Practice and procedure : a recent Court of Appeal case examines the meaning of 'third party payer' in terms of Part 3.4 of the Legal Profession Act 2007.

In Legal Services Commissioner v Wright [2010] QCA 321 the Queensland Court of Appeal allowed an appeal from the first instance decision. The decision involved the construction of “third party payer” in Part 3.4 of the Legal Profession Act 2007 (Qld).

Designing a capstone experience for Australian legal education

Literature suggests that universities, and law schools in particular, are not engaging final year students in a genuine capstone experience which supports the development of their professional identity and their transition out of university. Students in their final year also face significant transition issues which are just as challenging as those facing first year students entering the tertiary environment (Jervis & Hartley, 2005, 314)...

The legal framework for Australia's carbon pricing mechanism : a critique

As part of the Australian Government’s Clean Energy Plan, the Government has attempted to harness the legal innovation of the tradeable emissions unit, within a capped carbon trading system, to reduce greenhouse gas emissions. Such an approach promises to send a price signal to the market which will influence emitting behaviours and reduce our emissions in a cost-effective manner. However, if the carbon trading scheme is to successfully achieve cost-effective emissions reductions then the carbon market must be supported by an appropriate legal framework. This paper will consider the key features of the Australian Carbon Pricing Mechanism, including the Carbon Farming Initiative, and critique whether it has all the hallmarks of an effective legal framework to reduce Australia’s net greenhouse gas emissions. The likely future of the trading scheme, following the 2013 elections, will also be addressed.

Book review : "Carbon Capture and Storage Emerging Legal and Regulatory Issues" edited by Ian Havercroft, Richard Macrory, Richard B Stewart, Oxford, Hart Publishing, 2011

As the international community struggles to find a cost-effective solution to mitigate climate change and reduce greenhouse gas emissions, carbon capture and storage (CCS) has emerged as a project mechanism with the potential to assist in transitioning society towards its low carbon future. Being a politically attractive option, legal regimes to promote and approve CCS have proceeded at an accelerated pace in multiple jurisdictions including the European Union and Australia. This acceleration and emphasis on the swift commercial deployment of CCS projects has left the legal community in the undesirable position of having to advise on the strengths and weaknesses of the key features of these regimes once they have been passed and become operational. This is an area where environmental law principles are tested to their very limit. On the one hand, implementation of this new technology should proceed in a precautionary manner to avoid adverse impacts on the atmosphere, local community and broader environment. On the other hand, excessive regulatory restrictions will stifle innovation and act as a barrier to the swift deployment of CCS projects around the world. Finding the balance between precaution and innovation is no easy feat. This is an area where lawyers, academics, regulators and industry representatives can benefit from the sharing of collective experiences, both positive and negative, across the jurisdictions. This exemplary book appears to have been collated with this philosophy in mind and provides an insightful addition to the global dialogue on establishing effective national and international regimes for the implementation of CCS projects...

The Australian nonprofit sector legal and accounting almanac 2011

Summaries of legal cases, legislation and developments in law and accounting relevant to nonprofit organisations and charity law during 2011; including articles on special issues such as accounting standards and the chart of accounts; law reform (e.g. the new national regulator, the Australian Charities and Not-for-profits Commission); and taxation.

China media research : the trans-disciplinary challenge

This paper addresses the permeability of the field of China media research, its openness to new ideas; it argues that we need to adopt a wide angle view on research opportunities. Expansion of China’s media during the past decade has opened up possibilities for broadening of the field. The discussion first identifies boundary tensions as the field responds to transdisciplinary knowledge; in the second part the paper addresses challenges faced by Chinese researchers or visiting scholars in ‘Western’ media environments. Finally the paper addresses what a wide angle perspective might include.

School policy responses to cyberbullying : an Australian legal perspective

The use of electronic means of contact to support repeated aggressive behaviour by an individual or group, that is intended to harm others – or ‘cyberbullying’ as it is now known – is increasingly becoming a problem for modern students, teachers, parents and schools. Increasingly victims of face to face bullying are looking to the law as a means of recourse, not only against bullies but also school authorities who have the legal responsibility to provide a safe environment for learning. It is likely that victims of cyberbullying will be inclined to do the same. This article examines a survey of the anti-bullying policies of a small sample of Australian schools to gauge their readiness to respond to the challenge of cyberbullying, particularly in the context of the potential liability they may face. It then uses that examination as a basis for identifying implications for the future design of school anti-bullying policies.

Concerns about the rollout of broadband : a legal consideration of Australia’s NBN greenfield policy

This paper examines the Australian federal government’s proposal that developers take the primary role for deploying the National Broadband Network (‘NBN’) in greenfield estates. It identifies issues facing the NBN’s implementation and concerns raised by industry. A failure to address these concerns may lessen industry support as well as adversely impact on consumers as NBN implementation costs are passed onto them. The author identifies the need for NBN legislation to clearly establish what is a ‘greenfield estate’; how and when exemptions from implementation obligations will apply; and that NBN services must be treated the same as any other utility service.

Property, planning and purpose : legal concerns facing broadband rollout in Australia

The Australian government, and opposition, are committed to facilitating high-speed broadband provision. In April 2009 the (then) Labor government announced a proposal to facilitate provision by mandating “…the use of fibre optic infrastructure … in greenfield estates ….” Separately, the installation of (usually overhead) cables commenced in select brownfield areas throughout Australia. In the lead up to the 2010 federal election, the broadband policy focus of the (then) federal opposition was to enabling private investment rather than direct investment by government itself. High-speed broadband is essential for Australia’s economic future. Whether implementation is undertaken by government, government owned corporations or private investors, will impact on the processes to be followed. Who does what, also will determine the rights available to land owners. The next stage, of necessity, will involve the establishment of procedures to require the retrofitting of existing urban environments. This clearly will have major property, property rights and valuation impacts. As Horan (2000) observed “…preserving... unique characteristics … of…regions requires a compromise between economic ambitions and social, cultural, and environmental values”. The uncertainty following the federal election, and the influence of independants with individual agendas; presents unique challenges for broadband implementation. This paper seeks to identify the processes to be followed by various potential broadband investors as they work to establish a ubiquitous network. It overviews current legislative regimes and examines concerns raised by stakeholders in various government reviews. It concludes by plotting a clear way forward to the future, with particular regard to property rights and usage.

Crime is in the air : air pollution and regulation in the UK

This latest briefing by Professor Reece Walters in the What is crime? series, draws attention to an area of harm that is often absent from criminological debate. He highlights the human costs of air pollution and failed attempts to adequately regulate and control such harm. Arguing for a cross disciplinary ‘eco-crime’ narrative, the author calls for greater understanding of the far-reaching consequences of air pollution which could set in train changes which may lead to a ‘more robust and meaningful system of justice’. Describing current arrangements in place to control and regulate air pollution, Walters draws attention to the lack of neutrality in current arrangements and the bias ‘towards the economic imperatives of free trade over and above the centrality of environmental protection’. While attention is often given to direct and individualised instances of ‘crime’, the serious consequences of air pollution are frequently neglected. The negative effects of pollution on health and well-being are often borne by people already experiencing a range of other disadvantages. In a global and national context, it is often the poor who are affected most. Ultimately, political and economic imperatives have historically helped to shape legal and regulatory regimes. Whether this is an inherent flaw in current systems or something that can be overcome in favour of dealing with more wide-ranging harms is an area that requires further discussion and debate.

Legal liability for carbon capture and storage in Australia : where should the losses fall?

This article presents a critical analysis of the current and proposed CCS legal frameworks across a number of jurisdictions in Australia in order to examine the legal treatment of the risks of carbon leakage from CCS operations. It does so through an analysis of the statutory obligations and liability rules established under the offshore Commonwealth and Victorian regimes, and onshore Queensland and Victorian legislative frameworks. Exposure draft legislation for CCS laws in Western Australia is also examined. In considering where the losses will fall in the event of leakage, the potential tortious and statutory liabilities of private operators and the State are addressed alongside the operation of statutory protections from liability. The current legal treatment of CCS under the new Australian Carbon Pricing Mechanism is also critiqued.

Incentivising private health insurance through the income tax regime : Capitalising on behavioural models

The Australian income tax regime is generally regarded as a mechanism by which the Federal Government raises revenue, with much of the revenue raised used to support public spending programs. A prime example of this type of spending program is health care. However, a government may also decide that the private sector should provide a greater share of the nation's health care. To achieve such a policy it can bring about change through positive regulation, or it can use the taxation regime, via tax expenditures, not to raise revenue but to steer or influence individuals in its desired direction. When used for this purpose, tax expenditures steer taxpayers towards or away from certain behaviour by either imposing costs on, or providing benefits to them. Within the context of the health sector, the Australian Federal Government deploys social steering via the tax system, with the Medicare Levy Surcharge and the 30 percent Private Health Insurance Rebate intended to steer taxpayer behaviour towards the Government’s policy goal of increasing the amount of health provision through the private sector. These steering mechanisms are complemented by the ‘Lifetime Health Cover Initiative’. This article, through the lens of behavioural economics, considers the ways in which these assorted mechanisms might have been expected to operate and whether they encourage individuals to purchase private health insurance.

The implementation of social and economic policy through the tax regime : a review of Australia's tax expenditures program

Each year the Australian Federal Treasury releases its Tax Expenditures Statement providing details of concessions, benefits, and incentives delivered through the tax regime to Australian taxpayers. The current Tax Expenditures Statement, released on 25 January 2008, lists approximately 300 tax expenditures and reports on the estimated pecuniary value in terms of revenue foregone, estimated to be a total of $50.12 billion for the 2006-07 financial year. Apart from the annual Tax Expenditures Statement, and despite the recurring fiscal impact, there is very little other scrutiny of Australia’s Federal tax expenditures program. This is despite tax expenditures often being seen as an alternative to direct expenditures with similar impact on the Federal budget. The object of tax expenditures is to provide government assistance and meet government objectives, and, as such, tax expenditures are departures from the revenue raising aspect of the tax regime. Within this context, this article examines the fundamental concept of tax expenditures as contrasted with direct expenditures and considers the role they play in the current tax regime.

Equity for taxpayers within Australia’s retirement savings regime : a dissenting opinion

This article asks the question whether Australia’s retirement savings regime, specifically the superannuation component and the attached taxation concessions, is a regime which is equitable to all taxpayers. In a dissenting opinion, it is argued that the current regime, along with the changes proposed by the Federal Government in its response to the Henry Review, does not result in a retirement savings regime which benefits all taxpayers equally. As such, it is suggested that the only way to ensure an equitable regime is to incorporate a gender perspective into public finance analysis to determine how the retirement savings policies affect women and men differently. In doing so, a specific tax policy which provides for additional, fiscally significant concessions for taxpayers who do not fit the criteria of a ‘normal’ taxpayer, that is a taxpayer working as an employee in a full time position for an uninterrupted 35 years, should be incorporated into Australia’s current fiscal policy.

An analysis of tax expenditure versus direct expenditure

Each financial year concessions, benefits and incentives are delivered to taxpayers via the tax system. These concessions, benefits and incentives, referred to as tax expenditure, differ from direct expenditure because of the recurring fiscal impact without regular scrutiny through the federal budget process. There are approximately 270 different tax expenditures existing within the current tax regime with total measured tax expenditures in the 2005-06 financial year estimated to be around $42.1 billion, increasing to $52.7 billion by 2009-10. Each year, new tax expenditures are introduced, while existing tax expenditures are modified and deleted. In recognition of some of the problems associated with tax expenditure, a Tax Expenditure Statement, as required by the Charter of Budget Honesty Act 1988, is produced annually by the Australian Federal Treasury. The Statement details the various expenditures and measures in the form of concessions, benefits and incentives provided to taxpayers by the Australian Government and calculates the tax expenditure in terms of revenue forgone. A similar approach to reporting tax expenditure, with such a report being a legal requirement, is followed by most OECD countries. The current Tax Expenditure Statement lists 270 tax expenditures and where it is able to, reports on the estimated pecuniary value of those expenditures. Apart from the annual Tax Expenditure Statement, there is very little other scrutiny of Australia’s Federal tax expenditure program. While there has been various academic analysis of tax expenditure in Australia, when compared to the North American literature, it is suggested that the Australian literature is still in its infancy. In fact, one academic author who has contributed to tax expenditure analysis recently noted that there is ‘remarkably little secondary literature which deals at any length with tax expenditures in the Australian context.’ Given this perceived gap in the secondary literature, this paper examines fundamental concept of tax expenditure and considers the role it plays in to the current tax regime as a whole, along with the effects of the introduction of new tax expenditures. In doing so, tax expenditure is contrasted with direct expenditure. An analysis of tax expenditure versus direct expenditure is already a sophisticated and comprehensive body of work stemming from the US over the last three decades. As such, the title of this paper is rather misleading. However, given the lack of analysis in Australia, it is appropriate that this paper undertakes a consideration of tax expenditure versus direct expenditure in an Australian context. Given this proposition, rather than purport to undertake a comprehensive analysis of tax expenditure which has already been done, this paper discusses the substantive considerations of any such analysis to enable further investigation into the tax expenditure regime both as a whole and into individual tax expenditure initiatives. While none of the propositions in this paper are new in a ‘tax expenditure analysis’ sense, this debate is a relatively new contribution to the Australian literature on the tax policy. Before the issues relating to tax expenditure can be determined, it is necessary to consider what is meant by ‘tax expenditure’. As such, part two if this paper defines ‘tax expenditure’. Part three determines the framework in which tax expenditure can be analysed. It is suggested that an analysis of tax expenditure must be evaluated within the framework of the design criteria of an income tax system with the key features of equity, efficiency, and simplicity. Tax expenditure analysis can then be applied to deviations from the ideal tax base. Once it is established what is meant by tax expenditure and the framework for evaluation is determined, it is possible to establish the substantive issues to be evaluated. This paper suggests that there are four broad areas worthy of investigation; economic efficiency, administrative efficiency, whether tax expenditure initiatives achieve their policy intent, and the impact on stakeholders. Given these areas of investigation, part four of this paper considers the issues relating to the economic efficiency of the tax expenditure regime, in particular, the effect on resource allocation, incentives for taxpayer behaviour and distortions created by tax expenditures. Part five examines the notion of administrative efficiency in light of the fact that most tax expenditures could simply be delivered as direct expenditures. Part six explores the notion of policy intent and considers the two questions that need to be asked; whether any tax expenditure initiative reaches its target group and whether the financial incentives are appropriate. Part seven examines the impact on stakeholders. Finally, part eight considers the future of tax expenditure analysis in Australia.