Ensuring balance in corporate governance : parts 2F.1 and 2F.1A of the Corporations Law

Effective corporate governance must balance the competing, and at times conflicting, objectives of efficient endeavour and accountability. The CLERP amendments to the Corporations Law introduced on 13 March 2000 go a long way towards providing this balance. While the business judgement rule was introduced to promote efficient endeavour, Pts 2F.1 and 2F.1A maintain corporate accountability. This article compares Pts 2F.t and 2F.1A of the Corporations Law. It is argued that, although there are procedural and substantive differences between the two parts that need to be understood by practitioners, the importance of the two Parts is that they work together to provide for a much-needed improvement and enhancement of shareholder rights and remedies, thus upholding accountability in corporate governance.

The association between the investment opportunity set and corporate financing and dividend decisions: some Australian evidence

Summarizes previous research on the investment opportunity set (IOS) using price-based and investment-based proxies and variance measures; and develops hypotheses on the relationship between IOS, debt/equity ratios and dividend policies. Tests them on 1990-1998 data from listed Australian companies and explains the methodology, which builds on Gover and Gover (1993) by including more recent proxy variables. Finds no significant results from low growth firms, although some high growth firms show lower debt/equity ratios and dividends. Questions the robustness of existing IOS proxies in the Australian context and calls for further research.

The implementation of OECD corporate governance principles in post-crisis Asia

The recent OECD Principles on Corporate Governance provide a framework for the convergence of global corporate governance practice. This paper considers the implementation of these global ‘best-practice’ standards of governance as part of the continuing post-economic-crisis reform throughout Asia. These initiatives have explicitly acknowledged that no single model of governance can exist, and instead have focused on those elements apparently common and, therefore, applicable to all countries. Notwithstanding the existence of these elements, this paper investigates the difficulties involved when attempting to implement general rules across countries at different stages of economic and legal development. While implementation will be hindered by obvious cultural disparities, long-term change in practice requires a cultural shift in the philosophical and financial bases of the firm.

A partnership model of corporate ethics

The stock market crash of 1987 had a profound effect on corporate Australia and the Australian community in general. The fall-out revealed that some of our most respected business figures had not been as ethical, or even as lawful, as we would have hoped. This impropriety produced in Australia an awakening to business ethics. Whilst many companies endeavoured to introduce ethical practices into their corporations, they perceived ethics as a way of minimising damage to the corporation and in some cases as a means of competitive advantage. What was lost was the reason that one should embark on business ethics; and that is to make the society and corporate Australia a more ethical place in which to exist.This paper proposes a model based on 2 factors: commitment and partnerships, as a means of enabling corporate Australia to refocus attention on the main purpose of being inherently ethical in all that we do. This ethical model requires a commitment to partnerships with all stakeholders both internal and external in an attempt to enhance the level of ethical business practices that are contemplated and pursued within corporate Australia. Whilst the research agenda and the information collected is Australian-based, it is hoped that the ideas contained within this paper will have a wider appeal to corporations in similar cultural settings.

Corporate liability for workplace deaths and injuries-reflecting on Victoria's laws in the light of the Esso Longford explosion

The purpose of this article is to consider some different legal models for the liability of corporations for the deaths and serious injuries of their employees, with particular emphasis on the law in Victoria.

Two recent developments in Victoria prompt this consideration. First, on 30 July 2001, the Victorian Supreme Court handed down its sentencing decision in the case arising from the explosion on 25 September 1998 at the Longford gas plant operated by Esso Australia Pty Ltd. The decision marked the end of the formal public consideration of a devastating event in Victorian industrial history, which began with the Royal Commission set up on 20 October 1998 to investigate the causes of an explosion in which two workers died and eight others were injured. Second, in early 2002, the Victorian Government failed in its attempt to introduce new criminal offences for corporate employers whose employees are killed or seriously injured at work. In spite of their failure to be passed by the Legislative Council in Victoria, these proposals warrant consideration. They represent a growing trend by policy makers in attempting to address more effectively the question of the liability for deaths and serious injuries of workers to employers who operate through the corporate form.

Corporate citizenship in Australia : some ups, some downs

Issues of corporate citizenship and corporate social responsibility, and more recently triple-bottom-line thinking, have been gradually climbing higher on the agenda of corporate Australia in the last couple of years. This paper reports on the results of a major survey of corporate citizenship of the top corporates in Australia recently completed by the Corporate Citizenship Research Unit, Deakin University. The most significant finding was that, while there is a great deal of understanding of, and aspirations towards, effective corporate citizenship in corporate Australia, there is a general lack of fit between wanting to do it and actually doing it so that it is seen to be core business.

`Zealotry or nostalgic regret`? women leaders in technical and further education in Australia : agents of change, entrepreneurial educators or corporate citizens?

Education has been restructured in many Western post-industrial nation states during the 1990s. The Australian Technical and Further Education sector (TAFE) has been particularly susceptible to discourses of responsiveness to the market and the new entrepreneuralism. This article explores how women have been repositioned in contradictory and ambiguous ways as the new entrepreneurial middle managers by existing and emergent discourses that circulated in and through TAFE organizations. In turn, it points to how discourses of change management and client responsiveness took on particular readings within specific institutional and professional cultures of the eight Technical and Further Education institutions (TAFEs). At the same time, the restructuring that arose from the corporatization of TAFE, in a highly gendered process, through the twin strategies of marketization and the new managerialism produced new possibilities for individual women educators who moved up into middle management. Yet these individual women were positioned within highly masculinist 'neo-corporate bureaucratic cultures' that co-opted their passion for the capacity of education to make a difference and incorporated these new entrepeneurial work identities.

Expanding criminal sanctions for corporate crimes-deprivation of right to work and cancellation of education qualifications

Fines are the standard sanctions employed by most Western countries when a corporation has been convicted of a crime. However, some offences committed by corporations are too serious to be dealt with by way of a fine. There is a need to consider other sanctions that can be invoked in order to deter corporate crime. In this article, it is suggested that the focus should be on criminal sanctions against the natural persons who can potentially commit crimes on behalf of a corporation. New sentencing options against those who can potentially commit crimes on behalf of a corporation should include the annulment or suspension of an offender's academic  qualifications and the making of orders preventing an offender from working or being enrolled in an educational or vocational pursuit.

Reverberations after the HIH and other recent Australian corporate collapses: the role of ASIC

This article focuses on some of the litigation and other developments following the recent spate of corporate collapses in Australia. It gives a basic background to abuses of the 1980s, followed by a short description of some of ASIC's statutory powers. The remaining parts of the article focus on the role ASIC played in instituting actions against the directors of some of the collapsed corporations and in particular what ASIC seeks to achieve with high profile litigation. The article concludes that there is no doubt that in the aftermath of these massive corporate collapses ASIC fulfilled its role as the primary Australian corporate regulator with assiduousness. However, it also draws attention to the fact that the challenges for ASIC now will be to play a far more active role in assuring that signs of corporate collapses are detected at the earliest possible juncture. This will probably mean that ASIC's focus will have to be more and more on monitoring companies, rather than on its role as regulator and enforcer in the strict sense of the word.

Removal of company directors in a climate of corporate collapses

The string of high-profile corporate collapses recently has provided a fresh insight into many important topics and issues in Australian corporations law. Notwithstanding this, one topic that continues to receive inadequate attention both in Australia and in foreign jurisdictions is the statutory removal of  directors. In an earlier article published in this journal, one of the present authors contributed towards addressing this lack of commentary on the topic by highlighting a number of peculiarities with the provisions under the then Corporations Law regulating the removal of directors in public and proprietary companies. Since that time, the CLERP amendments to the Corporations Law (now Corporations Act 2001) in 2000 introduced some interesting changes to the provisions dealing with the removal of directors in public and proprietary companies. In this article, the authors provide an explanation and critical analysis of these changes, and consider the recent Western Australian Supreme Court decision of Allied & Mining Process Ltd v Boldbow Pty Ltd [2002] WASC 195, which deals with some of the issues raised by the authors in relation to the CLERP amendments. According to the authors, whilst some of the peculiarities raised in the earlier article no longer exist post-CLERP, the current removal provisions still raise some important questions of interpretation.

Communicating the ethos of codes of ethics in corporate Australia, 1995-2001: whose rights, whose responsibilities?

This paper considers the commitment to business ethics of the top 500 companies operating in the Australian private sector and communicates the results of a longitudinal study conducted from 1995 to 2001. Primary data was obtained (in 1995 and again in 2001) via a self-administered mail  questionnaire distributed to a census of these top 500 Australian  companies. This commitment of each company to their code of ethics was indicated and measured via a range of methods used by organizations to communicate the ethos of their codes to employees. Just as they were in  1995, it would appear that companies in 2001 still are good at ensuring that their rights are protected, but at the same time they do not seem to take on the responsibility to ensure that employees'' rights are just as well protected. This double standard leads to cynicism towards the current business ethics processes inherent in Australian companies.

Reflections on some recent corporate governance reforms in Germany. A transformation of the German aktienrecht?

Focuses on the German law reform relating to public corporations. Flaws to the German system of corporate governance; Advantages of comparative corporate governance research; Features of the German Corporate Governance Code.