La Trobe Law School academics Dr Ann Wardrop and Dr David Wishart, presented a paper titled ‘Regulating Corporate Culture: An Extraordinary Development’ at the Corporate Law Teachers Association Conference at the University of New South Wales from 31 January 2016 until 2 February 2016. The paper was co-authored with Associate Professor Marilyn McMahon from Deakin Law School.
The concept of corporate culture as deployed in the Criminal Code (Cth) is much discussed but little used. Extraordinary processes initiated by the Netherlands central bank may change that. They allow for teams of investigators to descend on banks to investigate and report on their corporate culture in order to prevent systemic financial system failure as experienced in the Global Financial Crisis.
While much was done in Australia in 2010, continuing financial scandals suggest that it was not enough. The Netherlands process is being investigated by both APRA and ASIC to see whether it is appropriate for Australia. For the corporate lawyer, the Netherlands model is challenging both in terms of the form of its intervention in the internal workings of a company and for its positioning of the regulator in relation to the private sphere.
After an analysis of what is involved in the Netherlands approach, this paper explores the development from a number of perspectives. It considers the idea of corporate culture as it has been articulated in Australia, the psychological basis of the assessments undertaken, the impact such an approach might have on local ideas of the subjectivity of the company, and problems involved in its implementation in Australia. In so doing the paper reflects on problems in transplantation of laws, especially in terms of the difficulties in the ethnographic studies which should found such proposals, and on the relation between regulatory practice and regulatory theory.
Dr Ann Wardrop is a Senior Lecturer in Law at the School of Law, La Trobe University. She has published in Australian and international law journals and has held visiting scholar positions in the United Kingdom, Canada and Europe. She is on the editorial board of Law in Context. Ann is Director of Programs and a member of the Law School’s Executive, and Research Committee. Her research interests are primarily in the area of banking and finance law and regulation. Her current work is focused on the regulation of the Australian payments system and investor/consumer protection in financial services regulation. Ann lectures in banking and financial services law and equity and trusts. She obtained her undergraduate law degree and PhD from the University of Melbourne. Ann is admitted to the legal profession in Victoria and practised in banking and finance law in major Australian law firms prior to taking up an academic position.
After a brief stint in practice, David completed a Masters by thesis from Melbourne University. During his candidature, he was a tutor in the Legal Studies Department of that institution. He then became a law lecturer in the Department of Accounting at Monash University. In 1986 he joined the Faculty of Law at Universiti Malaya, from whence he moved to the Faculty of Law at the University of Canterbury. During this time he wrote a number of articles on consitutional law and company law in both jurisdictions, including his book, Company Law in Context (OUP, 1994) in relation to New Zealand company law. He became interested in matters to do with indigenous peoples. In 1993 he joined the then School of Law and Legal Studies (now Law School) at La Trobe University. He has published extensively in corporations law, and to a lesser extent in consitutional law, and law and indigenous peoples. Recently he has entered on a project considering the issues surrounding digital evidence and has been deeply involved in considering competition policy and law from various theoretical perspectives. His most recent book, Corporations Law Guidebook (OUP, 2008) is a study in theory as well as an innovative perspective on learning corporations law. His successful PhD thesis, ‘Australia’s National Competition Policy 1995-2005’ was completed in 2014.