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Vive la difference – Australian company law overkill

  • January 30th, 2013

A Chapman Tripp commentary  on a recent Australian case succinctly contrasts the characteristic prescription of Australian legislation with New Zealand's more traditional restraint.

Geof Shirtcliffe notes that dicta in the case means that Australian boards will probably feel they must now vote formally on each resolution. That contrasts with the near universal custom where there is consensus, in which a chairman records an  absence of dissent as unanimous support.

The customary practice is blessed by New Zealand law (though it can be displaced by more rigorous prescription in a constitution) ) because our law was drafted to reflect the ordinary practice of reasonable boards. Papers might show that I am claiming credit due to another, but I think I was responsible for suggesting the particular New Zealand words in this area. I worked closely with the drafters of the original bill (my partners at Chapman Tripp) and presented the NZ Law Society submissions on it.

With some exceptions the 1993 Companies Act reform was not seized as a chance for officials and other zealots to tell businesspeople how they should run their businesses. It was seen as a chance to simplify and to codify without interfering with respectable practice, not an opportunity to peddle passing fashion's pet theories of "best practice" by making them compulsory. .

Sadly, that era is passing. Instead of ensuring practical enforcement of laws against dishonesty, and respecting their party's principles to maximise freedom, National's commercial  law changes are marked by minute prescription. It seems to me that Labour Ministers in relevant areas were more resistant to official zealotry. They left safety valve opt-outs from prescription generally on the basis of informed consent ( treating business decision-makers as not needing the nannying of law intended for consumers).

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