Aligning sustainability and the Torrens register : challenges and recommendations for reform

‘Sustainability’ is a policy mantra of modern governments particularly in relation to natural resources. The traditional connection between land ownership and access to natural resources, such as forestry, flora, fauna, minerals, water and energy, has given rise to an unprecedented number of restrictions and obligations on land owners in their use of the land and resources. The growing numbers of statutory exceptions and restrictions on rights of ownership and use of a fee simple holder presents serious challenges for the utility of the Torrens register, which was originally designed to record private interests in land or affecting title to land. Advocates proposing uniform Torrens legislation should give consideration to an alignment of government policies emphasising sustainability as a core requirement of effective land use and management, and the core Torrens concepts of indefeasibility and security of title. This article examines the challenges for a uniform Torrens system created by increases statutory regulation of land ownership and makes recommendations about how an effective alignment of sustainability objectives and Torrens principles may be achieved.

Screening for alcohol and drug use in pregnancy

Objective - this study examined the clinical utility and precision of routine screening for alcohol and other drug use among women attending a public antenatal service. Study design - a survey of clients and audit of clinical charts. Participants and setting - clients attending an antenatal clinic of a large tertiary hospital in Queensland, Australia, from October to December 2009. Measurements and findings - data were collected from two sources. First, 32 women who reported use of alcohol or other drugs during pregnancy at initial screening were then asked to complete a full substance use survey. Second, data were collected from charts of 349 new clients who attended the antenatal clinic during the study period. Both sensitivity (86%, 67%) and positive predictive value (100%, 92%) for alcohol and other drug use respectively, were high. Only 15% of surveyed women were uncomfortable about being screened for substance use in pregnancy, yet the chart audit revealed poor staff compliance. During the study period, 25% of clients were either not screened adequately or not at all. Key conclusions and implications for practise - despite recommended universal screening in pregnancy and the apparent acceptance by our participants, alcohol and other drug (A&OD) screening in the antenatal setting remains problematic. Investigation into the reasons behind, and ways to overcome, the low screening rate could improve health outcomes for mothers and children in this at-risk group. Targeted education and training for midwives may form part of the solution as these clinicians have a key role in implementing prevention and early intervention strategies.

Tax expenditures in Australia : the elevation from ‘disguised’ expenditures to architectural pillars of the 21st century

The current Australian Treasury approach to tax expenditures management and reporting is a culmination of 36 years of Government and Parliamentary reviews and reports. The most notable outcome of these reviews and reports is the publication of the annual tax expenditures statement, which commenced in 1986. Since its inception, the Australian annual tax expenditures statements have themselves been the subject of review. Most recently, the Australian National Audit Office has undertaken a performance audit in the Department of the Treasury and released its report entitled Preparation of the Tax Expenditures Statement. In addition to this 2008 report, a second recent opportunity to consider tax expenditures within the Australian tax regime has arisen. The Australian tax system is currently undergoing a comprehensive and broad review with the terms of reference requiring a consideration of all relevant tax expenditures. While the recommendations of the Australian National Audit Office are not novel, and it is not unusual for a broader review to consider the role of tax expenditures within the Australian tax system, both the recommendations of the Australian National Audit Office and the views of the current Review Panel take on a renewed sense of importance given the proliferation of tax expenditures in Australia. Tax expenditures, in terms of number and pecuniary value, have increased significantly in Australia in recent years. The latest Tax Expenditures Statement lists around 320 tax expenditures with the pecuniary value of those expenditures estimated at $73.69 billion or 7.1% of GDP. The largest category of tax expenditures listed in the 2008 Tax Expenditures Statement, totalling $29.23 billion, relate to concessions aimed at retirement savings.

Alcohol and other drugs in construction

Evidence from the infrastructure and building sectors suggests issues of drugs and alcohol and its association with safety risk on construction sites. While most Australian jurisdictions have identified this as a critical safety issue, information is limited regarding the prevalence of alcohol and other drugs in the workplace and there is limited evidential guidance on how to effectively and efficiently address such an issue. A nationally consistent collaborative approach across the construction workforce - involving employers and employees; clients, unions; contractors and sub-contractors is required to engender a cultural change in the construction workforce – in a similar manner to the on-going initiative in securing a cultural change to drink-driving in our society where peer intervention and support is encouraged. A study to address these issues has three key objectives. Firstly, using the standard World Health Organisation Alcohol Use Disorders Identification Test (AUDIT), and a wide ranging set of structured interviews, a national qualitative and quantitative assessment of the use of drugs and alcohol is being undertaken. Secondly, the development of an appropriate industry policy with an adoption of an educative and rehabilitative approach is planned in consultation with employers and employees across the infrastructure and building sectors, with an aim of national adoption. Finally, an industry-specific cultural change management program will be developed through a nationally collaborative approach to reducing the risk of impaired performance on construction sites and increasing workers’ commitment to drugs and alcohol safety. The study outcomes stand to benefit not only occupational health and safety, through a greater understanding of the safety impacts of alcohol and other drugs at work, but also alcohol and drug use as a wider community health issue. This presentation will provide an analysis and discussion of the data collected in objective 1 and how the final results will inform the subsequent phases of the study.

The role of education and awareness in workplace alcohol and drug use in the Australian construction industry : proposed program of research and preliminary results

The main aim of this paper is to outline a proposed program of research which will attempt to quantify the extent of the problem of alcohol and other drugs in the Australian construction industry, and furthermore, develop an appropriate industry-wide policy and cultural change management program and implementation plan to address the problem. This paper will also present preliminary results from the study. The study will use qualitative and quantitative methods (in the form of interviews and surveys, respectively) to evaluate the extent of the problem of alcohol and other drug use in this industry, to ascertain the feasibility of an industry-wide policy and cultural change management program, and to develop an appropriate implementation plan. The study will be undertaken in several construction organisations, at selected sites in South Australia, Victoria and Northern Territory. It is anticipated that approximately 500 employees from the participating organisations across Australia will take part in the study. The World Health Organisation’s Alcohol Use Disorders Identification Test (AUDIT) will be used to measure the extent of alcohol use in the industry. Illicit drug use, ‘‘readiness to change’’, impediments to reducing impairment, feasibility of proposed interventions, and employee attitudes and knowledge regarding workplace AOD impairment, will also be measured through a combination of interviews and surveys. Among the preliminary findings, for 51% (n=127) of respondents, score on the AUDIT indicated alcohol use at hazardous levels. Of the respondents who were using alcohol at hazardous levels, 76% reported (n97) that they do not have a problem with drinking and 54% (n=68) reported that it would be easy to ‘‘cut down’’ or stop drinking. Nearly half (49%) of all respondents (n=122) had used marijuana/cannabis at some time prior to being surveyed. The use of other illicit substances was much less frequently reported. Preliminary interview findings indicated a lack of adequate employee knowledge regarding the physical effects of alcohol and other drugs in the workplace. As for conclusions, the proposed study will address a major gap in the literature with regard to the extent of the problem of alcohol and other drug use in the construction industry in Australia. The study will also develop and implement a national, evidence-based workplace policy, with the aim of mitigating the deleterious effects of alcohol and other drugs in this industry.

Strengthening the Foundations: Mutuality and the Performing Arts

Following the positive response by governments to the report of Helen Nugent's major performing arts inquiry, urgent attention needs to be given to the seedbed companies where so often audiences are introduced to the performing arts and practitioners are launched on their professional careers. Doing so calls for lateral thinking such as will enable the widest possible range of stakeholders to become involved. One solution may be to develop multi-stakeholder arts mutuals from the simpler arts mutuals such as co-operatives which are already widespread in many spheres of arts activity. Relevant models include the multi-stakeholder mutuals of the Mondragon Co-operative Corporation and the employee mutuals which are being trialled currently in Britain. Possible stakeholders in an arts mutual could include employed, unemployed and trainee practitioners, professional, quasi-professional and amateur theatre bodies, community groups, municipal councils and statutory bodies such as the ABC. Mutualist models may also be helpful to major performing arts companies facing erosion of their subscription incomes or incurring higher support services costs.

Unlocking risk allocation and equitable conversion : reform of the passing of risk in the sale of land

The principles relating to the passing of risk under a contract for the sale of real property would seem to have been long settled. The rule under the general law is that the risk of loss of the subject matter under a contract for the sale of real property passes to the buyer upon the creation of a valid and binding contract. This article considers the origin of that rule, how it developed with the growth of equity, and advances the view that it is anomalous in a modern context of property dealings. In doing so, the article adverts to the variety of statutory mechanisms used to subvert the rule, few of which are of practical value. It concludes that the rule is outmoded in many respects and suggests a number of reforms which might be implemented nationally to bring consistency and simplicity to the issue of damage or destruction of improvements which are the subject of a land contract.

Advance pricing arrangements : an Australian Tax Office success or a legislative failure?

Australia’s domestic income tax legislation and double tax agreements contain transfer pricing rules which are designed to counter the underpayment of tax by businesses engaged in international dealings between related parties. The current legislation and agreements require that related party transactions take place at a value which reflects an arm’s length price, that is, a price which would be charged between unrelated parties. For a host of reasons, it is increasingly difficult for multinational entities to demonstrate that they are transferring goods and services at a price which is reflective of the behaviour of independent parties, thereby making it difficult to demonstrate compliance with the relevant legislation. Further, where an Australian business undertakes cross-border related party transactions there is the risk of an audit by the Australian Tax Office (ATO). If a business wishes to avoid the risk of an audit, and any ensuing penalties, there is one option: an advance pricing arrangement (APA). An APA is an agreement whereby the future transfer pricing methodology to be used to determine the arm’s length price is agreed to by the taxpayer and the relevant tax authority or authorities. The ATO views the APA process as an important part of its international tax strategy and believes that there are complementary benefits provided to both the taxpayer and the ATO. The ATO promotes the APA process on the basis of creating greater certainty for all parties while reducing compliance costs and the risk of audit and penalty. While the ATO regards the APA system as a success, it may be argued that the implementation of such a system is simply a practical solution to an ongoing problem of an inherent failure in both the legislation and ATO interpretation and application of this legislation to provide certainty to the taxpayer. This paper investigates the use of APAs as a solution to the problem of transfer pricing and considers whether they are the success the ATO claims. It is argued that there is no doubt that APAs provide a valuable practical tool for multinational entities facing the challenges of the taxation of global trading under the current transfer pricing regime. It does not, however, provide a long term solution. Rather, the long term solution may be in the form of legislative amendment.

International transfer pricing : the Australian approach and lessons for Canada

In response to developments in international trade and an increased focus on international transfer-pricing issues, Canada’s minister of finance announced in the 1997 budget that the Department of Finance would undertake a review of the transfer-pricing provisions in the Income Tax Act. On September 11, 1997, the Department of Finance released draft transfer-pricing legislation and Revenue Canada released revised draft Information Circular 87-2R. The legislation was subsequently amended and included in Bill C-28, which received first reading on December 10, 1997. The new rules are intended to update Canada’s international transfer-pricing practices. In particular, they attempt to harmonize the standards in the Income Tax Act with the arm’s-length principle established in the OECD’s transfer pricing guidelines. The new rules also set out contemporaneous documentation requirements in respect of cross-border related-party transactions, facilitate administration of the law by Revenue Canada, and provide for a penalty where transfer prices do not comply with the arm’s-length principle. The Australian tax authorities have similarly reviewed and updated their transfer-pricing practices. Since 1992, the Australian commissioner of taxation has issued three rulings and seven draft rulings directly relating to international transfer pricing. These rulings outline the selection and application of transfer pricing methodologies, documentation requirements, and penalties for non-compliance. The Australian Taxation Office supports the use of advance pricing agreements (APAs) and has expanded its audit strategy by conducting transfer-pricing risk assessment reviews. This article presents a detailed review of Australia’s transfer-pricing policy and practices, which address essentially the same concerns as those at which the new Canadian rules are directed. This review provides a framework for comparison of the approaches adopted in the two jurisdictions. The author concludes that although these approaches differ in some respects, ultimately they produce a similar result. Both regimes set a clear standard to be met by multinational enterprises in establishing transfer prices. Both provide for audits and penalties in the event of noncompliance. And both offer the alternative of an APA as a means of avoiding transfer-pricing disputes with Australian and Canadian tax authorities.

Corporate social and environmental responsibility in relation to the agricultural sector and the food supply chain : a Case Study of Waitrose

Waitrose has a strong commitment to organic farming but also uses products from 'conventional' farms. At the production stage, Waitrose own-label products are fully traceable, GM-free and all suppliers undergo a detailed assessment programme based on current best practice. Crop suppliers to Waitrose operate an authenticity programme to certify that each assignment is GM-free and produce is screened for pesticide residues. Waitrose sources conventional crops grown from 'Integrated Crop Management Systems' (ICMS) using best horticultural practices. The 'Assured Product' scheme regulates all UK produce to ICMS standards and these audits are being extended worldwide. Business is withdrawn from suppliers who fail the audit. In relation to this, Waitrose has increased its Fairtrade range as in its view 'Buying these products provides direct additional benefit to workers in the developing countries where they are produced and assists marginal producers by giving them access to markets they would not otherwise have'. Currently, Waitrose is developing its own sustainable timber assessment criteria. For livestock, protocols are in place to ensure that animals are reared under the 'most natural conditions possible' and free range produce is offered where animals have access to open space although some produce is not from free-range animals. Waitrose also use a 'Hazards Analysis Critical Points' system to identify food safety hazards that occur at any stage from production to point of sale and to ensure that full measures are in place to control them. In addition, mechanisms have been implemented to reduce fuel use and hence reduce CO2 emissions in the transport of products and staff, and to increase the energy use efficiency of refrigeration systems which account for approximately 60% of Waitrose energy use.

Mandatory auditor rotation : Australian evidence

A key part of the auditor independence reforms in Australia, as represented by Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth) (CLERP 9), mandates audit partner rotation. The change was criticised predominantly due to the costs imposed on both the audit firms and the audit clients. This study examines the Australian experience post-CLERP 9 with mandated auditor rotation. Based on data of audit partner rotation over 2003–2009 (on average 1200 listed Australian companies over the sample period), we show that audit partner tenure sat at a median of 2–3 years, but that the maximum audit partner tenure was as high as 20 years in the pre-CLERP 9 period. For around 85% of the market, audit partner rotation occurred voluntarily at between 1–5 years. The interesting result is that for 15% of the market, the mandated audit partner rotation had a significant impact on corporate governance practice. There is also a greater observed impact of mandatory rotation on audit engagements involving the non-global auditing firms. These findings inform the debate as to the ‘costliness’ of the law reform.

Corporate governance and misappropriation

This study examines the occurrence of misappropriation-type fraud within Australian listed firms and the relation between the incidence of this type of fraud and a firm's governance strength. We measure governance strength using factors relating to traditional corporate governance, such as board composition, CEO duality, and audit committee composition, as well as factors relating to information technology governance. In our study, we use actual dollar amount of fraud reported by listed companies responding to the 2004 KPMG Fraud Survey as one of three different misappropriation measures and publicly available firm-specific data to measure the other variables in the model. Our study found that where the chief executive officer (CEO) also holds the position of chairperson of the board of directors, the likelihood of fraud increases. We also find that the greater the number of independent directors on the audit committee, the lower the level of fraud. Taken together, these results are particularly encouraging as they provide support for regulatory bodies such as the Australian Stock Exchange (ASX) and the Australian Securities and Investment Commission (ASIC), which place considerable emphasis on the importance of establishing good corporate governance practices. The study provides empirical evidence that employing good corporate governance reduces the risk of the misappropriation of assets.