Copyright (c) 2009 University of New South Wales All rights reserved. http://law.bepress.com/unswwps Recent documents in University of New South Wales Faculty of Law Research Series en-us Mon, 16 Nov 2009 23:25:13 PST 3600 http://law.bepress.com/unswwps/flrps09/art46 http://law.bepress.com/unswwps/flrps09/art46 Sun, 15 Nov 2009 16:33:49 PST Charities are granted significant financial benefits through the exemption from income tax and deductibility of donations under the provisions of the Income Tax Assessment Act, 1997 (Cth). The concept of what is a charity or a charitable purpose which is a fundamental requirement of the income tax exemption is not defined in any taxation legislation and must be found in the common law. The courts have concluded that a charitable purpose includes charities for the benefit and assistance of the sick. An organization that has been established for the benefit of employees and former employees who are suffering work related illnesses would therefore have a charitable purpose. There is however the further requirement that the entity's objectives must be for the benefit of the public. This article analyses the requirement of public benefit for a charitable purpose as it relates to an entity established for the benefit of employees and former employees of a large corporation. It discusses the rationale for the public benefit requirement and how the courts have applied this criterion to trusts for the benefit of employees and former employees. In conclusion it examines alternative approaches to the current application of the public benefit test. Fiona Martin Taxation http://law.bepress.com/unswwps/flrps09/art45 http://law.bepress.com/unswwps/flrps09/art45 Sat, 07 Nov 2009 15:40:44 PST Obviously deportations or removals of persons, who have spent a certain period in Australia has tremendous impacts and consequences on their lives and most likely on the ones of their families as well. Therefore it is worth assessing how significant family related aspects are taken in the administrative decision-making process concerning deportations or removals. The essay starts with a description of the domestic legal framework, to evaluate conditions under which such measures are legitimate. An overview on family protection in Australia presents the different sources of human rights together with its content and scope. More specifically the notion of family life for the assessment of the legality of deportations or removals is scrutinised by examining the compliance with international treaty obligations as well as the significance of citizenship. Finally, two relevant General Directions (GD), given by the Minister for Immigration and Citizenship and providing guidelines, are assessed in the context of sufficient safeguards for family life. Gregor Heissl Criminal Law and Procedure Human Rights Law http://law.bepress.com/unswwps/flrps09/art44 http://law.bepress.com/unswwps/flrps09/art44 Sun, 25 Oct 2009 23:06:27 PDT The NSW Parliament's Legislation Review Committee was established on the recommendation of a Parliamentary inquiry into the desirability of a bill of rights of rights for New South Wales. While the inquiry found that Parliament had not always fully observed human rights standards, it saw improved legislative scrutiny of bills as a more appropriate response than the enactment of a bill of rights. This paper examines a number of aspects of the Committee's recent work in order to ascertain whether under its traditional common law scrutiny mandate the Committee consistently examines draft legislation in the light of the international human rights norms by which Australia is bound. It concludes that the Committee does reasonably well in identifying classical civil liberties concerns, though it tends not to apply a rigorous human rights analysis to these rights. On the other hand, notwithstanding its broad interpretation of its mandate, the Committee has done less well in relation to the identification and analysis of other rights, in particular in relation to economic, social and cultural rights. The paper argues that even with enhanced Parliamentary scrutiny, the adoption of a bill of rights would make a difference, as it would provide a clear and comprehensive set of standards and a framework for full human rights analysis, while the prospect of even soft judicial review would focus the minds of policymakers and legislators on human rights issues in the legislative process. Andrew Byrnes Human Rights Law http://law.bepress.com/unswwps/flrps09/art43 http://law.bepress.com/unswwps/flrps09/art43 Thu, 22 Oct 2009 16:48:29 PDT The high seas cover more than 50% of the planet's surface. The last thirty years have seen unparalleled expansion of human activities and impacts on the oceans and on the high seas in particular. At the same time there is evidence of the impacts of the increased intensity of existing human activities; increases in maritime transportation, marine pollution, particularly from land based sources, such as garbage, as well as traditional fishing techniques. These issues, which affect waters both inside and outside national jurisdiction, pose governance issues. This chapter seeks to set out the key risks that high seas areas face, the plethora of bodies with regional and sectoral jurisdiction but also the lacunae - the regulatory and governance gaps that exist. David Freestone International Law Law of the Sea http://law.bepress.com/unswwps/flrps09/art42 http://law.bepress.com/unswwps/flrps09/art42 Thu, 15 Oct 2009 20:37:45 PDT Under the Migration Act, being imprisoned for a criminal offence can constitute grounds for visa cancellation, even for people who have spent most of their lives in Australia. 'Non-citizens' who have had their visas cancelled in this way are liable to detention on completion of their prison sentence; form a significant proportion of the current immigration detainee population and are routinely deported. This paper examines the punitive implications of this policy including: its impact on the parole process; the institutionalisation of double punishment; and the multiple mechanisms of disempowerment operating through the detention regime. While this is still work in progress, the paper argues that criminal convictions do not justify detention and removal, and suggests a framework for future research. Michael Grewcock Criminal Law and Procedure http://law.bepress.com/unswwps/flrps09/art41 http://law.bepress.com/unswwps/flrps09/art41 Mon, 12 Oct 2009 22:48:10 PDT There is conspicuous inequality among World Trade Organisation (WTO) member countries. WTO law has responded to this by creating a set of rules (Special and Differential Treatment or S&DT) which permit specially favorable trading treatment to support the participation of developing countries, even though equality of treatment is a central principle and objective of WTO law. Yet, it is widely agreed that S&DT has not succeeded in its aim of advancing trade equality. Insight into the reasons for this relative failure may be drawn from another body of international law which has equality as a core principle and objective and which also permits special treatment, human rights equality law. Analyzing commonly identified flaws in S&DT from the perspective of the theoretical, conceptual and strategic framework of human rights equality law enables the flaws to be understood more deeply. It also offers a new perspective on the impasse which has been reached in the Doha Round of multilateral trade negotiations and provides robust guidance as to how S&DT may be made stronger, more effective and more operational. Gillian Moon General Law Human Rights Law http://law.bepress.com/unswwps/flrps09/art40 http://law.bepress.com/unswwps/flrps09/art40 Mon, 12 Oct 2009 22:39:38 PDT Responding to recent engagements with Foucault, and in part to the provocation of this conference (' antifoundational humanism '), this paper argues that in his late work Foucault does not submit to the 'moral superiority' of humanism and introduce a liberal humanist subject. Rather, Foucault's late investigations of subjectivity constitute a continuation and not a radical departure from his earlier positions on the subject. Such a reading helps us to assess Foucault's late supposed 'embrace' of, or return to, human rights - which is here re-interpreted as a critical anti-humanist engagement with human rights, conducted in the name of an unfinished humanity. In this way, the paper engages not only with the way in which mainstream accounts of human rights tend to assimilate anti-foundational and post-structural challenges, but also with the quality of Foucault's own political legacy and future in the age of human rights, 25 years on. Ben Golder General Law Human Rights Law http://law.bepress.com/unswwps/flrps09/art39 http://law.bepress.com/unswwps/flrps09/art39 Thu, 01 Oct 2009 20:01:20 PDT In December 2009 the Parties to the 1992 UN Framework Convention on Climate Change (UNFCCC) will meet at the 15th session of the Conference of the Parties (COP) in Copenhagen to agree the fundamental principles of the legal regime that will apply post 2012. This chapter provides an overview of the complex regime established by the Convention, the processes leading up to the adoption of the Kyoto Protocol and key implementation challenges it has experienced. It introduces some of the key processes and institutions and describes some of the key concepts that will be further developed in later chapters. It also discusses briefly the explosive growth of carbon trading and the challenges faced by the UNFCCC parties at Copenhagen. David Freestone Environmental Law International Law http://law.bepress.com/unswwps/flrps09/art37 http://law.bepress.com/unswwps/flrps09/art37 Wed, 23 Sep 2009 22:55:53 PDT Managing a portfolio for after tax returns can be difficult and expensive and the paper reviews some perceived difficulties with managing a portfolio for after tax returns, actual practices used by managers and five methods for reporting after tax returns to investors and potential investors under Australian tax conditions. The value of unrealised gains in a portfolio is not quite clear as, even though it is considered to be valuable in after tax management, a US study shows that large unrealised gains in a portfolio may not be attractive to potential investors. Gordon Mackenzie Taxation http://law.bepress.com/unswwps/flrps09/art36 http://law.bepress.com/unswwps/flrps09/art36 Wed, 23 Sep 2009 22:45:03 PDT This essay is the introductory chapter of a book about research methods in the field of law and society (Halliday, S. and Schmidt, P., Conducting Law and Society Research: Reflections on Methods and Practices, New York: Cambridge University Press, 2009). Through interviews with many of the most noteworthy authors of law and society, Conducting Law and Society Research takes readers behind the scenes of empirical scholarship, showing the messy reality of the research process. The challenges and the uncertainties, so often missing from research methods textbooks, are revealed in candid detail. The accessible and revealing conversations about the lived reality of classic projects will be a source of encouragement and inspiration to those embarking on empirical research, ranging across the full array of disciplines that contribute to law and society. In this introductory essay, we argue for greater candor in discussing the messiness of empirical research methods, particularly in the field of law and society which has for many years explored the gap between rules and reality. We also examine the role which luck (both good and bad) plays in empirical research. Ultimately, we suggest that narratives of the research process such as the conversations contained in the book are a necessary complement to research methods textbooks. They reveal, in powerful ways, that "good research" displays not an absence of problems but the care taken in negotiating them. Patrick Schmidt General Law