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.

Impact of the new business tax system (alienation of personal services income) Act 2000

The implications of categorising income as "personal services income" and the actual meaning of this term have been marked with uncertainty. The Commissioner of Taxation has long asserted that "personal services income" inherently may not be derived by an entity other than the person whose exertions produce the income. In Liedig v FCT (1994) 28 ATR 141, however, Hill J held that in the absence of a specific legislative provision, there was no basis for the Commissioner's doctrine. The specific legislative measures Hill J required were put in place through the New Business Tax System (Alienation of Personal Services Income) Act 2000. In certain circumstances this Act prevents interposed entities from deriving personal services income. Such payments are attributed instead to the individual who performs the services.

It will also be seen, however, that these provisions do not apply to entities that are conducting a "personal services business". It is submitted that the combined effect of, inter alia, the Act's definition of "personal services income" and "personal services business" is to give the Act a narrower scope than the Commissioner's personal services doctrine. Moreover, it will be submitted that the statutory definition of personal services income also suffers from the same flaws that Hill J identified as relevant to the Commissioner's personal services doctrine.

Dissected debt : developing a better legislative response to FCT v Myer Emporium Ltd

After many decades of actual and proposed reform, Australia's rules for the taxation of debt arrangements remain deeply flawed. A notable problem is the absence of appropriate rules for dissected debt arrangements, where a creditor dissects a debt into interest and principal
repayment components and disposes of one or both of these separately, as occurred in the leading case ofFCT v Myer Emporium Ltd. The knee-jerk reaction to Myer by the High Court and the legislature is a model of bad tax policy and bad tax law. The approach adopted overseas, using the United States as the clearest example, is a logical one for Australia to follow.

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.

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.

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.

Some care, little responsibility? Promoting directors'and managers' legal accountability for Occupational Health and Safety in the workplace

Health and safety at work remains a serious and under-recognised problem in Australia. This paper argues for the importance of increasing the individual responsibility and accountability of senior managers and directors of corporations for the development and maintenance of occupational health and safety (OHS) standards in the workplace. In order to do so, the paper first sets out the range of statutory and general law duties and liabilities to which directors and senior managers are subject, considers to what extent these obligations have relevance in the OHS area and argues for the extension of these duties and liabilities in some circumstances. The paper then goes on to argue for a better legislative model for the legal responsibility of managers and officers, supported by the increased prosecution of individuals in appropriate circumstances, as well as acknowledging the benefits of a broader range of non-legal strategies to improve board level commitment to OHS that will influence corporate compliance overall.

"To GAAR or not to GAAR-that is the question:" Canadian and Australian attempts to combat tax avoidance

In both Canada and Australia the relevant governments found their initial legislative attempts to combat tax avoidance to be ineffective. In time in each country it was concluded that the respective general avoidance provisions were of limited application and avoidance provisions were of limited application and ineffective to combat the sophisticated tax avoidance schemes promoted by tax advisers. In Canada it was determined that Income Tax Act, R.S.C 1985, s. 245(1) would be repealed and replaced with a general anti-avoidance rule ('GAAR') contained in a new s. 245 ITA. The Australian government similarly decided to replace Income Tax Assessment Act, Cth. 1936, s. 260 with a new general anti-avoidance measure, Part IVA ITAA. This article compares and contrasts the Canadian and Australian GAARs. Through the evaluation of each regime the article seeks to identify which model is most effective. It will be sen which model is most effective. It will be seen that both regimes have some features that are preferable to the other and thus both GAARs might be improved by incorporating aspects of the other anti-avoidance model.

So far no good: the regulatory failure of criminal racial vilification laws in Australia

This article considers the efficacy of the two main legislative models in Australia which make racial vilification a crime. To this end, it considers whether the laws are compatible with the protection and promotion of freedom of speech; whether they sit comfortably within the existing criminal law frameworks; and whether the text of the offences is sufficiently clear and precise. It considers that the current models are fundamentally flawed and ought to be repealed, arguing, instead, for a particular kind of penalty enhancement statute.

Recognition as a distinguishing criterion of IS journals

The number of journals publishing information systems (IS) research has grown dramatically over the past few decades. This has resulted in an environment where authors have a wider choice of journals in which to place articles. Electronic journals are now as readily recognised by authorities as print journals. This paper provides firm evidence in support of the assertion that the number of journals publishing IS research has increased. The paper also examines the Australian context where the selection of a journal in which to place an article is influenced by recognition from the Department of Education Science and Training (DEST). In Australia, obtaining DEST recognition as a recognised research journal is not an onerous task, and yet a significant number of IS journals have not done this. Publishing in a DEST recognised journal is essential for Australian researchers to contribute to their organisation’s research quantum and hence research funding. Attention is drawn to an increasing number of IS journals not recognised by DEST, and consequent action is recommended.

The interface of accounting and gender in specialist accounting history journals in the english language

This study focuses on the participation of women in the development of the specialist international accounting history literature. Specifically, based on data collected from the three specialist, internationally refereed, accounting history journals in the English language from the time of first publication in each case, the study provides evidence of the involvement of women through publication, through membership of editorial boards and editorial advisory boards and also through holding editor, associate editor and guest editor positions. In doing so, the study builds on the earlier work of Carnegie and Potter (2000) and extends an understanding of publishing patterns in the specialist international accounting history literature.

Research designs and scientific identity in marketing journals: review and evaluation

Purpose - This research is based upon the assumption that the empirical research designs and the scientific identity of a journal are related. The objective is to review and evaluate the empirical research design of papers to determine the scientific identity of a selection of academic marketing journals. Design/methodology/approach – The journal sample consists of the Australasian Marketing Journal (AMJ), the European Journal of Marketing (EJM) and the Journal of Marketing (JM). The review and evaluation considers a six-year period, namely 2000-2005. The content analysis consisted of 811 papers. Findings – The scientific identity of JM may be seen as built upon quantitative research designs and the North American paradigm of research values. The scientific identity of AMJ is based upon a mix of empirical research designs and the Australian paradigm of research values. The scientific identity of EJM is also based upon a mix of empirical research designs, but a multi-continental paradigm of research values. Research limitations/implications – The leading continental journals in marketing maintain a scientific identity based upon the continental paradigm of research values. If it is driven to the extremes, a paradigmatic myopia and inertia of research designs may evolve that limit the scientific identity to be dogmatic and narrow-focused rather than variable and broad-focused. Originality/value – A cross-continental eview and evaluation of research designs and scientific identity of academic marketing journals is presented.

Ethnocentricity in academic marketing journals: a study of authors, reviewers, editorial boards and editors

Purpose – This paper aims to examine and compare a set of key characteristics of ethnocentricity that influence the policy of academic marketing journals, and hence the provenance, authorship and nature of articles in academic marketing journals.

Design/methodology/approach – The “fundamental” characteristics of three major marketing journals, published in the USA, the UK and New Zealand, were examined for the six-year period from the start of 2000 to the end of 2006. Data were collected from editorials and web homepages. Analysis was conducted of 811 articles, 1,676 authors, three editorial teams and three sets of reviewers

Findings – There is a challenging academic ethnocentricity in the management and implied policy of the three journals. The extent varies, but the inescapable conclusion is that the world-wide research community in marketing is not properly represented by leading journals.

Research limitations/implications – The sample was intentionally small, and unrepresentative of any category except “leading quality”. The findings are intended to add momentum to a debate and point ways forward, not to provide generalisable answers.

Practical implications – The findings suggest that: the editorial boards and reviewing teams should be made more representative geographically; editorships should be organized around the concept of a team of geographically differentiated editors; editorial and review teams should be ethnographically representative of individuals who do research and wish to publish it, particularly beyond the English-speaking world. In general, the world-wide research community in marketing would benefit from less ethnocentricity in academic journals, and these leading examples should strive to reduce it.

Originality/value – The impact of ethnocentricity is underestimated in this context. The issue needs to be discussed, because of paradigmatic influences that it can have on a journal and the profile of its authors, and hence on journal ranking and perceptions of journal quality.

A ranking list for information systems journals

There has been an increasing focus internationally on the quality and impact of research outputs in recent years. Several countries, including the United Kingdom and New Zealand have implemented schemes to base the funding of research on research quality. The Australian government is planning to implement a Research Quality Framework (RQF) in the next few years that will impact greatly on funding of research in Australian universities. A key issue for Australian researchers is how the quality and impact of research is defined and measured in their discipline areas. Although peer review is widely used to assess the quality of research outputs, it is expensive and labour intensive. Other surrogate quality measures are often used. This paper focuses on measuring the quality of research outputs in the information systems discipline. We argue that measures such as citation indexes are inappropriate for information systems and that the publication outlet is a more suitable indicator of quality. We present a ranking list of journals for the information systems discipline, and discuss the approach we have taken in developing the list. We discuss how the ranking list may be used in defining and measuring the quality of information systems research outputs, the limitations inherent in the approach and discuss lessons we have learned in developing the list.

Assessing sport management journals : a multi-dimensional examination

The rating of refereed journals has become important for academics and institutions as well as for sport management as a field of study. This paper argues that the dearth of a rating system in sport management works against the best interests of the development of the field. This paper presents a rating scheme for sport management journals, which replicates an earlier study of marketing journals, using weighted multi-dimensional perceptual ratings (Polonsky & Whitelaw, 2006). Forty-five senior sport management academics evaluated 13 journals on four criteria: journal prestige, contribution to theory, contribution to practice and contribution to teaching. Using the weighted scores of the four criteria for each journal and a supporting cluster analysis, four categories of journals were identified. The results of this study will assist academics as they argue the case for the quality of journals in which they publish. Further it facilitates evaluation of sport management journals in relation to one another on the basis of their overall ranking and their scores on the four individual criteria.