Resale price maintenance - in need of further reform

The Competition Policy Reform Act extended the resale price maintenance provisions of the Trade Practices Act 1974 to include services and provide for authorisation where the conduct can be shown to benefit the public such that it should be allowed. This article explores the scope of these changes and their shortcomings. It also seeks to provide some guidance as to their likely application and makes recommendations for further reform.

Judicial and Legislative Considerations in the Taxation of Compensation Receipts: An International Comparison

In 1995 the Federal Commissioner of Taxation released Taxation Ruling TR 95/35 - an attempt to comprehensively address the appropriate capital gains tax treatment of a receipt of compensation awarded either by the courts or via a settlement - still a lack of consensus regarding the appropriate treatment of such awards - a private binding ruling presently the only way a taxpayer can determine their liability with any certainty - the Australian position compared to that of the United Kingdom and Canada.

The political economy of maritime industry non-reform in interwar Australia: the establishment of the Maritime Services Board of New South Wales

From the First World War Australian port administration came under criticism from exporters, shipping companies and the Commonwealth government, all of whom argued that port authorities charges imposed an excessive burden on exporters. They sought the replacement of public port authorities by trusts representative of business interests. The campaign for port administration reform also diverted farmers from criticism of shipping freights and to secure their acquiescence in anti-competitive practices in the shipping industry. The formation of the Australian Overseas Transport Association in 1929 was the culmination of this campaign. Elite conservative political support for such anti-competitive practices reflected a belief that competitive capitalism was inherently unstable. The Scullin Labor of 1929-31 government abandoned Labor's earlier hostility to shipping companies to support cartelisation. Conservative state governments, in a more competitive electoral position than their federal counterparts and under greater financial pressure, deflected business calls for port administration reform. Business groups expected the NSW conservative government elected in 1932 to reform port administration towards a representative model, but the Maritime Services Board established in 1935 merely rationalised existing administrative structures. In the 1980s international economic instability legitimated the project of microeconomic reform, particularly in the maritime sector, but in the interwar period a different balance of capital, labour and the state meant that economic isolationism rather than integration was the policy outcome.

After three strikes-the continued discriminatory impact of the sentencing system against indigenous Australians: suggested reform

Three strikes laws are discriminatory but not for previously advanced reasons. The three strikes laws are merely an acute example of a fundamentally flawed sentencing system that discriminates against economically and socially disadvantaged people, particularly the group that is the focus of this article – Indigenous Australians. The repeal of the Northern Territory's mandatory sentencing laws has not remedied the unfair manner in which sentencing law and practice operate against Aboriginals; either in the Northern Territory or generally. Criminal punishment systems around the world punish a disproportionate number of socially deprived people. In Australia, Indigenous Australians were grossly over-represented in Australian jails prior to the three strikes laws and will remain so unless steps are taken to address their disadvantage. The obvious solution to redress the over-representation by Indigenous Australians is to provide them with the same social opportunities and resources as the rest of the community. This is overly ambitious – at least in the short term. This article suggests a more attainable change in sentencing law to remedy some of the disadvantages experienced by Aboriginals. It suggests that far less weight should be accorded to prior convictions in the sentencing calculus.

The right to convert exploration licences to mining leases in Australia: a proposed national uniform model

In this article, the authors raise an important proposal for reform to Australia's mining legislation: a nationally-consistent model providing exploration licence holders with a legislative right to be granted a mining lease. This proposed national model will be designed to reflect the present Western Australian system - Western Australia being the only jurisdiction to provide exploration licence holders with the express right to be granted a mining lease on application. The authors believe that the Western Australian system should provide the basis for a national legislative model, given that it is designed to balance appropriately the interests of companies wanting a right to mine to recoup the costs involved in exploring for minerals, and the interests of the public in ensuring that exploration and mining is conducted
reasonably.

Media/ting change: the print media's role in mediating education policy in a period of radical reform in Victoria, Australia

This paper draws upon critical discourse analysis, cultural studies and communication theory, studies on media and educational reform, and the work of Bernstein, Bourdieu and Luhmann in particular, to explore how the print and media 'mediated' a period of educational change marked by moves to self-management in schools in Victoria, Australia. It considers how the media was mobilized by various education stakeholders, and in turn informed relations between schools and government, through policy discourses and texts. It considers why and how particular themes became media 'issues', how schools and teachers responded to these issues, and how the media was used by various stakeholders in education to shape policy debates. It is based on a year-long qualitative study that explored critical incidents and representations about education in the print media over a year in the daily press. It illustrates the ways in which a neo-liberal Victorian government mobilized the media to gain strategic advantage to promote radical education reform policies, considers the media effects of this media/tion process on schools and teachers, and conceptualizes how school and system performance is fed from and into media representations, public perceptions and community understandings of schools and teachers' work.

Clinical nurses` response to an environment of health care reform and organizational restructuring

The aim of this paper is to provide an explanation for clinicians' undisputed acceptance of change. This will be performed by examining the process of organizational restructuring across three analytical levels – the macro, meso and micro; identifying the consequences of restructuring for clinical nurses' performance; and evaluating organizational restructuring using a micro-political theoretical framework.

Australian tort law reform: statutory principles of causation and the common law

By mid-2004, Parliaments in each Australian jurisdiction will either complete or will be in the process of partial codification of the law of torts. The reforms, including those to the law of negligence, are extensive. This article focuses on codification of the law of causation as an element of the cause of action in negligence. It examines the background to "tort reform", as the process has been labelled, and discusses the common law paradigm of negligence and various approaches to causation. It then analyses and compares the causation provisions in each jurisdiction.

The trouble with income trusts

This paper sketches broadly the efficiency and equity effects of income trusts that make their use as a substitute for the direct holding of shares of a corporation problematic for tax policy purposes. The paper also considers the potential effectiveness of an equity recharacterization rule applicable to the high-yield junk debt that is the common feature of the basic income trust structure. The author suggests that this type of narrowly focused rule would be more target-efficient than other possible responses to income trusts, such as fundamental reform of the corporate income tax or the restrictions on the holding of trust units proposed in the 2004 budget. However, a principal difficulty in designing an equity recharacterization rule is ensuring that it applies equally to structures that realize the same effect as the basic income trust structure but do not use high-yield junk debt.
The author argues that income trusts are examples of tax-driven financial innovation in the sense that they replicate an existing set of securities and therefore have no nontax rationale. These securities are essentially redundant, and the innovative process of which they are a product does not constitute “genuine” financial innovation. This essential characteristic of income trusts distinguishes them from real estate investment trusts, which arguably do not present a tax policy problem (or at least not the same one). More particularly, income trust transactions are redundant in the sense that they do not complete capital markets by providing investors with a risk and return payoff profile that is otherwise unavailable. In the absence of any efficiency gains or desirable distributional effects associated with income trusts, the available tax benefit is the subject of a defensible government response intended to eliminate it. But without any clear evidence that income trusts are substituted generally for the corporate form, any response can defensibly be limited to a narrowly targeted one that introduces a “taxlaw friction” by shifting the debt-equity boundary that is the focus of the basic income trust structure. Because the precise dividing points along this boundary lack any obvious normative content, the suggested policy focus should be the development of a legislative response that redraws the debt-equity boundary in a manner that minimizes perceived efficiency losses otherwise associated with the use of income trusts.

Back to the future : the war on terror and its impact on civil liberties

This comment looks at the capacity of the Australian Constitution to protect the civil liberties of a small number of citizens and would be citizens whose lives have been forever changed by recent acts of terror and the legislative and executive actions taken by the Commonwealth in response to those terrorist acts. These legal changes have included the creation of specific "terrorism" offences, the legislative proscription of two foreign organisations and, most notably, a significant expansion of ASIO's investigative powers.1
Whilst the Constitution contains a number of provisions and principles protective of civil liberties, in most instances they cannot resist government action expressly aimed at curtailing or infringing individual rights and freedoms. To this end, steps ought to be taken to strengthen existing institutions and mechanisms capable of providing meaningful civil rights scrutiny of government legislation. The comment begins with an examination of the close historical and legal parallels that exist between the present day and the Cold War era and suggests how the High Court might interpret the defence power should a terrorist attack occur on Australian soil. It concludes with a proposed reform. The reform involves vesting Ch III courts with the power to measure Commonwealth laws against the International Covenant on Civil and Political Rights when determining a legal controversy. This may operate to secure better legislative outcomes from a civil liberties perspective without compromising the supremacy of Parliament.

Ambiguities and inconsistencies in relation to the obligations of proxies under corporations law: a model for reform

This article reconsiders the important question which came to light as a result of the controversial 2002 Coles Myer annual general meeting: do directors that are appointed as proxy have an obligation to vote as directed (and indeed should they)? A recent decision of the New South Wales Supreme Court, which was subsequently approved on appeal, stands for the proposition that proxy holders are agents of the shareholders that appointed them. However, currently the Corporations Act only requires a Chairman appointed as proxy to vote as directed — not an ordinary director. This article briefly explains the present state of the law in Australia on this issue, and then explores some interesting recent judicial remarks which may suggest that ordinary directors appointed as proxy must vote as directed in order to satisfy their director’s duties (both common law and statutory) to the company. We finally outline a proposed statutory reform initiative which seeks to remove the present uncertainty in the law by introducing a blanket requirement that all proxy holders must vote as directed.

Commonwealth legislative power and "non punitive" detention: a constitutional roadmap

In 2004 The High Court handed down a number of decisions concerning detention imposed for purposes allegedly unrelated to punishment. This paper outlines the way the Federal Constitution restricts (and also facilitates) the imposition of "non punitive detention" by our governments. Such laws (as passed by the Federal Legislature) are constitutionally valid provided they can be characterised as falling within a legislative head of power under  section 51 off he Constitution. The power to detain for non punitive purposes can be reposed by the Legislature in the either the Executive or Judicial arms of government. Detention by the Executive is non punitive (and therefore does not offend the separation of powers) even though it involves a deprivation of liberty, provided it is imposed for “legitimate non punitive purposes”.  Legitimacy is in turn determined by reference to the section 51 heads of power. Detention for non punitive purposes by the judicial arm of government is constitutionally valid provided that (i) a “judicial process ” is adopted and (ii) (arguably) there is some link (albeit tenuous) with a previous finding of criminal guilt. The continuing existence of the “constitutional immunity ”from being detained by other than judicial order identified by the High Court in its 1992 decision in Lim v Minister for Immigration is called into question.