University of New South Wales Faculty of Law Research Series 2010

A Fair Share of Taxes-A Bridge Too Far?

Kalmen Datt — Tue, 21 Dec 2010 18:50:42 PST

This paper seeks to determine whether there may be a conflict between the obligations imposed on directors by the common law and legislation (primary and delegated) and the demand to pay a fair share of tax. As part of this review the paper considers the role played by legal and accounting advisors to these corporations.

Proposals for Assessment in Tax Teaching

Audrey Sharp et al. — Tue, 21 Dec 2010 18:37:22 PST

This article compares the assessment methods used by Atax, a school in the Faculty of Law, UNSW (Atax), and the Commercial Law Department in the Faculty of Business at the University of Auckland (University of Auckland) for undergraduate students. It utilises the main attributes of the methodologies used in each program to offer improved methods of assessment. This proposal is reviewed against the backdrop of the literature to ensure it meets best practice.

The article expresses a view that assessment methods used in the teaching of taxation law need to achieve two goals: student abilities to think critically, solve problems and to be technically competent must be evaluated; and the methods implemented must meet the needs of educators who may themselves be balancing both research and teaching in a subject area that is constantly changing.

Australian Capital Territory Economic, Social and Cultural Rights Research Report

Andrew Byrnes et al. — Sun, 12 Dec 2010 21:00:14 PST

This Report presents the findings and recommendations of a research project established to examine whether the ACT Human Rights Act 2004 (HRA) should be amended to include explicit guarantees of economic, social and cultural rights (ESCR) and, if so, what impact this was likely to have on governance in the ACT. The project was funded under the Australian Research Council Linkage Project Scheme; the academic project partners were the Regulatory Institutions Network (RegNet) in the College of Asia and the Pacific of The Australian National University and the Australian Human Rights Centre, Faculty of Law, The University of New South Wales, while the Partner Organisation was the ACT Department of Justice and Community Safety.

Estoppel and Public Authorities: Examining the Case for an Equitable Remedy

Greg Weeks — Wed, 08 Dec 2010 16:15:27 PST

Estoppels can be raised against public authorities but cannot be enforced where that would require the public authority to act ultra vires or fetter a statutory discretion. There have been attempts to create a public law doctrine of substantive legitimate expectations to address this remedial gap; indeed, such a doctrine is now well-established in the UK. However, it is not appropriate to the constitutional setting in Australia. This need not mean that no remedy is available where an individual relies to his or her detriment on a misrepresentation made by a public authority. This article argues that equity retains a capacity to provide compensation to remedy an estoppel, even where parties are not in a fiduciary relationship and in the absence of fraud.

A Marriage of Strangers: The Wednesbury Standard in Tort Law

Greg Weeks — Tue, 07 Dec 2010 16:39:18 PST

The recent process of legislative reform has seen the public law Wednesbury standard grafted onto the law of tort. Can these concepts operate together or are they fundamentally incongruous? Eminent jurists, most notably Brennan CJ and Lord Hoffmann, had previously proposed the Wednesbury standard as an appropriate measure of whether a public authority owed a duty of care in negligence. While this approach has never commanded the support of a High Court majority, tort law reforms have adopted the use of the Wednesbury standard as a means of restricting the liability of public authorities. This paper will analyse the interaction between Wednesbury and tort law both at common law (particularly in Brennan CJ’s judgment in Pyrenees Shire Council v Day (1998) 192 CLR 330) and under the Civil Liabilities Act 2002 (NSW), with particular reference to Firth v Latham [2007] NSWCA 40. I will argue that the fact that there are different purposes behind the public law Wednesbury standard and its application to tort law is productive of anomalies in the latter sphere. These anomalies are best addressed by greater legislative specificity.

Private Law Litigation Against the Government: Are Public Authorities and Private Actors Really 'the Same?'

Greg Weeks — Tue, 07 Dec 2010 16:39:17 PST

Historically, it was impossible at common law to undertake litigation against the Crown. In Australia, statutory provisions later provided that "in any suit to which the [government] is a party, the rights of parties shall as nearly as possible be the same … as in a suit between subject and subject." Litigation against government or other public authorities in relation to the exercise of functions analogous to those of private actors thus proceeds in essentially the same fashion as between two private individuals. However, the very wording of the statutory provision recognises that government and individuals can never be absolutely the same. Consequentially, there has been some debate as to the extent of government liability in tort in a number of High Court cases over the last 25 years, including Sutherland Shire Council v Heyman (1985) 157 CLR 424, Pyrenees Shire Council v Day (1998) 192 CLR 330, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 and Stuart v Kirkland-Veenstra (2009) 237 CLR 215. This article will examine the historical basis of the maxim ‘the King can do no wrong’, the misunderstanding which led to it being taken as conferring a common law immunity from suit on the government and the basis and effect of the statutory provisions which exposed government to liability in tort. It argues that government and private actors can never truly be "the same" and supports this conclusion with an analysis of the leading High Court authorities.

The Expanding Role of Process in Judicial Review

Greg Weeks — Tue, 07 Dec 2010 16:39:16 PST

This article examines the state of the law of procedural fairness and procedural error, demonstrating that inadequacy of process is now central to findings that decisions of the Executive are so lacking in quality as to manifest an error of law. The article argues that fairness of outcome and legitimacy of review need not be defined only in relation to the faultlessness of process.

Litigating questions of quality

Greg Weeks — Tue, 07 Dec 2010 16:39:14 PST

There are some grounds of judicial review which inherently lead the court to consider questions of the quality of the decision-maker’s decision. The most prominent of these are review for Wednesbury unreasonableness and S20/2002 irrationality or illogicality. These grounds of review require careful application to avoid reviewing the merits of a case. The Australian Retailers case demonstrates another difficulty with quality review – that of what detail should be allowed in the evidence both supporting and rebutting the alleged error of law. This article provides a brief examination of the nature of quality review, followed by an examination of the approach used by Weinberg J in Australian Retailers. The article also suggests a method by which judicial review for issues of quality can serve its intended purpose – to catch rare and absurd decisions – without becoming unduly time-consuming or, worse, degenerating into merits review.

Privacy Impact Assessment in Hong Kong from an International Perspective

Nigel Waters — Mon, 06 Dec 2010 16:16:36 PST

Privacy Impact Assessment (PIA) is defined and a brief history given of the promotion and use of PIA in Hong Kong. The only PIA on a Hong Kong Project published to date is discussed in some detail. Lessons are drawn from experience both in Hong Kong and in other jurisdictions for the effective use of PIA as tool for privacy or data protection.

Superannuation Complaints Tribunal and the Public/Private Distinction in Australian Administrative Law

Greg Weeks — Mon, 06 Dec 2010 16:04:24 PST

This article considers the Superannuation Complaints Tribunal (SCT) and the capacity of its decisions to be reviewed. While the constitutional position of the SCT is settled after the decision of the High Court in Attorney-General (Cth) v Breckler (1999) 197 CLR 83, its categorisation as a private body remains open to question. This being the case, the susceptibility of decisions of the SCT to review is compared with the equitable standards upon which trustee decisions are reviewable. Challenges to decisions of the SCT may not be possible under the Administrative Decisions (Judicial Review) Act 1977 (Cth) but the quasi-private character of the SCT – a private body with a public function – presents scope for courts to hold that the SCT owes an equitable duty to those within its jurisdiction.

Displacement with Dignity: International Law and Policy Responses to Climate Change Migration and Security in Bangladesh

Jane McAdam et al. — Sun, 05 Dec 2010 22:19:28 PST

Bangladesh is one of the countries most vulnerable to climate change. One important human dimension of that vulnerability is the potential for large-scale human displacement as a result of climate change impacts. This article examines the extent to which climate change is likely to impact displacement and migration in and from Bangladesh, and the legal and policy frameworks which might respond to this. It challenges assumptions that there will be mass cross-border displacement from Bangladesh by 2050 requiring regulation through a new international treaty, and that such movement will threaten international security. This article first describes the impacts of climate change on displacement and migration in Bangladesh. Secondly, it examines the nature of such movement, which is likely to be predominately internal rather than cross-border. Thirdly, it considers the security risks of climate change displacement in and from Bangladesh, focusing on resource scarcity, the risk of radicalization and terrorism within Bangladesh, and the transnational security risks of migration. Finally, it sets out options for law and policy reform with respect to climate change-related movement. It considers the need for adaptation – including through migration – as well as ways in which domestic, regional and international legal frameworks could be strengthened and progressively developed.

Commonwealth FOI amendments shouldn’t miss the opportunity for real reform Submission on the Freedom of Information Amendment (Reform) Bill 2009 and Information Commissioner Bill 2009

Nigel Waters — Sun, 05 Dec 2010 22:12:11 PST

Amendments to the FOI and Privacy Laws are generally welcome in that they should support ‘open government’ objectives. But the relationship between FOI and privacy laws, particularly in relation to access to information and grounds for withholding, raise some concerns about privacy protection. There are also unanswered questions about the new Office of the Australian Information Commissioner, which will be responsible for both FOI and Privacy. This submission analyses the amendments and makes recommendations both for fine tuning, and for additional improvements in both regimes.

Swimming Against the Tide: Why a Climate Change Displacement Treaty is Not the Answer

Jane McAdam — Wed, 01 Dec 2010 21:50:19 PST

Drawing on field work in Tuvalu, Kiribati and Bangladesh, this article argues that advocacy for a new treaty to address climate-related movement is presently misplaced for a number of reasons. The article does not deny the real impacts that climate change is already having on communities, or that migration is a normal adaptive response to such change. Rather, it queries the utility – and, importantly, the policy consequences – of pinning ‘solutions’ to climate change-related displacement on a multilateral instrument, in light of the likely nature of movement, the desires of communities affected by it, and the fact that a treaty will not, without wide ratification and implementation, ‘solve’ the humanitarian issue. The argument is developed by examining some conceptual and pragmatic difficulties in attempting to construct a refugee-like instrument for people fleeing the effects of climate change, and by critiquing whether there are legal benefits, as opposed to political benefits, to be gained by advocating for such an instrument.

Shifting sands? The moderate impact of Australia’s 2006 copyright exceptions

David Vaile — Wed, 01 Dec 2010 21:45:45 PST

This report for Consumers International and CHOICE, arising from the ‘Unlocking IP’ ARC Linkage project under Prof Graham Greenleaf, investigated consumer attitudes (via an online survey of 1500 people) and the experiences and opinions of relevant experts concerning the impact and effect, if any, of the 2006 changes to the Copyright Act 1968 which legalised iPods and TiVos or ‘format shifting’ and ‘timeshifting’. While many consumers had no awareness of this retrospective legalisation of common practices, and most experts expected this, among those that did there was a small but significant increase in reported respect for the copyright regime and similarly small but significant decrease in reported willingness to engage in unauthorised downloads. Fears in some quarters that this minor liberalisation of user entitlements would have adverse consequences appear misplaced.

An Insecure Climate for Human Security? Climate-Induced Displacement and International Law

Jane McAdam et al. — Wed, 01 Dec 2010 17:46:48 PST

This paper first outlines the phenomenon of climate-induced displacement, with a focus on displacement from small island States (particularly in the Pacific), on which the impacts of climate change are well documented and keenly felt (although the challenges manifested there have parallels in vastly different contexts). The paper next reviews how existing international law applies to those displaced or at risk of displacement from the effects of climate change. Having identified the limitations of existing international law in responding to the needs of those displaced by climate change, this paper then focuses on whether the emerging concepts of 'human security' and the 'responsibility to protect' could provide useful frameworks for identifying and analyzing the rights and interests at risk and for crafting responses to those risks.

Performance of the Indirect Tax Administration in Malaysia: A Comparison with International Benchmarks

Muzainah Mansor — Tue, 30 Nov 2010 16:57:32 PST

This study critically evaluates the performance of the indirect tax administration in Malaysia using international benchmarks by means of document analyses of published and unpublished sources and a taxpayer survey. It is found that 14 out of 48 tax administrative tasks examined are below the international benchmarks. The top five areas of concern are; enforcement, payment and collection, information technology, tax personnel management, and sanction and penalty. It is discovered that most of these problems are attributable to lack of resources. The result of the taxpayer survey indicates that the quality of the service provided by the Malaysian indirect tax administrators is only moderate. The policy implication of this study is that further resources (both in terms of capital and human resources) should be made available to the Malaysian indirect tax administrators so that they can improve the quality of their service to the taxpayers and perform their tax administrative tasks in an efficient and effective manner.

Communications privacy complaints: in search of the right path

Chris Connolly et al. — Wed, 24 Nov 2010 15:59:25 PST

This report, supported by ACCAN the peak communications consumer organisation, is based on interviews, surveys and data analysis about the complaint handling processes of three regulators, Australian Communications and Media Authority, Telecommunications Industry Ombudsman and Australian Privacy Commissioners Office when dealing with privacy complaints in the communications sector. Observations are made in relation eg range of remedies actually used, focus on consumer requirements, information given about the process, and length of process, and coordination between regulators, with recommendations for improvements in relation to deficiencies identified.

Performance Management for a Tax Administration: Integrating Organisational Diagnosis to Achieve Systemic Congruence

Muzainah Mansor — Thu, 18 Nov 2010 17:18:28 PST

While there are various studies on tax administration performance, a study which holistically analyses a tax administration performance management system is lacking in the literature. This paper proposes a performance management framework for a tax administration that integrates the congruence model for organisational behaviour diagnosis. The central idea of the congruence model is that the effectiveness of an organisation in achieving its objectives depends on congruence between the different parts of the organisational components in the transformation process. It is emphasised that if a tax administration is to adopt a performance management system in an interactive way, it needs to be embraced at an operational as well as behavioural level.

Method and Criteria for Climate Change Policy Evaluation in Australia

Evgeny Guglyuvatyy — Thu, 18 Nov 2010 17:01:35 PST

Many countries have already implemented either emission trading schemes (ETS) or carbon taxes or both. National governments tend to prefer ETSs over carbon taxes due to the political acceptability of ETSs. The Australian Government proposed emissions trading as a centrepiece of national climate change policy. However, there is still a debate concerning the choice of instruments for climate change policy. This paper suggests that for a comprehensive policy-making process prospective policy instruments require to be evaluated on a multi-criteria basis. To evaluate carbon tax and emissions trading the multi-criteria analysis (MCA) is proposed. To obtain the criteria specific to Australian conditions and assess relative importance of those criteria, the Delphi method is adopted. The Delphi study employs a group of Australian experts to revise and weigh the evaluation criteria. The result of this examination determines what criteria are considered to be necessary for evaluation of carbon tax and emissions trading in Australian context.

An Empirical Examination of Organisational Culture, Job Stress and Job Satisfaction within the Indirect Tax Administration in Malaysia

Muzainah Mansor et al. — Thu, 18 Nov 2010 16:31:36 PST

A study on organisational culture, employee job stress and job satisfaction within tax administrations especially in developing countries is not evidenced in the literature. This study therefore examines these aspects within the indirect tax administration in Malaysia. Data for this study was collected through a questionnaire survey on the tax employees of the Royal Malaysian Customs Wilayah Persekutuan Kuala Lumpur (RMC-WPKL). The investigation on organisational culture indicates that hierarchical culture is the dominant culture at the department. The assessment on job stress reveals that the employees are uncertain on the evaluation for a raise or promotion. The examination on job satisfaction shows that the employees are dissatisfied with the department’s concern for its employees’ welfare, and the system for recognizing and rewarding outstanding performance. It is also found that there are significant correlations among organisational culture, employee job stress and employee job satisfaction at RMC-WPKL. The results of this study signify that action should be taken to change the department’s culture orientation, reduce employees’ stress and improve employees’ satisfaction.