Realising the Public Potential of Corporate Law: The Statutory Directors Duties and the Role of the Public Regulator in Australia

Presentation by Michelle Welsh, Associate Professor, Business Law and Taxation, Monash University, Australia

Open for all interested.

 

Abstract

Traditionally corporate law has been viewed as having characteristics that are commonly associated with private law, leaving no or a very limited role for the state it its enforcement. An alternate view is that corporate law has and should be recognised as having characteristics that are usually associated with public law and as a consequence there is a role for public enforcement. Australia is unusual in the extent to which its corporate law allows for public enforcement. For example, unlike the US and the UK, Australian corporate law contains statutory directors’ duties supported by a civil penalty regime that gives the Australian Securities and Investments Commission (ASIC) standing to take court based proceedings following a breach. This raises interesting questions as to the appropriate role of a public regulator when it acts to enforce breaches of what arguably are codified fiduciary and common law duties that represent private rights, traditionally only enforceable by the company to whom they are owed.  

In these circumstances the public nature of corporate law in Australia is largely determined by the types of cases the regulator chooses to pursue and the interests that it seeks to represent. Through the use of these provisions ASIC has the potential to influence governance standards in Australian boardrooms, in the public interest. This presentation will draw on the findings of two recent publications that examined ASIC’s use of the civil penalty regime; one in the Federal Law Review and the other in the Sydney Law Review (co-authored with Rosemary Teele Langford and Ian Ramsay); to illustrate how the public potential of corporate law has developed in Australia and how the regulator has sought to influence governance standards in Australian boardrooms through the litigation it has commenced.

Please see the presentation (pdf)

About Michelle Welsh

Michelle Welsh is a leading scholar in corporate law, specifically the Public enforcement of corporate law, the use of civil penalty regimes and the impact of enforcement on compliance. Her research has examined the nature of the decision-making processes adopted by regulators, measured the characteristics of enforcement actions instigated by the Australian corporate regulator and empirically assessed the impact of Public enforcement on corporate compliance. Currently Michelle is working on an ARC funded project on phoenix activity that seeks to determine the optimal method of dealing with this damaging behaviour through a comprehensive examination of all of its aspects in Australia and a comparative analysis of international responses. 

Michelle’s research engages with and has an impact on government, industry and law reform bodies. She has a sustained record of publishing in high quality journals. Her research has been cited by national and international scholars, law reform bodies, regulators and courts. She has made several submissions to government inquiries, appeared by invitation before a Senate Economic Reference Committee Inquiry, and been consulted by international law reform bodies.

Michelle is the National President of the Corporate Law Teachers Association (CLTA), the Director of the Ethical Regulation Research Group, Monash Business School and has been Acting Head of Department of BLT since January 2016.

_____________________________

We will serve coffee, tea and fresh fruit. Bring your lunch packet!

 

Published Aug. 19, 2016 1:20 PM - Last modified Sep. 9, 2016 3:12 PM