An examination of recent taxation amendments, corporate law reforms and Queensland legislative reforms affecting nonprofit organisations

There is a tax amendment bill which will be debated. The Government has promised to outline its plan for the reform of the taxation system sometime this year. The plans appear to go beyond the mere introduction of some sort of goods and services tax to reform of the whole taxation system including fiscal relations with the States. Not for profit organisations will find their taxation environment will change. Governments are reluctant to permit exemptions to a GST style arrangements. GST trade offs such as reduced income tax rates and abolishing indirect taxes are useless to nonprofit organisations, as many are already exempt from such imposts. Administrative changes to tax collections may also have an impact. If the government decides to make an individual PAYE taxpayer return optional in exchange for no or standard deductions, this may have an effect on fundraising. The FBT and salary packaging schemes that not for profit organisations use will be under intense scrutiny. A regionalisation of the ATO along the successful model of the ASC would see discrete areas such as not for profit exemptions being centralised in one regional office for the whole of Australia. For example the Tasmanian ASC Office has the responsibility for much work in respect of corporate charities and not for profit companies.

Trends in the Australian gender wage differential over the 1980s : some evidence on the effectiveness of legislative reform

The article examines the legislative reforms incorporating the Sex Discrimination Act and the Affirmative Action Act introduced during the 1980s. We utilise the Australian Bureau of Statistics Income Distribution Surveys 1981–82 and 1989–90 to reflect pre- and post-legislative reform. The article adopts the Brown, Moon and Zoloth (1980) methodology which treats both the wage and occupational status of the individual as endogenously determined. In the current context this is a particularly flexible framework allowing one to capture both the direct and indirect effects of the legislative reforms. The indirect effect refers to the narrowing of the gender wage gap associated with legislative manipulation of the male-female occupational distributions. The results contrast the slow convergence in the gender wage gap during the 1980s with the much faster pace of the 1970s. The article concludes that despite the focus of the 1980s legislation on employment equity, changes in the male-female occupational distribution over the period are small and the associated impact on gender wage convergence is also small.

Should funds invest in socially responsible investments during downturns?

Purpose: This paper investigates whether Socially Responsible Investment (SRI) is less sensitive to market downturns than conventional investments; the legal implications for fund managers and trustees; and possible legislative reforms to allow conventional funds more scope to invest in SRI. ----- ----- Design/methodology/approach: The paper uses the market model to estimate betas over the past 15 years for SRI funds and conventional investment funds during economic downturns, as distinct from during more ‘normal’ (non-recessionary) economic times. ----- ----- Findings: The beta risk of SRI, both in Australia and internationally, increases more than that of conventional investment during economic downturns. Traditional fund managers and trustees in Australia are therefore likely to breach their fiduciary duties if they go long - or remain long - in SRI funds during economic downturns, unless relevant legislation is reformed. ----- ----- Research limitations/implications: The methodology assumes that alpha and beta in the market model are constant. This is the subject of ongoing research. Second, it categorises the state of the market into ‘normal’ economic conditions and downturns using dummy variables. More sophisticated techniques could be used in future research. ----- ----- Practical implications: The current law would prevent conventional funds from investing in SRI. If SRI is viewed as socially desirable, useful legislative reforms could include explicitly overriding the common law to allow conventional funds to invest in SRI; introducing a 150% tax deduction or investment allowance for SRI; and allowing SRI sub-funds to obtain Deductible Gift Recipient status from the Australian Tax Office and other taxation authorities. ----- ----- Originality/value: The accurate assessment of risk in SRIs is an area which, despite its serious legal implications, is yet to be subjected to rigorous empirical investigation. Keywords - SRI, market model, GARCH, trust fund, fiduciary duties, market downturns, Australia.

Will Queensland tort reform change valuation practice and valuers liability

It has been common practice over past property boom and bust cycles in Australia for financial institutions and property owners who have suffered a loss in the property downturn to sue valuers for negligence. Damages claimed are based on the price differential between the valuation at or nearing the peak of the market and the subsequent sale in the market downturn. However, the context of valuers liability has become increasingly complex as a result of statutory reforms introduced in response to the Review of the Law of Negligence Final Report 2002), in particular the introduction of Civil Liability Acts introducing proportionate liability provisions. Legislative reforms have had some positive outcomes for Valuers, however valuers need to continue to maintain high ethical standards, independence and professionalism in valuation practice.

The Human Fertilisation and Embryology Act 2008 : restrictions on the creation of “saviour siblings” and the relevance of the harm principle

This paper provides an overview of the regulatory developments in the UK which impact on the use of in vitro fertilization (IVF) and embryo screening techniques for the creation of “saviour siblings.” Prior to the changes implemented under the Human Fertilisation and Embryology Act 2008, this specific use of IVF was not addressed by the legislative framework and regulated only by way of policy issued by the Human Fertilisation and Embryology Authority (HFEA). Following the implementation of the statutory reforms, a number of restrictive conditions are now imposed on the face of the legislation. This paper considers whether there is any justification for restricting access to IVF and pre-implantation tissue typing for the creation of “saviour siblings.” The analysis is undertaken by examining the normative factors that have guided the development of the UK regulatory approach prior to the 2008 legislative reforms. The approach adopted in relation to the “saviour sibling” issue is compared to more general HFEA policy, which has prioritized the notion of reproductive choice and determined that restrictions on access are only justified on the basis of harm considerations.

Succession law keeping pace with changes in technology and community expectations – informal wills

Purpose - The purpose of this paper is to provide insights into recent developments in the way the law of succession allows people to use new technologies to document their testamentary intentions in an informal way. Design/methodology/approach – This article considers one area in which the law has arguably kept good pace with advances in society’s expectations and technological change – the law of succession. This article examines the legislative reforms in Queensland and other jurisdictions permitting the recognition of informal wills and the decided cases in the area. In particular, the article examines the decision in a Queensland Supreme Court case in which the court recognised the validity of a will made on an iPhone. Research limitations/implications – This is a doctrinal analysis, not an empirical study, and accordingly is limited to providing details specific to the legislation and the court cases selected.

Understanding the new context of the male sex work industry

The article reviews past and recent research on male sex work to offer a context to understand violence in the industry. It provides a critical review of research to show, first, the assumptions made about male sex workers and violence and, second, how such discourses have shaped thinking on the topic. The article presents a case study and original findings from two studies conducted by the authors in Australia and Argentina on violence in the male sex industry. Finally, the article reviews examples of legislative reforms to show how the sex industry is being regulated.

Corporate Governance in the 21st Century: Japan's Gradual Transformation

The 'lost' decade of economic stagnation in Japan during the 1990s has become a 'found decade' for regulatory and institutional reform. With nearly all areas of the 'law in the books' reviewed, revised and rewritten, the Japanese legal system is no longer the system that foreign commentators felt they were finally starting to understand by the 1980s. Nowhere is this more evident than in corporate governance. Corporate and securities legislation has been comprehensively revamped over 1993-2007, creating a more flexible and transparent regime for shareholders and managers. Financial markets law and regulatory institutions have changed, too, creating a new context for Japan's 'main banks' as alternative or additional outside monitors of managerial performance in borrowing firms. Even the legislation surrounding labour regulations has been amended, reinforcing the lifelong security privileges for elite employee-stakeholders, yet also hastening the growth of other atypical employment relationships. But how do such legislative reforms affecting key players in Japanese firms, covering areas central to the design of Japanese capitlaism, play out in the 'law in action'? Overall, this book argues that a significant gradual transformation has occurred. Although this is evident also in other advanced industrialised democracies, such as Germany, Japan reveals especially complex interactions in the various fields that sometimes emphasise different ways of achieving such transformation.

Litigiousness in Japan: Land of the rising law suit?

For over two decades, Japanese politicians and bureaucrats have struggled to resurrect a lifeless economy. With the 1990s marred by crippling financial crisis, a spate of corporate insolvencies, ongoing scandals in Japan’s premier economic ministries, rising unemployment and low to negative growth, policy-makers responded with successive legislative reforms aimed at restructuring public administration and private governance of the economy. The Big Bang financial reforms, large-scale reform of Japanese corporate law, and a restructured bureaucracy are representative examples of this reform effort.

Japanese women and the ‘new’ administrative state

This chapter questions whether Japanese administrative law reform agenda aimed at promoting greater transparency in decision-making will necessarily lead to better policy outcomes for Japanese women. The chapter evaluates recent legislative reforms and policymaking initiatives in the area of sexual harassment and argues that these developments do not improve the situation for Japanese women. The reason is that the new rules effectively charge corporations with the responsibility to self-regulate, thereby transforming sexual harassment from a public issue of human rights to a domestic issue of corporate governance.

Behavioural biases and information disclosure laws relating to residential property sales : narrowing the gap between existing laws and calls for future reforms

Market failures involving the sale of complex merchandise, such as residential property, financial products and credit, have principally been attributed to information asymmetries. Existing legislative and regulatory responses were developed having regard to consumer protection policies based on traditional economic theories that focus on the notion of the ‘rational consumer’. Governmental responses therefore seek to impose disclosure obligations on sellers of complex goods or products to ensure that consumers have sufficient information upon which to make a decision. Emergent research, based on behavioural economics, challenges traditional ideas and instead focuses on the actual behaviour of consumers. This approach suggests that consumers as a whole do not necessarily benefit from mandatory disclosure because some, if not most, consumers do not pay attention to the disclosed information before they make a decision to purchase. The need for consumer policies to take consumer characteristics and behaviour into account is being increasingly recognised by governments, and most recently in the policy framework suggested by the Australian Productivity Commission

More legislative traffic on the 'Doi Moi' superhighway : technology transfer, IP and competition law in Vietnam

Since 1986 Vietnam has been engaged in the transition from a centrally-controlled economy to a socialist-oriented market economy (the 'doi moi' renovation). The process for global economic integration has been slow given the magnitude of necessary reforms. Consequently technology entrepreneurs often discount Vietnam as a possible commercialization base which means that it is not realising its economic potential as a hub of technology transfer in the Asia-Pacific region. Three significant factors in the current uncertainty are Vietnam's laws on competition, intellectual property and technology transfer. Another problem is the lack of literature on these laws. This article first discusses the conceptual relationship between competition, intellectual property and technology transfer. Hopefully the article will provide some guidance for the technology entrepreneur considering foreign direct investment (FDI) in Vietnam. The bottom line is that these laws still need further reform to bolster entrepreneurial confidence.

Legislative proposals to codify directors' liability for insolvent trading in Hong Kong : a 10-year journey

Hong Kong is a modern global city with a reputation for well-regulated financial markets, but for years, the government had been trying to enact laws on corporate rescue procedures with relatively little success. It is under the pretext of the Global Financial Crisis, the threat of a future economic meltdown gave the Hong Kong government the impetus to revisit this issue. This third attempt to codify statutory obligations on directors’ liability for insolvent trading has been criticised for either setting the standards too high or low for directors trading whilst insolvent. There is also some reservation given the beliefs and values of directors in Chinese family-owned and controlled companies. These companies would most likely trade out the difficult times. Nevertheless, this does not negate from the fact that the enactment of corporate rescue procedures in Hong Kong in 2010 is a momentous achievement for the Hong Kong government.

UK pre-pack reforms : pause for thought in Australia?

On 31 March 2011 the UK Government announced new measures to regulate the use of pre-packaged sales in administration. The legislation is not expected until later in 2011, but the announcement heralds a shift in regulatory attitudes towards pre-packs in the UK which should give all local pre-pack advocates pause for thought when considering the merits of embracing the procedure in Australia. In the Jan-March 2011 edition of the Australian Insolvency Journal, an interesting article by Nicholas Crouch and Shabnam Amirbeaggi extolled the virtues of pre-packs and called for “legislative reform to embrace pre-packs” in Australia. By way of reply (and in a spirit of constructive debate) this article respectfully contends that while pre-packs certainly have their place in preserving business value in certain circumstances, Australia should be careful not to sleepwalk into adopting a procedure which legitimises phoenixing at the expense of creditor confidence and participation in our insolvency regime.

The need for legislative reform of the privity doctrine in commercial contracts in Malaysia : a comparative analysis

This thesis commences with the proposition that the first limb of the doctrine of privity causes injustice to third party beneficiaries in Malaysia, particularly in commercial contracts. The doctrine of privity has been the subject of criticism by the judiciary and academic commentators in common law jurisdictions, mainly directed at the first limb of the doctrine, whereby only parties to a contract can sue and be sued. The first limb prevents a third party from enforcing benefits conferred on them by those contracts thereby resulting in third parties suffering loss and injustice to those parties. In several common law countries, such as England, Australia, New Zealand and Singapore, legislative reform of the doctrine has occurred. The legislative reform has abrogated to a significant extent the doctrine of privity in commercial contracts. Malaysia is a common law country, where the doctrine of privity is still applied to contracts. An analysis of Malaysian case law demonstrates that the most affected third party beneficiaries are those seeking to enforce insurance and construction contracts. While a small number of other third parties to commercial contracts, such as agreements to pay for work done, sale and purchase agreements and tenancy agreements are also affected, the detriment is not as significant. As a consequence, this thesis focuses primarily on the impact of the doctrine of privity on commercial contracts in the areas of insurance and construction in Malaysia The thesis aims to recommend appropriate reforms to address the injustices arising from the privity doctrine for third parties seeking to obtain the benefit of insurance and construction contracts, which may also benefit third parties to other types of commercial contracts. While the Malaysian insurance, consumer protection, negotiable instruments and agency laws allow third party beneficiaries to enforce benefits in contracts, the rights are found to be inadequate. As not all third parties seeking to enforce an insurance or construction contract can rely upon the legislation, the injustice arising from the doctrine of privity remains and needs to be addressed. To achieve this aim, a comparative analysis of the rights of third party beneficiaries under insurance and construction contracts in Malaysia, Australia and England is undertaken. The results of the analysis are used to identify appropriate elements for a legislative framework guided by the three essential criteria for effective law reform developed in the thesis. The three criteria are certainty, public interest and justice. The thesis recommends first the enactment of general legislation applicable to all commercial contracts including insurance contracts. Secondly, the thesis recommends specific targeted legislation to address the injustice faced by third party beneficiaries in construction contracts.