bluuebunny/crossref_metadata_2025 huggingface dataset:
Assessing Reflection Skills in Law Using Criterion
Authors: Burton Kelley , McNamara Judith
Published: June 2021

Two developments in legal studies over past generations are the development of a critical discourse and literature addressed to shortcomings of legal education, and the development of a rich, rewarding body of work in interdisciplinary legal studies, often referred to as law and society scholarship or socio-legal studies. To date, these two developments have been largely independent of one another, although scholarship in law and society or socio-legal studies has much potential to complement or reform legal education in many of the respects where it has been found to be problematic or lacking. A brief survey of many of the concerns which have been voiced about legal education, with significant attention to ‘internal’ critiques offered by legal scholars and educators themselves, is offered with the constructive goal of suggesting the relevance of social scientific scholarship and instruction for legal education, broadly conceived to include pre-law education, continuing legal education, dual degrees and paralegal studies. Important issues include the inevitably interdisciplinary nature of legal studies, issues of civics and public service, critical and reflective approaches to law, professionalism and ethics, specialization and multi-disciplinary practice, and skills training and legal practice more generally. Given the great potential for social science to contribute to legal education in many ways that are responsive to the internal critiques of legal education, it is well worth addressing difficult questions about how legal education could incorporate relevant social scientific scholarship and instruction.
International and Comparative Indigenous Rights Via Video Conferencing
Authors: Stephenson Margaret , Morse Bradford , Robertson Lindsay , Castan Melissa
Published: June 2021

The incorporation of Indigenous content within the Bachelor of Laws curriculum is one measure that may contribute to the development of bicultural legal education in New Zealand. Incorporating Indigenous content into law courses can help to make the study of law more relevant to Indigenous communities and provide a critical framework from which changes to the legal system can be advanced. This paper identifies three distinct types of Indigenous content that may be usefully incorporated into the Bachelor of Laws curriculum: Indigenous legal issues; Indigenous perspectives; and Indigenous law. The inclusion of each type of Indigenous content has distinct benefits but also requires distinct forms of delivery. This paper considers these benefits and forms of delivery in relation to courses on Māori customary law and constitutional and administrative law, concluding that, in order to be effective, the incorporation of Indigenous content must be based on clearly identified objectives, with the type of content deliberately selected to meet those objectives, and delivered in a way which is suited to that content.
E-learning and Students’ Motivation
Authors: Nehme Marina
Published: June 2021

[Extract] This volume contains six articles within the General Issue, Volume 21(1), and six articles within the Special Topic Issue on Student Wellbeing, Volume 21(2). We are pleased that Marie Jepson and Keith Mason, on behalf of the Tristan Jepson Memorial Foundation, have written a foreword for the Special Topic Issue.
Education in the Field: A Case Study of Experiential Learning in International Law
Authors: Mitchell Andrew , Oswald Bruce , Voon Tania , Larcombe Wendy
Published: June 2021

Reports into university students’ experiences indicate that student engagement is decreasing. Universities need to be able to effectively engage with students to foster teaching and learning. In light of the recent endorsement by the Council of Australian Law Deans of the threshold learning outcomes - that emphasises legal education as being more than legal knowledge - the use of authentic assessment may become far more relevant as a means of developing broader knowledge and skills. The literature has consistently linked authentic assessment with student engagement. But what is the reality of using authentic assessment to engage with students? This article reports on a study into the use of authentic assessment by law academics as a means of engaging with students, in the first and second years of a regional law program. The study reports on law academics perceptions of what is student engagement, what is student engagement and how do law academics use authentic assessment. The study reveals some negative experiences of both law students and law academics associated with using authentic assessment. The study also identifies some possible factors that, if taken into account, may positively assist with the use of authentic assessment as a means of promoting student engagement.
Foreword
Authors: Jepson Marie , Mason Keith
Published: June 2021

We surveyed first-year students at the ANU College of Law on various measures of wellbeing, thinking styles and motivations for attending law school. We followed up our surveys with a student–faculty dialogue retreat. The results of our work confirm that, even in a law school where formal mentoring programs are in place and where resources for student counselling are readily available, law students suffer symptoms of psychological distress at levels higher than their age peers in the general public. During the first year of law school, many students experience psychological struggles, changes in their thinking styles, and changes in self-concept and sense of wellbeing. By the end of the first year many students in our sample showed increased rational thinking and lower experiential thinking. Lower levels of experiential thinking were associated with increased symptoms of psychological distress, while students with a higher propensity toward experiential thinking showed little change in depressive symptoms from the beginning to the end of the year of law study. In extended deliberations on law student wellbeing, faculty and student retreat participants highlighted their sense that law school changed them in important ways, making them more rational, analytical, competitive and adversarial. Law school also promoted feelings of insecurity, inefficacy and isolation. To address these changes, participants made a variety of proposals for curricular reform, which are discussed here. Specific changes in law school curricula – including proposals for greater transparency, clarity and guidance about course work, for more positive and formative feedback, and for more social and intellectual engagement – are identified as having potential to improve law student wellbeing.
Approaches to Student Support in the First Year of Law School
Authors: Galloway Kate , Bradshaw Rachel , Dunbar Neil , Fellows Jamie
Published: June 2021

This paper examines Indigenous law students’ well-being. A problem many Indigenous students face, from the earliest experience with the Western educational system appears to be a form of negative cultural stereotyping, and this paper explores some of the underlying contributing causes. At the practical level participation by Indigenous students in the tertiary education system is not just low but the gap between the Indigenous and mainstream continues to diverge. Participation is defined here as enrolling in a course that leads to a legal qualification that will permit practicing law in an Australian jurisdiction. While improving Indigenous participation is intrinsically beneficial to Indigenous communities, Indigenous people also bring with them significant knowledge and human capital that can benefit society as a whole. The case study of law students at the ANU is used to guide the discussion. It is not a representative study. However, what is intuitively clear is that every step in improving participation by Indigenous students will help the overall participation rate. On the issue of well-being, the adverse effects on the mental health and well-being experienced by ‘mainstream’ law students is well known as an issue of concern. Indigenous students often experience lower levels of well-being even before commencing law studies. Further, Indigenous students also face huge expectations, carry the burdens of history, and endure a lack of family support, alienation, financial difficulties, often living quite far from home and in very unfamiliar surroundings which together tends to place an even greater threat to their general well-being. Finally it is posited that successful learning, is contingent on mutual respect, something that is not always present in contemporary institutions. A further contributing factor to Indigenous students’ (relatively poor) well-being levels and disadvantage in education appears to lie in the lingering effects of inter-generational neglect. This and other factors contributing to this phenomenon of poor participation should therefore be addressed strategically. To this end better and more reliable information and statistics on Indigenous participation can help to improve the policy settings that affect Indigenous participation in the tertiary sector and this paper calls for the proper identification of the several gaps in the data so that policy makers have reliable and accurate data to ensure that the policy settings are appropriate and that they will yield better results in the coming years.
Contextualising Program Outcomes for Pacific Island Law Graduates
Authors: Penfold Carolyn
Published: June 2021

Previous research has suggested that the experience of studying law reorients students toward external, extrinsic motivations and objectives, and that this orientation contributes to the high rates of psychological distress among law students. This article offers support for that thesis as well as further insight into the associations between law students’ motivations, academic expectations and levels of psychological distress. Findings from two empirical studies of students’ motivations and expectations are compared in order to identify changes that may be a result of the experience of studying law. The first study investigated the motivations and expectations of commencing students in an LLB and a JD program. The second study investigated the motivations and expectations of LLB and JD students at a point in the degree when most students would have completed at least five law subjects. The second study also assessed students’ levels of psychological distress. Although not a longitudinal study, the data point to possible differences between the motivations and expectations of commencing law students and students later in their degree. Specifically, experienced students were more likely to cite non-Intrinsic reasons for studying law and also more likely to expect their results to be in the top one-third of their cohort. Further research into these factors is suggested to test whether they are contributing to law students’ psychological distress.
How to Develop Law Students’ Critical Awareness? Change the Language of Legal Education
Authors: Maxwell Lucy
Published: June 2021

Over the last couple of decades in Australia there has been a number of factors that have set the scene for a radical re-think about the way practical legal training should occur between the completion of an undergraduate degree and being admitted to legal practice. One institution’s response to these factors has been to redefine the core of its Graduate Diploma in Legal Practice as an online, group based, integrated and simulated learning environment. In this new learning environment, the integration of assessment within the ‘course work’ has potentially had the outcome of creating a sustainable assessment regime that results in learning outcomes that benefits students as they move beyond academia to the legal profession. This paper provides a case study of this teaching methodology and analyses whether sustainable assessment has been achieved.
The Role of Legal Clinics in Leading Legal Education: The Model from the Middle East
Authors: Qafisheh Mutaz M
Published: June 2021

The central thesis of this article is that legal education is at a crossroads, facing uncertainty and pressures for change on multiple fronts, and we have a choice. We can either see this as a ‘curse’, or as a unique opportunity to actively embrace change, re-thinking our fundamental premises and questioning received wisdom and mental models or conceptualisations about ‘the way we do things round here,’ to harness our ‘creative energy’. The article discusses (i) re-conceptualising law schools as ‘learning organisations’, including learning to constantly scrutinize and interrogate our mental models; and (ii) adapting conventional notions of leadership to incorporate distributed leadership, marrying this with ideas from the literature on change management relating to leading school reform. It then addresses the sustainability of change, drawing on principles from environmental law to suggest how innovation in legal education can be embedded and maintained over time in an organic and dynamic process of renewal. Finally, it demonstrates the possibilities inherent in adopting a whole-of-school shared model of leadership, and the capacity of students to act as leaders and change agents. It briefly describes a student/ staff collaboration to design and implement a structured peer tutoring and informal mentoring program in Law, as an example of a student-initiated program that integrates the co-curriculum, taught curriculum, and broad curriculum.
Equipping Students for the Real World: Using a Scaffolded Experiential Approach to Teach the Skill of Legal Drafting
Authors: Johnson Tammy , Cantatore Francina
Published: June 2021

In spite of the growing number of formal mentoring programs aimed at facilitating the transition from law school studies to law practice, as well as evidence suggesting that law students need to proactively seek out and gain information and support from legal professionals, little empirical research examines mentoring as a source of professional and personal development among law school students. In order to address this gap in the literature, an independent law school1 located in the United States teamed up with one of its educational partners, a major university in the area,2 to undertake a qualitative study of the impact and effectiveness of mentoring on law students by lawyers. In particular, the researchers compared traditional mentoring, which they defined as involving a long-term relationship between one law student and one lawyer, and episodic mentoring, which they defined as one-time sessions between a law student and a lawyer which could be repeated by that law student with many different lawyers
Matched versus Episodic Mentoring: The Processes and Outcomes for Law School Students Engaged in Professional Mentoring
Authors: Johnson Eileen S , Timmer Amy , Chandler Dawn E , Toy Charles R
Published: June 2021

Technology and social changes are moving legal education towards a crossroads, disrupting traditional modes of delivery, pedagogy and educational business models. Stakeholders such as law schools, law societies, accreditation bodies, quality assurance regulatory agencies and the judiciary face challenges presented by new modes of delivery of legal education and the potential for new non-university providers.
Educating Law Students for Rural and Regional Legal Practice: Embedding Place Consciousness in Law Curricula
Authors: Kennedy Amanda , Mundy Trish , Nielsen Jennifer , Hart Caroline
Published: June 2021

The Australian legal profession persistently remains the domain of the white middle-class. This article identifies barriers in entering and then completing law school which act to prevent people from low SES backgrounds and Indigenous Australians from entering the legal profession. These barriers have persisted despite a long history of policies aimed at diversifying the Australia’s university student population. This article also considers strategies that have been relied upon by universities to increase student diversification. However, many of the strategies that are most heavily relied upon are based on false common-sense assumptions, rather than empirical evidence. Despite the failures of the past, strategies to increase participation of students from traditionally excluded groups in law schools are not necessarily doomed.
Law Student Mental Health Literacy and Distress: Finances, Accommodation and Travel Time
Authors: Soh Nerissa , Burns Fiona , Shackel Rita , Robinson Bruce
Published: June 2021

The School of Law at UniSA has been operating a clinical program via its Legal Advice Clinic (which is situated within the Law Building) for just over four years. The benefits of a Clinic within the environs of the Law School are numerous. One of those benefits is the existence of files which can be accessed for ‘case scenarios’ for a variety of courses, relieving the Law teacher of the endless quest for creative inspiration in order to develop interesting and plausible fact scenarios for problem-based learning. This article examines the pedagogical model which has been introduced into the Professional Conduct and Civil Procedure tutorial programs at the writers’ law school. The model is an example of the integration of the clinical program within the wider law curriculum. Specifically, real Clinic files are de-identified and used in tutorials as the basis for discussion and problem solving. The article will showcase how this is done, including the maintenance of client confidentiality and the avoidance of conflicts or potential conflicts. It also demonstrates how the use of real legal problems can not only resolve a course co-ordinator’s plight of thinking up endless new fact scenarios, but also their acceptance by students in preference to fictitious dilemmas. Additional benefits of introducing the Legal Advice Clinic into the tutorial program will also be explored. Specifically, the writers examine how a pro bono culture and a consciousness of access to justice issues at a local level can be developed, not just for students in the clinical program, but for all students in their Law School. Finally, the article will highlight how this program actively assists with the sustainability of the Legal Advice Clinic by accessing School funds from students enrolled in the tutorial programs to directly fund the Clinic.
Boosting Law Graduate Employability: Using a Pro Bono Teaching Clinic to Facilitate Experiential Learning in Commercial Law Subjects
Authors: Cantatore Francina
Published: June 2021

This paper considers the benefits of teaching corporations law from a transactional perspective and through the use of experiential techniques; namely, using such techniques to examine corporations law and its application and relevance to business transactions. Drawing on the extensive literature in this area, particularly by scholars in the United States, and also his experience in teaching transactional law subjects, the writer suggests ways in which the transactional aspects of corporations law could be strengthened within the law school curriculum in Australia and identifies experiential techniques for this purpose. These include client-based problems, client interviews, drafting and negotiation simulations and facilitated reflection.
Favourable Variations’: Towards a Refreshed Approach for the Interviewing Classroom
Authors: Ching Jane
Published: June 2021

This paper outlines how principles of legal ethics and professional conduct are currently taught in Australian law schools and posits that the existing model is not adequate for two main reasons: (1) it does not account for the heterogeneity of the student body and the changing role of law schools; (2) it promotes an understanding of and compliance with the legal professional rules rather than preparing students for the multitude and variety of ethical dilemmas that arise in practice. The author proposes changes to the academic curriculum such that students are introduced to a broader concept of ethics, and that such exposure is scaffolded into all law subjects, rather than the current model which favours the teaching of legal ethics as a stand-alone subject. Further the author posits that experiential learning is the most efficient and expedient method of teaching principles of ethics to the student cohort. The paper closes by outlining the advantages of this teaching model to the academic staff, the student cohort and the legal profession: these range from the flexibility and adaptability of the model, the promotion of professional conduct, and mental wellbeing and resilience.
Indigenisation of Curricula: Current Teaching Practices in Law
Authors: Maguire Amy , Young Tamara
Published: June 2021

This paper considers the skill of client interviewing, or client counselling, reinforced in many common law countries by competence statements and as a mandatory component of vocational legal education. Over-reliance on interviewing protocols in the classroom creates a risk that students will develop a rigid, rehearsed performance which does not effectively reflective the nuanced nature of legal practice, or encourage them to develop a personal practice. It is suggested that, as a significant microcosm of legal practice, interviewing should be treated as a threshold concept or capability. Literature around interviewing performances, including differentiation between novices and experts suggests that variation theory can be a useful means of helping novice students to understand the significance of the different variables in the client’s problem; to transcend this threshold and to supplement the interviewing protocol in developing towards a personal professional practice.
Towards a Pedagogy of the Integration of Clinical Legal Education Within The Law Curriculum: Using De-Identified Clinic Files Within Tutorial Programs
Authors: Spencer Rachel , Atkinson Matthew
Published: June 2021

Pleading drafting is often viewed as a challenging and highly specialised legal skill. This article proposes that pleading drafting exercises can serve as a vehicle for the development of both lawyering skills and more generic transferable skills. It further contends that the skills students can develop through drafting pleadings in law school can help prepare them for legal professional training (LPT), legal practice (practice) or careers outside the law. This article, firstly, examines the nature of pleading drafting and the lawyering and transferable skills it requires. An overview of the experiential learning model and why it is suitable for pleading drafting follows. The pleading drafting activities in the University of Queensland (UQ) Civil Procedure course and relevant results of surveys of the law students who completed those activities in 2012 and 2013 are then analysed. The article concludes that students can benefit in numerous ways from engaging in pleading drafting exercises at a law school level.
More Than the Rules: Using Pleading Drafting to Develop Lawyering and Transferable Skills
Authors: Curnow Katherine
Published: June 2021

This paper discusses the development of an animal law case book, as part of an elective subject, “Animal Law and Policy in Australia”. The project was funded by a Vice-Chancellor’s Learning Grant, at UTS as well as a grant from the Animal Protection Institute, Voiceless. The project aimed at providing students with a meaningful learning experience that was consistent with the UTS Model of Learning and the graduate attributes established by the Faculty of Law and targeted practice-oriented learning and public service. The project was additionally prompted by the fact that no animal law case book is available in Australia. As such, it provides an example of an innovation in learning and teaching, demonstrating how practice-oriented learning in an emerging area of legal scholarship can potentially make a meaningful contribution to the field of study.
Teaching Corporations Law from a Transactional Perspective and Through the Use of Experiental Technique
Authors: Godwin Andrew
Published: June 2021

Law Schools throughout the Commonwealth face increasing pressure to attract international students for postgraduate study. This paper focuses on the taught LLM program, which in many Law Schools will account for the largest enrolment of postgraduate students. Some views will be advanced regarding the international dimensions of legal education and its significance in marketing an LLM by coursework. There are several strands to the enquiry. First, it must be asked: who are the lead players, and why? A significant factor is a Law School’s reputation and international ranking. There is a selfperpetuating synergy between institutions of similar reputation and standing. Such entities have greater leverage in negotiating academic alliances and student focused schemes, as well as attracting external funding and philanthropy. This leads to the principal research question: what are the elements for a successful LLM programme, both generally, and for universities that do not enjoy the same cachet and operate with limited resources? This will be analysed from a comparative perspective, recognising that Law Schools are functioning in an increasingly competitive global market.
Foreword - General Issue
Authors: James Nick
Published: June 2021

This issue contains three papers first presented at a Legal Writing Symposium hosted by Melbourne Law School in December 2015. The event was designed to highlight the diversity of approaches to teaching legal analysis and writing in law school, and the creative and inspiring people who think deeply about these topics. When Kate Galloway, current Editor in Chief of the Legal Education Review, heard about the symposium she approached me to suggest a special edition to highlight the papers presented. This edition is the result of her creative suggestion, the generosity of the editors at the LER, and the commitment of the authors.
Teaching Public Law: Content, Context and Coherence
Authors: Orr Graeme
Published: June 2021

This volume of the Review, Volume 25, is as usual made up two issues, a General Issue and a Special Issue. The Special Issue contains three articles about the teaching of public law, and is introduced by a separate Foreword written by guest editors Gabrielle Appleby, Alexander Reilly and Sean Brennan. The General Issue is comprised of twelve articles that explore a variety of legal education topics, and is the focus of this Foreword.
Exploring Changes in the Emotional Intelligence of Law Students
Authors: James Cindy L
Published: June 2021

Welcome to our 2017 edition of the Legal Education Review — and my first as Editor in Chief. We are spoiled for choice in this edition, with a general volume and two special editions: one on teaching animal law, and the subject of a separate foreword by guest editor Meg Good, and another special edition put together by the Legal Education Active Learning Research Network (‘LEARN’).
Why Teaching Matters and Technology Doesn’t: An Evaluation and Review of Web-based Lectures (Flexible Delivery in a First Year Law Subject, Part II)
Authors: McNamara Lawrence
Published: June 2021

Graduate attributes may be broadly defined as the qualities, capabilities and understandings of a graduate which a university community agrees students should develop during their time at the institution, both for their future professions and to make a contribution as ordinary citizens. This article examines the benefits and disadvantages of an integrated and incremental approach to developing these attributes, and to teaching the generic and legally specific skills that underpin them in an undergraduate law program. The progress toward the integration of both generic and lawyering skills within the undergraduate law program at the Queensland University of Technology (QUT) will be used as the exemplar for this article.
Indigenous Australians and Legal Education: Looking to the Future
Authors: Douglas Heather
Published: June 2021

Indigenous people are under-represented in the Australian legal community. Some Law Schools have attempted to address the issue by increasing the opportunities for Indigenous students to obtain places in law schools. However, the high attrition rates among Indigenous students continue to undermine the efforts of these Law Schools While providing increased access to Indigenous students is an important starting point, the continued high rates of attrition highlights the fact that addressing access issues is not in itself sufficient. If law schools provide alternative entry programs to Indigenous students they must also provide a system of support for those students. In order to give Indigenous students the opportunity to succeed, formal access issues must be tackled at the same time as the more substantive issues of on-going support. The Pearce Report notes that experience in law schools has shown that merely to admit Indigenous students without more is unsatisfactory. This is reinforced by experience in American Universities which suggests that special admission programs have resulted in high attrition rates where the students are left unsupported after entry

In most Australian law schools affirmative action programs in relation to access are an integral part of the university and the focus in Australia has gradually shifted from emphasising access issues to improving success rates in students’ studies through on-going support programs.

The objectives of this article are twofold. The first objective is to discuss the theoretical justifications for structural and institutional reforms that may be needed to improve legal education for Indigenous Australians.

Secondly, this article aims to identify the steps that might be taken by law schools to improve opportunities for access and to reduce attrition rates for Indigenous law students. The relevant steps may be classified as structural (such as pre-law programs and tutorial support) or institutional (for example, curriculum initiatives).
Malicious Drugging and the Contaminated Catheter: Adams v Canadian Centre For Ethics in Sport
Authors: White Paul
Published: June 2021

Adams’ case concerns a doping violation by a blameless wheelchair athlete leading to the usual two year ban. The CAS wished to overturn the ban and had to strain the meaning of Article 10.5.1 of the WADA Code to prevent the unfair penalty. An amendment to the Code to allow a more flexible principle of proportionality in doping offences that involve exceptional circumstances might be an answer.
The CAS An Arbitral Institution with its Seat in Switzerland
Authors: Vetter Dr. Meinrad
Published: June 2021

The Court of Arbitration for Sport (the CAS) has become a very successful international arbitral body. The CAS has its seat in Switzerland – arbitration before the CAS is based on Swiss law. In this article, Meinrad Vetter presents an overview of Swiss law governing CAS cases, including the rules of procedure on appeals from the CAS to the Swiss Supreme Court.
Dangerous Sports and Obvious Risks - Anyone For Cricket?
Authors: Corkery Jim
Published: June 2021

Dangerous sports contribute noble attributes to society and promote social cohesion. Cricket is a sport in point. It is capable, too, of being a dangerous sport, with athletes hurling the hard cricket ball at speeds in excess of 180 kph – or 100 mph. So cricket can be hazardous: cricket can injure. Should the law regulate for every risky situation and underwrite every recreational injury? Or should society tolerate, perhaps encourage, dangerous sports, because their benefits outweigh the costs?
Australian sport and the Commonwealth constitution
Authors: Davies Chris
Published: June 2021

Sports law generally consists of areas of law applied to a sporting context, although now we are seeing the development of a lex sportiva. One area of the law that has rarely been applied to sport is constitutional law. However, recent High Court of Australia cases have examined the application of s 92 of the Constitution of Australia to sports gambling.
Copyright and Sport Broadcasting in Australia and England
Authors: Davies Chris
Published: June 2021

Television rights are an essential component of the revenue generated by professional sporting leagues, and protecting the copyright in the broadcasting of matches is therefore of significant importance to these leagues. A Federal Court decision has held that there had been in breach of copyright when Optus allowed its mobile phone users to access matches on a two minute delay. However, European and English Courts have held that the plaintiff’s copyright only existed in the anthem, graphics and recorded highlights, not in the actual matches.
Self-assessment legislation : the tip of the taxation iceberg
Authors: Harmer Brian F
Published: June 2021

Unlike many other recent tax changes the self-assessment system quietly slipped into the Assessment Act without fuss or fanfare. The relevant legislation is deceptively simple. Notwithstanding its apparent simplicity and inconspicuous entry into the Act, it is considerred that the self-assessment system will ultimately be adjudged as the most significant tax legislation introduced during the 1980s. This article seeks to identify the significant ramifications that will arise as a consequence of the new system. What we see is only the tip of the iceberg.
Specific legislative responses to international transfer pricing - a trans-Tasman comparison
Authors: Smith Martin
Published: June 2021

The importance of international trading and multi-national corporate groups means that tax regimes will commonly contain provisions allowing for the adjustment of transfer prices on cross-border transactions. An examination of the taxation Acts of Australia and New Zealand reveals vast differences in scope and clarity, with the New Zealand legislation (presently) containing only a single, rather dated, provision. The author contrasts the two legislative approaches, and also examines the relevant article of the Double Tax Treaty which exists between the countries. One of the most difficult issues in this area is the determination of an arm’s length price, and recent developments in the USA are discussed. The author stresses the need for transfer pricing laws to provide guidance to taxpayers and the Revenue as to the method(s) to be adopted in such cases.
Perspectives on the proposed double taxation agreement between Papua New Guinea and Australia
Authors: Ongwamuhana Kibuta
Published: June 2021

In this article, the author examines the proposed Double Taxation Treaty between Australia and Papua New Guinea. Apart from analysing specific provisions, he discusses the proposed Agreement’s immediate implications on Australia’s domestic tax position, and the manner in which this Agreement departs from Australia’s overall tax treaty regime. The discusssion shows that this will be a unique tax treaty in many respects.
The ‘Everett-Assignment’ Reconsidered : Hadlee v Commissioner of Inland Revenue
Authors: Liew Kwai-Lian
Published: June 2021

An assignment of a share of interests in a partnership was held by the High Court of New Zealand to be an assignment of a mere expectancy and an arrangement that is invalid for tax avoidance purposes. This paper compares Hadlee v The Commissioner of Inland Revenue and the Australian High Court decision of FCT v Everett.
The Case for Taxing Consumption Part II
Authors: Lang Joachim
Published: June 2021

The author favours threefold reform of Income tax law: (1) making the extent of tax liability independent of the legal form in which business is being conducted, (2) exempting from Income tax that part of Income which the taxpayer needs for subsistence, including the subsistence of those who depend upon the taxpayer for their maintenance, and (3) abolishing exemptions, deductions and other tax privileges which tend to create different tax rates for different types of income. A tax system so contructed would lend itself to the major reform which the author proposes: the creation of a dual income tax regime which would impose a progressive form of tax upon income which is appropriated to consumption, and a generally much lower and proportional tax upon income which is appropriated to the formation of capital. In this second and final part of his article, the author considers the practical problems associated with such a tax regime and makes proposals for their solution.
The Principal Place of Residence : Taxation Considerations
Authors: Bitomsky Greg
Published: June 2021

Very few exemptions have been provided within Part IIIA of the Australian Tax Assessment Act, but the most significant one must be the sole or principal residence examption provided in Section 160ZZQ. Substantial amendments to Section 160ZZQ were announced in the 1989 August Budget relating to temporary absence, erection of dwellings and deceased estates resulting in increased importance being placed on this exameption for tax planning purposes.
The Case for Taxing Consumption
Authors: Lang Joachim
Published: June 2021

This article deals with fundamental and topical problems of taxation policy, viewing the subject from both a German and an international perspective. Traditional income tax regimes in developed countries with their progressive tax rates are still based upon the redistributive philosophy which arose in response to the disadvantaged position of workers in early industrialised societies. The author considers that this philosophy is now outdated, for the main problem of the 1990’s is how to discourage excessive consumption with its detrimental impact upon the environment and its negative implications for future generations. He advances weighty arguments for confining progressive income tax regimes to that part of income which is appropriated to consumption whilst exempting from them that portion which is used for the formation of capital. Whilst conceding that such a radical scheme cannot be fully implemented at this stage, he urges that these two portions of income be subjected to separate tax regimes, Tax rates could then be so structures as to encourage capital formation. The author’s proposals raise matters of obvious importance to a ‘savings-poor’ country like Australia.

A second part of the article considers how the dual tax regime which the author favours could be put into practice.
The Concept of Assessable Income Has It Changed
Authors: Bitomsky Greg
Published: June 2021

Recent case law has caused many commentators to suggest that there is now a predisposition to regard business receipts as being on income account. A close analysis, however, should lead to the unmistakable conclusion that all receipts are still regarded as income unless shown to fall within some other category (eg capital, exempt income, private or domestic receipts etc) and recent case law has not departed from previously existing principles.
A Comparative Analysis of the Sino-Australian Income Tax Agreement
Authors: Peng Yong
Published: June 2021

As a tax treaty between a developing and a developed country, the Sino-Australian Income Tax Agreement contains important aspects of the model treaties and bears some resemblance to the Sino-American Tax Treaty. The Agreement also contains clauses reflecting the unique positions of each contrasting party.
Aspects of Interest Withholding Tax
Authors: Greig John A
Published: June 2021

Interest withholding tax is often a misunderstood or forgotten tax. It has greater application than may first be thought. This paper addresses the nature and imposition of the tax amongst practical matters, particularly from the point of view of the lender.
The Progress of the Japanese National Consumption Tax
Authors: Beyer Vicki , Ishimura Koji
Published: June 2021

On 1 April 1989, a broad-based natioal consumption tax went into effect in Japan. The tax was unpopular, but is gradually being accepted. In the four years since its inception, he tax has undergone a few minor adjustments to facilitate its smooth operaion, but unlike consumption taxes in many jurisdictions, has yet to see a rate rise.

This is partly because of public reluctance toward the tax. This article surveys the history of Japan’s national consumption tax, analyses the structure of the tax and its reception by taxpayers, and comments on its future.
The Adoption of a Consumption Tax in Fiji
Authors: Qionibaravi Litia , Green Richard
Published: June 2021

On 1 July 1992, Fiji implemented a broad-based, value added tax (hereinafter VAT). The introduction of the tax has been controversial. It was decreed by an interim caretaker government, and many sectors of the community vigorously opposed it. This article discusses the broad-based VAT that has been adopted in Fiji, looking specifically at the background of the adoption of VAT, the arguments for and against its adoption in Fiji, what the tax is and how it works.
A Goods and Services Tax for Australia : What Can Be Learned from the Canadian Experience?
Authors: Greenbaum Abe I
Published: June 2021

This paper discusses the basic structural features of the Goods and Services Tax (GST) proposed by the Australian Liberal and National Parties (the Coalition) in their November 1991 policy statement. In doing so, this article will make comparisons with the Canadian Goods and Services Tax. Such comparisons gives insight into what form the legislation may actually take if it is introduced into Parliament, since the Canadian tax has already gone through the exposure to external political forces (lobby groups) that the Australian Colaition proposal faces.
The Commissioner’s Powers : Democracy Fraying at the Edges?
Authors: Bentley Duncan
Published: June 2021

This article gives a broad overview of the powers exercised by the Commissioner in admininistering the Income Tax Assessment Act 1936. It highlights areas where those powers seem excessive and proposes changes which would better safeguard the rights of taxpayers.
A Loss of Trust in Loss Trusts
Authors: Carbone Domenic
Published: June 2021

There is little doubt that the tax treatment of trust losses is a topical issue at present and, in this article, the author provides a detailed discussion of the issue. The effect on the carryforward of trust losses of changes made after the acquisition of a loss trust is also considered. The paper further examines the loss trust anti-trafficking measures announced in the 1995/1996 Federal Budget. The author concludes that the uncertainty in the application of the existing tax law to the carryforward of trust losses, combined with the introduction of the new Budget measures, pose significant tax risks in acquiring a loss trust.
Going out on a Second Limb - An Analysis of the Deductibility of Interest by Recognising a Distinction between the Positive Limbs of s 51(1)
Authors: Burford Karen
Published: June 2021

A Taxation Ruling and various cases have recently created debate on the topic of the deductibility of interest. It is submitted in this article that recognising a distinction between non business and business taxpayers as indicated by the two positive limbs of s 51(1) would clarify the determination of whether interest is deductible.
Humpty Dumpty’s Rule : income streaming and trusts
Authors: Dirkis Michael
Published: June 2021

The article examines the issue of whether the “the conduit theory”, which enables trustees of discretionary trusts to stream income, has been overridden by the Income Tax Assessment Act 1936. As the author discovers that there are a number strong arguments that indicate income streaming is not possible under the Act, it is argued that, in order to ensure certainty, the Commissioner of Taxation’s administrative practice of permitting income streaming should be legitimised by legislative amendment.
Peabody v FCT and Part IVA
Authors: Cassidy Julie
Published: June 2021

The courts were only recently given their first opportunity to consider the substantive operation of Part IVA of the Income Tax Assessment Act 1936 (Cth) in the trilogy of Peabody v FCT. Given the potential scope of Part IVA, an understanding of the Courts’ appraisal of the legislation’s breadth is crucial for all taxation practioners.

Whilst aspects of the High Court’s judgment particularly its view as to the Commissioner’s discretion under s 177F, may cause taxpayers concern, other aspects of the judgment affirm the existence of significant limits upon Part IVA’s scope. When coupled with Hill J’s acceptance that transactions entered into for commercial reasons are not caught by Part IVA, it is submitted that Peabody provides an appropriate balance between preventing tax avoidance and not discouraging business and family transactions.
International Tax Education
Authors: Prebble John
Published: June 2021

Government and commercial organisations that have to do with income tax devote a good deal of time and money to the continuing education of their staff. Professor Prebble’s article offers a philosophical basis and a theoretical framework for such education, and suggests an approach to curriculum planning and programme design for the education of people who work in the area of international taxation.

The article advocates the adoption in curriculum planning of the kaizen approach that has been developed from W Edwards Deming’s seminal work on management theory and offers syllabuses of topics and skills that could be included in continuing education curricula.
A Crooked Journey through the Maze? Or: University Fees as Self-Education Expenses
Authors: Passant John
Published: June 2021

This article examines the basic judicial principles used in interpreting s51(1) of the Income Tax Assessment Act 1936, the general deduction provision in the Act. It then looks at the application of those principles to the deductibility or otherwise of university fees.*
Taxpayers’ Rights in Sweden
Authors: Hultqvist Anders
Published: June 2021

Taxpayers’ rights in Sweden are largely settled in relation to assessment and appeal procedures. The current focus is the balance between the authorities’ powers of investigation and the protection of taxpayers’ integrity. This article examines the protection available to taxpayers under investigation and concludes that the system is effective. However, there are proposals to increase the powers of the tax authorities.
Taxpayer Rights and Obligations: The Hungarian Experience
Authors: Deak Daniel
Published: June 2021

Hungary is in the process of modernising its legal and tax system. Where countries are undergoing such periods of transition it is of particular importance to develop taxpayers’ rights and obligations. This article examines these rights and obligations, with particular reference to the procedures relating to the gathering of fiscal information, tax assessment and the enforcement of fiscal obligations. The article focuses on the Taxation Order Act and recent guiding court decisions in its review of the effective law and its implementation in the area of tax administration.
Tax Harmonisation and the Case of Corporate Taxation
Authors: James Simon , Oats Lynne
Published: June 2021

Tax harmonisation between countries has been frequently advocated but progress has tended to be slow and uncertain. This article suggest that the degree of harmonisation sought has often been vague and that more progress might be made if it were generally agreed how far the progress should go. The paper examines the case for tax harmonisation and its meaning - concluding that tax harmonisation is consistent with fiscal regional diversity. In Europe the principle of “subsidiarity” has been invoked to attempt to resolve conflict between overall harmonisation while retaining diversity among Member States. The European experience with corporate tax harmonisation is analysed and compared with progress between Australia and New Zealand. It is concluded that technological change will increase the importance of tax harmonisation and greater progress might be made if the aims of tax harmonisation were clearer, specific and modest. In particular it might be advantageous if the degree of harmonisation sought were limited and seen to be consistent with regional variation in taxation.