Directors' duty to use their powers for proper or permissable purposes

This article focuses generally on the interaction among several internal company law doctrines such as the supremacy of the articles of association; that other organs cannot interfere with powers exclusively conferred upon a particular organ; that courts will not readily interfere with internal company matters; that directors are under a duty to act in good faith and in the best interest of the company as a whole and under a duty to use their powers for proper or permissible purposes; and that there are some remedies available to shareholders if directors did not perform their powers for a proper or permissible purpose. The specific aim with the article is to establish when and why the courts will be prepared to set aside decisions by directors if they have taken them for an improper or impermissible purpose. The article concludes that the courts will be prepared to set the decisions of directors aside when they have used a particular power substantially or primarily for an improper or impermissible purpose. When the exercise of directors' powers is challenged under circumstances where there were both permissible and impermissible purposes for exercising a particular power, there is no alternative for the court but to inquire into the complex area of the state of mind of those who acted and the motive on which they acted. This is, in fact, second-guessing the decisions of directors.

Prevention of suicide : police powers, parliamentary intent and judicial interpretation

While in most countries suicide is no longer a crime, it is also acknowledged that the state has an interest in the preservation of human life, prevention of suicide, and protection of vulnerable persons from harming themselves. In a civil, secular and democratic society, however, the public law principle of state protective powers has to be balanced against the private law principle of personal autonomy (personal self-determination). Under the doctrine of autonomy, competent adults of sound mind can make legally binding voluntary choices, including the so-called ‘death-choice’ (refusal of life-sustaining or life-prolonging treatment as well as suicide). To add to the complexity, whereas the powers of the state in relation to suicide and its prevention have been codified, the concepts of personal autonomy and personal liberty are grounded in common law. Stuart v Kirkland–Veenstra [2008] VSCA 32, which is at present being considered by the High Court of Australia, exemplifies tensions that arise in the suicide-prevention area of jurisprudence. This article explores powers and duties of police officers in relation to suicide prevention and the notion of mental illness by reference to the Kirkland–Veenstra case, the relevant statutory framework and the common law.

Beyond the separation of powers : judicial review and the regulatory proscription of terrorist organisations

Administrative law remains the key defence against an over-zealous executive arm of government, but administrative law needs to be understood in an international context. Perhaps nowhere is this more apparent than in relation to legislation designed to counter terrorist activities. The co-ordination of terrorist activities knows no borders, and state-centered executive action designed to address the threat of terrorism necessarily operates in a broader global environment. An important but controversial part of Australia's counter-terrorism legislation suite is the power to proscribe terrorist organisations. The authors contend that the scope of judicial review available in relation to decisions of the Commonwealth executive to proscribe terrorist organisations is inadequate and may jeapordise Australia's compliance with international standards, such as those provided in the International Covenant on Civil and Political Rights. Now is an opportune time to reassess the structure and operation of the power to proscribe organisations in Australia.

Middle powers and the building of regional order : Australia and South Korea compared

This article compares how two alliance partners of the United States — Australia and the Republic of Korea — are adjusting to the transition from the Cold War order in the Asia-Pacific to a new, as yet undefined regional order. As states occupying positions of privilege in the U.S.-led Cold War order, these two middle powers have engaged with the ASEAN grouping, the putative driver of the coming order, while maintaining traditional alliance commitments to the United States. This article focuses on proposals for the building of formal institutions and also other policies which can influence the formation of regional order, such as economic integration through the pursuit of free trade agreements. In examining an Asian and a non-Asian state, the article also considers how identity shapes attitudes to region and order.

Verification of the vertex powers of varifocal rigid contact lenses

 

A concert of powers and hybrid regionalism in Asia

With the rise of China the strategic competition between the US and China has gained momentum over the last 10 years and is likely to continue in the near future. To deal with this challenge, Hugh White has proposed a concert of powers in Asia. White’s proposal, however, has not received sufficient attention in Asia and is likely to be a failure if Asia does not take it seriously. This article examines the problematic assumptions of White’s proposal and argues that his proposal needs to incorporate the important role of ASEAN, an existing de facto Asian concert of powers. It shifts the idea of a concert of powers towards a new hybrid regionalism, identifies its key components and discusses how this hybrid regionalism can dilute the strategic conflict between China and the US.

Moving right along: what powers do police have to 'move-on' protestors?

When police removed a young woman’s “tent dress” this week at the Occupy Melbourne encampment, it was yet another controversial interaction between protesters and authorities.

The geopolitical economy of social policy in the Philippines: securitisation, emerging powers and multilateral policies

Recent geopolitical and economic changes have altered global social policy formation. Bretton Woods multilateral development agencies (MDAs) have selectively incorporated ideas that have emerged from developing country states and decision makers. Recent years have witnessed an increased acceptance of social transfers as part of renewed efforts at poverty alleviation policies based on social risk management. There has been an instance in the use and promotion of conditional cash transfer (CCT) policies by MDAs. One case is the Philippines. CCTs were a product of the emergence of a neostructuralist welfare regime (understood as an ideal type) in Latin America. There was an attempt to reconcile neoliberal strategies of development with aspirations for guaranteed minimum incomes. The Bretton Woods and regional development bank MDAs have facilitated the adoption of CCTs in other developing country contexts. In the Philippines, a combination of actions by national political actors and MDAs resulted in the implementation of a securitised and compliance-focused version of CCTs derived from the Colombian security state. Although poor households welcome income assistance, CCTs have acted to enforce further state monitoring without altering the national-based political and economic processes that replicate poverty.

The emergency powers in Bangladesh: means for subversion of the rule of law?

The Constitution of Bangladesh empowers the President to proclaim an emergency on the actual or imminent ground of war or external aggression or internal disturbance. However, the insertion of ‘internal disturbance’ in the Constitution as a ground for invoking emergency has provided the executive with the opportunity to proclaim all the five emergencies in Bangladesh on this vague ground for purposes other than that of securing the life of the nation. Furthermore, in the absence of any effective constitutional mechanisms for scrutinising the exercise of emergency powers and a time limit on the continuation of a state of emergency, some of the proclamations of emergency continued even after the alleged threat posed to the life of the nation was over to perpetuate the survival of the party in power by repressing any political threat to the regime. This Article, therefore, recommends for insertion in the Constitution of Bangladesh detailed norms providing for legal limits on the wide power of the executive concerning the proclamation, administration and termination of emergency with a view to ensure that emergencies can no longer be resorted to as the effective means of discarding the rule of law.

Victoria’s banning provisions: ‘balancing’ discretionary police powers and individual rights

This thesis examines the parliamentary passage, implementation and ongoing scrutiny of Victoria’s banning notice provisions. Underlying political assumptions and justifications are explored to reveal how banning notices exemplify a move towards police-imposed discretionary justice, which undermines individual rights and reconfigures the notion of balance in the criminal justice system.

Upholding whose right? Discretionary police powers to punish, collective 'pre-victimisation and the dilution of individual rights

This article uses the example of Victoria’s alcohol-related banning notice provisions to explore the changing conception of balance within criminal justice processes. Despite the formalisation of individual rights within measures such as Victoria’s Charter of Human Rights and Responsibilities Act 2006, the discretionary power of the police to issue on-the-spot punishments in response to actual or potential criminal behaviour has increased steadily. A key driver, evident across the parliamentary debates of the banning legislation, is a presumed need to protect the broader community of potential victims. As a result, the individual rights of those accused (but not necessarily convicted) of undesirable behaviours are increasingly subordinated to the pre-emptive protection of the law-abiding majority. This shift embodies a largely unsubstantiated notion of collective pre-victimisation. Significantly, despite the expectations of Victoria’s Charter, measures such as banning notices have been enacted with insufficient evidence of the underlying collective risk, of their likely effectiveness and without meaningful ongoing scrutiny. The motto of Victoria Police – Uphold the Right –appears to belie a growing uncertainty over whose rights should be upheld and how.

Towards compassion: statutory powers to regulate impaired doctors in Victoria, 1844-2016.

This article examines the significant changes that parliamentarians have made to the powers of regulators of the Victorian medical profession (regulators) from 1844 to the present day to manage doctors whose ill health has impaired their capacity to practise medicine (impaired doctors). It explores the influences on legislators that altered their conceptions of the best ways of achieving the chief objective that they all shared: to protect the public. The article argues that there was a dramatic progression over this period from parliamentarians confining regulators to responding in a draconian, narrow way to impaired doctors, to empowering them increasingly to adopt a flexible, personalised and empathic regulatory approach. This management style has the potential to support impaired doctors to practise medicine safely, which is beneficial for the practitioners and their patients. Nevertheless, despite legislators’ intentions, in certain circumstances impaired doctors today may still experience regulation that appears punitive and unsupportive. The article therefore recommends that future legislators change regulators’ powers further to encourage them to manage these doctors in particular with greater compassion and thereby improve their chances of practising medicine safely in the future.