councils to provide or advocate for appropriate and accessible services/facilities; and • Increase the community’s ability to monitor Council efforts in addressing community needs over time. The Local Government (General) Regulation 1999 requires that all councils develop a community/social plan and that all plans be prepared in accordance with guidelines issued by the Department. While Council has a broad function of providing leadership for Tamworth, it is not the only group responsible for providing community services. Developing the Social Plan has required cooperation with various State and Federal agencies as well as with Tamworth’s community groups and agencies.

An Australian perspective on the ALI-III global principles for cooperation in International insolvency cases

In 2012, Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (The Netherlands) presented a Report to the American Law Institute and the International Insolvency Institute entitled Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“Global Principles”). This followed their appointment as Joint Reporters to investigate whether the essential provisions of the American Law Institute Principles of Cooperation among the North American Free Trade Agreement Countries with their annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. This article comments on the Global Principles from the perspective of a jurisdiction which has adopted the UNCITRAL Model Law on Cross-border Insolvency (“Model Law”). In 2008, Australia enacted a standalone statute, the Cross-border Insolvency Act 2008 (Cth) to which is annexed the Model Law. In that process, it made minimal changes to the Model Law text. Against the background of the 2008 Act, related procedural laws as well as Australia’s general insolvency statutes and recent cross-border insolvency jurisprudence, this article comments on the potential relevance of the Transnational Insolvency Report as a point of reference for Australian courts and insolvency administrators when addressing international insolvency cases. By comparing the Global Principles with the Model Law as closely adopted in Australia, this analysis is a resource for other Model Law jurisdictions when considering the potential relevance of the Global Principles for their own international insolvency practice.

Developments in court to court communications in International insolvency cases

As business increasingly operates on a global basis, courts are called upon more often to adjudicate insolvency cases with international connections. The financial collapse of Lehman Brothers Holding Inc (‘Lehman Holdings’) provides a recent example where courts across many jurisdictions were called upon to determine issues arising from a multistate insolvent enterprise. Lehman Holdings filed for Chapter 11 bankruptcy protection in the United States on 15 September 2008. Lehman Brothers was the fourth largest investment bank in America and the largest company ever to file for bankruptcy in the United States. However the effects of its collapse were felt worldwide, including within Australia.

The new supply chains : the Multichannel Networks

Digital innovation is transforming the media and entertainment industries. The professionalization of YouTube’s platform is paradigmatic of that change. The 100 original channel initiative launched in late 2011 was designed to transform YouTube’s brand through production of a high volume of quality premium video content that would more deeply engage its audience base and in the process attract big advertisers. An unanticipated by-product has been the rapid growth of a wave of aspiring next-generation digital media companies from within the YouTube ecosystem. Fuelled by early venture capital some have ambitious goals to become global media corporations in the online video space. A number of larger MCNs (Multi-Channel Networks) - BigFrame, Machinima, Fullscreen, AwesomenessTV, Maker Studios , Revision3 and DanceOn - have attracted interest from media incumbents like Warner Brothers, DreamWorks, Discovery, Bertlesmann, Comcast and AMC, and two larger MCNs Alloy and Break Media have merged. This indicates that a shakeout is underway in these new online supply chains, after rapid initial growth. The higher profile MCNs seek to rapidly develop scale economies in online distribution and facilitate audience growth for their member channels, helping channels optimize monetization, develop sustainable business models and to facilitate producer-collaboration within a growing online community of like-minded content creators. Some MCNs already attract far larger online audiences than any national TV network. The speed with which these developments have occurred is reminiscent of the 1910s, when Hollywood studios first emerged and within only a few years replaced the incumbent film studios as the dominant force within the film industry.

The United Nations Guiding Principles on Business and Human Rights : Putting Accounting for Human Rights into Practice

The “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy Framework’” (the Guiding Principles), endorsed by The United Nations Human Rights Council on 16 June 2011, outline obligations for nation states that currently exist under international law and provide the first authoritative reference point for corporations’ human rights responsibilities. Of the 30 principles endorsed, half relate directly to business. The Guiding Principles have far-reaching implications for all businesses, both small and large, and represent one of the most significant developments in corporate governance this century. In response to a recognition of the potential impacts of the Guiding Principles on corporate governance, the Institute of Chartered Accountants in Australia provided La Trobe Business School with grant funding to undertake groundbreaking research on the implications of the Guiding Principles for management and accounting systems within corporate Australia. This report represents the outcome of the study.

Major changes to property law in Queensland

From 1 December 2014 a number of major changes were made to property law in Queensland with the simultaneous commencement of the Land Sales and Other Legislation Amendment Act 2014 (Qld) and the Property Occupations Act 2014 (Qld). This article examines these changes, their rationale and their implications for practice.

Changing influences on the concept of ‘media influence’

The concept of media influence has a long history in media and communication studies, and has also had significant influence on public policy. This article revisits questions of media influence through three short case studies. First, it critically analyses the strongly partisan position of News Corporation’s newspapers against the Labor government during the 2013 Australian Federal election to consider whether the potential for media influence equated to the effective use of media power. Second, it discusses the assumption in broadcasting legislation, in both the United Kingdom and Australia, that terrestrial broadcasting should be subject to more content regulation than subscription services, and notes the new challenges arising from digital television and over-the-top video streaming services. Finally, it discusses the rise of multi-platform global content aggregators such as Google, Apple, Microsoft and others, and how their rise necessitates changes in ways of thinking about concentration of media ownership, and regulations that may ensue from it.

Australian DOCAs versus UK pre-packs and CVAs : sifting through the ashes of comparative dividend returns

This article is something of a brief extension of recent research into deeds of company arrangement (DOCAs) under Pt 5.3A of the Corporations Act 2001 (Cth), conducted with the support of the Australian Restructuring Insolvency & Turnaround Association’s (ARITA’s) Terry Taylor Scholarship (TTS). This article presents some of the findings of that research (namely, the dividend outcomes delivered by sampled Australian DOCAs) in a manner consistent with reports which have recently emerged from similar research conducted in the UK. In so doing, a basic comparison can be made of the performance of Australian DOCAs against analogous UK procedures.

Education paths for documentary distribution: DAF, ATOM and the study guides that bind them

An expanding education market targeted through ‘bridging material’ enabling cineliteracies has the potential to offer Australian producers with increased distribution opportunities, educators with targeted teaching aids and students with enhanced learning outcomes. For Australian documentary producers, the key to unlocking the potential of the education sector is engaging with its curriculum-based requirements at the earliest stages of pre-production. Two key mechanisms can lead to effective educational engagement; the established area of study guides produced in association with the Australian Teachers of Media (ATOM) and the emerging area of philanthropic funding coordinated by the Documentary Australia Foundation (DAF). DAF has acted as a key financial and cultural philanthropic bridge between individuals, foundations, corporations and the Australian documentary sector for over 14 years. DAF does not make or commission films but through management and receipt of grants and donations provides ‘expertise, information, guidance and resources to help each sector work together to achieve their goals’. The DAF application process also requires film-makers to detail their ‘Education and Outreach Strategy’ for each film with 582 films registered and 39 completed as of June 2014. These education strategies that can range from detailed to cursory efforts offer valuable insights into the Australian documentary sector's historical and current expectations of education as a receptive and dynamic audience for quality factual content. A recurring film-maker education strategy found in the DAF data is an engagement with ATOM to create a study guide for their film. This study guide then acts as a ‘bridging material’ between content and education audience. The frequency of this effort suggests these study guides enable greater educator engagement with content and increased interest and distribution of the film to educators. The paper Education paths for documentary distribution: DAF, ATOM and the study guides that bind them will address issues arising out of the changing needs of the education sector and the impact targeting ‘cineliteracy’ outcomes may have for Australian documentary distribution.

Evolution of the docklands food hub : a design-led innovation approach to food sovereignty through local food systems

Access to nutritious, safe and culturally appropriate food is a basic human right (Mechlem, 2004). Food sovereignty defines this right through the empowerment of the people to redefine food and agricultural systems, and through ecologically sustainable production methods. At the heart of the food sovereignty movement are the interests of producers, distributors and consumers, rather than the interests of markets and corporations, which dominate the current globalized food system (Hinrichs, 2003). Food sovereignty challenges designers to enable people to innovate the food system. We are yet to develop economically viable solutions for scaling projects and providing citizens, governments and business with tools to develop and promote projects to innovate food systems and promote food sovereignty (Meroni, 2011; Murray, Caulier-Grice and Mulgan, 2010). This article examines how a design-led approach to innovation can assist in the development of new business models and ventures for local food systems: this is presented through an emerging field of research ‘Design-Led Food Communities’. Design-Led Food Communities enables citizens, governments and business to innovate local food projects through the application of design. This article reports on the case study of the Docklands Food Hub Project in Melbourne, Australia. Preliminary findings demonstrate valued outcomes, but also a deficiency in the design process to generate food solutions collaboratively between government, business and citizens.

Life storytelling at the ABC: Challenges of 'giving the audience a voice' in the context of public service media

Life storytelling projects have become an important means through which public service media institutions such as the Australian Broadcasting Corporation are seeking to foster audience participation and involve particular cohorts in the creation and distribution of broadcast content. This paper contributes to the wider conversation on audience participation within public service media intuitions (PSMs), and focuses on the opportunities and challenges that arise within life storytelling projects that are facilitated by these institutions, and that aim to ‘give voice’ to members of ‘the audience’. In particular, it focuses on two of the Australian Broadcasting Corporation’s current life storytelling projects: ABC Open and Heywire.

Local content and the ABC

The following is an edited version of a submission to the Environment and Communications Legislation Committee with reference to the Australian Broadcasting Corporation Amendment (Local Content) Bill 2014, by Brian McNair and Ben Goldsmith. The committee has now reported.