Melbourne Law School - Theses
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ItemCivil penalties under the Corporations Act 2001 (CTH) and the enforcement role of the Australian Securities and Investments Commission( 2008)The civil penalty regime was introduced in 1993 to ensure ASIC would have at its disposal criminal penalties for conduct that is genuinely criminal in nature and civil penalties for breaches of the directors' duties where no criminality is involved. The regime was designed to comply with strategic regulation theory. This thesis examines ASIC's use of the civil penalty regime for the purpose of determining whether or not ASIC has utilized it for the reasons for which it was introduced. One of the research questions examined in this thesis is whether or not the civil penalty regime has provided ASIC with an effective enforcement mechanism for non-criminal contraventions of the civil penalty provisions. In order to answer that question this thesis examines the factors which inform ASIC's choice of the civil penalty regime. Various factors inform ASIC's choice, however in situations where ASIC has the choice of the civil penalty or the criminal regime, the overriding factor is ASIC's and the DPP's stated policy to pursue a criminal prosecution in all cases where there is sufficient evidence to support one. A consequence of the implementation of this policy is that very few civil penalty applications have been issued when compared with other enforcement activity instigated by ASIC. The civil penalty regime has been utilised almost exclusively in situations where a criminal prosecution was not available, or the DPP was satisfied there was insufficient evidence to sustain one. This factor, coupled with the fact that ASIC has achieved a high level of success with the civil penalty applications it has issued means that the civil penalty regime has provided ASIC with an effective enforcement mechanism for contraventions of the civil penalty provisions in situations where a criminal prosecution could not have been sustained or was not available. Another research question examined in this thesis is whether the civil penalty regime has been utilised in a manner envisaged by strategic regulation theory. A consequence of the adoption of a policy of issuing criminal prosecutions in all cases where one is available is that the civil penalty regime does not map on to the enforcement pyramid in a manner envisaged by strategic regulation theory.
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ItemOfficers' accountability in managed investment schemes( 2005)The thesis examines the ways in which the directors and other officers of a company that operates a managed investment scheme can be held legally accountable for maladministration of the scheme's affairs. It demonstrates that the officers' legal accountability for maladministration arises under a combination of corporations law principles, equitable principles that apply to the officer as a consequence of the fiduciary relationship between the operator and the investors, and (where they apply) the regulatory regimes governing the provision of financial services and the operation of registered schemes. The thesis identifies the types of conduct on the part of an officer that can result in personal liability under these principles, and examines remedies and sanctions that are available to the operator, the investors, scheme creditors, and the State.
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ItemReforming the corporate entity principle from a creditors' perspective( 1986)On 28 July 1892 Aron Salomon incorporated Aron Salomon and Company, Limited together with six members of his family. In performing this relatively simple task, he could little have suspected what was about to befall him. Within one year he was to go from riches to ruin. Within two years he was to have his reputation shredded. And within four years he was to have his name enshrined in legal history. In Salomon v. Salomon &. Co.,Ltd. the House of Lords unanimously held that, in English law, companies were legal entities in their own right, completely separate from their owners, and that companies were not the agents or trustees of their owners. This paper will examine this "corporate entity principle" from the viewpoint of trade creditors of companies. It is the thesis of this paper that the corporate entity principle as affirmed in Salomon should, and can, be modified in Australia to more adequately protect trade creditors. Trade creditors are the group who would most like to see the effect of Salomon modified in their favour, and are the group who have had the least success so far in attempting to do this. They have been chosen as the focus of this study precisely because of this lack of success. If the corporate entity principle can be shifted for them, it can be shifted for any other group. To expound on the thesis of this paper, it is first necessary to understand the decision in Salomon and to see the way in which it has been applied by the courts in Australia. Chapters 1 and 2 attempt to provide this background. Chapter 2 also contrasts the approach to the corporate entity principle taken by the courts in Australia with that of the English courts. Even though it is almost 90 years since the House of Lords decided Salomon, Chapter 2 makes it clear that Salomon is still good law in Australia. Chapter 3 suggests that not everyone is happy that this is so, and examines possible reasons why the corporate entity principle has remained intact for so long despite the criticisms that have been levelled against it. In a similar vein, Chapter 4 explores the suggestion that changes made when the Companies Code (2) was introduced in 1981 (in particular, the introduction of s.556(1)) have obviated the need for further changes to the principle. Both these attempts to pre-empt the need to discuss the thesis fail, so Chapter 5 discusses reasons why the corporate entity principle should be modified. Chapter 6 examines possible ways of modifying the principle in the light of the problems highlighted in the preceding chapters. Chapter 7 briefly summarizes the findings of this paper.