Taxation determinations as de facto regulation : private equity exits in Australia

The Australian Taxation Office (AT)) attempted to challenge both the private equity fund reliance on double tax agreements and the assertion that profits were capital in nature in its dispute with private equity group TPG. Failure to resolve the dispute resulted in the ATO issuing two taxation determinations: TD 2010/20 which states that the general anti-avoidance provisions can apply to arrangements designed to alter the intended effect of Australia's international tax agreements net; and TD 2010/21 which states that the profits on the sale of shares in a company group acquired in a leveraged buyout is assessable income. The purpose of this article is to determine the effectiveness of the administrative rulings regime as a regulatory strategy. This article, by using the TPG-Myer scenario and subsequent tax determinations as a case study, collects qualitative data which is then analysed (and triangulated) using tonal and thematic analysis. Contemporaneous commentary of private equity stakeholders, tax professionals, and media observations are analysed and evaluated within a framework of responsive regulation and utilising the current ATO compliance model. Contrary to the stated purpose of the ATO rulings regime to alleviate complexities in Australian taxation law and provide certainty to taxpayers, and despite the de facto law status afforded these rulings, this study found that the majority of private equity stakeholders and their advisors perceived that greater uncertainty was created by the two determinations. Thus, this study found that in the context of private equity fund investors, a responsive regulation measure in the form of taxation determinations was not effective.

A securities market operator's use of the "please explain" price query and its impact on compliance

Market operators in New Zealand and Australia, such as the New Zealand Exchange (NZX) and the Australian Securities Exchange (ASX), have the regulatory power in their listing rules to issue queries to their market participants to explain unusual fluctuations in trading price and/or volume in the market. The operator will issue a price query where it believes that the market has not been fully informed as to price relevant information. Responsive regulation theory has informed much of the regulatory debate in securities laws in the region. Price queries map onto the lower level of the enforcement pyramid envisaged by responsive regulation and are one strategy that a market operator can use in communicating its compliance expectations to its stakeholders. The issue of a price query may be a precursor to more severe enforcement activities. The aim of this study is to investigate whether increased use of price queries by the securities market operator in New Zealand corresponded with an increase in disclosure frequency by all participating companies. The study finds that an increased use of price queries did correspond with an increase in disclosure frequency. A possible explanation for this finding is that price queries are an effective means of appealing to the factors that motivate corporations, and the individuals who control them, to comply with the law and regulatory requirements. This finding will have implications for both the NZX and the ASX as well as for regulators and policy makers generally.

Asset lending, unconscionable conduct and intermediaries

This article deals with cases where borrowers of loans for business or investment claimed their lender had engaged in asset lending which amounted to unconscionable conduct under the equitable doctrine or under the Australian Securities and Investments Commission Act 2001 (Cth). The article reviews recent cases, seeking to identify the key factors influencing a conclusion of, or against, unconscionable conduct. The article examines the practice of lending through intermediaries and how the application of agency law can insulate lenders from the wrongful conduct of intermediaries. The article explains the gap in the current position and discusses possible law reform which may remedy that.

Atmospheric pressure plasmas : infection control and bacterial responses

Cold atmospheric pressure plasma (APP) is a recent, cutting-edge antimicrobial treatment. It has the potential to be used as an alternative to traditional treatments such as antibiotics and as a promoter of wound healing, making it a promising tool in a range of biomedical applications with particular importance for combating infections. A number of studies show very promising results for APP-mediated killing of bacteria, including removal of biofilms of pathogenic bacteria such as Pseudomonas aeruginosa. However, the mode of action of APP and the resulting bacterial response are not fully understood. Use of a variety of different plasma-generating devices, different types of plasma gases and different treatment modes makes it challenging to show reproducibility and transferability of results. This review considers some important studies in which APP was used as an antibacterial agent, and specifically those that elucidate its mode of action, with the aim of identifying common bacterial responses to APP exposure. The review has a particular emphasis on mechanisms of interactions of bacterial biofilms with APP.

“Best interests” and withholding and withdrawing life-sustaining treatment from an adult who lacks capacity in the parens patriae jurisdiction

Disputes about withholding and withdrawing life-sustaining treatment are increasingly coming before Australian Supreme Courts. Such cases are generally heard in the parens patriae jurisdiction where the test applied is what is in the patient’s “best interests”. However, the application of the “best interests” test, and its meaning, remains unclear in this context. To shed light on this emerging body of jurisprudence, this article analyses the Australian superior court decisions that consider an adult’s best interests in the context of decisions about life-sustaining treatment. We identify a number of themes from the current body of cases and consider how these themes may guide future decision-making. After then considering the law in the United Kingdom, we suggest an approach for assessing best interests that could be adopted by Australian Supreme Courts. We argue that the suggested approach will lead to a more structured and systematic decision-making process that better promotes the best interests of the patient.

Firm-customer mobile digital connectedness : conceptualization, measurement and implications

Firm-customer digital connectedness for effective sensing and responding is a strategic imperative for contemporary competitive firms. This research-in-progress paper conceptualizes and operationalizes the firm-customer mobile digital connectedness of a smart-mobile customer. The empirical investigation focuses on mobile app users and the impact of mobile apps on customer expectations. Based on pilot data collected from 127 customers, we tested hypotheses pertaining to firm-customer mobile digital connectedness and customer expectations. Our test analysis using linear and non-linear postulations reveals those customers raise their expectations as they increase their digital interactions with a firm.

Strategic entry deterrence : does it constitute a misuse of market power?

A challenge for regulators and the courts has been establishing the boundary between behaviour is exclusionary and should be condemned under s 46 of the then Trade Practices Act 1974 (Cth) (TPA), now s 46 of the Competition and Consumer Act 2010 (Cth) (CCA), and behaviour that is not exclusionary and might even be pro-competitive. This boundary can be especially difficult to draw in the case of entry deterring strategies. Section 46(1) prohibits corporations with a substantial degree of market power from taking advantage of that market power for one of the statutorily proscribed purposes which include preventing the entry of a person into that or any other market. Section 45(2) separately prohibits corporations from making and giving effect to contracts arrangements and understandings that have the purpose, effect or likely effect of substantially lessening competition in a market. The latest case in which the ACCC has failed to satisfy the s 46 criteria is the decision of Greenwood J in ACCC v Cement Australia Pty Ltd [2013] FCA 909 (Cement Australia case). Final orders were published in a separate judgment, in ACCC v Cement Australia Pty Ltd [2014] FCA 148 (28 February 2014). The case concerned an entry deterring strategy, namely the pre-emptive buying of input factors in an upstream market to protect an incumbent with substantial market power in a downstream market and to prevent new entry in the downstream market. Greenwood J found that while Cement Australia Pty Ltd, formerly known as Queensland Cement Ltd (QCL), had substantial market power, its conduct in entering into the pre-emptive contracts was not a contravention of s 46, because Cement Australia had not “taken advantage” of its market power. However, since Cement Australia’s purpose in entering into the pre-emptive contracts was anti-competitive, they were held to contravene s 45(2) of the TPA. The purpose of this Note is to consider only the reasons for judgment in the Cement Australia case in relation to the “taking advantage” element. The judgment was handed down on 10 September 2013. The final hearing date was 15 July 2011, so it was long-awaited. At 714 pages, it is carefully drafted.

An orchestral audience: Classical music and continued patterns of distinction

This paper considers the key findings of a year-long collaborative research project focusing on the audience of the London Symphony Orchestra and their introduction of a new mobile telephone (‘app’) ticketing system. A mixed-method approach was employed, utilizing focus groups and questionnaires with over 80 participants, to research a sample group of university students. This research develops our understanding of classical music audiences, and highlights the continued individualistic, middle-class, and exclusionary culture of classical music attendance and patterns of behaviours. The research also suggests that a mobile phone app does prove a useful mechanism for selling discounted tickets, but shows little indication of being a useful means of expanding this audience beyond its traditional demographic.

Food talks back : Exploring the role of mobile applications in reducing domestic food wastage

Mitigating domestic food waste reduces its environmental and economic impacts. In our study, we have identified the use of mobile technology to support behaviour change as a key tool to assist the process of reducing food waste. This paper reports on three mobile applications designed to reduce domestic food waste: Fridge Pal, LeftoverSwap and EatChaFood. The paper examines how each app can influence consumer knowledge of domestic food supply, location, and literacy. We discuss our findings with respect to three considerations: (i) assisting with the user’s food supply and location knowledge; (ii) improving the user’s food literacy; (iii) facilitating social food sharing of excess food. We present new insights for mobile interventions that encourage changes towards more sustainable behaviours to reduce food waste.

STAC living. Promoting efficient multi-residential buildings in subtropical climates.

STAC is a mobile application (app) designed to promote the benefits of climate-aware urban development in Subtropical environments. Although, STAC is primarily tool for understanding climate efficient buildings in Brisbane, Australia, it also demonstrates how other exemplary buildings operate in other subtropical cities of the world. The STAC research and development team applied research undertaken by the Centre for Subtropical Design (Brisbane) to profile buildings past and present that have contributed to the creation of a vibrant society, a viable economy, a healthy environment, and an authentic sense of place. In collaboration with researchers from the field of Interaction Design, this knowledge and data was collated, processed and curated for presentation via a custom mobile application designed to distribute this important research for review and consideration on-location in local settings and for comparison across all other global subtropical regions and projects identified by this research. This collaboration adopted a Design-based Research (DBR) Methodology guided by the main tenets of research and design iteration and cross-discipline collaboration in real-world settings, resulting in the formulation of contextually-sensitive design principles, theories, and tools for design intervention. Combined with significant context review of available technology and data and subsequent case study analysis of exemplar design applications.

Street reads - Creating mobile walking events

By 2012 mobile devices had become the main interface for people to access information about anything from their current GPS position to the latest book reviews. What was less accessible were tools and techniques for writers to leverage this new technology to construct and distribute located stories. This project began with a series of master classes for local Brisbane writers to demonstrate processes and techniques for imagining, constructing and distributing stories. Most significantly, this project equipped writers with how to identify and adopt various mobile services and applications to research, produce and deliver packaged multi-modal content for readers to access and experience stories in the very locations from which they were inspired. Four stories by four writers were selected to be developed and published as location-based events in four different neighbourhoods across Brisbane. These writers were mentored throughout the writing process and a model was developed for them to simply upload several multi-modal chapters for access on location by readers using QR codes. These activities culminated in a major 25 day event presented by Brisbane City Council and supported by Brisbane Writers Festival and Queensland Writers Centre. The 'Street Reads' event presented the four stories on location in Cannon Hill, Darra, Toowong and West End. The significance of the Street Reads project went beyond extending the capacity for writers to access mobile technologies as a new platform for distributing stories. This event also motivated readers to travel to neighbourhoods to experience them in ways that had not previously imagined possible. These located stories were fictionalisations of actual events and characters that have current and historic importance to these places. These histories are hidden from view and yet can provide locals and visitors with a new found appreciation for the past and set an example for how neighbourhoods can become active stages for the sharing of stories inspiring a deeper connection with each other and an agency for participating in the development of the identity of the local places they inhabit together. Due to the success of the project and by employing more advanced tools now available, Street reads has been further developed by Brisbane City Council and is now available as a the Story City App available for download at itunes.

Authentic in all caps

AUTHENTIC IN ALL CAPS is an award-winning web audio adventure for the iPad and Chrome browser. The app combines audio drama, audio tours, and online storytelling. You travel across the web with characters who face ridiculous obstacles to being themselves. It's about identity, mortality, and pizza toppings. It's an audio drama for people who live on the Internet.

Guardians of hidden universes

“Guardians of Hidden Universes” is a playful story for experiencing on your phone in the street. You’re a Guardian of Hidden Universes, and when you check your Communication Terminal you find the Guild has made a terrible mistake they need you to repair. The experience lasts about 15-25 minutes, and takes you around whatever city you happen to be in. That’s right – you can play it in any city in the world! The app was launched at Popup Playground‘s 2013 Fresh Air Festival – a new pervasive gaming festival in Melbourne, Australia. This playful story is inspired by the idea of creating a locative-experience that is not site-specific. How can we have an experience than engages with the environment that also can work worldwide? The story is also playing with the idea of engaging with a character and a space and intuition within a short period of time. The short and playful experience is a Universe Creation 101 production. It was conceived, written, and designed by Christy Dena; with artwork, coding, and interface design by Elroy.