{"id":17536,"date":"2026-07-02T00:29:20","date_gmt":"2026-07-02T00:29:20","guid":{"rendered":"https:\/\/sites.thomsonreuters.com.au\/journals\/?p=17536"},"modified":"2026-07-02T00:29:20","modified_gmt":"2026-07-02T00:29:20","slug":"company-and-securities-law-journal-update-vol-41-pt-4","status":"publish","type":"post","link":"https:\/\/sites.thomsonreuters.com.au\/journals\/2026\/07\/02\/company-and-securities-law-journal-update-vol-41-pt-4\/","title":{"rendered":"Company and Securities Law Journal update: Vol 41 Pt 4"},"content":{"rendered":"

*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are using Checkpoint, the links can be found in the Checkpoint PDF <\/strong>at the bottom of this post.<\/p>\n

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The latest issue of the Company and Securities Law Journal <\/em>(Volume 41 Part 4) contains the following material:<\/p>\n

Editorial <\/strong><\/a><\/p>\n

Articles<\/h3>\n

An Analysis of the Social Licence to Operate (SLO) <\/strong><\/em><\/a>\u2013 Jean J Du Plessis and Benjamin B Saunders<\/p>\n

This article argues that the concept of the social licence to operate is theoretically incoherent and practically unworkable, which likely explains why proposals to introduce social licence into law or corporate governance codes have not been successful. The theoretical basis of the social licence is often thought to be the concept of social contract in political theory, but the social contract does not readily translate to the concept of social licence, resulting in key theoretical problems. The duty of care and diligence imposes obligations which are broadly analogous (although not identical) to the concept of a social licence. Beyond this the social licence is too uncertain and vague to admit of codification. The social licence to operate is a useful slogan, but it is impossible to define the social licence in a sufficiently precise manner that it is susceptible of codification or enforcement.<\/p>\n

Administrative Sanctions, Civil Penalties and Casino Regulation: the $100 million Question <\/strong><\/a>\u2013 <\/em>Arie Freiberg<\/p>\n

This article critically examines the imposition of massive administrative sanctions \u2013 up to $100 million \u2013 on Australian casino operators following revelations of systemic misconduct. It explores three sanctioning models: criminal, civil, and administrative, highlighting the tension between deterrence and proportionality. The article critiques the prevailing reliance on general deterrence, arguing that it is speculative and lacks empirical support. It advocates for proportionality as a core principle in administrative sanctions, emphasising fairness and reasonableness. It also suggests that transformative compliance orders and individual accountability may be more effective than monetary penalties in achieving regulatory goals. Ultimately, the article calls for legislative reform to embed proportionality into sanctioning frameworks, and questions whether current deterrence-based approaches can truly prevent corporate misconduct.<\/p>\n

Sanctioning schemes of arrangement involving third-party release: a Law and Economic Analysis <\/strong><\/em><\/a>\u2013 Charles Zhen Qu and Yuqing Liu<\/p>\n

This article evaluates, through an economic analysis, two judge-made tests, namely, the sufficient nexus test and the necessity test, on judges\u2019 jurisdiction to sanction creditors\u2019 schemes of arrangement involving third-party releases. The scheme of arrangement is a court-controlled statutory procedure for restructuring a company\u2019s relationship with its shareholders or creditors. It is a collective decision-making device for binding dissentients to the majority\u2019s decision. Creditors\u2019 schemes facilitate, inter alia, corporate restructuring, liquidation, and dispute resolution. A release of the creditors\u2019 claims against a third party is often imperative for achieving the purposes of a scheme. Rules on third-party release is therefore economically consequential. Schemes of arrangement regimes are typically silent on the court\u2019s jurisdiction to sanction schemes involving a third-party release. Hence the need for a judge-made test. Our analysis concludes that, in terms of maximising wealth and controlling transaction costs, the sufficient nexus test is superior to the necessity test.<\/p>\n

Corporate insolvency <\/strong>\u2013 Editor: Jason Harris <\/em>.<\/p>\n