bluuebunny/crossref_metadata_2025 huggingface dataset:
Shedding Light at the Coalface: The Use of Socio-legal material in labour law teaching
Authors: Reilly Amanda
Published: June 2021

[Extract] Student wellbeing is an extremely important issue in legal education today — there is little point in training law students if they become miserable in the process. The loss of a single law student or graduate through suicidal depression is one loss too many. The Tristan Jepson Memorial Foundation arose from one such occasion — a vibrant, promising young man and son, whose death triggered a realisation that friends and associates were having similar experiences. Being high achievers, depression and anxiety are viewed as weaknesses to be hidden. This in many ways only perpetuates the problem as it cuts off the sufferer from available medical assistance and willing support from friends and family.
Governing Depression in Australian Legal Education: Power, Psychology and Advanced Liberal Government
Authors: Ball Matthew
Published: June 2021

[Extract]

This volume contains eight articles within the General Issue, Volume 22(1) and three articles within the Special Topic Issue on the Teaching-Research nexus, Volume 22(2). We are pleased that Lynden Griggs of the University of Tasmania has written a foreword for the Special Topic Issue, and readers are referred to that foreword for an overview of the contents.
The Nexus Between Teaching and Research: Easier Said Than Done
Authors: Nehme Marina
Published: June 2021

The University of Canberra (the University or UC) has adopted the signature theme of research-led education/teaching (RLE) for its courses and disciplines, as part of its overarching emphasis on ‘preparing professionals professionally’. The aim is to equip both students and staff with the skills to thrive in a complex and changing environment. This paper discusses how the School of Law has implanted this signature theme. It is a process which illustrates the complex nature of the teaching-research nexus and the many different practices that may be considered as RLE. We consider first the justifications for RLE in undergraduate education and the methods, which might be used to emphasise benefits both to academic staff and to the student body. We then look at the various strategies adopted to encourage RLE. We conducted an audit of UC Law academics and report here on their RLE practices.
Connecting Research and Teaching: A Case Study from the School of Law, University of Canberra
Authors: Ailwood Sarah , Easteal Patricia , Sainsbury Maree , Bartels Lorana
Published: June 2021

Teaching legal ethics is a requirement for Australian law schools, and has recently also become compulsory at the University of the South Pacific (USP). As there are no South Pacific law texts on this topic, it is tempting to model the course on those taught elsewhere. However, based on the author’s experience teaching legal ethics at USP, and research into the legal profession in Vanuatu and the Solomon Islands, this article identifies a number of additional features which must be taken into account to make such a course appropriate to the South Pacific context. The article concludes by offering suggestions for improving the ethical and professional training of South Pacific lawyers, both at university and later in their professional lives.
E-Learning in Australian Law Schools
Authors: Colbran Stephen , Gilding Anthony
Published: June 2021

The proliferation of law schools, partial deregulation of higher education and the introduction of a userpays system have compelled law schools to enter the market and compete with one another to attract and keep students. The new marketised framework positions students as customers who choose the most attractive educational ‘product’. With particular regard to law school websites, this paper considers the way choice is constructed with the aid of ‘branding’. While sameness could be said to be a characteristic of legal education, choice requires an element of difference. In presenting themselves to fickle customers as the means of realising a bright future filled with excitement and glamour, law schools play down the civic role of legal education. Rather than promoting a commitment to critical thinking and social justice, law school marketing encourages consumerism as the ultimate realisation of the good life.
Foreword
Authors: James Nick
Published: June 2021

The article draws on students’ evaluations and reflections to describe a new legal clinic, the Criminal Law Matters Legal Clinic, at the University of Queensland. This article outlines an approach informed by the work of Carol Smart to encourage students to critique the power of law. Through an analysis of student learning, the article examines how the clinic prompted students to engage in a deeper critical understanding of power in the context of their clients’ circumstances and their role as ‘lawyers’. The article concludes by emphasising the value of the work of Smart when engaging students in reflective practice about the power of law.
Towards Growth and Sustainability: The Institutional and Disciplinary Dynamics of Post Graduate Law Research Networks
Authors: Bell Felicity , Shackel Rita , Steele Linda
Published: June 2021

Law students are well recognised for having high levels of psychological distress, but arguably, as a group their mental health literacy, distress and associated factors have not been as well-studied as medical and health science students. Further, financial and accommodation pressures on students, while featuring prominently in the general media, have been little studied in law students as has the impact of commuting on law students’ distress levels. This article reports on a 2013 survey of 579 Sydney Law School students which assessed their levels of psychological distress and examined a number of possible stressors including: age, having dependants, living circumstances, hours of paid work, familial financial support, hours of independent study, travel time, domestic or international student status and the amount of money spent on alcohol. The findings did not reveal any of these factors as clearly associated with stress. However, gender appeared to be the only significant predictor of psychological distress after controlling for degree type, as female students were significantly more distressed than male students although it is not clear why this might be so. This article also provides comparison with a similar 2011 survey of students at Sydney Medical School. Some differences between law students and medical students are discussed.
Breadth, Depth and Form? Pitching Constitutional Law Content in the Classroom
Authors: Murray Sarah
Published: June 2021

In a response to what she viewed as a crisis in education, Hannah Arendt described education as requiring nothing less than ‘the renewal of our common world’: Education is the point at which we decide whether we love the world enough to assume responsibility for it and by the same token save it from that ruin which, except for renewal, except for the coming of the new and young, would be inevitable. Arendt connects education to broader public goals. For some disciplines, such lofty aspirations might seem unobtainable, and even irrelevant, to the teaching enterprise. However, in law, and in public law particularly, the broader goals of education align clearly with our pedagogical mission.
Extending Public Law: Digital Engagement, Education and Academic Identity
Authors: Castan Melissa , Galloway Kate
Published: June 2021

Welcome to the latest volume of the Legal Education Review, Australasia’s leading legal education journal. Volume 26 is made up of two issues, a General Issue and a Special Issue. The Special Issue contains three articles about the teaching of legal writing, based on papers presented at the 2015 Teaching Legal Analysis and Writing Skills Symposium held at Melbourne Law School.
Online Teaching: The Importance of Pedagogy, Place and Presence in Legal Education
Authors: Corbin Lillian , Bugden Lisa
Published: June 2021

In light of the increasing number of animal law units being offered by Australian law schools, it is timely to critically reflect upon the objectives of such units. What is it that we seek to achieve when we teach animal law to law students? Is it limited to facilitating a thorough understanding of the law relating to animals? Or are we trying to change the way our students see the world, to inspire them to strive to reform the relationship between animals and the law, and to ultimately modify the relationship between animals and humans? This article examines the desirability and feasibility of teaching animal law to law students with the explicit objective of promoting personal, community and legal transformation, drawing upon the experiences of one of the authors in teaching conservation principles to school children in Africa.
Enhancing the First Year Curriculum and Experience: Law School ‘Boot Camp’
Authors: Webster Adam , Richards Bernadette , de Zwart Melissa , Reilly Alexander
Published: June 2021

Abstract: Building the knowledge of university graduates as to Indigenous cultures, histories and contemporary social realities requires teaching innovation in law curriculum. At the same time, universities are under increasing pressure to demonstrate to the legal profession how they are supporting students to develop technical skills in statutory interpretation. This paper showcases how these dual aims may be met through an examination of the legislative framework that led to the Stolen Generations in NSW. These historical legislative artefacts provide the ‘hook’ to aid critical reflection on the role of the legal profession in the context of the removal of Aboriginal and Torres Strait Islander children from their families. To avoid the deficit model that reinforces stereotypes, we argue that the strength and resilience of Aboriginal and Torres Strait Islander peoples and cultures need to be reinforced alongside analysis of structural and historically legal forms of racial discrimination. This paper surmises that meaningful consultation and collaboration with Aboriginal and Torres Strait Islander people, such as through the Elders-in-Residence program at Charles Sturt University, facilitate teaching innovation in law curriculum.
Legal Education xMOOCs – A Mirage in the Australian Regulatory Environment?
Authors: Colbran Stephen , Beattie Scott , Gilding Anthony
Published: June 2021

Legislative studies are a sub discipline of law that explores legislation, as a process and as a product, including the legislative environment in its widest sense. Within this context, the nature of legislative drafting as art, craft, science or mere process has been much debated. Nowadays, legislative drafting is considered a ‘phronetic’ area of law that combines elements of art and science and requires at the same time creativity, innovation and knowledge of theory. Taking a bottom up approach informed by the profile, role of drafters and educational theories, this paper proposes a ‘phronetic’, approach to the teaching of legislative drafting that combines three main elements: theoretical training on acknowledged drafting rules and conventions; practical experience to familiarize the trainee drafter with the decisions that need to be made in the process of designing a specific legislative text; and experimentation and reflective practice that allow the drafter to become creative and independently thinking.
Law Students’ Experiences in an Experiential Law and Research Program in Australia
Authors: McWilliam Nicky , Yeung Tracey , Green Annabelle
Published: June 2021

This paper details a small study of the experiences of 28 undergraduate and postgraduate law students who participated in a student-based research team program. The program employed an interdisciplinary approach to cooperative learning strategies, with students working together in a shared learning experience on a practice-based research project at the Faculty of Law, University of Technology Sydney. Within the framework of a research area related to alternative dispute resolution practices in the legal system, students experienced real-life reference points for learning the law, and were offered a chance to apply relevant legal theory. Whilst the overwhelmingly positive findings must be contextualised by the study’s limitations, insights gained demonstrate that in moving beyond traditional legal pedagogy, there is potential for law schools to examine broadening the student experience, improve wellbeing and better prepare students for a career in law.
Concussion policies of the National Football League: Revisiting the ‘Sport Administrator’s Charter’ and the role of the Australian Football League and National Rugby League in concussion management
Authors: Greenhow Annette
Published: June 2021

Litigation in the United States against the National Football League (NFL) for failing to protect its players from the effects of multiple concussions raises questions about the role and responsibility of the governing body. The NFL’s alleged failure may have exposed it to ‘Big Tobacco’-like litigation. Is a governing body ultimately responsible for player-health issues? This article reviews the litigation in the United States and examines the concussion management policies of the Australian Football League (AFL) and the National Rugby League (NRL).
Criminal liability of sports participants for sports-related injuries in the Czech Republic
Authors: Kralik Michal
Published: June 2021

This discussion of the liability of sports participants for sports-related injuries in the Czech Republic deals with the issue of criminal liability. The author has published a matching article on civil liability.
Constitutional Dimensions of Sport in Greece
Authors: Margaritis Konstantinos
Published: June 2021

Sports play an important role within development of personality and society in general. Affirming this importance, the Constitution of Greece acknowledges the right to sports as a fundamental right. Furthermore, in certain cases, this may lead to restriction of other fundamental rights guaranteed in the Constitution, in favour of sports. Issues arise regarding those restrictions and the necessity of recognition of sports in the highest level within the legal system of a country, the Constitution.
The union of European football association’s club licensing and financial fair play regulations - are they working?
Authors: Dunbar Neil
Published: June 2021

Good governance of sport is of the highest importance, particularly in professional team sports, which require large expenditure to maintain a club’s position in a league. This has led to a number of clubs, such as Portsmouth in the English Premier League, being forced into administration. Furthermore, the Global Financial Crisis has emphasised the need for more appropriate and robust corporate governance, including for sporting bodies. The Union of European Football Association (UEFA), under its president, Michel Platini, has introduced Club Licensing and Financial Fair Play Regulations. They aim to bring greater security and financial viability to the management of European football. These Regulations focus on the non-payment of liabilities to other clubs, employees, and players, and the break-even requirement. These changes emphasise the need for European football clubs to meet their financial commitments in a timely manner and operate their clubs within their income revenue, rather than from loans or investments from wealthy club patrons or owners. The regulations seek to bring financial integrity and stability to European football. The Regulations seem to have achieved this and have generally been accepted by the clubs, but they are under legal challenge before the European Court. Meanwhile, the use of the Regulations in Australia would not be appropriate, as Australian sports, including football, have developed indirect means of curbing the financial spending of clubs through the use of salary and transfer fee caps.
Capital Gains and other Taxes : Their Relevance to Family Law
Authors: Kennedy Ian
Published: June 2021

In determining property issues the Family Court has to identify and take into account the relevant assets and liabilities of both of the parties to the marriage and any corporate entities which they control. The valuation of assets can be a difficult exercise. The evaluation of liabilities, particularly where they have not crystallised is no easier.
A Tax Trifecta
Authors: Beyer Vicki L
Published: June 2021

The author reviews several cases dealing with the taxation of income from gambling.
Taxation Treatment of Foreign Currency Exchange Gains and Losses on Borrowings By Australian Resident Taxpayers
Authors: Mouritz David
Published: June 2021

Over recent times, Australian enterprises have increasingly turned to overseas sources to finance their business operations and capital works programems. Where an overseas loan is denominated in foreign currency, the Australian enterprise will realise a foreign exchange gain or loss where the relevant foreign currency exchange rate changes during the term of the loan. This paper examines the taxation treatment of foreign currency exchange gains and lossses with special attention being paid to the income/capital dichotomy. Amendments to the Income Tax Assessment Act 1936 throughout the 1980s have seen the introduction of Division 3B and capital gains tax which have somewhat blurred, but not reduced, the significance of the dichotomuy.
Transfer Pricing : Australian and American Reactions
Authors: Marinko Paul G
Published: June 2021

In combating transfer pricing schemes, the determination of an arm’s length price has long been a problem for enforcement agencies worldwide. It is important that these methods be clearly defined so as to prevent transfer pricing abuses and facilitate certainty for the taxpayer. This comment will compare the United States and Australian approaches to this problem, focusing particularly on the method of arm’s length price determination and its effectiveness in each jurisdiction.
The Implications of Fletcher v FCT
Authors: Khoo Evelyn
Published: June 2021

The main business deductions provision - s51 - continue to provoke plenty of reported litigation. The tests for deductibility imposed by the courts overlap and their application is difficult to predict. Fletcher v FCT adds complexity. Ms Khoo argues for a straightforward interpretation of this important provision.
Value Added Tax in Thailand
Authors: Ruangmalai Rattanawadee
Published: June 2021

Thailand adopted a value added tax in 1992. This article describes the broad nature of the tax, its administration and its economic effects in that country.
The Nature of ‘Present Entitlement’ in the Taxation of Trusts
Authors: Barkoczy Stephen
Published: June 2021

Fundamental to the operation of the general ‘trust provisions’ in the Income Tax Assessment Act 1936 (Cth) is the concept of ‘present entitlement’. This article examines the nature of this term in light of a number of cases which have examined both its ordinary meaning as well as its meaning in the deeming provisions of s 95A and s101 of the Act.
Self Education Expenses and Receipts : Implications for Income Taxation and FBT in Light of FCT v MI Roberts
Authors: Baxby David , Brash Damon
Published: June 2021

This comment discusses the law relating to the assessability of self-education receipts, the deductibility of self-education expenses and the implications of the Fringe Benefits Tax (‘FBT’). Analysis focuses on the recent decision of FCT v MI Roberts.
Tax Administration in Japan
Authors: Beyer Vicki
Published: June 2021

Japan is a jurisdiction in which tax accounts for a significant portion of government revenue. Efficient administration of the tax system is, therefore, very important in Japan. Among the measures employed to achieve that goal are self-assessment withholding taxes, and a year end adjustment system. The broad scope of investigatory powers vested in the tax authority also promote efficiency. But inequities and difficulties in enforcing taxation against certain sectors of the economy remain. Nonetheless the Japanese system of tax administration presents some options for Australia to consider.
In Need of Reform? A Trans-Tasman Perspective on the Definition of “Residence”
Authors: Alley Clinton R , Bentley Duncan
Published: June 2021

The definition of “residence” for individuals differs between Australia and New Zealand. This article examines the advantages and disadvantages of the New Zealand definition and puts forward proposals for the revision of the Australian definition in the context of the Tax Law Improvement Project.
South African Double Tax Treaties: Royalty Reform in the Light of the Australian Experience
Authors: Wills Michelle
Published: June 2021

This article examines the royalty provisions of South Africa’s double taxation agreements in the light of certain emerging issues relating to the tax treatment of the transfer of technology worldwide.

The experience of both Australian and United States tax practices in these areas is drawn upon, as well as the provisions of the 1992 OECD Model Tax Convention, in an attempt to make suggestions for the reform of South Africa’s international tax policies at this crucial stage in its development.
Taxing the Family Unit : Income Splitting for all?
Authors: Cooper Tony
Published: June 2021

There is a contradiction in the family income splitting debate. Such measures are seen and represented as being a way of providing tax relief to families, whilst it is not acknowledged that Australia presently has a discriminatory system of family income splitting, based not on need but on access to business or property income.

This article examines arguments for family income splitting. It canvasses the proposition that families could be better assisted, not by extending income splitting, but instead by reducing the current tax-avoidance practices and using the improved revenues to fund tax expenditures and/or social security relief for all taxpayers.
The Plight of Tax Policy : an East Asian Perspective
Authors: Cullen Richard
Published: June 2021

This article uses the East Asian tax policy experience to shed light on fundamental uncertainties about the future direction of tax policy in the West. It highlights some of the broad questions facing tax policy analysis and suggests that, while the East Asian experience cannot be used as a model for the West, it can provide useful comparative input.
Taxpayers’ Rights in Canada
Authors: Li Jinyan
Published: June 2021

This article provides an overview of taxpayers’ rights in Canada. Following an overview of the sources of taxpayers’ rights in Canada, it discusses basic rights of taxpayers during the process of tax administration, such as the right to information, to confidentiality, to privacy, and of appeals. It then examines taxpayers’ rights under the Charter to equality, to freedom of conscience and religion, and to certainty of law. Finally, the article discusses the fairness legislation which was designed to provide relief to taxpayers in certain circumstances.
Liedig and the Limits of Section 96
Authors: Tregoning Ian
Published: June 2021

This article examines the following question posed by Hill J in Liedig v FCT: is there a principle of tax law which holds that a trustee in receipt of income from his personal exertion must be deemed to derive that income beneficially so that he is not protected from personal assessment by s 96 of the Income Tax Assessment Act? In line with his Honour’s finding, it is contended that there is no clear support for this principle in the authorities.
Developing Taiwan into a Regional Finance and Operations Centre : a Taxation Perspective
Authors: Watanabe Richard N
Published: June 2021

This article focuses on the relevant taxation aspects of Taiwan’s ambition to become an Asia Pacific Regional Operations Centre (or “APROC”). This article establishes that the current taxation regime is outdated and inadequate when compared to Taiwan’s closest rivals in the region, namely Hong Kong and Singapore. In order for Taiwan to become a leading operations centre, the Taiwanese Government will need to speed up its taxation reform process and make Taiwan more competitive in attracting multinational companies into the country.
Taxpayers’ Rights in Australia
Authors: Wheelwright Karen
Published: June 2021

This article discusses the main rights of taxpayers in the Australian tax system. It looks at powers of the Commissioner of Taxation which most affect taxpayers’ privacy and liberty, concluding that there is scope for taxpayers’ rights to be strengthened without comprising the Commissioner’s ability to assess and collect tax.
Spotless : A Lesson in Form and Substance but not in Substance over Form
Authors: Azzi John
Published: June 2021

This paper examines the High Court’s landmark decision in Spotless, extrapolates principles from that decision, and applies them in searching for the real source of interest income derived from a tax avoidance scheme. It argues that the Full Court of the Federal Court was wrong in applying a form over substance approach in determining the source of interest income. The paper also focuses on the High Court’s “foster and protect” doctrine, that tax laws should be applied and understood to recognise that the commercial environment is as important to a taxpayer as the economic reality of taxes. The doctrine will help to create a more flexible and effective tax system, and prevent a dangerous loss of faith in the system.
Dividend and Capital Streaming
Authors: Spry Fiona , Morrison David
Published: June 2021

The Australian economy and its taxation system is in a period of unprecedented change. It is apparent that with this change it is becoming difficult to keep tax legislation simple. This paper examines the imputations system of taxing company income, dividend streaming, capital streaming and taxation reform and suggests that there are further opportunities for reform of the company taxation regime.
The ATO, Tax and the Internet: The Emperor’s New Clothes?
Authors: Bentley Duncan
Published: June 2021

This article provides an analysis of the Australian Taxation Office’s (“ATO”) second report on the taxation of electronic commerce, Tax and the Internet, in the context of international developments. It begins with an overvie of the basic principles that international consensus has determined will apply to taxation of electronic commerce and how they apply in Australia. A substantial part of the article covers the ATO discussion of the current state of the Internet and the opportunities this affords the ATO, particularly to improve its service delivery. The remainder of the article discusses the impact of electronic commerce on the three crucial areas of jurisdiction to tax, the administration of the tax system and indirect taxation.
Tribute : Abe Isaac Greenbaum and Australian Tax Teaching
Authors: Krever Rick
Published: June 2021

[Extract]Perhaps the most striking aspect of Abe Greenbaum’s contribution to tax teaching in Australia is its intensity. Abe was universally recognised by his colleagues as the most deserving person to receive the inaugural Australasian Tax Teachers’ Association Medal when it was awarded to him in September 2000. His many books and articles, his presentations at numerous conferences, and his outstanding contributions to ATTA, initially as Treasurer and later as President, made him the obvious candidate for the award. Remarkably, all of this work for which he was recognised was accomplished in just over a decade, from mid-1989, when Abe began teaching tax law at Deakin University’s Geelong campus, to mid-2000, when Abe was teaching in the ATAX program at the University of New South Wales.
Ten years of the Revenue Law Journal : A Diary of Tax Reform
Authors: Bentley Duncan
Published: June 2021

Ten years ago the Revenue Law Journal was launched as a bold experiment by a new law school. The aim was for it to be a thoughtful and provocative academic

journal. It was to provide a forum for insightful comment on the tax system and in depth analysis of topical issues. That it has succeeded is shown in its wide distribution to readers around the world. This article traces the development of the tax reform arguments over the last ten years through the editorial pages of the Journal.
VAT/GST : The UK Experience Revisited
Authors: James Simon
Published: June 2021

This article reviews the experience of the UK with VAT over nearly three decades. There are several aspects that might be relevant to the way GST develops in Australia. One is that Australia might expect opposition to the new tax to diminish substantially as it becomes part of the fiscal furniture. Another is that GST might prove to have fewer disadvantages than some commentators have suggested and

there might be pressure for an increase in GST in the future. A further aspect is that, with respect to legal issues, it might allow development of the purposive

approach in tax matters.
Japan’s Consumption Tax : Settled in to Stay
Authors: Beyer Vicki
Published: June 2021

Now in its second decade, Japan’s consumption tax remains unpopular and controversial at home while hailed internationally for its functional structure.(1) The tax is fundamentally a value-added tax levied on the domestic sale or lease of goods or services. Exports are tax-free while imports are taxed when they enter the country. Although the tax base has narrowed since its adoption, through the

expansion of the exemptions, it remains a broad-based tax, levied at a single rate of 5%.

Small businesses are exempt from the tax. Those businesses that pay and collect the tax may use a simplified accounting structure to calculate input credits and

thereby arrive at the amount of tax to be paid.

The single low rate and the simplified accounting structure are features designed to promote equity and efficiency. They have not, however, improved the domestic

acceptability of the tax.
Too Many Words
Authors: Bentley Duncan , Corkery Jim
Published: June 2021

[Extract]We are all pleased to see a writer of skill on any Bench. To find such a writer in the taxation courts is a greater pleasure. BJ McCabe has recently joined the Administrative Appeals Tribunal and threatens to produce the sort of clarity, precision and liveliness brought to that Tribunal’s tax decisions by Dr Paul Gerber.
Independence and Accountability of the Commissioner of Taxation
Authors: Bersten Michael
Published: June 2021

[Extract]The independence and accountability of the Commissioner of Taxation is fundamental for community confidence in the tax system. Without it, history demonstrates that the efficiency and effectiveness of the system is endangered.

Achieving the appropriate expression of the community demand for independence and accountability as the system changes is a continuing policy challenge that this article explores.
Part IVA and Anti-Avoidance - Where are we now?
Authors: Edmonds R F
Published: June 2021

Part IVA has produced many articles. This article discusses the current interpretation of elements of Part IVA. It focuses on the meaning of a Scheme, the tax benefit obtained in connection with the Scheme, and the dominant

purpose in entering into a Scheme. It is timely, given the spate of recent cases.
The GST Rulings System – Is it Failing?
Authors: O'Rourke Kevin
Published: June 2021

There is confusion and concern over the Goods and Services Tax (GST) rulings system. This article first identifies the criteria that should be used to evaluate

a GST rulings system. It uses those criteria to evaluate the protection afforded by GST rulings and analyses some of the major issues arising in relation to GST private and public rulings. Of particular concern is the right to challenge GST rulings. The article concludes with useful recommendations.

‘Beyond the everyday world, both counsel have explained to us, lies the world of value added tax (VAT), a kind of fiscal theme park in which factual and legal realities are suspended or inverted.’ Royal & Sun Alliance Insurance Group plc v Customs and Excise Commissioners [2001] STC 1476 (CA) at [54] per Sedley LJ.
International Taxation of Multinational Enterprises (MNEs)
Authors: Fernandez Prafula , Pope Jeff
Published: June 2021

MNEs are likely to continue to grow because of factors such as globalisation and electronic commerce. Many countries are reforming their international tax systems in order to attract MNEs into their jurisdictions to do business

within their borders and also to promote overseas growth of their resident corporations. Issues such as taxation of electronic commerce, transfer pricing and harmful tax competition need to be addressed. Practical solutions for the future can include: a model convention for the taxation of MNEs; unitary accounting for MNEs; a multilateral treaty; or a global system of registration of MNEs.
Common Law and Tax Avoidance : Back to the Future?
Authors: Halkyard Andrew
Published: June 2021

[Extract]In a series of House of Lords decisions, commencing with the swinging judgments in WT Ramsay Ltd v IRC1 and followed by Furniss v Dawson,2 it was established that where there is a preordained transaction or series of transactions having steps inserted for no commercial purpose other than tax avoidance, those steps can be disregarded and the relevant statutory provision will be applied to the end result.
Influence from the Shadows : the OECD, The Shape of Domestic Tax Policy and Lessons for Federal Systems
Authors: Bentley Duncan
Published: June 2021

Over the years, the OECD has quietly taken centre stage in international tax policy development. The influence of the OECD is evident in the shape of Australian international tax

policy. More recently, Australia has discovered that it can, in turn, have some influence in the direction taken by the OECD. This article examines some aspects of these influences. At a different level, the federal/state relationship is becoming tenser in the face of increasing tax competition. The second part of this article explores whether there are any lessons for federal tax systems that can be drawn from the way the OECD and similar organizations have helped the development of international tax policy. It is argued that an independent facilitator of tax policy, legislation and administration may prove beneficial.
Industry Partnerships and Targeted Amnesties at Ingrained Evasion - A New Approach to an Old Tax Problem?
Authors: Sawyer Adrian
Published: June 2021

The New Zealand Government proposed in August 2004 a ‘radically’ new approach to address evasion in industries which is perceived to be ingrained, namely targeted amnesties. With a general election and other ‘more pressing’

issues, the proposal has not been significantly advanced. This paper provides further guidance for implementing a modified targeted amnesty concept, including a proposal from the author to consider incorporating targeted amnesties

within the existing Industry Partnerships program that the IRD has been developing since late 2001. Although the Government’s proposal addresses concerns with evasion that is ingrained in some industry groups it makes no direct links between the targeted amnesties proposal with the IRD’s Industry Partnership program. Clearly, to raise expectations that amnesties would only be targeted to industry partners would run counter to one of the core concepts for tax administration in New Zealand – the protection of the integrity of the tax system including taxpayer perceptions of that integrity.
The Impact of Swiss Principles of Mutual Assistance on Financial and Fiscal Crimes
Authors: Chaikin David
Published: June 2021

Contrary to what is generally believed, Switzerland can not refuse assistance to a foreign country on the ground of bank secrecy. Switzerland’s international cooperation

in criminal cases is circumscribed by its principles of mutual assistance. These principles act as firewalls in protecting fiscal secrets and incidentally limit more effective co-operation in dealing with international financial crimes. They also apply to administrative assistance and reduce the ability of foreign regulators

to obtain important information to supervise their markets. Except in the case of tax fraud, Switzerland will not provide any international assistance in fiscal crimes. The Swiss principles of mutual assistance can not be circumvented by using Switzerland’s double taxation arrangements. The situation is exacerbated by the very broad Swiss anti-economic espionage laws which seriously impede investigatory activity of foreign governments and their agents in Switzerland.
Australian Dividend Withholding Tax
Authors: Barton Glen A
Published: June 2021

Subsection 128B(4) of the Income Tax Assessment Act 1936 (Cth) imposes income tax on Australian dividends that are subject to section 128B. The application of section 128B to a particular corporate distribution will depend, in broad terms, on the nature of the distribution and its source, the manner or capacity in which the recipient derives it and the recipient’s residence and tax status. The relevant legislative provisions are spread across the Income Tax Assessment Acts of 1936 and 1997, Australia’s Double Tax Agreements, the Taxation Administration Act and the Income Tax (Dividends, Interest and Royalties Withholding Tax) Act 1974. They include provisions that define, for Australian income tax purposes, concepts such as ‘dividend’, ‘non – share dividend’, ‘franked dividend’, ‘demerger dividend’, ‘dividend attributable to a permanent establishment’ and dividends that are ‘conduit foreign income’. Certain entities are obliged, by provisions in Subdivision 12 – F in Schedule 1 to the Taxation Administration Act, to withhold income tax payable under subsection 128B(4) from the effected dividends they pay or receive. A taxpayer’s Australian assessable or exempt income does not include Australian dividends upon which subsection 128B(4) withholding tax is payable and so the taxpayer is not obliged to lodge an Australian tax return on account of them.
Developments In The Same Business Test: A More Liberal Approach Post-Lilyvale Hotel?
Authors: Kutlaca Aleksandar
Published: June 2021

This article examines the operation of the Same Business Test for carrying forward past tax losses and the uncertainty surrounding its interpretation.
Hybrid entity double taxation: A case study on the taxation of trans-Tasman limited partnerships
Authors: Elliffe Craig , Yin Jun
Published: June 2021

Hybrid entities give rise to international tax problems and opportunities. Different countries tax systems treat hybrid entities in fundamentally different ways, allocating income to different parties. The tax consequences of this divergence of approach result in complex and unintended outcomes. Referring to the OECD Report on the taxation of Partnerships, this article looks at whether the treatment of trans-Tasman limited Partnerships under the Australian and New Zealand Convention results in double taxation or double non-taxation. It concludes that hybrid entity double taxation is, mostly, resolved through the operation of the Convention.
Is section 8-1(2)(b) inoperative?
Authors: Diaz Daniel
Published: June 2021

Exclusions of otherwise deductible losses or outgoings can be categorised according to the mechanism of their application to a taxpayer’s circumstances. Analysis of decisions regarding deductions where s 8-1(2)(b) appears relevant reveals that s 8-1(2)(b) is merely a restatement of the principles underlying s 8-1(1). As a result, s 8-1(2)(b) is effectively inoperative.
The small business CGT concessions: Evidence from the perspective of the tax practitioner
Authors: Sadiq Kerrie , Marsden Stephen
Published: June 2021

On 21 September 1999 Division 152 was inserted into the Income Tax Assessment Act (1997) (ITAA 1997). Division 152 contains the small business CGT concessions, which enables eligible small business taxpayers to reduce the amount of tax payable on capital gains arising from certain CGT events that occur after 11:45 am on 21 September 1999. One of the principal objectives of the legislation is to provide a concessionary regime for small business owners who do not have the same ability to access the concessionary superannuation regime generally available to employees.

When announcing the introduction of the concessions the then Federal Treasurer, Mr Peter Costello, specifically stated that the objective of Division 152 was to provide ‘small business people with access to funds for retirement or expansion’. The purpose of this article is to: one, assess the extent to which small business taxpayers understand the CGT small business concessions, particularly when considering the sale of their business; two, determine which of the four small business CGT concessions are most commonly adopted and/or recommended by tax practitioners to clients; and three, to determine whether the superannuation changes in relation to the capping of the concessional superannuation thresholds have had an impact on the use of the small business retirement concession.
The High Court has an opportunity to reverse the dangerous and unwise precedent set by the Federal Court in FCT v Macoun
Authors: Azzi John
Published: June 2021

This note suggests that unless the Full Federal Court decision in FCT v Macoun [2014] FCAFC 92 is overturned by the High Court in the upcoming appeal, the literalist interpretation of domestic legislation enacting international obligations preferred by the Federal Court would set a dangerous and unwise precedent that is not only antithetical to the consistent and uniform development of international law in Australia but also to Australia’s effective participation in the OECD/G20 Base Erosion and Profit Shifting Project.
Uluru Statement from the Heart: Australian Public Law Pluralism
Authors: Larkin Dani , Galloway Kate
Published: June 2021

It is now over a year since the declaration of the Uluru Statement From the Heart (the ‘Uluru Statement’). Following an exhaustive series of dialogues with Aboriginal and Torres Strait Islander community throughout Australia, the Uluru Statement offers an Indigenous-led legal, political, and cultural solution for bringing together Indigenous and non-Indigenous Australians within our system of governance. Its three pillars are Voice, treaty, and truth-telling.

In this comment we provide an overview of the Uluru Statement and its importance in Australia’s legal landscape. We do so as a background to our key contention that the Uluru Statement is a central pillar in a truly pluralistic Australian public law. Regardless of its political reception — at the time of writing the Australian government has rejected it out of hand — the Uluru Statement represents a milestone of Australian law offering a vital opportunity to integrate Indigenous law into an otherwise settler legal system.
Environmental Corporate Social Responsibility and the Carbon Economy: A Case for CSR, the Triple Bottom Line and Obliquity
Authors: Medarevic Sabina
Published: June 2021

Expenditure in pursuit of the goals of Corporate Social Responsibility (CSR) is increasingly compatible with profit-maximisation. The benefits of adopting CSR can have significant advantages for both shareholders and the environment, particularly when undertaken voluntarily. But another factor in favour of CSR is the oblique pressures brought to bear from a sense of moral obligation, a more ethical approach, sweeping into boardrooms. Obliquity may achieve even more than direct measures.
Legal risk management in online sales of food and wine
Authors: Svantesson Dan
Published: June 2021

Most businesses have an online presence, but an online presence brings a legal risk exposure. The extent and type of risks that businesses expose themselves to vary depending on the industry as well as how they structure their online presence. This article examines a selection of legal risks facing businesses engaging in online sales and marketing of food and wine products. It also presents strategies for managing those risks.
How much nature for the consumer? Misleading advertising, trademark law and the European average consumer standard in the food sector
Authors: Wiebe Andreas
Published: June 2021

In Europe, the rules of unfair competition law have particular relevance for the regulation of advertising and product designation in the food sector. Apart from sector specific rules, the general framework of unfair competition law which applies is governed by the Unfair Trade Practices Directive (2008) that brought full harmonization of consumer protection laws in the unfair competition field.
A Mini-public of Academics: Experimenting with Deliberative Democracy and Indigenous Cultural Competency in Legal Education
Authors: Wood Asmi , Levy Ron
Published: June 2021

In this short article we report on a novel consultation event held in 2017. Fifty-two Indigenous and non-Indigenous legal academics convened in Melbourne to draft and promulgate standards to be followed by law schools across Australia for promoting Indigenous cultural competency. The consultation took the general form of a mini-public. A mini-public is a decision-making body whose members are randomly selected from – but demographically representative of – a broader public. Public decision-making by mini-publics is now routine. Yet ours was a distinctive variation, in that the mini-public purported to represent not the whole public of a jurisdiction, but only a particular professional class within it – in this case legal academics in Australia. We convened this mini-public of legal academics in order to give greater legitimacy to the promulgated guidelines for cultural competency in law school curricula.

The article explores the content of the consultation, centring on its suggestions for improved breadth, content and quality of legal teaching, as it touches the lives of Indigenous people. Most of all, however, the article assesses the unique use of a mini-public to represent an unusually small and highly formally educated public. We generally rely here on our own qualitative observations about the novel consultative process and its methods.
The Problem of Applying Foreign Law under Section 44(i) of the Constitution
Authors: Nikias Kyriaco
Published: June 2021

Dual citizens are ineligible to sit in the Federal Parliament by virtue of section 44(i) of the Australian Constitution. In 2017 in Re Canavan, the High Court took a strict interpretation of that section, meaning that dual citizens are ineligible regardless of whether they have any knowledge of their foreign citizenship. The status of foreign citizenship, and therefore the status of eligibility under the Constitution, falls to a question of foreign law. This gives foreign law a peculiar significance in determining who may and may not participate in our democratic system of government. Most commentary on the dual citizenship crisis has centred on the constitutional implications, and the normative question of whether section 44(i) ought to exist. Instead, this article focuses on the internal problems of section 44(i) as it stands, according to its recent interpretations by the High Court. Specifically, this paper is concerned with the exceptions to the application of foreign law under section 44(i). It asks, when will the Court defy the word of foreign law? And on what principled basis?