Corporation, Contract, Community: An Analysis of Governance in the Privatisation of Public Enterprise and the Publicisation of Private Corporate Law

Abstract

Australia is following the lead of other Commonwealth countries and privatizing government enterprise. This article addresses and rejects a claim made in the Australian literature that the contractarian theory of corporate law supplies a normative argument in favor of privatization. On the basis that any efficiency claim made for privatization requires a much closer scrutiny of the institutional framework within which corporate governance takes place, the article studies several key developments in Australian corporate law and governance. The doctrinal structure of Australian corporate law is developing in a manner that displays strong affinities to the judicial review model of public administrative law. In particular, (1) courts are developing an implicit model of propriety in corporate decision making; (2) the substantive grounds of review of shareholder and director decisions are changing; and (3) standing requirements are either being liberalized, or are becoming increasingly amenable to the representation of non-shareholder, "communitarian" interests. These developments imply a greater role for corporate law in Australia as a mediator between interested constituencies. The paper explores the implications of these developments made for efficiency claims for privatization.