Personal property securities (draft ) bill 2008 - problems and why it will not work

Attempts are under way to condense more than 70 pieces of federal, state and territory legislation on personal property securities (PPS) into a single Federal Act. The revised second draft of the PPS Bill 2008 was released in November calling for further public comments by December 2008. The aim of this article is to highlight some of the important instances where further intensive drafting is needed. It draws out some key issues that have not been addressed that may assist in further revising the bill. Overall, the author firmly believes that the bill is far from perfect, that much work is still needed to improve clarity and readability and to minimise any uncertainty in the use of certain terms that are repetitive and obsolete. The article concludes with some useful references that Australia could perhaps learn from the problems currently experienced in New Zealand under its own PPS Act.

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.

The new law of torts: case book

The New Law of Torts Case Book is a collection of edited cases, designed as a companion to The New Law of Torts textbook. It provides students with access to a carefully selected range of case extracts of seminal judgements that have created and shaped the modern law of torts, provides examples of judicial reasoning and illustrates approaches to doctrines that govern the interpretation and construction of statutes. Cases extracted in this volume allow the readers to form their own opinions and perspectives on themes and issues presented in the textbook. New to this edition Expanded collection of case extracts that mirror the table of contents of principles text. Recent key cases that have been added include: Wallace v Cam [2013] HCA19 – relates to remoteness of damage and causation and proof of breach Strong v Woolworths [2012] HCA 5; 246 CLR 182 – relates to Breach of Duty of Care and Causation and Proof of Breach Levy v Watt and Anor [2014] VSCA 60 – relates to Torts of Intentional Interference with Goods and Personal Property and Defences to Intentional Torts

Has the Financial Services Reform Act fixed the problems with the regulation of securities and derivatives?

The Financial Services Reform Act 2001 (Cth) introduced new definitions of“derivative” and “financial product” into the Corporations Act 2001 (Cth), andreplaced the separate regulatory regimes governing futures contracts andsecurities with a single financial markets authorisation regime and a singleintermediary licensing regime. This article examines the reforms to evaluatewhether they have been successful. It is argued that there are definiteimprovements resulting from the reforms, and the scope for regulatoryarbitrage has been greatly reduced. However, numerous problems remain.There are significant differences in the regulation of securities and deriva-tives. The distinction between securities and derivatives is still based on legalcharacteristics, not economic function. There is uncertainty as to the exactscope and interaction of the definitions, particularly with respect to equityderivatives, warrants and options. The current law has thus not fullyaddressed many of the problems that existed prior to the reforms.

Related party transactions under Pt 2E of the corporations act: time for reconsideration

The related party provisions under Pt 2E of the Corporations Act 2001 were introduced in 1992 to protect the resources of companies and shareholder interests by requiring that directors disclose financial benefits given to 'related parties' -- those capable of exercising significant influence over the giving of such benefits. The contention of the authors in this article is that Pt 2E has been unsuccessful in achieving its intended purpose, and should be repealed in its entirety. The authors argue that the various provisions of Pt 2E are so confusing and convoluted that they potentially violate the rule of law virtue that laws must be promulgated in a manner that is clear, so that it is apparent from reading the laws what one must do. Further, [*2] the manner in which Pt 2E is presently drafted, especially the definition of related party, fails to reflect the purpose behind the provisions, making the overall operation of Pt 2E ineffective. It is also argued that Pt 2E is superfluous since the fiduciary duty of directors to disclose a conflict of interest, and to a lesser extent the requirement for disclosure of material personal interests under s 191 of the Corporations Act, adequately deal with the transactions presently attracting the attention of Pt 2E. In light of all this, it is contended that the law would be demonstrably improved by repealing Pt 2E.

Directors' personal liability-is the proposed amendment to Section 197 acceptable when compared with Hanel v O'Neill?

On 2 June 2005, the Australian Government announced a proposal to amend s. 197 of the Corporations Act. This is to overturn the decision in Hanel v. O'Neill ("Hanel") where the South Australian Supreme Court has expanded the circumstances in which directors of trustee companies can be held personally liable for the debts under the current section 197(1) of the Corporations Act 2001 (Cth). The multiple interpretations presented in Hanel highlighted the uncertainty of s. 197 and this uncertainty is heightened in at least two subsequent cases. The article provides a detailed analysis of how the decision in Hanel is affecting the directors' freedom of management and suggests some precautionary measures that the directors could take as protection against creditor's actions under s. 197. The author welcomes the proposed amendment because the new section will create certainty for directors as to. the scope of their potential personal liability, but contends that the substance of the proposed s. 197 is not acceptable as there is potential for abuse by directors of certain trustee companies.

Factors influencing the direct costs of property trust IPOs

Underwriting, legal, accounting and valuation costs average around 3.3%, 0.39%, 0.23% and 0.12% of proceeds raised and are substantial costs to property trust initial public offering (IPO) issuers. As such, identifYing factors that influence these costs is important. This paper investigates factors influencing these costs as well as the total direct costs of raising equity capital by property trust IPOs in Australia from 1994 to 2004. The results suggest clear economies of scale in direct costs. In addition, IPOs that employ more debt are likely to have higher capital raising costs while those that have proportionally higher net asset values and offer stapled securities (and likely to be engaged in property development activities) have lower capital raising costs.

Extreme surfing : personal and psychological aspects of big wave riders

This qualitative study investigated personal and psychological aspects of big wave riders. A cross-sectional design with non probability purposive sampling was used to gain personal interviews with 32 elite surfers who regularly ride big, life threatening waves. Each athlete was asked three open questions: 1. What do you think are the most important qualities and attributes a surfer needs for riding big waves? 2. What type of mindset is best for riding big waves?, and 3.What motivates you to ride big waves? Content analysis of the taped interview transcripts revealed seven key qualities and attributes including having a thrill seeking, confident and goal oriented personality, a high level of mental strength and control, and an intimate relationship with the ocean. The best mindset included an individually defined arousal level, a committed attitude, and a simple, yet highly aware, focus. Motivations were primarily intrinsic, though drives indicative of a behavioral addiction to the act of riding big waves also emerged. Evidence of common developmental stages for riding big waves also arose from the interviews. Optimal mental approach and preparation techniques are discussed that will enable big wave riders, and other extreme athletes, to more safely and successfully manage extreme situations.

Carbon rights as new property: the benefits of statutory verification

This paper examines the different ways in which carbon rights have been verified as property interests. A carbon right is a new and unique form of land interest that confers upon the holder a right to the incorporeal benefit of carbon sequestration on a piece of forested land. Carbon sequestration refers to the absorption from the atmosphere of carbon dioxide by vegetation and soils and the storage of carbon in vegetation and soils. Innovative legislation has been introduced in each state seeking to separate the incorporeal benefit of carbon sequestration from the natural rights flowing from land ownership. The fragmentation of land ownership in this way is a constituent of broader climate change strategies and is particularly important for an Australian emissions trading scheme where carbon rights will acquire value as tradable offsets. This paper will explore the different legislative responses of each state to the proprietary characterisation of the carbon right as a land interest. It will argue that verifying the carbon right as a new statutory property interest, in line with the approach set out in the Carbon Rights Act 2003 (WA), is preferable to aligning it with preconceived categories of common law servitude. By articulating the  carbon right as a new form of statutory interest, unique in status and form, its sui generis character is more accurately reflected. Further, statutory validation of the carbon right as a new land interest is more efficient as legislative rules are more visible and therefore come to the attention of other market participants more quickly and at a lower cost without the burden and complexity associated with expressing the right through the prism of pre-conceived and non-responsive common law forms.

Creating an Innovation Exception? Copyright Law as the Infrastructure for Innovation

Innovation is clearly essential for economic growth, cultural development and personal autonomy. Yet the relationship between innovation and copyright law in Australia is uncertain and perhaps overly restrictive. After the Australia-United States Free Trade Agreement Australia now has a copyright regime that can broadly be
described as a lock up and lock out scheme. Whilst the Australian Government has paid lip service to innovation the Australian Copyright Act, which provides the essential legal infrastructure for innovation, now privileges the rights of owners over the interests of the public. In particular, the Copyright Act neglects to create a specific exception for technology innovation. If there is to be some coherence in Australia
thinking with regards to innovation and copyright policy it is crucial that such an exception be created. Arguably, it is possible that such an exception can withstand the scrutiny of the three step test. At present the only ‘exception’ that can be said to exist is in the form of the limits of the authorisation liability provisions or the ISP safe harbour scheme. Australian copyright law needs something more substantial than that
and needs for there to be a clear hierarchy between the exceptions and the liability provisions.

Muslim personal law

The article examines the development of the legalism of Personal Law and provisions of community rights for disparate communities in modern India, and the role of religion and communal politics in their perpetuation. The case study undertaken here is specifically the Muslim community’s Constitutionally-sanctioned Personal law (MPL). MPL has not been without criticisms both from outside and within the community, particularly in respect of gendered disadvantages that arise within the provisions safeguarding the practices, which cover marriage, divorce, alimony, inheritance, custody, succession, and so forth.