Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

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Rethinking the Law on Shareholder-Initiated Resolutions at Company General Meetings

Author(s): Stephen Bottomley

Recent concerns about the need for improved corporate accountability raise questions about the role of shareholders in corporate governance. One aspect of these discussions is the capacity of shareholders in general meetings to propose non-binding advisory resolutions concerning governance or social matters. Since Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame in 1906, courts have held that if a company’s constitution gives directors the power of company management, shareholders cannot interfere with the exercise of that power. The Federal Court affirmed this in Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia. This paper re-examines the case law, particularly in its application to advisory resolutions, and recommends the introduction of a broad statutory authority for non-binding advisory resolutions. The paper argues that this is an important step towards improved corporate accountability and responsible shareholder engagement.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

Contemporary Australian Corporate Law

Contemporary Australian Corporate Law

Author(s): Peta Spender, Stephen Bottomley, Kath Hall, Beth Nosworthy

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. 

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Centre: CCL

Research theme: Legal Education, Private Law, The Legal Profession

Bottomley, Law in Context

Law in Context (4th ed)

Author(s): Stephen Bottomley, Simon Bronitt

This fourth edition of Law in Context not only updates the text by reference to the latest thinking and developments in the broad area of ‘law in context’, but also introduces readers to the wider social, political and regulatory contexts of law. Bottomley and Bronitt, as in previous editions, expose readers to the multitude of contexts (some explicit, others implicit) that affect how law is made, broken and enforced by the state or individual citizens. The fundamental ideals of law – such as the Rule of Law – rest on cherished liberal values, though the authors constantly encourage readers not to accept uncritically the rhetoric of law, but to test these assumptions through empirical eyes. 

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Centre: CCL

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Human Rights Law and Policy, International Law, Private Law, Regulatory Law and Policy

The Notional Legislator

The Notional Legislator: The Australian Securities and Investments Commission's Role as a Law-Maker

Author(s): Stephen Bottomley

This article was awarded the 2011 Zines Prize for Excellence in Legal Research, an annual award for the best article published in the Federal Law Review.

Along with its power to exercise 'on the ground' discretion to alter the way in which legislative rules are applied (for example, by granting exemptions in particular cases), the executive agency that is charged with administering the corporations legislation in Australia has the power to re-write aspects of that legislation. It can, in effect, do the work of Parliament. This article examines the discretionary power of the Australian Securities and Investments Commission (ASIC) to change the operation of the Corporations Act 2001 by issuing Class Orders that omit, modify or insert provisions into the Act. The existence and operation of ASIC's power has attracted little critical attention in the legal literature, be it academic, judicial, or professional. This article examines the scope of this power, its operation and history. The article is prompted by a concern that the system of statutory modification via Class Order, while beneficial to the flexible regulation of the corporate and finance sector, has developed into a substantial and complex body of 'notional legislation'.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

The Notional Legislator

The Notional Legislator: The Australian Securities and Investments Commission's Role as a Law-Maker

Author(s): Stephen Bottomley

This article was awarded the 2011 Zines Prize for Excellence in Legal Research, an annual award for the best article published in the Federal Law Review.

Along with its power to exercise 'on the ground' discretion to alter the way in which legislative rules are applied (for example, by granting exemptions in particular cases), the executive agency that is charged with administering the corporations legislation in Australia has the power to re-write aspects of that legislation. It can, in effect, do the work of Parliament. This article examines the discretionary power of the Australian Securities and Investments Commission (ASIC) to change the operation of the Corporations Act 2001 by issuing Class Orders that omit, modify or insert provisions into the Act. The existence and operation of ASIC's power has attracted little critical attention in the legal literature, be it academic, judicial, or professional. This article examines the scope of this power, its operation and history. The article is prompted by a concern that the system of statutory modification via Class Order, while beneficial to the flexible regulation of the corporate and finance sector, has developed into a substantial and complex body of 'notional legislation'.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

The New Corporate Law

Author(s): Stephen Bottomley

Corporate social responsibility is back on the corporate law reform agenda. From an Australian perspective, the evidence for this is found in the simultaneous but separate inquiries that, at the time of writing this paper, are being conducted into this topic by the Australian Parliament's Joint Committee on Corporations and Financial Services, and by the Australian Government's Corporations and Markets Advisory Committee (CAMAC). These developments are supported by the many standards, guidelines, principles, and codes promulgated by non-government bodies, industry groups and other international organisations.

Cynics might dismiss these developments as part of a regular cycle of corporate law reform. After all, as we will see, this is not the first time that corporate social responsibility has appeared on the reform agenda. Others might suggest that, finally, this is an idea whose time has come. The purpose of this paper is to examine the extent to which this renewed, and widespread, attention to corporate social responsibility is being reflected in the substance of our systems of corporate law. Is it possible, and meaningful, to talk of a 'new corporate law' in which the concerns of people other than shareholders (or, indeed, the non-financial concerns of shareholders) are to be given serious attention?

The plan of the paper is as follows. We begin with a brief survey of recent developments in different common law jurisdictions, with an emphasis on Australia, that have implications for the idea of corporate social responsibility. The focus here is not just on statutory developments, but also on the wider array of codes, guidelines and so on that were adverted to earlier. From this base, we then draw and elaborate upon two conclusions. The first is that the shareholder primacy model continues to exert a powerful, although sometimes misunderstood, effect on the capacity of legislators to respond to corporate social responsibility concerns. In particular, it has the potential to constrain the actions of directors in responding to those concerns, it constrains the power of shareholders to put these concerns in front of the board, and it constrains the capacity of non-shareholders to bring these concerns to the attention of company managers. The second conclusion is that much of the action regarding corporate social responsibility therefore occurs outside the parameters of the statutes, and it is in this sense that we can talk about a 'new corporate law': a system of corporate regulation that depends as much on (if not more on) non-statutory mechanisms and methods, which in many cases can have a more immediate impact on corporate operations. The final part of the paper examines some of these themes in more detail, by way of a 'case study' of the position of corporate employees. Whatever definition one takes of corporate social responsibility, it is undeniable that the financial and physical well-being of a company's employees must be a central concern. Recent corporate collapses and policy responses to them in Australia provide a stark illustration of the limited extent to which corporate law has been able to respond to the challenges of corporate social responsibility.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

Corporate Governance and the Impact of Legal Obligations on Decision Making in Corporate Australia

Author(s): Stephen Bottomley

This paper reports upon an empirical study of the place of law and legal duties in the governance of Australian public companies. A fuller discussion of the findings from this empirical research project is to be found in: Tomasic and Bottomley, Directing the Top 500: Corporate Governance and Accountability in Australian Companies, (Sydney, Allen & Unwin, 1993). The debate concerning the legal duties and obligations of management of corporations became quite heated in Australia following the corporate excesses of the 1980s. Many corporations exploited the looseness of the legal rules for the control of business; weak regulatory structures also operated to the disadvantage of shareholders and creditors. The study is based upon data derived from a series of interviews conducted with officers from the top 500 Australian listed public companies. Interviews were held with 95 public company directors and 55 advisers of public companies. The adviser group comprised leading corporate lawyers, liquidators, auditors and corporate regulators. Interviews took place in five Australian state capital cities and all interviews were undertaken personally by the principal investigators. This article examines perceptions of corporate citizenship held by directors and goes on to contrast these with actual corporate decision making in the context of the legal requirements placed upon directors of Australian companies. The article also examines the structure of Australian corporate decision making processes by the board of directors.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

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