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Below you will find examples of current and completed research projects in organisation and governance including:
Pledges by big companies and big investors to achieve net zero greenhouse gas emissions in line with the international Paris Agreement on climate change are proliferating around the world, including in Australia. This project explores legal and regulatory drivers for these commitments and assesses their potential to deliver timely and ambitious emissions reductions in the real world.
As conventionally understood, anti-corruption programs rely on legal rules to define and control the abuse of official power for private gain. This research explores the limits to law-based standards of corruption where state officials obscure bribery and the abuse of power beneath a veneer of legality. Drawing on an empirical study of two public-private partnerships (PPPs) in Vietnam, it asks whether the failure of anti-corruption laws to curb malfeasance in PPPs is attributable to insufficient enforcement, to targeting the wrong behaviour, or to both of these issues. It argues that if anti-corruption laws are blind to the opportunistic manipulation of laws in PPPs, then we must consider other ways of conceptualizing and controlling corruption. This argument links the way in which corruption is conceptualized to the efficacy of policy instruments used to curb corruption in PPPs. In particular, it examines whether public interest corruption provides a framework that makes malfeasance in PPPs visible and thus offers a mechanism for holding officials accountable.
This research explores the political, economic and social forces that combine to create barriers to entry to corporate board positions for talented women in China and India. The importance of power relations and the forces shaping power relationships is explored, and a variety of strategies aimed at facilitating women's entry to corporate boards are examined.
Since the conclusion of the Paris Agreement in 2015, there has been a very significant shift in the way climate change is framed and understood by business and investors. No longer merely an ethical or corporate social responsibility issue, climate change is now widely recognised as posing financially material risks. Equally, business and investors are increasingly cast as critical actors in society's response to climate change. If sustainability is integral to investor decision-making on how to construct portfolios and allocate capital, as well as to investor stewardship activities, such as engagement with companies, investors can potentially play a significant role in helping to align capital, resources and economic activity to clean energy outcomes. Drawing on an analysis of the legal context, prevailing investment theory and practice, as well as the emerging sustainable finance agenda, this project explores decision-making by a group of Australian institutional investors (superannuation funds and fund managers) on climate change. The project seeks to evaluate whether and how this decision-making is changing as a result of the consideration and integration of climate risks; and in turn, whether this is contributing to a shift of capital and resources in ways which support the transition away from a carbon intensive to a clean energy economy.
The research explores and compares three major modern models – presidential, parliamentary and semi-presidential - to look at the effect of the existence and operation of political parties on the models. The research seeks to generate new insights into the intersecting organisational subsets of party and national constitutions. The research also seeks to explore certain new developments in relation to political parties in the West and how they may impact governmental models.
As conventionally understood, corruption relies on a set of universally agreed rules that determine what constitutes the appropriate allocation of organizational resources. This research explores whether rule-based approaches to corruption are applicable where business organizations, such as public private partnerships (PPPs), and the public fundamentally disagree about what constitutes an appropriate allocation of resources. Drawing on empirical research about PPPs in Vietnam, this research compares how government, business organizations, and the public conceptualize the transfer of public assets into private ownership. It argues that a public interest approach to corruption is needed where PPPs privatize public assets within the law, but against the express wishes of the public.
In debates about recycling and the circular economy, the role of existing organizations that already facilitate the circulation of materials through society can be neglected. Indeed, the social enterprise sector may currently be more significant than the commercial waste management sector in facilitating the circular economy within Australia. Drawing on interviews with organizations involved in collecting and reprocessing used electronics and scrap metal in Australia, the researchers detail some of the synergies and tensions between the social enterprises and commercial organizations that have emerged as recycling gains traction through government policy and various forms of product stewardship. The researchers conclude with suggestions for policy and governance approaches most likely to facilitate productive and perhaps symbiotic relationships between the two sectors in the future.
The question of creating an Australian head of state is a symbolic, constitutional and governance issue that remains unresolved. The lesson of the 1999 referendum is that for the current constitutional arrangements to be modified, there will need to be some consensus on a model. Yet at present the movement is deadlocked between a direct election model and a parliamentary appointment model with substantively different implications. There is therefore a great challenge to create a model that satisfies both the desire for popular electoral input and the desire to retain an essentially ceremonial and politically neutral non-executive head of state. After reviewing extant models (including relevant overseas models) and historical and conceptual issues, the problems of a full popular vote are discussed. The research then responds by introducing new concepts to the debate. These are: (1) “Tri-partisan Endorsement” (or “Three-way Support”) being a three party endorsement of a single candidate to face the voters along with any other nominees in an open popular election; (2) “Fifty-Fifty” being a method for appointment of an Australian head of state which involves aggregating the results of a parliamentary and a popular vote. The first seeks to achieve a politically neutral candidate while the second seeks to moderate the parliamentary vote for such head of state with a popular vote and vice-versa. The two concepts are separate but might also be utilised in combination in a single model. Finally, the article proposes a partial response to the unresolved “1975” dilemma through “Concurrent Expiration” where a head of state who removes a Prime Minister against the will of the House of Representatives will see the former’s own tenure expire 75 days after the holding of the ensuing election (subject to possible re-election). The article concludes that such concepts offer hope for the development of a judicious consensus model capable of achieving the support of the Australian people at a referendum.
In the world of professional baseball Major League Baseball (‘MLB’) annually generates US$9 billion in revenue. The average Major League salary is nearly US$4 million and some players earn over US$20 million per year. Minor League Baseball (‘MiLB’) is also lucrative and teams can generate millions of revenue. Yet Minor League players are paid as little as US$1,100 per month in Class Rookie and A leagues and as much as US$2,150 per month at the Class AAA level. These players are not paid for training or offseason work and are only paid during the championship seasons. This research examines the plight of Minor League players in accessing a fair wage or a ‘living’ wage through the use of antitrust law and federal labour law on minimum wages and overtime. There are currently two class actions using both of these areas of law to challenge the Minor League pay system and class actions will be viewed in the context of access to justice.
The research seeks to make a contribution to the stakeholder debate by focusing on the position of the customer as corporate stakeholder. Stakeholder ideas in general are examined as are the historical development of customer ownership in cooperatives and mutuals. The latter are found to retain certain comparative advantages explaining their past success and continued presence in the economy. A “modern” alternative to these forms is postulated based on the listed stock corporation which implements policies to encourage customers to become shareholders and shareholders to become customers (Customer Stock Ownership or CSO). The policies identified include shareholder benefit schemes and customer share acquisition schemes. The various arguments in favour of such an approach are canvassed drawing on agency, organisational and game theory, transaction cost economics, corporate finance, marketing, public policy and corporate governance.
The arguments against CSO are also examined including issues arising from finance and competition theory, leading to a distillation of the broader argument in favour of increased CSO to a more specialised argument. Particular customer relationships that will benefit from increased alignment of the customer and equity interest are identified based on weaknesses in “market governance” due to information asymmetry, serial and natural monopoly and other factors.
The increasing volumes of electronic waste in Australia presents a range of market failures including an increasing toxic pollution and waste management burden and resource security issues as critical metals become more scarce. This project is part of the Wealth from Waste Cluster Group, a collaborative project between several Australian universities and Yale in the USA, which commenced in 2013. The Group has taken an integrative view of resource use and management along the whole metals and minerals value chain. The Monash team has focused upon the management of electronic waste, through a range of research strategies including industry stakeholder interviews and household surveys.
The regulatory aspect of the project has involved analysis of various Commonwealth and State measures including the National Computers and Televisions Recycling Scheme. Some key findings are that the NTCRS has reduced the volume of e-waste going to landfill in Australia, but it fails to impose any significant responsibility upon manufacturers to reduce the ultimate life cycle impacts of their product and thereby minimise e-waste hazards, nor does it maximise resource security through recovery of valuable material resources.
The advent of third-party litigation funding (TPLF) is arguably one of the most significant developments in civil litigation in Australia for many decades. It has affected corporate law and other areas of law through major funded class action litigation which has put company directors on notice that they may be increasingly financially accountable to shareholders and others. Whilst third-party funded and indemnified defendants have appeared in common law courts for some centuries, the recent corresponding appearance of third-party funded and indemnified plaintiffs is in many ways a seismic shift in our civil litigation culture. Whether this has been a welcome and overdue move towards improved access to justice and protection of rights of ordinary citizens or a dangerous step towards the creation, multiplication and inflammation of otherwise sleeping controversies is a topic of considerable and sometimes fierce debate. Nevertheless third-party litigation funding is here and spreading rapidly so that the burning question appears to be “what is to be done”. The research focuses on the governance of the relationship between litigant, funder and lawyer, with some bias towards the protection of the litigant as the more vulnerable party of the three. Given the importance of contract in governing TPLF arrangements the writer will explore some key theoretical insights into the phenomenon of complex multi-party contracting and the extent to which these have application to TPLF arrangements. Insights from both game theory and transaction cost economics will be applied for the first time to analyse the tripartite contractual relationships between lawyer, litigant and funder. The research will also further develop at some length the application of agency theory. In doing so the researcher will seek to answer difficult questions of how government and regulators should deal with third-party litigation funding, including analysis of the regulatory options.
Performance enhancing or 'supplements' usage in sport presents a challenge for sporting clubs and leagues internationally and is, in large part, a legal and governance issue. The authors argue that the increasing commercialisation of sport points to the conclusion that it is better corporate governance that has a significant role to play in modern sporting clubs in avoiding such problems. The recent experience of the Essendon Australian Rules Football Club is examined at some length as are the corporate governance practices of other Australian Football League (‘AFL’) clubs. The research concludes with recommendations for improvements to corporate governance practice in sporting clubs including increased use of independent directors and board sub-committees.
Corporate governance reform in Malaysia is mainly focussed on boards' role and accountability with minimal discussion on shareholders' role. Research on shareholders has been conducted mostly on protection of shareholders' rights and remedies via provisions enabling shareholders to sue directors. While the right to sue directors is an important corporate governance mechanism, an often neglected area is the preventive action that can be taken by shareholders to minimize or prevent boardroom complacency which depends on the recognition of shareholder's participatory right but there is minimal discussion on shareholders' participatory rights, that is, by considering the extent of shareholders' control power in Malaysia to determine membership of (board selection, nomination process and procedures) and incentives for the board (remuneration) and ascertain whether there is legal and/or commercial recognition of shareholders' participatory rights and improvements that can be achieved. An important component in this research is exploring the role of institutional shareholders In terms of the use of their voting power.
As part of the Malaysian Government's Economic Transformation Programme (ETP), one of the main agenda is the revitalisation of the capital market with the government announcing a paring down of their stake in listed companies. The transfer of this block of shares will probably see an increase in institutional shareholders taking over the share. It is timely for a model for institutional shareholders' involvement to be considered and implemented for Malaysian capital market In considering the above, the research will assess the suitability of proposals that intend to empower shareholders (some examples are proxy reform proposals for directors' election and nomination, the withholding of votes, non-binding shareholders' resolution); the suitability of proxy advisory services as a mechanism to deal with information asymmetry faced by unsophisticated shareholders and the necessary legal and regulatory framework if these are implemented in Malaysia.
This research addresses the above stated issues with a view to ascertaining the appropriate mix of regulatory approaches, that is legal and/or extra legal solutions-via codes or best practice guidelines.
The research will adopt doctrinal analysis to identify the possible inconsistencies in the legal and regulatory framework and structured interviews to ascertain industry views. The expected outcome would include policy recommendation relating to mechanisms and incentives that can be put in place to encourage and facilite shareholders' responsiblity in corporate governance.
The integrity and effectiveness of environmental impact assessment processes in Australia has matter of great controversy, particularly due to the role of the Commonwealth Government for matters of national environmental significance under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). After the 2013 Federal election the new Commonwealth Government announced a ‘One-Stop Shop’ whereby it was envisaged that the Commonwealth role would be minimised under a range of new bilateral agreements with State and Territory Governments.
The underlying rationale for this fundamental change in environmental law is highly controversial and the implementation of the One-Stop Shop proposals has been highly problematic. In particular there is no uniformity across the eight State and Territory EIA processes and within each jurisdiction there are still numerous agencies that have a diversity of roles in project approvals which are at the heart of complaints about 'green tape'. In particular it is extremely difficult to envisage how these diverse sub-national regimes can deliver appropriate outcomes where international environmental obligations are involved, such as projects that may impact upon World Heritage sites, Ramsar wetlands, and listed migratory or threatened species.
Dark side private ordering dominated the market for corporate disclosure in Japan for much of the last century. But from the 1990s, 20 years of corporate and securities law reform has resulted in the gradual transformation of Japanese corporate governance, shifting towards a shareholder model of governance and a growing level of external monitoring of the traditional insider Japanese company. Due to restraints in the public enforcement of disclosure rules, sokaiya face growing competition from the proliferation in shareholder derivative actions and private ordering by the Kabunuishi Onbuzman (Shareholder Ombudsman) and activist media groups like Facta. Independent directors and auditors were added to the market for corporate information in 2010 but their effectiveness is restricted by formal and informal constraints. This article examines the increasingly competitive market for corporate information and disclosure in Japan.
This research investigates the key factors shaping corporate governance in China and presents a sophisticated study of corporate governance in China from a comparative and historical perspective. Drawing on extensive corporate governance literature, the research articulates why path dependence theory is the most effective framework for interpreting the development path of Chinese corporate governance. The researcher reviews the historical role of government in commercial development and regulation in dynastic China and in early corporate law-making, followed by an account of China’s legal and economic development over the last three decades. This historical inquiry identifies government control as the key feature of economic and market regulation in China. In particular, this book canvasses the evolution of governance of State-Owned Enterprises and listed companies, major corporate governance problems, regulatory challenges posed by China’s increasing participation in economic globalization, and enforcement difficulties particularly in relation to investor protection, directors’ duties and accountability.
Agricultural managed investment schemes, ran into difficulty in the early 2000s as changes in tax deductibility, the Global Financial Crisis and other factors saw a number of prominent collapses (such as Timbercorp Limited and Great Southern Limited) and the drying up of new investment. The collapses inevitably raised issues about financial disclosure to investors who include shareholders of responsible entities and unit or interest holders in the schemes themselves. They have also highlighted complexities in the insolvencies of such schemes and particularly the conflicting demands placed on responsible entities and their liquidators. They also give pause for an analysis of the responsible entity concept which is a merger of the formerly separate roles of manager and trustee set out under the old “prescribed interests” law. After fourteen years of operation it is questionable whether the merger has been a significant improvement on the former position, at least from the point of view of interest holders in such schemes.
Australia was one of the first nations to commit to the United Nations Framework Convention on Climate Change in 1992, yet successive Australian governments have struggled to implement an effective regulatory framework to meet the challenging objectives of that Convention. Voluntary no-regrets approaches were introduced by the Howard Government followed by a modest 1% Renewable Energy Target in 2001. The RET was later expanded to 20% by the Rudd Government in 2008 and the Garnaut Review prompted moves toward a comprehensive carbon pricing regime which was introduced by the Gillard/Greens Government from 1 July 2012, but soon after terminated by the Abbott Government in 2014. Since then Australia has committed to modest reduction targets under the 2015 Paris Agreement and greenhouse policy has been in turmoil. This history shows that greenhouse responses are particularly difficult to achieve political consensus upon due to the strength of vested interests in the fossil fuel sector.
Shareholder agreements reflect a reassertion of contractualism in corporate law at a time when statutory regulation is more extensive than ever. Though not displacing the s140 statutory contract between members, shareholder agreements have a role to play both in direct contract between parties but also in setting reasonable expectations that may play a role in oppression actions or winding up on the just and equitable basis. As contracts they are prima facie enforceable but also subject to statutory overlays in the form of the laws of misleading and deceptive conduct and unconscionable conduct. Finally they are subject to some limitation in that the common law suggests that a company cannot in a shareholder agreement deprive itself of its power to alter its own constitution. There is also some doubt about the extent to which directors’ duties can be attenuated by shareholder agreement and whether shareholder disputes can be made the subject exclusively of commercial arbitration and kept out of the courts.
A range of corporate failures and questionable corporate behaviour in Australia over the last decade or so produced two major inquiries into the role of corporate social responsibility and whether reforms to the Corporations Act were needed. Two stakeholder interests that appear to need stronger legislative protection are employees and advocates for the natural environment. Employees are particularly vulnerable to abuses of power by the corporation and its directors, especially at the time of impending insolvency, and therefore there is still a need for appropriate measures put in place to safeguard their interests. With regard to environmental concerns, some companies voluntarily adopt socially responsible practices, but the lack of uniformity in disclosure and reporting obligations, and ‘self-regulation’ allows corporations to shirk responsibility. The final reports by the Parliamentary Joint Committee on Corporations and Financial Services and the Corporations and Markets Advisory Committee were both completed in 2006 but no major reforms were recommended.