Contemporary Australian Corporate Law provides an authoritative, contextual and critical analysis of Australian corporate and financial markets law, designed to engage today's LLB and JD students. Written by leading corporate law scholars, the text provides a number of features including: a well-structured presentation of topics for Australian corporate law courses, consistent application of theory with discussion of corporate law principles (both theoretical and historical), comprehensive discussion of case law with modern examples, and integration of corporate law and corporate governance, all with clarity, insight and technical excellence.
Author(s): Kath Hall
This article analyses the international anti-corruption framework and the peer review monitoring process. Peer review is described as the “systematic examination and assessment of the performance of a state by other states, with the ultimate goal of helping the reviewed state … comply with established standards and principles.” However, despite its growing importance as a regulatory process, peer review has not been comprehensively analysed, resulting in a “literature famine” on its nature and operations. Indeed, to date, there has been very limited academic discussion on peer review. As a result, one aim of this article is to contribute to a stronger understanding of its process. While our focus is on peer review in the anti-corruption context, where possible, universal characteristics of the process are discussed. The second objective of this article is to consider the merits of the peer review process in incentivising states to take action against corruption. Peer review is the mechanism for evaluation of the United Nations Convention against Corruption (UNCAC), the Organisation for Economic Cooperation and Development (OECD) under its Anti-bribery Convention and the African Union’s (AU) good governance objectives under good governance objectives under the Peer Review Mechanism (APRM). Whilst acknowledging the criticisms of peer review, this article argues that peer review has been successful in particular contexts in increasing state compliance with these international instruments. In particular, peer review has contributed to the acceptance of anti-corruption norms and focused on the need for all countries to regulate corruption at the national level.
Lawyers in the Shadow of the Regulatory State: Transnational Governance on Business and Human Rights
Author(s): Kath Hall
This paper examines the growth of transnational governance, and what it means for business lawyers advising multinational corporate clients. The term “governance” incorporates the network of actors, instruments and mechanisms that now govern transnational corporations, separate from the nation state. It is reasonable to expect that lawyers play an important role in advising business clients on how to effectively operate within this system. Indeed, many transnational legal instruments are intended to enhance clients’ business goals by enabling them to engage more efficiently in cross-border commerce. Other forms of regulation, such as human rights regulation, purports to impose requirements on companies that go beyond what is necessary to enhance cross-border commerce.
In this paper we discuss the transnational governance regime that has arisen to address the adverse human rights impacts of business activities. We focus in particular on the United Nations (UN) Guiding Principles on Business and Human Rights, which were adopted by the UN Human Rights Council in 2011. We ask what if any role is there for lawyers in fostering acknowledgment and fulfilment of these responsibilities among clients? Is the duty to respect human rights a “legal” obligation in any sense? If a lawyer does provide advice, should it encompass only legal risks to the company that fall within the lawyer’s traditionally defined specialized expertise? Or should it go beyond that to include other concerns?
Author(s): Kath Hall
Over the last 18 months the legal profession has seen unprecedented growth in the operations of global law firms in Australia. Recent mergers between top-tier and leading Australian law firms demonstrate the importance of Asian markets and the shifts in economic power from the West to the East. For such firms there are clear market and competitive drivers for expansion into Australia including proximity to rapidly developing Asian economies and increased opportunity to expand the firm’s global brand. Yet understanding the role played by Australian law firms in these developments can be tricky. For some newly merged global firms, the Australian operations are central to the firm’s regional and global expansion, allowing the firm to draw upon the strong performance and reputational capital of the Australian offices. For other global firms their alliances with Australia firms provide a strategic foundation for their expansion into Asia. And for third group of firms Australia remains a destination in its own right, sitting within the firm’s overall global network of international offices.
Author(s): Kath Hall
This article discusses the privatisation of transnational anti-corruption regulation. Increasing global non-state rules, guidelines and standards have become a visible and legitimate form of corruption regulation and a key influence on the development and implementation of state-based anti-corruption laws. These private regulatory instruments are created by multilateral development banks, bi-lateral and multi-lateral development agencies, NGOs, industry groups, private corporations and technical experts. The result is that state-based transnational anti-corruption regulation is now increasingly privatised, harmonised and globalised. This not only affects developments in national anti-corruption regulation, but also the direction of corporate governance more generally. Whilst the interaction between public national and private global regulation is clearly of strategic benefit to governments, it is also creating a multi-level framework of incentives and pressures on global corporations to improve the integrity of their activities and reduce the incidence of corruption.
Author(s): Kath Hall
Regulating lawyer dishonesty is a key focus of professional misconduct cases in most jurisdictions. And rightly so. In any legal system aimed at the just resolution of disputes between citizens, it is essential that lawyers’ words and behaviour can be relied upon by the courts, clients, other lawyers and the public. Yet research into seven years of disciplinary cases in New South Wales (NSW), Australia suggests that only a narrow range of dishonest conduct is actioned, often with harsh results for the practitioners involved. Research outlined in this article shows that 65% of the cases decided in this jurisdiction between 2004-2010 involved findings of practitioner dishonesty, 80% of the practitioners involved in those cases were disbarred and 89% of the total number of lawyers disciplined worked as solo and small firm practitioners.
The Australian research reported in this article may be emblematic of similar issues that occur in the regulation of lawyer dishonesty in both the United States and Canada. It is therefore argued that, for disciplinary cases to be seen as legitimate and just, it is important for the profession and regulators to consider the way dishonesty is being characterized and the harshness of the penalties imposed. When these questions are asked in the Australian context, the research suggests there is a tendency to treat small and sole firm practitioners particularly harshly even where small instances of dishonesty are involved. In addition, the dominant regulatory approach is still to link dishonesty with poor character, a connection that is unsupported by empirical research in psychology. Finally, there appears to be limited appreciation by regulatory authorities of the links between dishonesty, stress and psychological conditions.
Changing Our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum
We surveyed first-year students at the ANU College of Law on various measures of well-being, thinking styles and motivations for attending law school. We followed up our surveys with a student–faculty dialogue retreat. The results of our work confirm that, even in a law school where formal mentoring programs are in place and where resources for student counseling are readily available, law students suffer symptoms of psychological distress at levels higher than their age peers in the general public. During the first year of law school, many students experience psychological struggles, changes in their thinking styles, and changes in self-concept and sense of well-being. By the end of the first year many students in our sample showed increased rational thinking and lower experiential thinking. Lower levels of experiential thinking were associated with increased symptoms of psychological distress, while students with a higher propensity toward experiential thinking showed little change in depressive symptoms from the beginning to the end of the year of law study.
In extended deliberations on law student well-being, faculty and student retreat participants highlighted their sense that law school changed them in important ways, making them more rational, analytical, competitive and adversarial. Law school also promoted feelings of insecurity, inefficacy and isolation. To address these changes, participants made a variety of proposals for curricular reform, which are discussed here. Specific changes in law school curricula – including proposals for greater transparency, clarity and guidance about course work, for more positive and formative feedback, and for more social and intellectual engagement – are identified as having potential to improve law student well-being.
Research theme: Criminal Law, Health, Law and Bioethics, Human Rights Law and Policy, Law and Psychology, Law and Social Justice, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession
Do We Really Want to Know?: Recognizing the Importance of Student Psychological Well-Being in Australian Law Schools
Author(s): Kath Hall
Recent research in Australia has suggested that law students are four times more likely than students in other degrees to suffer from anxiety and depression. The Brain and Mind Research Institute’s (BMRI) 2008 survey of lawyers and law students found that over 35% of the law students studied suffered from high to very high levels of psychological distress, and that almost 40% reported distress severe enough to warrant clinical or medical intervention. This contrasted with just over 17% of medical students and 13% of the general population. Similarly, a significant portion of the lawyers surveyed were found to suffer from elevated levels of anxiety and depression, with 31% falling in the high to very high levels of psychological distress.
With research on student well-being now becoming available in Australia, this article takes up the point of how Australian law schools will respond to these findings. It suggests that even before we start to consider the question of what we should do about the problem of student well-being, we must recognize that there are common psychological processes which can undermine our response to these issues. In particular, research in cognitive dissonance and rationalization suggest that even as we become aware of negative information on law student distress, we can unconsciously ignore it or rationalize it away on the basis that it is not relevant to us. Furthermore, these same cognitive processes can affect our students, such that they can fail to appreciate the significant implications of this research for them.