Melbourne Law School - Theses
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ItemThe regulation of essential service insolvencies and the public interest : case studies of Australia's electricity industry and Melbourne's public transport industry( 2007)This thesis critically explores the regulation of the insolvency of essential services and the public interest through an examination of the common law and legislative responses in Australia, the United Kingdom and the United States. Drawing on understandings of the public interest gained from its analysis the thesis proposes a model of the public interest that may be used to justify representation of non-creditor interests within insolvency proceedings of essential services. The model also identifies non-creditor public interest considerations that extend beyond continuity of supply. The thesis then undertakes case studies of the regulation of insolvency within the Australian electricity industry and Melbourne's public transport industry to examine how effectively public interest issues have been addressed and how these are balanced against the interests of the firm and its creditors. The thesis argues that a fundamental problem of the regulation of insolvent essential services is balancing the general public's interest in the fate of the insolvent firm with the interests of others stakeholders, particularly creditors. The thesis demonstrates there is a great deal of inconsistency of response to this issue both within and between the jurisdictions under consideration. Focussing on the public interest in the continuity of supply, the United Kingdom has enacted ad hoc insolvency procedures which are initiated by the state and oust creditor control mainly in relation to the monopoly sector of various essential services. A different approach in the United States has meant public interest considerations are built into its insolvency law through a combination of legislative prescription, judicial interpretation of the Bankruptcy Code and a limited willingness to grant non-creditor representation rights in insolvency proceedings of essential services. The thesis argues that the integration model of the United States allows an appropriate balance to be struck between the interests of the firm and its creditors and the broader public interest when regulating the insolvency of essential services. In contrast Australia has not enacted ad hoc insolvency procedures or expressly integrated the public interest within its insolvency law. The case study of the Australian electricity industry shows, however, that the public interest in the continuity of supply is managed by allowing creditors' rights to be affected radically by utilities regulation such a state step-in rights and retailer of last regulation. The thesis demonstrates the fragmented and inconsistent nature of these provisions. The case study of Melbourne's train and tram industry and the examination of South Australia's privatisation of its electricity assets by way of lease show the ways in which private contracting rather than utilities regulation can manage public interest issues. The thesis concludes that while the public's interest in the continuity of supply of essential services in Australia is generally satisfactorily dealt with under current arrangements, what is less clear is whether public interest issues beyond continuity of supply will be given sufficient weight in insolvency proceedings, particularly in the context of a reorganising firm. The thesis argues it is within this area that there is space for integrating public interest considerations within Australia's insolvency law by expressly requiring the court to consider the public interest in such proceedings. Incorporating public interest considerations that recognise non-creditor stakeholder interests into Australian insolvency law requires theoretical justification. The thesis argues there are sound theoretical arguments for expanding insolvency's law role to accommodate broader stakeholder interests in the context of the insolvency of essential services and that the model of the public interest proposed by the thesis may be used as a basis for a court to grant representation rights to non-creditor interests within insolvency proceedings of essential services in Australia.
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ItemGovernment promotion of job creation in Australia : regulatory objectives, instruments, and law( 2004)Direct job creation programs were a key element of the Australian Commonwealth Government's response to the policy challenge of persistent, high unemployment between 1974 and the year 2000. The emergence of job creation programs coincided with an evolving debate over the extent and legitimacy of the state's role in economic regulation, especially in relation to the labour market. Notwithstanding this coincidence, there has been no systematic effort to explore the purposes and nature of job creation programs from a regulatory perspective. Using three case studies of job creation programs implemented in Australia, this thesis tests propositions that are generated from regulatory theory, a field of scholarship broadly concerned with the relationship between the state, law and society. First, it was expected that job creation programs would serve a multiplicity of state objectives, including the immediate job creation goals of each program, as well as a number of broader labour market purposes. Second, it was anticipated that job creation programs would be implemented through a diverse range of economic and other non-legal regulatory strategies or instruments. Third, notwithstanding the broader regulatory character of job creation programs, it was expected that the programs would be expressed and constrained by various legal measures performing important regulatory functions. Finally, it was expected that the case studies would reveal interaction or responsiveness between policy objectives and the different legal and non-legal elements of each program. It is found that these propositions are largely borne out in the context of job creation programs. The immediate job creation objectives of each program were to assist people who were unemployed and considered to be disadvantaged in the labour market to obtain at least temporary employment positions. It is demonstrated that these immediate objectives reflected broader goals, such as the desire of the Commonwealth to redistribute employment opportunities to those people otherwise excluded from labour market participation. The Commonwealth Government relied upon a diverse range of regulatory instruments to achieve these goals, including financial subsidies or incentives to non-government employers, and contracting out of certain services, each supported by public sector management and oversight. Notwithstanding that these regulatory strategies were largely non-legal in nature, it is revealed that legal measures such as policy guidelines and contracts were used to ensure that regulated actors were accountable to the goals of each program. It is concluded that there was a significant degree of interaction between legal and non-legal forms of regulation in the context of these job creation programs. The findings in this thesis are significant for a number of reasons. Most importantly, this thesis establishes that job creation programs were significant state regulatory initiatives. This contradicts any notion of the state playing a lesser or somehow insubstantial role in labour market formation and regulation during the period studied. These findings have important implications for future studies of the job creation function of the-state, and point to new and potentially more insightful ways of theorising the relationship between the state and the labour market in Australia.