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ItemRegulation of executive remuneration: an empirical study of the first three years of a 'disclosure and voting' regime in Australia and the UKSheehan, Kym Maree ( 2010)Legislation by the UK government in 2002 and the Australian government in 2004 sought to improve board accountability for executive remuneration practices in listed companies. The thesis examines whether the remuneration report plus an advisory vote were effective in achieving this and other government policy aims (such as reducing excessive remuneration and aligning pay with performance). The thesis focuses upon the initial three years of this regime in the UK (2003-2005) and Australia (2005/06-2007/08). Part I of the thesis reviews three theories of motivation from the human resource management literature, together with two derivatives of agency theory (optimal contract and the managerial power thesis) to justify executive remuneration practices and the need for it to be regulated. Drawing upon the concept of ‘regulatory space’ and Julia Black's writings on rule dimension and regulatory conversation, the thesis presents a conceptual model of the regulatory framework for executive remuneration: the regulated remuneration cycle consisting of four activities (remuneration practice, disclosure, engagement and voting). Close analysis of the rule types, regulators and regulatees within this regulated remuneration cycle demonstrates that most of the rules found in the cycle take the form of statements of best practice, or other kinds of ‘soft law’, rather than legislation. Thus enforcement of good remuneration practices does not rely upon legal sanctions. The enforcement pyramid for remuneration practice confirms that most of the enforcement strategies for remuneration practice belong to shareholders. However, the regulated remuneration cycle exposes the three roles that shareholders play within this regulatory space: a rule-maker for executive remuneration practice, an active engager of remuneration committees and a routine voter on remuneration-related resolutions. Part II presents qualitative and quantitative empirical evidence of the operation of the remuneration report and advisory vote in both jurisdictions. It analyses remuneration reports and voting results for a sample of companies from the FTSE 100 and the S&P/ASX 200 for the first three years. It supplements this publicly available information with interview evidence from remuneration committees and their consultants, institutional investors and institutional representative organisations. By analysing the rules for each of the four activities in light of the evidence of how they work in practice, it demonstrates the challenges facing remuneration committees and institutional investors in working within the regulated remuneration cycle. Using the advisory vote as a proxy for shareholder outrage, it demonstrates the effect that the vote had on remuneration practice over the first three years of its operation was not identical in the UK and Australia. Part III concludes the thesis by presenting six findings on the operation of the regulatory initiatives of the remuneration report and advisory vote. These reforms were only partially successful in improving board accountability and unsuccessful in reducing excessive remuneration over the first three years of its operation. The implications of these findings for the regulatory reforms enacted in response to the global financial crisis are noted.
ItemAn analysis of the office of Attorney General in Australia and directions for the futureHANLON, FIONA ( 2007)It is often assumed that the office of Attorney General in Australia carries with it an obligation to act independently of political considerations that does not apply to other ministerial offices. This is the orthodox view. There is, however, another view, the heterodox view, of the office of Attorney General, according to which the ministerial office that bears the title ‘Attorney General’ cannot be distinguished from other ministerial offices in any significant respect. The question which this thesis considers is whether any reliable basis can be found for the orthodox view either in terms of the manner in which the office of Attorney General is constituted in the twenty-first century or at any time since its first establishment in Australia. The thesis identifies possible sources for the existence of an obligation to act independently and tests the accuracy of those sources against the historical and current operation of the office in Australia. Having carried out that analysis the thesis then examines options that could be considered for the future to assist the hopes and aims motivating the orthodox view of the office of Attorney General to be achieved. It is important to assess the legitimacy of the orthodox view because of the faith and trust that it places in the Attorney General in relation to the maintenance of the integrity or Australia's constitutional structures and the manner of the exercise or executive power. If it is unjustified then this belief and trust could result in the inappropriate allocation of important and largely un-reviewable responsibilities to the holder of the office. It may be time to let go of the title "Attorney General and adopt "Minister of Justice" instead. This will raise issues as to the ability of the Parliament to hold the executive to account, the independence of the judiciary both for the adjudication of matters before it and for its administration and how its expenditure of public funds can be authorised and scrutinised by the Parliament. Also raised will be the status and professional responsibilities of lawyers in government in the defence of the integrity of the legal and judicial system.
ItemSuperannuation: a public trustMcAlister, Pamela ( 2002)Superannuation funds in Australia were originally established in an occupational environment and administered as private trusts. Superannuation funds are also collective investment schemes and, as such, can have commercial overtones. This thesis demonstrates how the judiciary and the government have both strained and extended private trust law in order to accommodate the distinctive features of the superannuation trust. Chapter 2 examines some of the tensions with traditional trust law by undertaking a survey of case law dealing with disability benefits. A detailed analysis of the statutory scheme contained in the superannuation legislation is undertaken in chapter 3. Chapter 4 will examine the impact of imposing 'merits review' - an administrative law mechanism - on private trustees. These developments suggest that superannuation trustees perform a public function. Yet the private form and source of superannuation benefits indicate that it is inappropriate to simply replace trust law standards with administrative law standards, unless it can be said that superannuation trustees now operate in the public domain. This question is explored in chapter 5 and analogies are drawn with the more public charitable trust. It is concluded that both the charitable trust and the superannuation trust operate within a hybrid 'public service' sector. A unique public model must therefore be formulated. Chapters 6 and 7 propose the specific features of the hybrid public model for superannuation trusts. Modifications to the current legal regime are identified in order to bolster the tentative trend in this direction. It is submitted that this public model offers a solution to the dilemmas currently encountered in conceiving a juristic framework for the modern superannuation trust in Australia.
ItemThe regulation of research involving human embryos and cloning in the United Kingdom and AustraliaAllan, Sonia Marie ( 2009)This thesis analyses the nature, rationale, and implementation of United Kingdom and Australian regulation of research involving human embryos and cloning using legal materials, other documents and qualitative interviews with researchers, practitioners and regulators. It considers how law-makers have decided upon what to regulate and where to draw the line between permissible and prohibited activities, and the type of regulatory design strategies and enforcement approaches adopted in each jurisdiction (the ‘how to regulate’ question). It is argued that both jurisdictions have effectively decided upon permissible and prohibited activities as a result of thorough public consultation, research, reviews and the parliamentary process, and have appropriately balanced competing rationales for regulation. However, the type of regulation used in relation to those who are licensed to research in this area is unsuitable due to an over-emphasis on deterrence and the authoritarian approach taken by the regulatory bureaucracies. The central thesis is that a responsive regulatory system for licence-holders should be adopted. It is proposed that such a system would maintain the top level ‘command and control’ design strategies and deterrence approaches present in the current regulatory systems for breaches of legislation by non-licence holders and serious breaches by licence holders. However, greater use of co-regulatory design strategies and cooperative, educative and persuasive enforcement approaches should be used for regulating licensed research activities.