Articles and Books About the History of Australian Corporate Law

Barrett, R I, 'Making the acquaintance of Pilcher, Uther and Baldock' (2010) 48 Law Society Journal 30

Abstract: The first annotated Australian book on company law was Butterworth's "Pilcher, Uther and Baldock: The Australian Companies Acts Reconciled and Annotated". Justice R I Barrett sought out the personalities behind the tome.

Barrett, R I, 'Towards Harmonised Company Legislation – 'Are We There Yet'?' (2012) 40 Federal Law Review 141

Abstract: The enactment of uniform companies legislation in 1961-2 was a significant achievement for a country in which, a century earlier, multiple incorporations of the one body was the norm and a court of one colony questioned the existence of corporate personality created by the law of another. After Federation, business interests increasingly sought uniform State laws. They opposed centralised regulation which, in any event, was beset by constitutional difficulties. Commonwealth legislation eventually became the preferred model as shortcomings of uniform and co-operative mechanisms were progressively exposed. Yet fully harmonised corporations legislation still does not exist. In this paper presented to the 2011 Hartnell Colloquium at the Centre for Commercial Law, Australian National University to mark the fiftieth anniversary of the Uniform Companies Acts, the author sketches the development of Australian companies legislation over the last 150 years.

Barrett, R I, Speech delivered at the Law Council of Australia, Business Law Section Corporations Workshop, August 2015

Abstract: In this speech the Hon RI Barrett provides information on the individuals behind famous Australian and English corporate law judgments.

  • Speech available here

Bathurst, Hon T F, 'The historical development of corporations law' (2013) 37 Australian Bar Review 217

Abstract: This paper was delivered as a tutorial, as part of the Introduction to Australian Legal History Tutorial series organised by the Francis Forbes Society for Australian legal history. It traces the historical development of the fundamental elements of Australian corporations law, from the emergence of mediaeval corporate forms and early commercial associations in Europe through to the enactment of the Corporations Act 2001 (Cth). The development of key features of the commercial corporation, including separate legal personality, the joint stock principle, transferable shares, incorporation by registration and limited liability for members are outlined, as are some major developments in case law. An overview of historical Australian developments, in particular the quest for uniform company legislation following Federation is also provided.

Coburn, Niall and Kristine Goodin, 'Understanding and Researching Company Law' (1998) 6 Australian Law Librarian 14

Contents: Part 1: the development of company law in Australia. Part 2: Researching Company Law

Corcoran S, 'Corporate law and the Australian Constitution: a history of Section 51(xx) of the Australian Constitution' (1994) 15 Journal Of Legal History 131

Australian company law has been troubled by constitutional questions since federation. The inclusion in the Australian Constitution of a power to regulate corporations was probably meant to fill a gap seen elsewhere. Instead, it spawned a long series of cases attempting to define the power as something less than plenary. How much less has been the constant question. To a large degree Australian company law has followed English models. Federation has not been a problem for the English. Thus, their models do not provide for a division of power. Following the English lead, Australian company law does not naturally accommodate a division of power. The United States and Canada do provide federal models, but Australia has not been keen to look in their direction. All of these factors have led to the development in Australia of an original body of law which attempts to sort out how much power to regulate corporations was transferred to the Commonwealth at federation and what residual power remains with the states. Had the states been anxious to support federal control of corporations, an easy solution to the problem would have been for the states to refer any and all residual power to the federal government thereby overcoming any deficiency in federal capacity. However, the states have not been interested in losing control of a lucrative source of income. Thus, at least for company law, the transition from a colonial regime to a federal regime has not been smooth. The Corporations Act case is the latest example of this difficult evolution.

Ford, Harold A J, 'Uniform Companies Legislation' (1962) 4 University of Queensland Law Journal 133

Ford, Harold A J, 'Uniform Companies Legislation: Its Effect in Victoria' (1962) 3 Melbourne University Law Review 461

Fitzsimons, Peter, 'Australia and New Zealand on Different Corporate Paths' (1993-1996) 8 Otago Law Review 267

Abstract: The enactment of the Companies Act 1993 signalled a substantial change in New Zealand's company law. The aim of this article is to explore the background to its enactment by examining the reforms undertaken in corporate law in Australia and New Zealand during the 1950s, 1960s, 1980s and 1990s. In particular, this article will examine the approach to regulation in the corporate sphere in New Zealand. This article will also put forward suggestions for the interpretation of the Companies Act 1993, based on this examination.

Langford, Rosemary Teele, Ian Ramsay and Michelle Welsh, ‘The Origins of Company Directors' Statutory Duty of Care’ (2015) 37 Sydney Law Review 489

Abstract: The authors investigate the origins of company directors’ statutory duty of care. The findings of their archival research include that, contrary to what is said in some court judgments and corporate law commentaries, the first statutory duty of care in Australia, and arguably the common law world, was introduced in the State of Victoria in the Companies Act 1896 (Vic). A later version of the duty, in the Companies Act 1958 (Vic), introduced public enforcement of the duty. Although the implications of this development may not have been appreciated by those participating in the debates regarding the introduction of the 1958 Act, the authors show, through discussion of recent cases involving the statutory duty of care, how the Australian Securities and Investments Commission (ASIC) is now influencing governance standards in Australian boardrooms through the litigation it commences. ASIC is not only an active plaintiff in cases based on the statutory duty of care — using it more than private plaintiffs — but it also typically pursues a public interest agenda in these cases in terms of the remedies it seeks against defendant directors.

  • Article freely available on SSRN

Lipton, Phillip, 'A History Of Company Law In Colonial Australia: Economic Development And Legal Evolution' (2007) 31 Melbourne University Law Review 805

Abstract: The history of Australian company law has attracted remarkably little attention in academic literature, perhaps because it has mainly been seen as a copy of English law with few, if any, noteworthy features. This article points out several interesting and significant aspects of the evolution of Australian company law and considers this evolution in the context of the economic development of colonial Australia Australian company law is an example of the transplantation of English law, raising the question of whether this transplant was successful. The central contention of this article is that although a substantial part of Australia's company law was transplanted from England, its evolution was innovative and responsive to the economic needs of Australian society at the time. In particular, Australia's company law was instrumental in financing the development of the mining industry, which played an important role in the economic success of colonial Australia.

Lipton, Phillip, 'The Introduction of Limited Liability into the English and Australian Colonial Companies Act: Inevitable Progression or Chaotic History?'

Abstract: This article examines the introduction of limited liability into the English and Australian companies legislation in the mid-19th century and compares how this legal change was adopted in two different societies. This historical development illustrates that the interaction of legal change and socio-economic developments is complex, unpredictable and the result of a number of historical contingencies and so offers an alternative perspective to functionalist, and in particular, the predominant law-and-economics explanations of the rationale for limited liability. It is a contention of this article that recognising the complexity of legal change better enables us to question why the law developed as it did and whether it should be reformed. The concept of limited liability has given rise to particular problems such as corporate group tort liabilities and ‘phoenix’ companies that should be reconsidered in the light of its historical development.

  • Article freely available here

McQueen, Rob, 'Why High Court judges make poor historians: the Corporations Act (New South Wales v. Commonwealth, (1990) 169 C.L.R. 482) case and early attempts to establish a national system of company regulation in Australia' (1990) 19 Federal Law Review 245

Abstract: The recent High Court case on the Corporations Act and the reliance therein by the majority on' history' to support their reading of s51(xx) raises the question of what were prevailing community attitudes to uniform national legislation on corporations in the late nineteenth and early twentieth century. … The first part of this essay is an attempt to recapture the historical, if not the legal, ground in the wake of the decision in the Corporations Act case. The second part of the essay turns to an examination of the 'history' of the corporations power subsequent to Federation.

McQueen, Rob, 'An Examination of Australian Corporate Law and Regulation 1901-1961' (1992) 15 University of New South Wales Law Journal 1

Abstract: The current paper will critically examine the assumptions of many contemporary commentators as to the historical evolution of corporate law in Australia and the manner in which those assumptions impact on their assessment of the future direction for corporate law and its administration in Australia.

McQueen, Rob, 'Company law as imperialism' (1995) 5 Australian Journal of Corporate Law 187

Abstract: This paper highlights the importance of company law history, and discusses the apparent inappropriateness for local conditions of the imperial company law models that were adopted by the Australian colonies last century. In particular, it examines several colonial developments in company law (in Victoria) that are often cited as instances of significant local innovation. These are no liability mining companies and late nineteenth century reforms with respect to proprietary companies. The author concludes that both these "reforms" had little beneficial effect, and really followed imported models without any assessment of their suitability to local conditions, particularly in the area of enforcement. He points to the need for a new historiographic approach to the evolution of companies legislation and its administration in the Australian colonies, and draws attention to the relevance of such a study to many contemporary issues in Australian corporate law.

McQueen, Rob, 'Corporate law and historical methodology: a critical perspective' (1996) 3 Canberra Law Review7

Extract: … Given the constraints of space and the varied audience for the journal, it was felt that the best way in which to introduce the potential applications of (orthodox) historical methodology to corporations law might be by taking two key issues in company law and illustrating the way in which 'history' might illuminate these issues. The first of the matters to be explored is the issue of what is local and particular about company law and what is international and transcendent? This is an important area of exploration given the growth of corporate groups, the calls for 'globalization', and the claims that it is the role of company law to facilitate rather than impede the internationalization of the commercial community. … The second matter to be addressed is, in a sense, a response to the expressed goal of the Companies Simplification Taskforce to bring company law more in line with 'commercial realities'. … What the paper wishes to examine in this area is the manner and degree to which such an atheorized and ahistoricized 'reality' is an appropriate basis upon which to base the reform of corporations law.

McQueen, Rob, A Social History of Company Law: Great Britain and the Australian Colonies 1854-1920 (Ashgate, 2009)

Book - available as an e-book via this link on the University of Melbourne Library catalogue

Summary: Through studying the evolution of the corporate form in Britain and a number of its colonial possessions, the book illuminates debates on key concepts within the area of incorporations legislation.

Contents: 1 Introduction; 2 Social Attitudes to Company Law: 1720-1855; 3 Christian Socialism and the Debate on Limited Liability; 4 The Reasons for the Enactment of, and the Form Taken by, English Limited Liability Legislation, 1855-1856; 5 The First Fifteen Years of Limited Liability Company Legislation in England 1855-1870; 6 The 1870s and Early 1880s: The Growing Acceptability of Limited Liability Incorporation; 7 The Consolidation of Company Law 1886-1914; 8 Limited Liability Company Legislation in the Colonies: The Australian Experience 1864-19209 Conclusions; Appendix I Companies in the Random Sample of 10 percent of all Registrations for the Years 1856, 1866, 1876 and 1886

McQueen, Rob, 'Limited Liability Company Legislation: the Australia Experience' (1991) 1 Australian Journal of Corporate Law 22

Abstract: The article is divided into four sections. The first is devoted to an examination of the factors behind the introduction of English company legislation to the various Australian colonies during the 1860's. Of particular interest is the question of whether the introduction of such legislation to the colonies was occasioned by local or Imperial needs... The second section of this paper is devoted to an examination of the diffusion of the limited liability company form once adopted in the Australian colonies. The receptiveness of local businesses to the new organizational structure made available by the Limited Liability Acts will be analyzed... The third section of the paper is devoted to an exploration of the factors behind innovation in respect to corporate legislation in the Australian colonies. The precipitating factors behind the introduction in the Australian colonies of such innovations as No Liability Mining Company Legislation and compulsory financial reporting will be investigated... The last section of the paper is concerned with examining the attitudes of particular key groups to the administration of company legislation by colonial authorities during the late nineteenth and early twentieth century. The question of whether the legislation was considered to be facilitative or regulatory in nature and how the balance between these two attitudinal axes may have changed over time will be examined.

Mees, Bernard and Ian Ramsay, 'Corporate Regulators in Australia (1961-2000): from companies' registrars to ASIC' (2008) 22(3) Australian Journal of Corporate Law 212

Abstract: The article traverses 40 years of history — commencing with the developments which led to the formation of the first attempt at a national regulatory scheme, the Uniform Companies Acts of 1961–62 of the six states and the creation of the Interstate Corporate Affairs Commission which existed from 1974–79, through to the National Companies and Securities Commission in the 1980s which shared corporate regulation with the state regulators and finally the establishment of the first truly national regulator — the Australian Securities Commission in 1989.

Ramsay, Ian, ‘A History of the Corporations and Markets Advisory Committee and its Predecessors’, Chapter 4 in “Contemporary Issues in Corporate and Competition Law: Essays in Honour of Professor Robert Baxt” edited by P Hanrahan and A Black, LexisNexis Butterworths, Australia, 2019, pp. 56-72

Abstract: From 1983 until the abolition of the Corporations and Markets Advisory Committee (CAMAC) in 2018, there existed an independent body to provide advice to the Australian government on matters of corporate law reform. The abolition of CAMAC was controversial. The purpose of this paper is to provide a history of CAMAC and its predecessors. These law reform bodies published many reports and their influence on corporate law reform has been significant. Yet no one has yet provided a history. A key part of the paper is consideration of the debates leading up to abolition of CAMAC. An examination of these debates demonstrates how the government made this decision in the face of very strong opposition from organisations representing business, shareholders and various professions including the Australian Institute of Company Directors, the Australian Council of Superannuation Investors, the Governance Institute of Australia, the Law Council of Australia, the two major accounting bodies, the Australian Restructuring Insolvency & Turnaround Association and the Corporate Law Teachers Association. In the opinion of the author, the decision to abolish CAMAC has resulted in a weakened law reform process.

  • Chapter freely available on SSRN

Ramsay, Ian, 'Professor Harold Ford and the development of Australian corporate law' (2011) 29 Company and Securities Law Journal 30

Abstract: Professor Harold Ford commenced his academic career at the University of Melbourne in 1949. It was only one year earlier, in 1948, that company law became a separate subject at the University of Melbourne. During his distinguished career, Harold Ford has witnessed profound changes to Australian corporate law. However, he has also been very influential in shaping this area, through his many publications, his chairing of the Companies and Securities Law Review Committee and membership of other law reform committees, and his teaching. This article records Harold Ford's contributions to the development of Australian corporate law. The article also contains an interview with Harold Ford in which he reflects on issues related to the development of Australian corporate law.

Sawer, Geoffrey, 'Federal-State Co-Operation in Law Reform: Lessons of the Australian Uniform Companies Act' (1963) 4 Melbourne University Law Review 238

Von Nessen, Paul, 'The Americanization of Australian Corporate Law' (1998-1999) 26 Syracuse Journal of International Law and Commerce 239

Abstract: In order to understand the significance of the reform package currently being undertaken, a brief review of Australian corporate law is necessary. The historical evolution of corporate law in Australia, reliant as it is upon its British heritage, partially explains why the developments of the last two years are so noteworthy. Not only are numerous changes being made to the substance of corporate law, but the changes, taken as a whole, also give the corporate law of Australia much greater similarity to American law than was previously the case. Although the corporate law developments are, perhaps, only an isolated event, it might also be asserted that this is another example of trends which are reflected in other commercial areas, particularly contract law and the law regulating trade practices ("anti-trust law" in American parlance).

Waugh, John, 'Company Law and the Crash of the 1890s in Victoria' (1992) 15 University of New South Wales Law Journal 356

Abstract:The great Australian boom of the 1880s, and the crash that followed it in the 1890s, have a legal dimension which deserves closer attention. It has long been said that weaknesses in company law played a part in these events in Victoria, where the boom was most intense, and the subsequent depression most severe. This perception was one of the impulses behind the reform effort which led to the innovative Victorian Companies Act of 1896. How did this come about? What were the weaknesses, and what were their effects? The crash also prompts some reflections on the role of law in historical events. Was the company law of the 1880s just a sign of other trends that would have taken their course and led to a crash no matter what the law said? Or did law play a part which was not entirely determined by other contemporary forces? The events of the boom, the crash and the concurrent law reform effort suggest there is truth not only in the historian's insight that law is a product of its contemporary setting, but also in the law-maker's assumption that law in itself can affect future events.

Waugh, John, 'The Centenary of the Voluntary Liquidation Act 1891' (1991) 18 Melbourne University Law Review 170

Waugh, John, 'No Liability Companies in Victoria' [1987] Australian Mining and Petroleum Law Association Yearbook 30

Wettenhall, Roger, 'Corporations and corporatization: an administrative history perspective' (1995) 6 Public Law Review 7

Abstract: It is often assumed today that corporatisation is a new phenomenon, associated with the recent spate of reforms to administrative systems and relating particularly to government business enterprises. However, governments in a multitude of jurisdictions have, over several generations, been creating corporate bodies to manage their public enterprises. The question arises whether this process does not also constitute corporatisation. With this historical perspective added, the term comes to appear slippery and imprecise. This article explores the extent of its applicability to the older public/statutory corporations as well as to the newer state-owned companies, speculates on the causes of the semantic confusions that now exist, and considers what role the administrative historian might play in contributing to some needed clarifications.