Research Seminar 12 August

Francine Feld: Pell v The Queen [202] HCA 12 (work in progress paper)

The High Court in Pell v The Queen [202] HCA 12 held that, on the assumption that the jury assessed the complainant’s evidence as thoroughly credible and reliable, the evidence of the opportunity witnesses nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to the applicant’s guilt. This paper seeks to understand this seemingly contradictory finding.

Lucy Robinson: Bail-in or “bail-up” – the quiet heist: TBTF financial institution restructuring in Australia

In the wake of the GFC, economic bloc financial governance bodies, such as the EBRD, and central banks, such as the Bank of England, advocated the use by governments of ‘bail-ins,’ as opposed to ‘bail-outs’, as a means of facilitating the restructuring of financial institutions which are regarded as being Too Big Too Fail (‘TBTF’). Most national and autonomous governments, such as the UK and Hong Kong, have implemented bail-in legislation for insolvent or border-line insolvent financial institutions. The Bank of Cyprus debacle is a vivid example of the potentially devastating financial outcomes for bank depositors of the use of bail-ins in financial institution restructuring.

In Australia, the Final Report of the Financial System Inquiry, released in December 2014, provided a number of recommendations in regard to Australian financial institutions. Recommendation 3 of the Report obliquely advised the use of bail-ins for TBTF Australian financial institutions. This recommendation was put into effect through the passing of the Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018 (Cth) and consequential amendments to the Financial Sector (Transfer and Restructure) Act 1999 (Cth). Although the amendments became effective on 8 March 2018, there was no mention of this in the media and other than a couple of law firm ‘advices’, went completely unremarked.

This paper will discuss the nature and effects of bail-ins and the potential consequences of the legislative amendments for Australian depositors and investors in the potential post-COVID-19 recession or economic depression.