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(2022)ThesisChinese listed companies are struggling to meet the continuous disclosure requirements of the Australian Securities Exchange (ASX) and have even been depicted as having poor corporate governance and transparency. Many get delisted from the ASX due to non-compliance in continuous disclosure or are rejected from listing because of continuous disclosure compliance concerns. This thesis addresses one overarching research question: What are the challenges faced by Chinese lawmakers, Chinese listed companies, Chinese companies’ external advisers and securities regulators in dealing with Chinese cross-border listed companies’ continuous disclosure in Australia — and how can these challenges be addressed? This thesis is theoretically founded on the divergent evolution and rationales for continuous disclosure requirements in Australia and China. The evolution of listed companies’ continuous disclosure requirements in Australia can be described as a market-driven process, the most theoretical underpinnings of which are market integrity and investor protection. In contrast, the fundamental rationale behind the presence or absence of continuous disclosure requirements throughout the history of the Chinese securities market is the service of the political economy in the corresponding period. This thesis investigates the research question through the following four dimensions based on such a theoretical framework. First, the application of continuous disclosure requirements for listed companies is composed of three elements in Australia and China: the non-general availability criteria, materiality thresholds, and timeliness requirements. Divergences regarding each element reflect weaknesses of the Chinese continuous disclosure rules. Second, deficiencies exist regarding the continuous disclosure compliance management regime within Chinese listed companies. Third, the obligation of due diligence surrounding external advisers’ monitoring role in Chinese listed companies’ continuous disclosure compliance has limitations. These limitations are manifested in two aspects of the due diligence obligation: the duty of care and the independence requirements. Last, there are also difficulties in respect of the Chinese securities cross-border supervision regime. This thesis thus proposes corresponding reform suggestions in respect of each of these challenges, with relevant experiences in Australia taken into consideration.
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(2022)ThesisThis thesis is about multi-stakeholder initiatives that seek to regulate the human rights impacts of global apparel supply chains (Apparel MSIs). MSIs have the aim of improving human rights for millions of apparel workers worldwide, but after two decades they show little evidence of such improvement. Civil society critics argue that MSIs are ineffective, unreformable private regulation that is not fit-for-purpose and lacks legitimacy. This thesis argues that Apparel MSIs still perform a valuable regulatory function, however they must adopt new regulatory approaches. These include moving beyond social audit as a regulatory technique, expanding stakeholder participation and better measuring and communicating impact. MSIs must transform to realise their aim of improving apparel workers human rights and consequently preserve their legitimacy. To understand and contribute to this transformation the thesis method incorporates existing literature; it applies theoretical frameworks; and the insights of original empirical research. From the latter the voices of worker advocates, union leaders and academics reveal recent and promising regulatory innovations and changes in MSIs. Along with this empirical research, the original contributions of this thesis are to emphasise the interconnected nature of legitimacy criteria and assess the overall legitimacy of Apparel MSIs in the light of the functional model adopted by each MSI. This legitimacy analysis is supported by the regulatory theory of responsive regulation, which explicitly contemplates self-regulatory forms like MSIs. The original contribution of bringing responsive regulation to bear on Apparel MSIs, provides new insights into how they can bolster their regulatory effectiveness and legitimacy. Interviews undertaken with key stakeholders provide a sociological perspective to this analysis. Interview data also drive the final recommendations for reform which coming from MSI stakeholders point to recent innovations in private regulation as a more promising alternative. Given the opportunity to build a more just world after the Covid-19 pandemic, these recommendations could not come at a more critical juncture.
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(2022)ThesisThe concept of the dual-class structure listing (DCS listing) indicates the corporate financing and governance practice under which a particular listing firm issues two or more classes of common shares with different voting shares per class. The advantage of DCS concentratedly lies in the sufficiently safeguarding the founder’s idiosyncratic visions and protecting the long-term benefit maximization goal from the short-termism. Simultaneously, the latent defects of DCS consist of the volatility of the superiors voting rights holders’ personal attributes and the weighted voting power abuse risks. To a large degree, the DCS regulation within China’s institutional context can be a new issue. In comparison with the US history for over a century of DCS listing practice and regulation, China did not lift its ban on the domestic DCS listing until 2019. Among these jurisdictions in the Asian-Pacific region, the US, Hong Kong SAR, and Singapore might provide remarkable experiences. Chapter 1 will portray a general tendency of the rise of DCS listing worldwide and briefly comb the practical issues regarding DCS listing within the Chinese institutional context. Chapter 2 will try to clarify the conceptual boundary of DCS listing in terms of history and discourse evolution, this chapter will briefly retrospect China’s overseas and domestic DCS listing practices and the current DCS listing regulation framework as well. Chapter 3 aims at systematically delineate and retrospect China’s institutional environment involving corporate governance. Chapter 4 aims at examining both the empirical and on one hand, this chapter tries to review the existing empirical studies to evaluate the empirical evidence’s support for the question raised above. On the other hand, this section will come back to examine the theoretical corporate governance discussion on long-termism v. short-termism. Comprehensively, this part will try to retrospect the shortcomings of the short-termism rhetoric and simultaneously construct the legitimacy of long-termism discourse in terms of improving corporate governance patterns. Chapter 5 focuses on how to supply specific measures to improve both DCS listing practices and regulation. First, it will discuss the feasibility of mandating a time-based sunset provision. Also, it will evaluate the whether it is possible to use the time-phased voting to mitigate the latent defects of sunset provisions utilisation. Following, a brief conclusion is given.
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(2022)ThesisThis Thesis examines the situations in which the use of trade secrets can constitute an abuse of market dominance under China’s Anti-monopoly Law and considers how the law should be applied in practice. It is generally accepted that competition law and intellectual property law have the complementary goals of promoting competition. Trade secrets are regarded as a category of intellectual property and competition law applies when the exploitation of trade secrets leads to anti-competitive effects. There are some cases where Chinese competition authorities and courts have dealt with the abuse of dominance cases arising from the use of trade secrets, but the Thesis argues that the existing Chinese competition rules should be more specific in relation to the issue. In order to improve Chinese competition enforcement in this respect, the Thesis examines comparative competition experience from both sides of the Atlantic to analyse market definition, market dominance and some abusive practices with regard to trade secrets. It makes recommendations on an appropriate methodology for China. To keep a balance between the antitrust intervention and the use of trade secrets, and to make the application of Chinese competition law predictable, the Thesis recommends reforming Chinese competition rules to establish specific tests for determining the abuse of dominance in trade secrets. It suggests that China should consider the characteristics of trade secrets (as opposed to other forms of intellectual property) in the abuse of dominance cases when amending China’s anti-monopoly guidelines regarding intellectual property. These recommendations, if adopted, would provide Chinese competition authorities and courts with more specific guidance on dealing with the interplay between competition law and the exploitation of trade secrets in the future, and improve the enforcement of Chinese competition law in the area.
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(2022)ThesisThis thesis analyses the legal structure of open banking frameworks of the two leading common-law jurisdictions (Australia and the United Kingdom) to determine whether they should incorporate legal features equivalent to those which support efficiency and safety in banking payment systems. The analysis shows that legal assessment of open banking frameworks should include evaluation against banking law principles because of the functional equivalence of customer data and customer funds as valuable information. More specifically, this research addresses the question: Should open banking frameworks include the legal features for the sharing and use of customer banking data which are comparable to those included in banking payment systems for the payment and use of customer money? The thesis develops a conceptual framework to enable a functional comparison to be made between the laws which govern the transfer and use of customer data under open banking frameworks and those which govern the payment and holding of customer money under banking and payment systems, from the foundation that both are networks for the transfer of valuable infrormation. It uses this to compare the open banking laws and regulations of Australia and the UK by reference to the legal rights to share data, the legal responsibilities for shared data and the legal relationships in sharing data. The differences are evaluated against the legal features of banking payment systems which perform similar functions with respect to customer funds, to determine deficiencies in the frameworks' legal design. The risks that arise from these deficiencies are then identified and assessed, using a risk classification developed from communication systems and banking payment systems. From this analysis, it is concluded that the some of the legal features which support effectiveness and safety in the frameworks are impaired when evaluated against equivalent features in banking payment systems. Recommendations are made for improvements by reference to the legal features of banking payment systems. The thesis provides new principles for the legal design of open banking frameworks based on the laws which protect and promote banking payment systems. Their use can ensure that when customers are ‘banking on data’ under these frameworks they are supported and protected by legal rights, responsibilities and relationships equivalent to those which customers rely on to support and protect them when they are banking with their money.
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(2021)ThesisOne of the critical inheritance challenges faced by Muslim women in Indonesia is Kalala. This principle applies where a parent dies without a surviving son, which has a profound impact on women. It reflects the very different treatment of men and women in inheritance affairs and has the potential to bring serious hardship for women. This thesis examines the experiences of Banjar women in encountering this issue, specifically in the context of legal pluralism of Indonesia, where Islamic law, Adat law, and state law coexist and interact with each other. It poses the question of how Muslim women perceive their experience regarding this issue, what are the contributing factors in the formation of women’s legal consciousness about their inheritance rights, and how they navigate between the available legal orders to address their inheritance dilemmas. The thesis adopts an empirical approach in order to capture the complexity of experiences of women regarding their inheritance rights. The analysis is based on a qualitative method with the fieldwork conducted in three districts of South Kalimantan, Indonesia: Banjarmasin, Banjar, and Hulu Sungai Tengah. This socio-legal study offers insights not only into how Muslim women access justice in both the formal and informal justice systems in a practical sense. It also examines their legal consciousness and its transformation in the emergence of inheritance disputes. It argues that women’s choice to access or not to access justice does not appear out of a vacuum. Their legal consciousness, in the context of legal pluralism where patriarchal values persist, helps to structure the process of inheritance distribution. The research has revealed that women’s access to justice is significantly influenced by their legal consciousness, which in turn is shaped by certain factors including historical, religious-cultural context, the notion of kodrat (God’s will, the power of nature, or natural destiny), and the presence of authoritative men in the family. It concludes that, although the informal justice system, in the form of Adat Badamai, provides religious assurance and legitimation for women, more women should be able to access the formal justice system, embodied by the Religious Court, as the forum most suited to deliver justice in the resolution of disputes.
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(2023)ThesisClimate change poses serious challenges for forests and thus for sustainable forest management (SFM). The concept of resilience has been identified as a useful tool in minimising the impacts of climate change on forests. However, while the utility of the concept has been recognised generally in the literature, and seven principles of ‘Resilience Thinking’ have been designed, application of the concept in the context of SFM has yet to be examined. Under international commitments, Australia is obliged both to account for climate change impacts in SFM and to work to increase forest resilience in order to minimise those impacts and ensure the sustainability of forests into the future. Using the ‘Resilience Thinking’ principles as a framework, this thesis examines SFM legislation and policies in Tasmania and New South Wales (NSW) to ascertain the extent to which they support forest resilience to climate change. In particular, it assesses whether and how each principle is considered in the development and implementation of SFM systems. Four major challenges to the development and implementation of SFM legislation and policies capable of supporting forest resilience are identified: fragmentation of SFM systems; inadequate participation in forest decision-making; the absence of active adaptive management in forest reserves; and SFM legislation and policy mechanisms that fall short in dealing with both the short and long-term uncertainties of climate change impacts on forests. Reflecting on those challenges, the thesis proposes and examines possible solutions including: the application of an integrated landscape approach to SFM; options for improved participation by a more diverse range of actors in periodic goal setting and management actions; the application of active adaptive management aimed specifically at building resilience in reserve areas; and the incorporation of short and long-term goals into decision-making through adequate monitoring, reporting and evaluation systems utilising specific resilience criteria and indicators. In applying the ‘Resilience Thinking’ principles in the SFM context for the first time, the thesis lays the groundwork for further consideration of the challenges and solutions to implementing resilience beyond the case studies.
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(2023)ThesisDue to the continuous aging process in China, not-for-profit residential care institutions (NPRIs) account for about half of the service providers in aged care services and are playing an increasingly significant role. However, several NPRIs have been exposed to governance scandals, such as the corruption of senior management; NPRIs using their not-for-profit status as an empty shell to generate profit for illegal distribution; NPRI managers’ unlawful use of government subsidies; and extreme situations such as fraud, crime, and aged abuse cases, which has contributed to the public accountability requirements in this sector. This research, therefore, asks: Can Chinese NPRIs’ existing corporate governance systems fulfill their accountability function? If not, how can they be enhanced to achieve greater accountability to protect the interests of stakeholders? To address the research question, this research developed an accountability framework by analysing the NPRIs should be accountable to whom; accountable for what; and how to improve the accountability. This accountability framework is used in analysing the related legislation and governance documents with four key accountability mechanisms in NPRIs, including the monitoring role of the supervisory board; the evaluation of the related party transactions; the transparency of the annual report; and the public enforcement has taken by regulators. This research identified several potential system flaws and proposes some specific recommendations to enhance the accountability mechanisms. For example, the legislator should value the accountability demands of clients; the legislator should emphasis the formal and functional independence of the supervisory board ; the Regulatory regime should consider regulating related party transactions with due process and directors’ loyalty duty rules; the NPRI practitioner should think of improving the transparency of annual reports to outsiders with higher levels of understandability and accessibility; and regulators should improve the current public enforcement system with more enforcement tools and a greater use of them to respond to the violations appropriately. By implementing the proposed improvements, this research hopes that the current corporate governance system could be more accountable to broader stakeholders of NPRIs, in both substantive and procedural issues, especially to protect the most important and vulnerable stakeholders, aged residents.
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(2023)ThesisSince 2006, remote communities on Aboriginal land in the Northern Territory (NT) have been the target of a series of land tenure reforms, mostly government-initiated. The three most significant are: the roll out of section 19 leases over individual lots, and the grant of government-entity and community-entity township leases over entire communities. These reforms are widespread and long-term. Beforehand, leasing in communities was rare. After these reforms there are now thousands of leases (mostly section 19 leases) over almost every lot in remote communities. Despite their extensive and varied impacts on land rights and remote community governance, there has been little research on the reforms, and none providing the views of Aboriginal people most impacted. Adopting a mixed methods research design, and through a case study on the region of one of the two largest Land Councils, the Central Land Council (CLC), the research examines both the structural impacts and lived experience of these reforms to Aboriginal land rights in the NT. Through interviews with Aboriginal community residents and traditional owners, the research attempts to elevate their voices and experiences. Applying an Aboriginal land governance lens helps to make visible the governance impacts of the reforms, which have been almost invisible in official discourse about the reforms. The research examines the process of the tenure reforms as well as their outcomes. For the first time the insights of those ‘inside’ the policy processes have been collected, helping to shed light on what led to the reforms and why they took the form they did. The research found that the reforms have several consequences that did not appear to be anticipated in government statements about their purpose. These include: modification of the rights of Aboriginal traditional owners and the reframing of their relationship to community residents; and impacts on the role and reach of the Land Councils by both increasing their practical jurisdiction within remote communities, while also creating two additional land rights institutions. Further, these reforms have resulted in a welcome new rental stream for Aboriginal traditional owners, although this too brings governance challenges. The research suggests how future land tenure policies should be designed, and emphasises the need for a governance development approach, rather than a legal, technical one, to designing and implementing tenure reforms in remote communities.
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(2021)ThesisThe aim of this thesis is to utilise transnational regulatory network (TRN) theory to examine the effectiveness of the regulatory framework promulgated by the International Organisation of Securities Commissions (IOSCO) — to address the activities of transnational hedge funds. Scholarship employing TRN theory has not previously accounted for the distinctive role that IOSCO — a body well-described as a TRN — has played in developing hedge fund regulation to prevent, identify and mitigate systemic risk related to transnational hedge funds. It is a gap that this thesis attempts to fill. This thesis asks whether and in what ways the IOSCO framework contributes to systemic risk mitigation in relation to transnational hedge funds operating at the global level. It does so to help academics and policymakers to better understand and appreciate the value, and overcome the limitations of IOSCO in this respect. Using the case studies of the failure of Long-Term Capital Management at the end of the 20th century and the demise of Bear Stearns’ hedge funds during the global financial crisis, it argues that it is the systemic hazards posed by hedge funds that make them merit extra regulation at both national and transnational levels. Deploying the findings of the TRN theory, it further demonstrates that the IOSCO framework for transnational hedge fund regulation holds not only advantages to be maintained but also shortcomings to be overcome in addressing these systemic hazards. The significance of this study lies in its contribution to advancing comprehension of the global regulatory framework for transnational hedge funds. It makes the advance by introducing a focus on systemic risk mitigation, hitherto lacking, and developing a critical, doctrinal understanding of the relatively understudied rules and standards under IOSCO.