成人大片

Course Coordinator

Dr Francesco de Zwart
Lecturer
First-Year Coordinator
Adelaide Law School

Ligertwood Building
Level 2, Room 213

Telephone: +61 8 8313 8304
Email: francesco.dezwart@adelaide.edu.au

On successful completion of this course students will be able to:

1.   Identify, critically analyse, apply and communicate the factual, structural, economic and legal issues in relation to the principal duties imposed on directors by law under the Common Law, Equity and the Corporations Act 2001 (Cth) including:

·   the civil andcriminal consequences of those breaches including the Civil Penalty Provisionsof the Corporations Act 2001 (Cth) and

·   seeking relief from those consequences


2.   Identify ,critically analyse and apply the principal ‘law and economics’ theories and models of the firm relating to the separation of ownership from management and the role of corporate governance including:

·  How the pre-eminent models balance the interests of ‘insiders’ and ‘outsiders’ to the corporation

·  The ‘nexus of contracts’, agency costs and the Shareholder Model

·  The shareholder wealth-maximisation principle

·  The shareholder primacy model of corporate governance

·  The stakeholder model of corporate governance and

·  The director primacy model of corporate governance

 
3.   Identify, critically analyse and apply how these theories and models were undermined in the case of corporate collapses like Enron and Hastie including:

·  The structural features of the Enron and Hastie corporate collapses in pre- and post-GFC times and how they operated at the relevant time and

·  The lessons they provide for regulators, policy-makers, law reformers and corporate actors and their advisors relating to the long-term survival or sustainability of the corporation


4.   Identify and be able to critically analyse the regulation of corporate governance through the ‘soft’ law mechanism of international/cross-border Governance Codes and schemes of practice including:

·  The Governance Variables which have developed overtime and across sectors (international/cross-border and national) to form the central planks of Governance Codes and schemes


5.   Identify, critically analyse and apply how individual Governance Variables operate in the real world to enhance or reduce the effects of corporate actors such as the board, individual directors, the CEO and management on shareholder wealth measures such as firm value/share price, firm operating performance/profit and the probability of earnings manipulation including:

· The effectiveness of individual corporate Governance Variables in affecting the long-term efficiency and sustainability of the corporation

· The factors that intervene to reduce the operation and effectiveness of these corporate Governance Variables and

· The relative importance of individual corporate Governance Variables inter se in reducing (or increasing) agency costs and enhancing (or reducing) the long-term efficiency and sustainability of the for-profit firm

 
6.    Apply knowledge of the above directors’duties, corporate governance theories, corporate collapses, Governance Code regulation and behaviour of individual Governance Variables that underlie corporate governance regulation to assess and propose solutions for directors’duties and corporate governance problems.

Students are required to purchase or borrow the following:

·      Francesco de Zwart, Enhancing Firm Sustainability Through Governance, The Relational Corporate Governance Approach, (Edward Elgar Publishing, Cheltenham, UK and Northampton, MA, USA, 2015)

·      Link to the Book on Edward Elgar Publishing website:


·      Electronic version ofthe Book on Elgaronline:

 
 Any further information and materials for students - including Session Slides/Power-Points - will be posted on MyUni.

•  Jean Jacques du Plessis, Anil Hargovan, Mirko Bagaric and Jason Harris, Principles of Contemporary Corporate Governance (3rd ed, Cambridge University Press, Melbourne, 2015)
• Phillip Lipton, Abe Herzberg and Michelle Welsh, Understanding Company Law, 17th edition, Thomson Reuters, 2014
• Christopher Symes & John Duns, Australian Insolvency Law, (3rd ed, LexisNexis, 2015)
• Micklethwait and Wooldridge, The Company: A Short History of a Revolutionary Idea (Modern Library, New York, 2003)
• Matt Peacock, Killer Company: James Hardie Exposed (ABC Books, Sydney, 2009)
• Gideon Haigh, Asbestos House (Scribe, Melbourne, 2006)
• Andrew Main, Other People's Money: The Complete Story of the Extraordinary Collapse of HIH, (rev ed, Harper Collins, Sydney, 2005)
• Caroline Overington, Kickback: Inside the Australian Wheat Board Scandal (Allen and Unwin, Crows Nest, NSW, 2007)
• John Farrar, Corporate Governance in Australia and New Zealand, (2nd ed, OUP, Melbourne, 2001)
• Elizabeth Boros and John Duns, Corporate Law (3rd ed, OUP, Melbourne, 2013)
• RP Austin and IM Ramsay, Ford’s Principles of Corporations Law (16th ed, LexisNexis, Chatswood, NSW, 2014)
• Paul Redmond, Companies and Securities Law: Commentary and Materials (6th ed, Lawbook Co, Sydney, 2013)
• Joan Loughrey, Corporate Lawyers and Corporate Governance (Cambridge University Press, Cambridge, 2011

Days 1 and 2

A mix of teaching (by lecture), group exercises and problem-solving in the course is primarily directed to giving students

·   Subject area information, fields of enquiry and current issues

·   An introduction to the principal regulatory instruments

·   Analytical skills and

·   Legal research skills

in each case for preparingstudents for the 4 assessment tasks:

·   In-class participation in discussion, group-work exercises and problem-solving

·   Summary paper (1,000 words)

·   Presentation on summary paper topic (10 minutes)

·   Research-paper of 3,000 words.

The first two-day intensive sessions will be divided into 8 sessions as shown below, each of which will start with a lecture/workshop introducing the relevant topic, and then students will move to concentrate on in-depth consideration of questions in group-work and exercises including problem-solving.  The overall aim of Days1 and 2 is to introduce the principal duties imposed on directors of corporations under the common law, equity and the Corporations Act 2001(Cth).  This will begin with anintroduction to the nature of the corporation as a separate legal entity under the general law, types of companies and the definitions of directors and officers.  Students are then introduced to an examination of the significant duties under the Common Law and Equity including:

·   The duty to act In good faith in the best interests of the company including:


·   Duty to use their powers for proper purposes

·   Duty to avoid a conflict of interest including:


·   The duties of care, skill and diligence and

·   The consequences of breach and seeking relief.

Then follows the examination of directors’ duties under the Corporations Act 2001 (Cth) including:

·   Good faith and proper purpose

·   Care and diligence including:


·   Improper use of position and

·   Improper use of Information

·   The duty to prevent insolvent trading

·   The consequences of breach including the Civil Penalty Provisions and seeking relief

·   Criminal Penalties

·   The statutory duty to disclose and

·   Restrictions on voting and being present.

At the end of Day 2, session 8 will include a skills session on the steps for legal researching to prepare students for the student presentation, summary paper (relating to the presentation) and the main research-paper including:

·   Possible areas for research topics

·   Research essay guidelines and suggestions

·   Rubric for assessment

·   Access to staff for assistance with the main research-paper.

The focus of the steps for lega lresearch will be to emphasise identification of issues and critical analysis beyond mere descriptiveness.

Students are expected to read the textbook and other materials set prior to the sessions.

 
Days 3 and 4

The second two-day intensive sessions will be divided into 8 sessions as shown below, each of which will start with a lecture/workshop introducing the relevant topic, and then students will move to concentrate on in-depth consideration of questions in group-work and exercises including problem-solving. 

The overall aim of Days 3 and 4 is to introduce the Relational Corporate Governance Approach and its components as an analytical tool for analysing a complex system which is regulated in what would otherwise appear as a number of different and separate areas and instruments. These include ‘hard’ law legislation, ‘soft’ law governance codes, case studies of corporate collapses and empirical studies of the effectiveness of Governance Variables.

 
Days 5 and 6

The third of the two-day intensive sessions will be a mix of, to open Day 5, the student presentations (which are assessable) in sessions 17-19. Then, in session 20, a lecture/workshop topic continues the on-going approach of the Course of describing the components comprising the Key Fields of the Relational Approach with Board and audit committee factors and earnings manipulation.

Day 6 completes the review of the Key Fields of the Relational Approach with an introduction to the controversial area of board, CEO and executive compensation and then summarises the Relational Approach. 

Attendance at all six days is compulsory, due to the reliance on the first four days, including the sessions for legal researching, for content and approachfor the student summary papers and related presentations on Day 5.  Then, at the end of Day 6, there is a review session during session 24 of Q & As for again preparing the students for the principal assessment task of the main research-paper.  Again, there is access to staff for discussing the students’ ideas and approaches to the main research-paper.

Students are encouraged to contribute and ask questions during the teachingsessions as marks are awarded for participation.

The information below is provided as a guide to assist students in engaging appropriately with the course requirements.

The University expects full-time students (ie those taking 12 units per semester) to devote a total of 156 hours to a 3-unit course.

Contact time:

The face-to-face teaching structure in the Course takes a variety of forms spread across 6 days of Trimester 3 of 2018 with intensive teaching split into blocks of 3 x 2 days which run from 9.00 am – 4.00pm with a break from 12.30pm – 1.30pm for lunch.  The dates are:

Days 1 and 2        

Friday 28 September 2018 and
Saturday 29 September 2018 (Week 39)

Days 3 and 4

Friday 12 October 2018 and
Saturday 13 October 2018 (Week 41)

Days 5 and 6

Friday 9 November 2018 and
Saturday 10 November 2018 (Week 45)

To successfully pass your courses, you will need to allocate an appropriate time commitment to your study. In addition to the formal contact time required for each of your courses, you will need to allocate non-contact time. This includes taking time for activities including assessment tasks, reading, researching, note-taking, revision, writing and informal discussions with other students.

Day	Session	Topic
1.	Sessions 1 - 2	Introduction to the Nature of the Corporation and Directors including: ·   The ‘separate legal entity’ concept of the corporation ·   Types of companies ·   Directors and Officers
	Sessions 3 - 4	The Principal Duties of Directors under the Common Law and Equity including: ·   The duty to act In good faith in the best interests of the company including:     o    The duty to act in good faith/honestly for the benefit of members as a whole     o    To take into account the interests of creditors when the company is insolvent or near insolvency ·   Duty to use their powers for proper purposes ·   Duty to avoid a conflict of interest including:     o    Interets in contracts with the company     o    The use of position or information for personal profits ·   The duties of care, skill and diligence and ·   The consequences of breach and seeking relief.
2.	Sessions 5 - 6	The Principal directors’ duties under the Corporations Act 2001 (Cth) including: ·   Good faith and proper purpose ·   Care and diligence including:     o    The Business Judgement Rule ·   Improper use of position and ·   Improper use of Information ·   The consequences of breach including the Civil Penalty Provisions and seeking relief ·   Criminal Penalties ·   The statutory duty to disclose and ·   Restrictions on voting and being present.
	Session 7	The Duty to Prevent Insolvent Trading under s 588G of the Corporations Act
	Session 8	Skills Session on the Steps for Legal Researching ·   Possible areas for research topics ·   Research essay guidelines and suggestions ·   Rubric for assessment ·   Access to staff for assistance with the main research-paper.
3.	Session 9	The Challenge of Corporate Governance including ·   An introduction of the separation of ownership from management and the role of corporate governance ·   Separation of ownership, ‘nexus of contracts’, agency costs and the shareholder primacy model ·   ‘Core’ areas of corporate governance and corporate failures ·   The ‘Key Fields’ of the Relational Corporate Governance Approach
	Session 10	Introduction to the framework of the Relational Corporate Governance Approach including: ·   Overview of the firm-specific (micro) and macro-economic benefits of ‘good’ corporate governance ·   The components of the Relational Corporate Governance Approach ·   Introduction to the Governance Variables ·   Introduction to the Governance Factors ·   Interrelationships between the Governance Factors ·   Operational measures of the Relational Approach – governance variable ‘coverage’ and ‘relational proximity rating’
	Session 11	Key Field No. 1 - The Application of the Principal Theories of the Firm
	Session 12	Key Field No. 2 – Case Studies of the Enron and Hastie Corporate Collapses
4.	Session 13	Key Field No. 3 – Comparative corporate governance codes of the major cross-border/international and national sectors of the US, UK and Australia
	Sessions 14 - 15	Empirical Studies Key Field No. 4 – Part 1 – National shareholder protection scheme and Board factors I including: ·   Firm-specific effects of ‘good’ corporate governance – firm value and operating performance ·   ‘overall’ governance structure and the level and strength of the national shareholder protection regime ·   Board Factors I – ‘independence’, the proportion of non-executive/independent directors and the effects of equity ownership
	Session 16	Empirical Studies Key Field No. 4 – Part 2 – Board Factors 2 and other firm-specific variables including: ·   Board size and outside board positions ·   Anti-takeover mechanisms and the market for corporate control – whole board and staggered board elections ·   Audit sub-committee – presence, independence and expertise ·   ‘Block’ and institutional shareholdings ·   Division in the CEO/Chairperson roles
5.	Session 17	Student Presentations Part 1
	Session 18	Student Prersentations Part 2
	Session 19	Student Presentations Part 3
	20	Empirical Studies Key Field No. 4 – Part 3 – Board and audit committee factors and earnings manipulation including: ·   Principal aim of reporting – to reduce information asymmetry and agency risk ·   Transparency and the ‘trade-off’ effect on the quality of board and market monitoring
6.	Sessions 21 - 22	Empirical Studies Key Field No. 4 – Part 4 – ‘Good’ corporate governance and director, CEO and management compensation
	Session 23.	Summary of the Relational Approach conclusions including: (1)   the new definition of corporate governance known as the Three Relational Axes of Good Governance (2)   Creation of a simulated corporate governance environment which represents the ‘real world’ sphere of corporate governance. These are the four Key Fields introduced above; (3)   Identify, describe and map diagrammatically the interrelationships, themes and tensions underpinning these four Key Fields.  These are the eight Governance Factors and the Interrelationship Schemes are combined to create a relational effect path for each Governance Variable; (4)   Create a comparative table or scheme system upon which to compare across sectors and over time the Governance Variables utilised in the major US, UK, Australian and international/cross-border for-profit corporate Governance Codes or schemes.  (5)   As an over-arching aim, to propose an approach or tool for regulators, policy-makers, law reformers and corporate actors to predict, measure and enhance the relative importance of Governance Variables inter se in reducing (or increasing) agency costs and enhancing (or reducing) the long-term efficiency and sustainability of the for-profit firm.
	Session 24.	Review: Question & answer session

ASSESSMENT TASK	COLLABORATIVE / INDIVIDUAL	WEIGHTING	WORD COUNT / TIME	DUE DATE	LEARNING OUTCOME
Class Participation	Individual	10%	In-class time	Days 1 - 6	CLO 1, 2, 3, 4
Class Presentation	Individual	10%	10 minutes	Day 5	CLO 1, 5, 6
Summary Paper (on same topic as Presentation)	Individual	15%	1,000 words	Prior to Day 5	CLO 1, 5, 6
Research Paper	Individual	65%	3,000 words	Friday, 16 November 2018 at 5.00pm	CLO 1, 5, 6

All assessment tasks are COMPULSORY.   

All assessment tasks are NOT REDEEMABLE

You are expected to attend all classes. A failure to do so will adversely affect your participation mark. You are strongly encouraged to speak with your lecturer if you have any particular difficulties with regularly attending. Marks are awarded for class participation which includes attendance.
All items of assessment must be submitted. To pass this course students must receive an overall result of 50% or more.

Research-Driven Inquiry, Organisation, Learning and Assessment Tasks

The Course Coordinator has read "Commonly known, commonly not known, totally unknown: a framework for students becoming researchers" by John Willison and Kerry O’Regan, Centre for Learning and Professional Development, 成人大片, South Australia, accessed 11 April 2016 at:




(final and definitive form published in the Higher Education Research and Development 26(4)December 2007 pp393-409)


Four forms of assessment all based ondeveloping research skills are the building blocks for the development of the student's research skills.  Each form requires students to embark on an inquiry which:

- needs the student to determine the nature, source, form and breath of knowledge/understanding pertaining to the assessment
task

- use appropriate methodology to find or generate information/data in a form suitable to produce the research output required by the assessment task

- to organise the information collected/generated so it may be logically synthesised for critical evaluation

- develop critical evaluation skills (beyond mere descriptiveness) to address the assesssment criteria (see below)

- communicate factual, structural, economic, legal and ethical issues in relation to corporate governance arrangements and
problems

 
1.  CLASS PARTICIPATION (10%)


The Course has allocated 10% of the total marks of the Course for class contribution. As most of the reading and in-class material will be research-based from a scholarly/research monograph which has been published, this is to reflect the importance of class participation in the teaching and research programme. Much of the research-based material to be presented is a spring-board for the student's own research activities in the Course.  The criteria by which participation will be judged are attendance, preparation, quality of contribution, and contribution to group process.


Preparation — involves planning and managing the student's time to read the assigned material for each class and making an effort to understand those materials and to respond to the questions raised.


Quality of contribution — means the student's ability to ask or answer questions in an informed way, to apply knowledge gained from the student's preparation to the issues raised in the classes, and to offer ideas or opinions which have been informed by their reading and participation.


Contribution to group process — refers to the student's interaction with others in the lectures, both students and teachers. It involves listening to others, responding appropriately, being constructive in the student's dealings with them, and assisting in their learning. It also reflects the student's willingness to participate to the best of their ability, and their level of interest and engagement in the class and the material.


2. CLASS
PRESENTATION (10%) AND


3.  SUMMARY PAPER (15%)

Students will be asked to make a short presentation on a topic to be agreed with the Course Coordinator. A non-exhaustive list of possible topics will be included in the course materials. Each presentation should take 10 minutes, be based on thorough research and be accompanied by a brief paper (of no more than 1000 words) which must be submitted electronically by a date to be fixed.

Presentations are worth 25% of the total mark for the Course.

Assessment of presentations will consist of 2 components:

- a Presentation mark awarded by the Course Coordinator (10%), and

- a mark awarded for the Summary Paper on the topic (or equivalent) distributed to the class (15%).

 
Presentation -10%

The Presentation will be marked in accordance with the grade descriptors which are set out in the Course Outline. Legal and/or theoretical content, depth of analysis, quality of research and presentation skills will all be relevant to the assessment. Students are encouraged to discuss their presentation format with the Course Coordinator in advance, and facilities can be made available for overheads, PowerPoint slides etc.

Assessment criteria for Presentation

•  development of logically compelling thesis

•  level of insight and innovative thought

•  depth of analysis and level of critical examination of the issues raised

•  clarity of expression

•  logical planning and sequence

•  evidence of comprehensive research and consideration of the relevant literature

•  demonstrated understanding of relevant legal materials

•  demonstrated ability to critically evaluate and synthesize information and existing knowledge from a number of sources and experiences.

•  correct application of relevant material

•  overall presentation, including speed of delivery, clarity and any visual aids
 

Summary Paper -15%

The Summary Paper accompanying the student's Presentation will also be marked in accordance with the grade descriptors in the Course Outline. Legal and/or theoretical content, depth of analysis, quality of research and quality of written communication will all be relevant to the assessment. The paper may be in essay form or, if a student wishes, the student can negotiate that the paper presented to the class be in a format other than essay form, for instance the student may wish to create a pamphlet etc. The paper must be properly referenced (see below).

Assessment criteria for Summary Paper

- development of logically compelling thesis

- level of insight and innovative thought

- depth of analysis and level of critical examination of the issues raised

- clarity of expression

- logical planning and sequence

- evidence of comprehensive research and consideration of the relevant literature

- demonstrated understanding of relevant legal materials

- demonstrated ability to critically evaluate and synthesize information and existing knowledge from a number of sources and experiences.

- correct application of relevant material

- overall presentation, including use of correct grammar, spelling and punctuation

- use of resources in formulating the paper including proper acknowledgment and correct referencing.

 
Feedback

Oral feedback on the student's Presentation will be given by the Course Coordinator on the day of the Presentation. The student will also receive written feedback on their Presentation and handout within two weeks of the date of the Presentation.


Presentation Feedback and Assessment Form

Written feedback on the student's oral Presentation will be given on a specific form which has the following assessment criteria:

-  development of logically compelling thesis

-  level of insight and innovative thought

-  depth of analysis and level of critical examination of the issues raised

-  clarity of expression

-  logical planning and sequence

-  evidence of comprehensive research and consideration of the relevant literature

-  demonstrated understanding of the relevant legal materials

-  demonstrated ability to critically evaluate and syntheisise information and existing knowledge from
a number of sources and experiences

-  correct application of relevant material

-  overall presentation, including speed of delivery, clarity and any visual aids 

 
4. RESEARCH PAPER (65%)

The final assessment element will be a Research Paper on a topic to be negotiated with the Course Coordinator. A non-exhaustive list of possible topics will be included in the course materials. The topic of the Research Paper cannot be the same as the Presentation. Students will have an opportunity to discuss their topic with the Course Coordinator.

Each Research Paper will have a strict word limit of 3,000 words.

The paper must be written in prose style, adhere to grammatical rules, and use correct spelling. The paper should be typed, using double-spacing, on one side only of A4 paper. Each paper must be clearly marked with the student’s 成人大片 student number. A word count should be included on the cover sheet. The cover sheet should be signed with each student certifying that the paper is his or her own original work.

Word Length: the word limit of 3,000 words will be strictlyenforced.

Due Date: Friday 16 November 2018 at 5.00pm

 
Notes on Assessment

The quality of English expression is considered to be an integral part of the assessment process.Students must retain a copy of all assignments submitted.  Extensions are only available in accordance with the Law School policy. The policy is available at:



Assessment marks prior to the final assessment will be displayed on the course website. Students are encouraged to check their marks and notify the lecturer-in-charge of any discrepancies.Style Guide The 成人大片 Law School has adopted the Australian Guide to Legal Citation, published by Melbourne University Law Review Association as the standard for all written submissions at the Law School. The Guide aims to provide a uniform standard of legal citation. The Guide is available
online at:



or via the law library website at:



Hard copies are also available at the Law Library.

 

Students must retain a copy of all assignments submitted.

All assignments must be submitted to the Digital Dropbox on MyUni.

Markers can refuse to accept assignments which do not have a signed acknowledgement of the University’s policy on plagiarism (refer to policy on plagiarism).

A 5% penalty will be deducted for every day, or part thereof, an assignment is late.

A 5% penalty will also be deducted for assignments over the specified word limits. This penalty will be applied for every 100 words that the assignment is over the word limit. This means that the penalty will be imposed as soon as the assignment is one word over the limit, and then cumulatively at 100-word increments. Incorrectly declaring the word count of your assignment may result in a breach of the Academic Honesty and Assessment Obligations for Coursework Students policy. For more information see:

Reasonable Adjustments to Teaching & Assessment for Students with a Disability Policy

The University Writing Centre provides academic learning and language development services and resources for local, international, undergraduate and postgraduate coursework students enrolled at the 成人大片.

Practical advice and strategies for students to master reading, writing, note-taking, time management, oral presentation skills, referencing techniques and exam preparation for success at university through seminars, workshops and individual consultations.

For more information please check out the Writing Centre website at:




Lex Salus Program

Lex Salus was founded in 2013 by Adelaide Law School Wellbeing officers Ms Corinne Walding, Ms Kellie Toole and Dr Mark Giancaspro. Lex Salus is an initiative of the Adelaide Law School aimed at raising law student awareness of the importance of mental, physical and nutritional health across all year levels of the degree, and of the various counselling, disability and equity services both within and outside the University that can provide help. Research shows that law students, both in Australia and in many jurisdictions around the world, experience the highest levels of stress, anxiety and depression out of any other discipline.  Many do not get enough sleep, maintain a healthy diet or achieve a realistic work/life balance. Making matters worse, they are unwilling or afraid to speak up for fear of feeling 'weak' or because of the negative stigma that attaches to seeking help. Lex Salus is dedicated to tackling these problems head-on.


Counselling Service

The University Counselling Service provides a free and confidential service to all enrolled students. We encourage you to contact the Counselling service on 8313 5663 to make an appointment to deal with any issues that may be affecting your study and life. More information is available at:

/counselling_centre/

 

 

Plagiarism and other forms of cheating

Plagiarism is a serious act of academic misconduct. All students must be familiar with the Adelaide Law School Enrolment Guide, and should note in particular the sections relating to plagiarism, grievance procedures and academic conduct within the Law School and the University.

Plagiarism is a serious matter and is treated as such by the Law School and the University. Please be aware that “academic dishonesty” (which goes beyond plagiarism) can be a ground for a refusal by the Supreme Court of South Australia to refuse to admit a person to practice as a legal practitioner in South Australia.

Academic honesty is an essential aspect of ethical and honest behaviour, which is central to the practice of the law and an understanding of what it is to be a lawyer.

Students should read the University's Academic Honesty Policy which may be found at:

/policies/230/