Empirical analysis supports the Hayne long run reform thesis

David Millhouse

Research output: Contribution to journalArticleResearchpeer-review

Abstract

Australia has arguably benefited from its market based regulatory system and progressed toward its first objective of an entrepreneurial wealth creating society competing with its global peers; the second objective, being investment stability and risk mitigation, has for many people been an abject disaster. Proposed reforms to balance entrepreneurial market conduct with investor and beneficiary risk mitigation rely on themes established by Cooper (personal liability of superannuation trustee directors), Heydon (elimination of unhealthy culture), Hayne (confluence of law and morality) and the Productivity Commission (trust). The Australian government must act. It must do so strategically. It must establish the nexus between the intent of the law and its practical implementation for those it purports to serve. Parliament has yet to debate these underlying causes. If it does, then it must confront the distinction between fiduciary and non-fiduciary duties and recognise the power of fiduciary law. Confused parliamentary leadership has facilitated corruption of the regulatory system. These are philosophical as well as legal questions. Hayne points to the need for a framework for the re-integration of the intent and spirit of the law with its statutory manifestations. This paper is that framework.
Original languageEnglish
Pages (from-to)162-187
Number of pages26
JournalLaw and Financial Markets Review
Volume13
Issue number2-3
Early online date22 Apr 2019
DOIs
Publication statusPublished - 21 Jun 2019

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