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(2008)Conference PaperDishonesty is fast becoming entrenched in commercial law in Australia as the defining characteristic distinguishing criminal conduct from conduct which only has civil or civil penalty consequences. Many of the serious offence provisions under the Corporations Act 2001 (Cth) require the prosecution to prove dishonesty and dishonesty has been adopted as a key element of the new cartel offence provision which is proposed for inclusion in the Trade Practices Act 1974 (Cth). Whilst deciding whether conduct is dishonest may be straightforward in most cases, situations can arise where a lawyer may be asked to advise a client as to whether a proposed course of conduct is dishonest and the answer may not be clear cut. Advising a client in such a situation may be difficult because current tests of dishonesty tend to reflect standards of ethics and morality generally accepted by the community which may not accord with the client’s and/or the lawyer’s personal standards. This article will examine the concept of dishonesty in the context of commercial crime, attempt to add some clarity to this particularly fluid concept and scrutinize the lawyers’ role in ensuring clients’ actions accord with community values.
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(2008)Journal ArticleSection 50 of the Australian Securities and Investments Commission Act 2001 (Cth) confers a wide power on the Australian Securities and Investment Commission (ASIC) to bring civil action in the name of the company or a class action for shareholders or investors for the recovery of damages for corporate misconduct. Despite its broad scope, this power has been little used by ASIC. Until the recent Westpoint litigation it appeared that this trend seemed set to continue due to the recent growth in ASIC’s arsenal of enforcement powers, in particular the ability to bring proceedings seeking civil penalties, together with what promises to be a new age of private enforcement of shareholders rights through class actions funded by litigation funding corporations. In the context of this likely expansion of private enforcement action and the current legislative framework of ASIC’s enforcement powers, this article will examine when ASIC should bring civil action under this provision.
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(2008)Journal ArticleThe conventional view of corporate regulation is that corporations are to be managed for the benefit of their shareholders. The general law and statutory duties of directors and officers reflect this “shareholder primacy norm”, with duties formulated to prevent directors acting otherwise than in the interests of shareholders. However, the general law and statutory duties are not identical. The remedies and enforcement mechanisms differ considerably, which raises the question as to whether the public enforcement of statutory duties carries with it a public interest mandate that general law duties do not. This article considers what role the public interest should have in enforcing statutory duties and whether such a role represents a challenge to the dominant shareholder primacy norm of corporate law. This issue is highly topical as recent decisions have suggested that the statutory duties of directors and officers are limited in their scope to protecting the interests of shareholders, even to the detriment of the public interest. We contest that viewpoint and argue that, at least in relation to statutory duties, directors and officers have obligations that extend beyond the narrow conception of the protection of shareholder wealth.
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(2014)ThesisThe thesis seeks to demonstrate that tax havens are used for a number of purposes that provide planning which is not contrary to the domestic laws of Australia and the United States as indicative regimes. The thesis will primarily utilise doctrinal research in reviewing and applying the legislative methods adopted to make the use of tax havens ineffective. Theoretical research will be conducted in a number of chapters where an in depth analysis of the legal principles involved in the methodologies and structures will be undertaken. In the final chapter reform-oriented research will be utilised. Part A of the thesis will review a number of situations which it is submitted are legitimate and beyond the scope of the laws of OECD countries to prevent. The thesis will demonstrate that operations with substance established in tax havens to undertake the following types of activities will be effective to reduce the incidence of taxation on a corporate group – operation of a regional headquarters, treasury function or captive insurance company. The thesis will also demonstrate that basing operations in a tax haven to facilitate the use of an international agreement would also be effective in many cases. A review of the use of tax havens for asset protection will demonstrate that a number of tax havens provide extensive mechanisms which are established for purposes other than taxation. As these were found to be legally effective they are legitimate in the context of this thesis. Part B of the thesis will consider a number of structures which have as one of their key design elements the non-application of the attribution regimes of Australia and the United States. The thesis will show that non charitable purpose trusts, star trusts, protected cell companies, foundations, companies limited by guarantee and insurance arrangements are effective to circumvent the attribution regimes of Australia and the United States. The thesis will however show that blind trusts are ineffective to circumvent the attribution regimes. The thesis will also address the weaknesses in the attribution regimes and provide recommendations to overcome these weaknesses.
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(2019)ThesisThis thesis explores the taxation of life insurance policyholders in Australia. Taxation laws originally addressed circumstances involving a conventional life insurance policy that was used as an economic equivalent to superannuation for retirement funding, a form of deferred remuneration from an employer, or upon death of the life insured. Australian taxation legislation in relation to a life insurance policy changed in the 1980s, and again in 2007. These new laws appear to have ignored the structure of a more modern life insurance policy that only provides a benefit where a contingent event occurs, such as death, terminal illness, total and permanent disablement, or traumatic medical condition, or income replacement due to illness, disease or injury. Now, a life insurance benefit may be characterised under the taxation laws as a: fringe benefit, capital receipt, income according to ordinary concepts, superannuation payment, employment termination payment, or compensation payment. This research investigates the characterisation of a life insurance policy benefit, and a life insurance premium payment, where the policy is owned in one of the three most common structures, in order to ascertain any differences in financial outcomes for beneficiaries and policyholders. The research employs mixed methods: qualitative legal comparative analysis of current taxation law as it relates to a life insurance policy, and quantitative simulation analysis in relation to hypothetical individuals. The empirical evidence demonstrates that the differing methods of taxation associated with life insurance policy ownership structures – owned by the life insured; owned by an employer under a contractual arrangement with an employee; and owned by a trustee of a superannuation fund on behalf of a member – create quite different financial outcomes for beneficiaries, including entitlements to taxation transfer payments such as the Disability Support Pension. This thesis proposes an alternative method of taxing life insurance policyholders and their beneficiaries. Eight areas for reform in relation to the taxation of life insurance policies in Australia are identified, including: premium rebates, separate taxation of life insurance benefits paid from superannuation, and separate taxation of life insurance benefits paid to employees. The law in this dissertation is at January 2019.
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(2019)ThesisRenewable energy (RE) development and the promotion of public participation in environmental decision-making are two growing initiatives worldwide. However, ineffective public participation in decision-making on RE projects (REPs) contributes to strong public opposition to proposed REPs. This has become a particularly important issue in China. This thesis aims to provide suggestions for Chinese legal reform of public participation in decision-making on REPs by drawing from the English experience. Drawing insight from the English experience is novel to this thesis. England provides useful lessons on implementing public participation, but none of the existing literature systematically examines the legal framework for public participation in decision-making on REPs in England and in China. This thesis addresses this gap and examines the public’s right to participate in decision-making in these jurisdictions. The thesis identifies the role of public participation in decision-making on REPs and identifies the related legislative issues under the Aarhus Convention, a multinational treaty on public participation. It discusses a critical issue — ‘Green on Green’ tension — arising in RE development and reveals the underlying factors contributing to this tension. The thesis systematically analyses the relevant requirements in English law and Chinese law. It also reviews the implementation issues in practice through an examination of case studies. The analysis in this thesis shows that Chinese law has improved regarding public participation in decision-making with respect to REPs. However, the thesis also demonstrates that the current legal framework still does not adequately address all the problems that can lead to ineffective public participation. In particular, the law does not address the scope of public participation, who can participate in public participation, what methods should be used to inform the public, the time-frame for public participation, what methods of consultation should be adopted, and how to deal with the outcome of public participation. This thesis critiques Chinese public participation law against English law which serves as a valuable benchmark and reference. It identifies principles for best practice based on a literature review and proposes suggestions for Chinese legal reform in an effort to improve the effectiveness of public participation in decision-making on REPs.
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(2017)ThesisThe international climate regarding tax avoidance and evasion via low tax jurisdictions is one of intense scrutiny. The prevailing view is that secrecy provisions in low tax jurisdictions are used to facilitate illicit fund transfers from other jurisdictions into monetary flows that are difficult to trace. Moreover, they obfuscate the identity of individuals who are the beneficiaries of such strategies. There are a number of initiatives in place to deal with this problem in an attempt to achieve international financial and tax equity. Part of the solution to this issue is to improve exchange of information between jurisdictions. This can be achieved through the creation of a unique instantaneous exchange of information mechanism. This thesis proposes this as a contribution to existing initiatives but with the added benefit of improved technology. This thesis addresses a gap in knowledge created in part by the dominant OECD approach, which is a 'request of information process'. This process incorporates legal safeguards designed to protect individual taxpayer confidentiality. The other component contributing to the gap is automatic exchange of information. This initiative seeks to accelerate information exchange but is limited by the depth of information able to be exchanged. Unsurprisingly, the latter is gathering international momentum due to the volume of data and the speed with which it can be transferred. A gap occurs at the point of overlap between these two approaches. This is because there is a trade-off between the safeguards inherent in the one and the volume of data transferred in the other. The safeguards protect taxpayer rights but can be hampered by local jurisdictional inefficiencies. This, in turn, leads to a lack of timeliness and effectiveness in detection and enforcement. The automation leads to large volumes of data being transferred but cannot legitimately contain data with the depth of a specific request. This gap is challenged by the solution proposed. That is, the uploading of data to and downloading from an international tax repository. This includes both highly specific case information from audits and other compliance action; and bulk data of the kind currently transferred under automatic exchange of information.
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(2018)ThesisThis study articulates and critiques the intersection of tax and criminal law in the context of legal responses to tax crime in Australia. It does this by reference to normative principles of criminal law and process. The critique includes civil and administrative responses to tax crime (including assessment and recovery and civil forfeiture of criminal property). It also includes specific tax offences (revenue protection and integrity offences) and general fraud and money laundering offences (both of which are used to prosecute more serious tax crimes). In relation to all of the legal responses to tax crime, by reference to the principles articulated within the dissertation, the critique identifies a number of inconsistencies and proposes policy and legislative reform. In particular, it is shown that most legal measures used to counter tax crime lack clarity or certainty. It is also shown that administrative and civil responses to tax crime have the opportunity to operate harshly and offend the privilege against self-incrimination. Some specific tax offences unjustifiably erode a number of conventional aspects of the criminal process. Serious tax crime offences — including money laundering offences — are not only too broad but in some cases do not reconcile neatly with the principles of tax administration.
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(2014)ThesisThe thesis studies particular aspects of the income tax system that have relevance for corporations and their directors, and combines insights into corporate, criminal and tax law to reach conclusions. Little has been written on this topic, thus the thesis seeks to fill a gap in the literature. The aspects of tax administration considered are: the environment in which directors operate and how this is affected by the way in which the tax system is administered; responsive regulation; the risk differentiation framework adopted by the Australian Taxation Office (ATO); and how the ATO responds to a corporation’s non-compliance with its tax obligations. The thesis uses a combination of the doctrinal and reform-orientated approaches to determine that the means adopted by the ATO to administer tax further complicate what is already a complex task for companies and directors. Moreover, at times, these means do not represent the most effective way of administering the tax system. Changes are proposed to how tax is administered, both to ensure best practice and to enhance the ATO’s ability to respond to corporate non-compliance.
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(2017)ThesisThin capitalisation rules are widely perceived as an anti-avoidance mechanism that limit tax base erosion from cross-border intercompany activities. Despite this perception, the legal basis for these rules does not reconcile with the economic basis, because these complex and ad-hoc rules present only imperfect solutions to the problem of the debt bias . The economic literature generally assumes that a fundamental reform eliminating the debt bias would also eliminate the need for thin capitalisation rules. However, the current paradigm of the debt/equity all-or-nothing approach overlooks the fungibility of intercompany capital flows. Accordingly, this thesis introduces the concept of cross-border funding neutrality , which is utilised in conjunction with other criteria as a rubric for the subsequent practical- and conceptual-level analysis. In doing so, this reform-orientated thesis bridges the gap between pure economic theory, practical optimisation modelling and applied legal research. This research consists of both a legal comparative analysis featuring case studies of the Belgian and Italian ACE-variants and the Australian thin capitalisation rules, as well as a simulation analysis of a tax-minimising multinational enterprise s behavioural responses to existing and proposed tax regimes. By simulating cross-border intercompany tax planning scenarios the model developed makes the invisible visible . This leads to the novel finding that, in order to minimise opportunities for cross-border tax planning by MNEs, it is necessary for governments to equalise the tax treatment of fungible intercompany funding activities. Even though obtaining full tax neutrality is nearly impossible without international tax coordination, the measures proposed and tested in this thesis provide second-best alternatives that may be more effective at eliminating opportunities for cross-border tax planning than existing policy responses even when applied unilaterally. This dissertation makes a significant contribution to both tax law and policy analysis. The challenge it presents to conventional understandings of thin capitalisation rules, and the tax treatment of cross-border intercompany activities in general, reveals new insights into the importance of applying economic first-principles in tax design. The law in this dissertation is at December 2016.