Law Articles

This article courtesy of SSRN - Legal Scholarship Network and authored by IAN MALCOLM RAMSAY , HELEN LANGE  and LI-ANNE ELIZABETH WOO .

 Abstract:     
This paper seeks to establish what form of management structure, ownership structure and financial characteristics are exhibited by firms that propose and subsequently adopt anti-takeover charter amendments (ATCAs) in Australia. An ATCA is a restriction of partial takeover activity implemented though shareholder approval to changes in a firm's constitution. Approval for such changes is obtained through majority agreement from a plebiscite of shareholders.

The study adopts a control sample design to analyse if characteristics differ statistically from adopting ATCA firms and those which do not adopt ATCAs during the investigation period. Following this, a logit analysis establishes the importance of variables considered to have a role in distinguishing between ATCA adoptees and firms without ATCAs.

The variables tested include proportion of independent directors; directors' shareholdings; proportion of shares held by institutional shareholders; and proportion of shares held by the largest 20 shareholders.

Various measures of performance are also tested with some evidence being found that poorly performing firms are most likely to introduce ATCAs.

This article courtesy of SSRN - Legal Scholarship Network and authored by SIMON EVANS .

 Abstract:     
This article is concerned with the constitutional protection given to property holdings by the Australian Commonwealth Constitution. By explicitly conferring power to make laws with respect to the acquisition of property, section 51(xxxi) resolves any doubt that the Commonwealth Parliament's other substantive heads of power might not authorize laws with respect to the acquisition of property. However, the real significance of section 51(xxxi) lies not in the extent to which it enlarges the Commonwealth's legislative power but in the extent to which it limits it. One of the great challenges for section 51(xxxi) jurisprudence is to deliver a coherent and principled account of why some laws that effect an acquisition of property do not attract the obligation to provide just terms. The High Court's recent decision in Airservices Australia v. Canadian Airlines International Ltd (1999) 167 ALR 392; 64 ALJR 76, demonstrates that the Court's approach is confused and unsatisfactory. A new approach to this aspect of section 51(xxxi) is urgently required. This article suggests that the High Court begin to identify more explicitly the objects of section 51(xxxi) and recognize that property serves private and public functions. Only by doing so can a balance be struck in a principled and predictable manner.

Keywords: Constitutional law, Constitution, Australia, acquisition of property, eminent domain, just terms, just compensation, nature of property, public and private functions of property, balancing, Airservices case (Airservices Australia v Canadian Airlines International Ltd (1999) 167 ALR 392; 64 ALJR 76)