Pub Date : 2018-02-23DOI: 10.21153/DLR2017VOL22NO1ART723
Akshaya Kamalnath
Gender diversity on corporate boards has become a point of emphasis, to the exclusion of all other forms of diversity. This paper analyses whether board gender diversity might help boards overcome groupthink (i.e. the failure of board members to consider alternatives to the dominant view when making decisions). This is a significant question because the board is reponsible for governance of the company and groupthink is often cited as a hurdle to effectively performing this role. Thus, the paper first examines the role of the board, board decision-making processes and the problem of groupthink, and subsequently, the potential of gender diversity to overcome groupthink. It concludes that gender diversity on corporate boards might help overcome groupthink so long as the women directors are also independent and bear ‘outsider’ status. However, other forms of diversity like race, education, tenure, professional background etcetera might offer the same benefits and thus should not be overlooked.
{"title":"Gender diversity as the antidote to ‘groupthink’ on corporate boards","authors":"Akshaya Kamalnath","doi":"10.21153/DLR2017VOL22NO1ART723","DOIUrl":"https://doi.org/10.21153/DLR2017VOL22NO1ART723","url":null,"abstract":"Gender diversity on corporate boards has become a point of emphasis, to the exclusion of all other forms of diversity. This paper analyses whether board gender diversity might help boards overcome groupthink (i.e. the failure of board members to consider alternatives to the dominant view when making decisions). This is a significant question because the board is reponsible for governance of the company and groupthink is often cited as a hurdle to effectively performing this role. Thus, the paper first examines the role of the board, board decision-making processes and the problem of groupthink, and subsequently, the potential of gender diversity to overcome groupthink. It concludes that gender diversity on corporate boards might help overcome groupthink so long as the women directors are also independent and bear ‘outsider’ status. However, other forms of diversity like race, education, tenure, professional background etcetera might offer the same benefits and thus should not be overlooked.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43050403","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-02-23DOI: 10.21153/dlr2016vol21no1art717
Fiona Martin
This article evaluates the taxation concessions and other advantages that flow from being a charity and how these might apply to native title groups under the Native Title Act 1993 (Cth). Specifically, it examines the role of the Prescribed Body Corporate (‘PBC’) under the Native Title Act and the potential for, and limitations of, these bodies carrying on business, engaging in community development and accumulating funds whilst also having charitable status. The article examines the financial size and geographical status of current PBCs that have been identified as not being charities and analyses the potential benefits for these organisations if they become charities. It concludes with an evaluation of the disadvantages and disadvantages that charitable status would bring to these PBCs.
{"title":"‘To Be or Not to Be, a Charity?’ That is the Question for Prescribed Bodies Corporate under the Native Title Act","authors":"Fiona Martin","doi":"10.21153/dlr2016vol21no1art717","DOIUrl":"https://doi.org/10.21153/dlr2016vol21no1art717","url":null,"abstract":"This article evaluates the taxation concessions and other advantages that flow from being a charity and how these might apply to native title groups under the Native Title Act 1993 (Cth). Specifically, it examines the role of the Prescribed Body Corporate (‘PBC’) under the Native Title Act and the potential for, and limitations of, these bodies carrying on business, engaging in community development and accumulating funds whilst also having charitable status. The article examines the financial size and geographical status of current PBCs that have been identified as not being charities and analyses the potential benefits for these organisations if they become charities. It concludes with an evaluation of the disadvantages and disadvantages that charitable status would bring to these PBCs.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47404529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-02-23DOI: 10.21153/DLR2017VOL22NO1ART724
Jasmine Wang
Insider trading is a complex issue that involves both corporate and criminal law. Since the introduction of civil penalties, the Australian Securities and Investments Commission (ASIC) has only pursued one civil proceeding against insider trading. ASIC prefers criminal proceedings for their deterrent effects. This paper examines various features of Australian convicted insider trading cases from 2004 to the end of 2015 and provides a broad overview of the distribution of these cases. Further, this paper assesses the consistent application of sentencing factors and the determination of criminalities of different kinds of insider trading activities. Finally, this paper proposes renaming current insider trading laws to ‘dealing with privileged information’.
{"title":"A Contemporary Analysis of the Application of Sentencing Factors in Insider Trading Cases","authors":"Jasmine Wang","doi":"10.21153/DLR2017VOL22NO1ART724","DOIUrl":"https://doi.org/10.21153/DLR2017VOL22NO1ART724","url":null,"abstract":"Insider trading is a complex issue that involves both corporate and criminal law. Since the introduction of civil penalties, the Australian Securities and Investments Commission (ASIC) has only pursued one civil proceeding against insider trading. ASIC prefers criminal proceedings for their deterrent effects. This paper examines various features of Australian convicted insider trading cases from 2004 to the end of 2015 and provides a broad overview of the distribution of these cases. Further, this paper assesses the consistent application of sentencing factors and the determination of criminalities of different kinds of insider trading activities. Finally, this paper proposes renaming current insider trading laws to ‘dealing with privileged information’.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48567846","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-12-22DOI: 10.21153/DLR2015VOL20NO2ART525
Colette Langos, R. Sarre
Cyberbullying is a form of anti-social conduct which is best understood as an online social relationship problem. Because of our growing understanding of the phenomenon, we can now see that any socio-legal response should envisage, therefore, a relationship solution. This article considers how one diversionary criminal justice process is particularly well suited to responding to incidents of cyberbullying where juveniles are involved yet which are deemed to be sufficiently serious to attract a potential criminal penalty. It explores, specifically, the option of family conferences (facilitated by youth justice co-ordinators) within the South Australian youth court framework. It concludes that both young cyberbullies and young victims of cyberbullying may benefit from alternatives to a retributive justice process, given that the primary focus of family conferencing is the repair of harm and the restoration of relationships.
{"title":"Responding to Cyberbullying: The Case for Family Conferencing","authors":"Colette Langos, R. Sarre","doi":"10.21153/DLR2015VOL20NO2ART525","DOIUrl":"https://doi.org/10.21153/DLR2015VOL20NO2ART525","url":null,"abstract":"Cyberbullying is a form of anti-social conduct which is best understood as an online social relationship problem. Because of our growing understanding of the phenomenon, we can now see that any socio-legal response should envisage, therefore, a relationship solution. This article considers how one diversionary criminal justice process is particularly well suited to responding to incidents of cyberbullying where juveniles are involved yet which are deemed to be sufficiently serious to attract a potential criminal penalty. It explores, specifically, the option of family conferences (facilitated by youth justice co-ordinators) within the South Australian youth court framework. It concludes that both young cyberbullies and young victims of cyberbullying may benefit from alternatives to a retributive justice process, given that the primary focus of family conferencing is the repair of harm and the restoration of relationships.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67651681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-12-22DOI: 10.21153/DLR2015VOL20NO2ART523
F. Carrigan
The purpose of this article is to explore the economic logic of the market in relation to the gender composition of Australian boardrooms. It argues that the benefits that could flow from more women occupying senior positions in Australian corporations will not overcome the laws of the market and the inherent competitive pressures that determine the trajectory of corporations. Placing more women on corporate boards must be supported as a matter of equity. However, it is unlikely that such a democratisation of corporations will impact on the internal structures that foster the broader inequality that is the taproot of the system and constitutes the day to day relationships of business.
{"title":"Women in the Boardroom: A Reappraisal","authors":"F. Carrigan","doi":"10.21153/DLR2015VOL20NO2ART523","DOIUrl":"https://doi.org/10.21153/DLR2015VOL20NO2ART523","url":null,"abstract":"The purpose of this article is to explore the economic logic of the market in relation to the gender composition of Australian boardrooms. It argues that the benefits that could flow from more women occupying senior positions in Australian corporations will not overcome the laws of the market and the inherent competitive pressures that determine the trajectory of corporations. Placing more women on corporate boards must be supported as a matter of equity. However, it is unlikely that such a democratisation of corporations will impact on the internal structures that foster the broader inequality that is the taproot of the system and constitutes the day to day relationships of business.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67652013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-12-19DOI: 10.21153/dlr2015vol20no2art528
A. Gray
In Hunter and New England Local Health District v McKenna the High Court considered the question of the liability in tort of a mental health provider for the actions of someone whom it had briefly treated. After involuntarily detaining the individual under relevant legislation, the service released the individual into the care of a friend. The person released killed his friend. The High Court allowed an appeal against a finding of the New South Wales Court of Appeal that the mental health service provider had owed, and had breached, legal obligations to the family of the person killed, denying compensation to the family on the basis that the service provider did not owe family members a duty of care. It will be argued that the High Court was wrong to deny that a mental health service provider could owe, or did owe, a duty of care to victims of those to whom the service provider provided services. The Court reached its decision utilising reasoning contrary to that of other cases which have involved questions of the liability of public authorities. The decision travels the well-worn path of denying that a public authority owes a duty of care to the public that it serves by asserting the inconsistency of obligations more apparent than real. The decision shows judicial reluctance to hold public authorities to the legal standards expected of other service providers, a reluctance that must be challenged.
{"title":"The Liability of Providers of Mental Health Services in Negligence","authors":"A. Gray","doi":"10.21153/dlr2015vol20no2art528","DOIUrl":"https://doi.org/10.21153/dlr2015vol20no2art528","url":null,"abstract":"In Hunter and New England Local Health District v McKenna the High Court considered the question of the liability in tort of a mental health provider for the actions of someone whom it had briefly treated. After involuntarily detaining the individual under relevant legislation, the service released the individual into the care of a friend. The person released killed his friend. The High Court allowed an appeal against a finding of the New South Wales Court of Appeal that the mental health service provider had owed, and had breached, legal obligations to the family of the person killed, denying compensation to the family on the basis that the service provider did not owe family members a duty of care. It will be argued that the High Court was wrong to deny that a mental health service provider could owe, or did owe, a duty of care to victims of those to whom the service provider provided services. The Court reached its decision utilising reasoning contrary to that of other cases which have involved questions of the liability of public authorities. The decision travels the well-worn path of denying that a public authority owes a duty of care to the public that it serves by asserting the inconsistency of obligations more apparent than real. The decision shows judicial reluctance to hold public authorities to the legal standards expected of other service providers, a reluctance that must be challenged.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67651894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-11-05DOI: 10.21153/DLR2015VOL20NO1ART496
P. Spender
This article examines whether Australia should introduce a gender quota on ASX 200 boards. Although existing institutional arrangements favour voluntary initiatives, Australia may be at a critical juncture where two factors — the public, pragmatic nature of the statutory regulation of corporations in Australia and the current salience of gender as a political issue — may favour the introduction of a quota. In particular, Australian policy-makers may be amenable to change by observing initiatives from other jurisdictions. It is argued that we should maintain a healthy scepticism about functionalist arguments such as the business case for women on boards. Rather, we should invoke enduring justifications such as equality, parity and democratic legitimacy to support a quota. The optimal design of an Australian gender board quota will be also be explored.
{"title":"Gender Quotas on Boards - Is It Time for Australia to Lean In?","authors":"P. Spender","doi":"10.21153/DLR2015VOL20NO1ART496","DOIUrl":"https://doi.org/10.21153/DLR2015VOL20NO1ART496","url":null,"abstract":"This article examines whether Australia should introduce a gender quota on ASX 200 boards. Although existing institutional arrangements favour voluntary initiatives, Australia may be at a critical juncture where two factors — the public, pragmatic nature of the statutory regulation of corporations in Australia and the current salience of gender as a political issue — may favour the introduction of a quota. In particular, Australian policy-makers may be amenable to change by observing initiatives from other jurisdictions. It is argued that we should maintain a healthy scepticism about functionalist arguments such as the business case for women on boards. Rather, we should invoke enduring justifications such as equality, parity and democratic legitimacy to support a quota. The optimal design of an Australian gender board quota will be also be explored.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67651293","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-09-18DOI: 10.21153/DLR2015VOL20NO1ART492
J. Plessis
This special issue of the Deakin Law Review contains articles based on papers delivered at the forum — ‘Mandatory Gender Quota Legislation: Will Australia follow Europe?’ — held in Melbourne on 20 October 2014. It was the second forum sponsored by the Deakin Law School as well as the German Alexander von Humboldt Foundation and the German Federal Ministry of Education and Research through the Anneliese Maier Research Award.The Inaugural International Corporate Governance and Law (ICGL) Forum was held in Munster on 4-5 November 2013. Its theme was intentionally very broad, namely ‘Key Corporate Governance Themes and Issues in a Globalised and Internationalised World,’ in order to identify as many core international corporate governance and corporate law themes and issues as possible.
{"title":"The Case for and Against Mandatory Gender Quota Legislation for Company Boards","authors":"J. Plessis","doi":"10.21153/DLR2015VOL20NO1ART492","DOIUrl":"https://doi.org/10.21153/DLR2015VOL20NO1ART492","url":null,"abstract":"This special issue of the Deakin Law Review contains articles based on papers delivered at the forum — ‘Mandatory Gender Quota Legislation: Will Australia follow Europe?’ — held in Melbourne on 20 October 2014. It was the second forum sponsored by the Deakin Law School as well as the German Alexander von Humboldt Foundation and the German Federal Ministry of Education and Research through the Anneliese Maier Research Award.The Inaugural International Corporate Governance and Law (ICGL) Forum was held in Munster on 4-5 November 2013. Its theme was intentionally very broad, namely ‘Key Corporate Governance Themes and Issues in a Globalised and Internationalised World,’ in order to identify as many core international corporate governance and corporate law themes and issues as possible.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67651350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-09-18DOI: 10.21153/DLR2015VOL20NO1ART495
M. Lückerath-Rovers
Since 2013 the Dutch Civil Code has required a minimum of 30 per cent women (and men) on both the executive and the supervisory boards of companies. The law is based on the comply or explain principle: companies that have not reached the 30 per cent target on one or other of these Boards should explain in their annual report why the seats are not evenly distributed, how the company has tried to achieve a balanced distribution of the seats and how the company intends in future to realise a balanced distribution of the seats. Research among the 87 listed companies in the Netherlands shows that the average percentage of women on supervisory boards increased to 25 per cent in 2014, but that the percentage on executive boards increased only to 6 per cent. While the 30 per cent target should have been reached by January 2016, it seems only a matter of time before a quota with sanctions will be introduced in the Netherlands.
{"title":"Gender Quota in the Boardroom: The Dutch Approach","authors":"M. Lückerath-Rovers","doi":"10.21153/DLR2015VOL20NO1ART495","DOIUrl":"https://doi.org/10.21153/DLR2015VOL20NO1ART495","url":null,"abstract":"Since 2013 the Dutch Civil Code has required a minimum of 30 per cent women (and men) on both the executive and the supervisory boards of companies. The law is based on the comply or explain principle: companies that have not reached the 30 per cent target on one or other of these Boards should explain in their annual report why the seats are not evenly distributed, how the company has tried to achieve a balanced distribution of the seats and how the company intends in future to realise a balanced distribution of the seats. Research among the 87 listed companies in the Netherlands shows that the average percentage of women on supervisory boards increased to 25 per cent in 2014, but that the percentage on executive boards increased only to 6 per cent. While the 30 per cent target should have been reached by January 2016, it seems only a matter of time before a quota with sanctions will be introduced in the Netherlands.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67651192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-09-18DOI: 10.21153/DLR2015VOL20NO1ART497
Michael A. Adams
There has been extensive research conducted on the importance of corporate governance around the world. The research seems to demonstrate that, regardless of whether corporations are based in common law or civil code systems, their longevity and sustainability arise from good corporate governance. However, the evidence does not clearly demonstrate a correlation between a particular organisation’s governance structure and practices and its share price. Around the world the question of board diversity is gaining in importance. The beginning of the debate in the 1960s centred on gender. While it is essential to conduct a debate on gender diversity, other aspects of diversity should also be considered. Race, culture and even age may have a direct impact on the performance of a board. Australian companies, particularly those listed on the ASX, have a poor record of instituting any type of diversity. The USA and European Union have a much wider range of policies to promote diversity on corporate boards. The key question is how best to regulate to promote diversity across gender, race, culture and age. The historical approach of regulating diversity by setting targets and requiring disclosure does not seem to have delivered substantial change. Is it the right time to impose mandatory requirements, or are there other alternative strategies? Without doubt change is required, but there will be opposition.
{"title":"Board Diversity: More than a Gender Issue?","authors":"Michael A. Adams","doi":"10.21153/DLR2015VOL20NO1ART497","DOIUrl":"https://doi.org/10.21153/DLR2015VOL20NO1ART497","url":null,"abstract":"There has been extensive research conducted on the importance of corporate governance around the world. The research seems to demonstrate that, regardless of whether corporations are based in common law or civil code systems, their longevity and sustainability arise from good corporate governance. However, the evidence does not clearly demonstrate a correlation between a particular organisation’s governance structure and practices and its share price. Around the world the question of board diversity is gaining in importance. The beginning of the debate in the 1960s centred on gender. While it is essential to conduct a debate on gender diversity, other aspects of diversity should also be considered. Race, culture and even age may have a direct impact on the performance of a board. Australian companies, particularly those listed on the ASX, have a poor record of instituting any type of diversity. The USA and European Union have a much wider range of policies to promote diversity on corporate boards. The key question is how best to regulate to promote diversity across gender, race, culture and age. The historical approach of regulating diversity by setting targets and requiring disclosure does not seem to have delivered substantial change. Is it the right time to impose mandatory requirements, or are there other alternative strategies? Without doubt change is required, but there will be opposition.","PeriodicalId":43081,"journal":{"name":"Deakin Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67651363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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