Melbourne Law School - Theses
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ItemDocuments on securities and creditors rights(University of Melbourne, 1975)The materials herewith comprise examples of some forms of documents. They are to be used solely for the purposes of private study by students enrolled in the subject of Securities and Creditors Rights in the Faculty of Law in the University of Melbourne in 1975. They are not to be reproduced either wholly or. in part by any person except with written permission of Mr. A. J. Myers lecturer in the above mentioned subject.,
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ItemCrypto-Financial Assets in a DLT-Based Market Infrastructure: Legal Principles of Ownership and Obligation( 2019)Decentralised ledger technology (‘DLT’) first emerged in late 2008 and has its origins in the ‘blockchain’ technology designed to prevent ‘double spending’ within the Bitcoin cryptocurrency network. Whilst cryptocurrencies, in themselves, remain controversial, there has been a general recognition amongst the major commercial banks, central banks, and policymakers, that DLT and smart contracts may well improve efficiency in financial accounting, settlement, and other post-trade services. Although DLT is still in its infancy, with many authorities unwilling to stifle innovation by premature regulatory interference, some stakeholders have recognised that regulatory ‘sandboxes’ would, nonetheless, be a useful tool to overcome any identified issues, and help keep regulations and legislation up to date with change. This thesis analyses the private law implications and consequences, predominantly in the English laws of property and obligations, of adopting DLT at three levels of the financial markets infrastructure by reference to live case studies: (i) by the issuer, thereby creating a direct link between issuers and investors (the LuxDeco and Overstock securities); (ii) by a top-tier intermediary, such as a settlement system or central securities depository (the Australian Stock Exchange); (iii) by lower-tier securities custodians inter se (Deutsche Börse). The legal analysis is informed by a technical understanding and explication of the code underpinning the Bitcoin and Ethereum networks, the current state of the markets in native cryptoassets, and developments in the UK's FCA regulatory sandbox.
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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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ItemThe role and function of the ASX and its listing rules( 1992)In a joint submission to the Australian Stock Exchange Limited ("ASX") dated December 1989 (the "Joint Submission") the Law Institute of Victoria and the Law Council of Australia expressed the view that: "The ASX should be contained to its role of ensuring that the market is informed, efficient and fair, and not be allowed to effectively legislate on substantive issues of law outside this role."1 It was suggested in the Joint Submission that the ASX, through its listing rules, had over-extended its role so as to encroach on substantive company law matters which were more properly within the province of Parliament. 2 These criticisms have resulted in a considerable degree of public debate on the proper role of the ASX and the scope of its listing rules.3 In response to the Joint Submission and the public debate, a discussion paper was released by the ASX in October 1990 (the "Discussion Paper")4 in which the ASX expressed its views on these issues and invited submissions from interested members of the public. In its Discussion Paper, the ASX largely defended its perception of its current role in the business community and argued that the listing rules did not exceed their proper scope (although this view has since been refined). It was conceded by the ASX, however, that some of the concerns expressed in the Joint Submission relating to the drafting and adoption of listing rules had some validity".5 It was also conceded that some listing rules would be better contained in legislation. Both the Joint Submission and the Discussion Paper of the ASX will be examined in detail in this paper. Central to the argument concerning the proper scope of the ASX listing rules are sections 777 and 1114 of the Corporations Law (formerly sections 42 and 14 respectively of the Securities Industry Act 1980) which grant "statutory recognition" to the listing rules. On the view put forward in the Joint Submission, the listing rules do not have the clarity expected of legislation, which gives rise to uncertainty of their application in practice.6 Such uncertainty is increased, so it is said,7 by the fact that in the foreword to the listing rules, the ASX states that it looks to listed companies to comply with the "spirit' as well as the letter" of the listing rules. According to the Joint Submission, this gives rise to the undesirable possibility of action under the Corporations Law (formerly under Securities Industry Act 1980) to enforce the spirit of the listing rules.8
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ItemThe suitability rule : a critical analysis of section 851 of the Corporations Law( 1991)A securities adviser must tailor his investment recommendations to the investment objectives, financial situation and particular needs of his client. In the United States, this has become known as the 'Suitability Rule', imposed by the National Association of Securities Dealers (NASD), the New York Stock Exchange (NYSE) and, until recently, the Securities and Exchange Commission (SEC). In Australia, we have gone further than , developing mere suitability rules. We have developed a statutory obligation under the guise of section 851 of the Corporations Law (CL), which imposes a suitability obligation on securities advisers who make recommendations to investors. However, the 'Suitability Rule' remains, in Australia at least, an amorphous concept. There have been no recorded cases to determine what are the securities adviser's duties under our suitability provision. The Suitability Sules adopted by the NASD, the SEC and the NYSE themselves differ significantly. Can the Australian Courts draw on the American experience as a guide in Australia's embryonic development of a securities advisers independent duty under our legislation? Chapter 1 of this paper will consider the relationship between the securities adviser and the investor. Chapter 2 will trace the development of the Suitability Rule in Australia and the United States. Chapter 3 will examine the rationale behind the Suitability Rule. Chapter 4 will discuss the application of the Suitability Rule and what control it has over securities advisers who make recommendations. Finally, this paper will consider whether the Suitability Rule should be redefined to further enhance investor protection.