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Of Information in the Insider Trading Offence WESTERN AUSTRALIAN STUDENT LAW REVIEW Volume 1(1), July 2017 Founding Editor-in-Chief Claudia Carr Editors Jessica Border Kenneth Chen Junior Editor Xavier Hazard Media, Marketing and Design Sophia Nugawela Editorial Advisory Board Professor Camilla Baasch Andersen, University of Western Australia Professor Dale Pinto, Curtin University Dr Eileen Webb, Curtin University Dr Michelle Evans, Curtin University Professor Natalie Skead, University of Western Australia Dr Philip Evans, University of Notre Dame Dr Robert Cunningham, Curtin University Professor Robyn Carroll, University of Western Australia Ken Yin, Edith Cowan University EDITORIAL Western Australian law students are unique. We reside in a relatively small capital city in a state isolated from our eastern peers. The size and isolation of our population makes for a tight-knit community – one that I hope this journal will foster and encourage. My hope is that the Western Australian Student Law Review will facilitate interaction and collaboration between Western Australia’s law students and universities by encouraging all students to engage in topical legal discussion with one another. I believe this is particularly important now that Western Australia is home to five law schools. The Western Australian Student Law Review seeks to transcend university and is not tied to any one law school. The project has come together as a result of contributions from all five of Western Australia’s law schools. Most importantly, the Western Australian Student Law Review is a medium for Western Australian law students to contribute to legal scholarship. Over the next few years, the legal industry can expect disruption from bright young legal minds – minds that rely on technology more than ever before and favour creative thinking. This journal offers those minds a place to express their ideas about the law. We received a staggering amount of submissions for the first volume of the Western Australian Law Review. The volume and quality of those submissions is a testament to the quality of Western Australian law students. I would like to thank everyone who helped to make the Western Australian Student Law Review a reality: the authors, the editors, Sophia Nugawela, the Editorial Advisory Board, and the Hon Chief Justice Martin AC. I look forward to producing the next issue. Claudia Carr Founding Editor FOREWORD I am greatly honoured to have been invited to introduce the first volume of the Western Australian Student Law Review. The latest addition to the ranks of student law reviews is quite different from others in that field because its contributions are drawn from students and recent graduates of not one but five law schools in Western Australia, being the Law Schools at Curtin University, Edith Cowan University, Murdoch University, the University of Notre Dame and the University of Western Australia. The Editorial Team is drawn from a number of those Universities, and the Editorial Advisory Board is made up of senior academic members from four of those Universities. This means that this Review can draw upon a much broader range of contributors than a review focused exclusively upon a particular law school. The first edition demonstrates the breadth and the depth of the scholarship reflected in the contributions drawn from students and recent graduates at four Universities. The topics addressed are many and varied, ranging from white collar crime, environmental regulation, sentencing of offenders, natural resources, taxation, labour relations in China, charities law, intellectual property and genetic technology, tortious damages for gratuitous services and Bills of Lading. One noticeable characteristic of the articles is the focus upon international perspective and comparative analysis which is so significant to contemporary legal scholarship in an increasingly global community. The opportunity for publication which this Review provides will encourage collaboration between Western Australia's law schools and students and will provide students with an incentive to thoroughly address normative questions of law in a comparative context. The target length of contributions of between three and five thousand words is specifically intended to accommodate articles which have been initially prepared as part of the process of a student assessment, but which have been reworked for publication. Case notes, book reviews and other commentary may also be published in due course. Initially the journal will be published electronically although it is hoped to secure sufficient sponsorship to produce a limited number of hard copies. I am confident that the interesting range of topics addressed in this first edition, and the high calibre of the research and analysis evident in the articles published will encourage prospective funders to contribute the resources required to achieve that objective. I am very pleased to welcome the Western Australian Student Law Review to the growing body of legal journals in Australia, and to congratulate all those involved in its foundation and realisation, including not least its founding Editor, Ms Claudia Carr. Wayne Martin AC Chief Justice's Chambers Supreme Court of Western Australia CONTENTS ‘Possession’ of Information in the Insider Trading Offence .............. 7 Emma Di Giorgio Carbon Capture and Storage in Australia: Long-Term Liability Frameworks in a Post-Paris Agreement World ................................ 18 Aleksandar Vuksic Assessing Indicators of Remorse in Sentencing: Can Courts Now Turn to Facebook and Twitter? ......................................................... 38 Nicola Thomas-Evans The Regulation of Australia’s Offshore Petroleum Activities: Adequate or Not? .............................................................................. 65 Elizabeth Plajzer An Analysis of the Proposed Mandatory Disclosure Regime in Australia ............................................................................................ 81 Tessa Richardson China’s Labor Contract Law and its Effect on Chinese Labour Relations ........................................................................................... 98 Josephine Kwok Making the Charitable Incision: Classifying Private Benefits in Charity Law .................................................................................... 115 Alexandra Ioppolo Policy Prevails in the Patentability of Isolated Genes .................... 130 Brandon McEvoy The Tortfeasor’s Gratuitous Care ................................................... 143 Heather Kerley Uncertainty in the Strive for Certainty: The Incorporation of Charterparties into Bills of Lading ................................................. 155 Collin Ong ‘POSSESSION’ OF INFORMATION IN THE INSIDER TRADING OFFENCE Emma De Giorgio* Insider Trading—Possession of Information—Subjective Awareness Test for Possession—R v Fysh Insider trading is a serious corporate crime that has the capacity to significantly undermine the integrity of the securities market, as ‘insiders’ are able to unfairly benefit from information that is not publicly available. Unfortunately, the legislative framework prohibiting insider trading in Australia is widely considered complex and unclear. The case of Fysh v R1 presented a rare opportunity for judicial clarification of one element of this offence – specifically, the meaning of ‘possession’ of inside information. The case impliedly confirmed that mere physical possession, without awareness, is insufficient to amount to ‘possession’. This appears to impose a higher evidentiary burden on the prosecution, as it requires proof of subjective awareness on the part of the ‘insider’. This article argues that this interpretation of ‘possession’ in this case was correct in light of the limited previous case law on this issue, and the fact that ‘awareness’ better encompasses both tangible and non-tangible forms of inside information. It also includes discussion of possible law reform that could assist the prosecution in future cases in proving this subjective element of the offence. * Emma is a fifth year Bachelor of Laws and Bachelor of Commerce student at Curtin University. 1 [2013] NSWCCA 284. 7 I INTRODUCTION Insider trading is a controversial area of corporate law, and is notoriously under-prosecuted.2 The insider trading provisions of the Corporations Act 2001 (Cth) (‘Act’) proscribe a person from trading in or procuring securities or other financial products while possessing information which he or she knows, or ought to know, is not generally available and is price-sensitive. 3 The rationale for prohibiting insider trading is the promotion of market integrity and economic efficiency by guaranteeing investor confidence in securities markets and ensuring equal access to relevant information.4 However, enforcing the insider trading provisions is extremely difficult, due to inherent problems with detecting insider trading and the fact that the insider trading provisions of the Act are ‘devilishly difficult to construe’. 5 A key element of the offence which remains somewhat ambiguous is the ‘possession’ of inside information — specifically, whether physical possession or mere awareness, or both, is required.6 In Fysh v R (‘Fysh’),7 the New 2 Juliette Overland, ‘Re-evaluating the Elements of the Insider Trading Offence: Should there be a Requirement for the “Possession” of Inside Information?’ (2016) 44 Australian Business Law Review 256, 256; Ann O’Connell, ‘Securities Industry and Managed Investments: Are We There Yet? The Journal
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