Related party transactions under Pt 2E of the corporations act: time for reconsideration

The related party provisions under Pt 2E of the Corporations Act 2001 were introduced in 1992 to protect the resources of companies and shareholder interests by requiring that directors disclose financial benefits given to 'related parties' -- those capable of exercising significant influence over the giving of such benefits. The contention of the authors in this article is that Pt 2E has been unsuccessful in achieving its intended purpose, and should be repealed in its entirety. The authors argue that the various provisions of Pt 2E are so confusing and convoluted that they potentially violate the rule of law virtue that laws must be promulgated in a manner that is clear, so that it is apparent from reading the laws what one must do. Further, [*2] the manner in which Pt 2E is presently drafted, especially the definition of related party, fails to reflect the purpose behind the provisions, making the overall operation of Pt 2E ineffective. It is also argued that Pt 2E is superfluous since the fiduciary duty of directors to disclose a conflict of interest, and to a lesser extent the requirement for disclosure of material personal interests under s 191 of the Corporations Act, adequately deal with the transactions presently attracting the attention of Pt 2E. In light of all this, it is contended that the law would be demonstrably improved by repealing Pt 2E.

The right to privacy and corporations

Traditionally the right of privacy has not been recognised at common law. However, recently the High Court has indicated that it may be willing to develop a new tort of invasion of privacy. Several of the justices have stated that the new action would only relate to natural persons, not corporations. This is because the principles said to underpin the right to privacy, autonomy and dignity, are supposedly inapposite to corporations. This article argues that this reasoning is flawed. Neither the right to autonomy nor dignity is capable of underpinning the right to privacy. Hence, no sustainable basis has so far been advanced for restricting the availability of any future tort of invasion of privacy to individuals. This article also questions whether a separate tort is needed in view of the protection already provided to the privacy interests of individuals and corporations under the equitable doctrine of confidence.

Prosecuting corporations and officers for industrial manslaughter-recent Australian developments

There have been concerns for some time about whether breaches of duty that cause a worker's death are appropriately dealt with under occupational health and safety legislation, or whether criminal prosecution is warranted in those cases involving recklessness or gross negligence. Defaulting employers are rarely prosecuted under existing criminal laws and there are serious doctrinal barriers to finding a corporation guilty of mens rea offences.
The Australian Capital Territory leads the way in Australia with the recent introduction of new criminal offences of industrial manslaughter for corporations and their senior officers. These laws rely on concepts of corporate liability based on organisational responsibility and corporate culture in the model Criminal Code Act 1995 (Cth) , thus avoiding the limitations of the identification doctrine. Other active Australian jurisdictions, whilst initially open to the notion of industrial manslaughter laws, have preferred to make changes to existing OHS laws to deal with the problem of workplace fatalities.
Whilst it has its limitations, and applies only in Australia's smallest jurisdiction, the Australian Capital Territory legislation reflects a commitment to treating workplace deaths with the seriousness they deserve, and making it easier to prosecute corporations whose operations are conducted recklessly or with gross negligence.

Ambiguities and inconsistencies in relation to the obligations of proxies under corporations law: a model for reform

This article reconsiders the important question which came to light as a result of the controversial 2002 Coles Myer annual general meeting: do directors that are appointed as proxy have an obligation to vote as directed (and indeed should they)? A recent decision of the New South Wales Supreme Court, which was subsequently approved on appeal, stands for the proposition that proxy holders are agents of the shareholders that appointed them. However, currently the Corporations Act only requires a Chairman appointed as proxy to vote as directed — not an ordinary director. This article briefly explains the present state of the law in Australia on this issue, and then explores some interesting recent judicial remarks which may suggest that ordinary directors appointed as proxy must vote as directed in order to satisfy their director’s duties (both common law and statutory) to the company. We finally outline a proposed statutory reform initiative which seeks to remove the present uncertainty in the law by introducing a blanket requirement that all proxy holders must vote as directed.

Statutory injunction - call for amendment to s 1324 of the Corporations Act

It is well documented that s 1324 is a useful tool for restraining a person from engaging in conduct that contravenes the Corporations Act 2001 (Cth). Without examining the provision, one tends to agree with that statement. In practice, however, the provision does not often provide the outcome that is expected. The author argues that the lack of use of s 1324 is due to the uncertainty and ambiguity in the application of the provision. Unlike with ASIC, the test that a person must satisfy when applying for an injunction is not clear cut. Whether damages could be claimed under s 1324 in place of an injunction is also unclear. The article sets out to argue that some integration with the equitable principles is vital for the survival of s 1324, as injunctions are traditionally a remedy conferred in equity and the Parliament has adopted the concept.

Connection between commonly used financial ratios and misrepresentation of financial statements of collapsed corporations

This paper unravels dynamic and intriguing shifts in the use of financial ratios in signaling corporate collapse. An empirical examination of the anecdotal evidences from notable recent corporate collapses coupled with the short-lived usefulness of financial ratios in various prediction models suggest that companies(1) that deliberately misrepresent their financial statements may have taken cues from the ratios that are commonly investigated. This proposition is supported by an extensive examination of over 50 studies conducted between 1968 and 2002. The erosion in the reliability of numbers in financial statements has led to significant distortions in the predictive power of financial ratios when used in signaling corporate collapse. Recent collapses such as Parmalat in Europe, Enron and WorldCom in the U.S. and HIH in Australia, present yet another reminder that financial statement items are being misrepresented. These are all large corporations with well-established household names, and are for sure closely monitored by financial communities around the globe. Nevertheless, a common thread seems to link the collapse of these companies: none of these collapses were foreseen by credit rating agencies or foretold by the widely accepted bankruptcy prediction models. Why? This paper attempts to use some anecdotal evidence in order to provide logical explanations to the existence of such a common thread. It argues that there appears to be anecdotal evidence to suggest that directors of publicly listed companies that have collapsed may have deliberately misrepresented financial statement items.

Economic analyses on multinational real estate and construction sectors

Both the construction and real estate sectors have been considered vital productive drivers for the economic development of a nation. Multinational economic analyses on these two sectors over a long period enable a better comprehension of their effects and interrelationships. Based on the recently published Organisation for Economic Co-operation and Development (OECD) input-output database at constant prices, this paper compares the real estate and construction sectors of six countries in terms of their shares in gross national product and gross national income. The push and pull effects of these two sectors onto the whole economy are further determined using forward and backward linkage indicators respectively. In addition, the interactions between themselves are formulated in terms of direct and total input parameters. This research provides a numerical approach to examine the economic influences and sectorial correlation of the real estate and construction sectors.

Antecedents to women's participation in international assignments in multinational enterprises

This paper reviews the literature on women participation in international assignments. Despite decades of equal opportunity legislation, and a focus on diversity issues by multinational enterprises, women's participation still remains low. Over the past 20 years women's participation has increased, however organisations still need to focus on many issues to increase this participation over the next 10 -15 years. Reasons were put forward in the paper that explains their participation. The paper covers macro, organisational, interpersonal and individual factors. These reasons were explored in the paper, and a model was developed that explains women's participation. Future research in the field was also proposed.

Concise corporations law

This highly regarded exposition of Australia's complex corporations law has been rewritten to take account of changes to September 2000, including most notably the CLERP Act 1999 and the decisions in "Re Wakim and Hughes". Includes succinct, plain language explanations and case summaries.

Corporations law text and essential cases

Corporations Law: Text and Essential Cases is designed as a student text but will be a useful book for practitioners seeking a good, current, concise book on corporations law. Author Julie Cassidy is a proven, successful author and has carefully ensured that the case extracts in this book are long enough to be useful to lawyers needing to cite case authorities in opinions and court submissions.

Concise corporations law

The purpose of this text is to provide a comprehensive, yet succinct, examination of the most significant areas of corporations law. By identifying the key elements underlying the pertinent statutory provisions, writing in a plain English style, and using a simple format, the text seeks to make corporations law more accessible to students and practitioners.