Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

Legal Regulation of Religious Giving

Author(s): Pauline Ridge

The article considers the legal regulation of religious giving in nineteenth century England. Three leading cases, decided between 1871 and 1887, are discussed. Each case involves a woman of Roman Catholic, or Roman Catholic-like persuasion, making a substantial testamentary or inter vivos gift to the religious body with which she is associated. It is argued that whether the gift was construed as an outright gift or a trust for purposes was crucial to its enforceability. Two key themes are considered: autonomy concerns in relation to religious giving (including reasons why these concerns were more pressing with respect to inter vivos gifts) and the different levels of legal recognition of religious giving. The law during this period took an active role both in managing the relationship of religious groups with the state and in controlling the activities of religious groups; conversely, suppressed religious groups managed to operate around, and outside, the law.

Read on SSRN

Centre: CCL

Research theme: Law and Religion, Private Law

Private Health Insurance and Regional Australia

Author(s):

Since 1996, an increasing proportion of federal government expenditure has been directed into Australia’s healthcare system via private health insurance (PHI) subsidies, in preference to Medicare and the direct funding of public health services.

• A central rationale for this policy shift is to increase the use of private hospital services and thereby reduce pressure on public inpatient facilities. However, the impact of this reform process on regional Australia has not been addressed.

• An analysis of previously unpublished Australian Bureau of Statistics data shows that regional Australians have substantially lower levels of private health fund membership. As a result, regional areas appear to be receiving substantially less federal government health funding, compared with cities, than if these funds were allocated on a per-capita basis.

• We postulate that the lower level of membership in regional areas is mainly due to the limited availability of private inpatient facilities, making PHI less attractive to rural Australians.

• We conclude that PHI as a vehicle for mainstream federal health financing has potential structural failures that disadvantage regional Australians.

Read on SSRN

Centre: CCL

Research theme: Private Law

Weapons of Mass Dispassion: James Hardie and Corporate Law

Author(s): Peta Spender

This lecture honours Michael Whincop's work by examining the controversy surrounding attempts by the James Hardie Group in 2004 to isolate its liability in tort to sufferers of asbestos disease. The lecture explores the absence of passion and compassion in corporate law, explains how it deflects moral claims and scrutinises the James Hardie imbroglio in a wider institutional and philosophical context.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy

Blue Asbestos and Golden Eggs: Evaluating Bankruptcy and Class Actions as Just Responses to Mass Tort Liability

Author(s): Peta Spender

Mass torts give rise to complex legal questions and invidious moral choices. The asbestos litigation has shown that corporations manufactured asbestos decades after its dangers had been publicly recognised. Later, when faced with spiralling claims, firms in the US such as Johns-Manville were permitted to use bankruptcy procedures without proving insolvency thereby forcing tort claimants into a limited fund. In the late 1990s asbestos defendants sought wider powers to collectivise the claims through class actions although this attempt was ultimately unsuccessful. This article provides case studies of US firms and shows that similar strategies are now being adopted in Australia and the UK.

Certain privileges flow from bankruptcy such as the moratorium on claims and the right to distribute entitlements pro rata. However, in the context of mass torts these privileges have frequently led to under-compensation of tort victims, wealth transfers to shareholders and bewilderment about how to protect future claims. The article will explore these problems and consider how they may be ameliorated by effective monitoring.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy

Legal and Ethical Matters Relevant to the Receipt of Financial Benefits by Ministers of Religion and Churches: A Case Study of the New South Synod of the Uniting Church in Australia

Author(s): Pauline Ridge

This paper discusses some of the findings of a research project on the use of spiritual influence for financial gain, using the New South Wales Synod of the Uniting Church in Australia (UCA) as a case study. The paper begins with the hypothesis that regulation is required with respect to the receipt of financial benefits by ministers of religion and religious bodies from those under their spiritual care. Current legal and ethical regulation is briefly outlined before the project’s findings are discussed. Semi-structured interviews were conducted with leading players in the New South Wales Synod, who were asked to recount stories relating to the receipt of financial benefit that they perceived to constitute an abuse of spiritual influence for financial gain. It was found that at least two general scenarios existed which caused concern to interviewees but which were not regulated by law. The paper describes examples of these scenarios and considers whether they raise legal or ethical concerns.

Read on SSRN

Centre: CCL

Research theme: Law and Religion, Private Law

Blue Asbestos and Golden Eggs: Evaluating Bankruptcy and Class Actions as Just Responses to Mass Tort Liability

Author(s):

Mass torts give rise to complex legal questions and invidious moral choices. The asbestos litigation has shown that corporations manufactured asbestos decades after its dangers had been publicly recognised. Later, when faced with spiralling claims, firms in the US such as Johns-Manville were permitted to use bankruptcy procedures without proving insolvency thereby forcing tort claimants into a limited fund. In the late 1990s asbestos defendants sought wider powers to collectivise the claims through class actions although this attempt was ultimately unsuccessful. This article provides case studies of US firms and shows that similar strategies are now being adopted in Australia and the UK.

Certain privileges flow from bankruptcy such as the moratorium on claims and the right to distribute entitlements pro rata. However, in the context of mass torts these privileges have frequently led to under-compensation of tort victims, wealth transfers to shareholders and bewilderment about how to protect future claims. The article will explore these problems and consider how they may be ameliorated by effective monitoring.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, 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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