The Australian nonprofit sector legal and accounting almanac 2011

Summaries of legal cases, legislation and developments in law and accounting relevant to nonprofit organisations and charity law during 2011; including articles on special issues such as accounting standards and the chart of accounts; law reform (e.g. the new national regulator, the Australian Charities and Not-for-profits Commission); and taxation.

Concerns about the rollout of broadband : a legal consideration of Australia’s NBN greenfield policy

This paper examines the Australian federal government’s proposal that developers take the primary role for deploying the National Broadband Network (‘NBN’) in greenfield estates. It identifies issues facing the NBN’s implementation and concerns raised by industry. A failure to address these concerns may lessen industry support as well as adversely impact on consumers as NBN implementation costs are passed onto them. The author identifies the need for NBN legislation to clearly establish what is a ‘greenfield estate’; how and when exemptions from implementation obligations will apply; and that NBN services must be treated the same as any other utility service.

Property, planning and purpose : legal concerns facing broadband rollout in Australia

The Australian government, and opposition, are committed to facilitating high-speed broadband provision. In April 2009 the (then) Labor government announced a proposal to facilitate provision by mandating “…the use of fibre optic infrastructure … in greenfield estates ….” Separately, the installation of (usually overhead) cables commenced in select brownfield areas throughout Australia. In the lead up to the 2010 federal election, the broadband policy focus of the (then) federal opposition was to enabling private investment rather than direct investment by government itself. High-speed broadband is essential for Australia’s economic future. Whether implementation is undertaken by government, government owned corporations or private investors, will impact on the processes to be followed. Who does what, also will determine the rights available to land owners. The next stage, of necessity, will involve the establishment of procedures to require the retrofitting of existing urban environments. This clearly will have major property, property rights and valuation impacts. As Horan (2000) observed “…preserving... unique characteristics … of…regions requires a compromise between economic ambitions and social, cultural, and environmental values”. The uncertainty following the federal election, and the influence of independants with individual agendas; presents unique challenges for broadband implementation. This paper seeks to identify the processes to be followed by various potential broadband investors as they work to establish a ubiquitous network. It overviews current legislative regimes and examines concerns raised by stakeholders in various government reviews. It concludes by plotting a clear way forward to the future, with particular regard to property rights and usage.

Case studies of statutory interventions into the common law concept of charity

This paper considers four examples of statutory interventions into the common law concept of charity, namely, those of Pennsylvania, Barbados, the definition recommended by the Report of the Inquiry into the Definition of Charities in Australia, and the Recreational Charities legislation of the United Kingdom. It comments on some issues affecting each style of intervention. The paper does not argue against statutory intervention but submits that legislative changes are best made by deeming a particular purpose to be charitable, or not charitable, so that, except to that extent, the common law concept remains intact – this is the approach adopted by the Recreational Charities legislation.

Charity law review and civil society : paving the way from alienation to social inclusion in Northern Ireland ; the resonance with experience in Australia

This paper considers the opportunity, presented by the forthcoming charity law review in Northern Ireland, for adjusting the charity law framework so as to focus charitable activity on the circumstances typical of societies in conflict or experiencing transition. This opportunity is one for broadening the definition of 'charitable purpose' to include activities directed towards forestalling alienation and facilitating social inclusion. It would include rehabilitating the victims of social confrontation and developing related services of advocacy, mediation and reconciliation. It argues that a creative response to this opportunity could address the current social inclusion agenda and thereby contribute to the consolidation of civil society in this jurisdiction. It suggests that the experience in Northern Ireland, as an exemplar of a society in transition, has a resonance with the experience in Australia. It further suggests that it could also have a relevance for approaching the management of tensions within or between nations where people may otherwise come to perceive themselves as alienated...

Becoming a 'Bastion Against Tyranny' : Australian legal education and the government of the self

Research into legal education suggests that many students enter law school with ideals about using the law to achieve social change, but graduate with some cynicism regarding these ideals. It is often argued that law schools provide a negative, competitive, and conservative environment for students, pushing many away from social justice ideals towards more self-interested, vocational concerns. This article uses Michel Foucault’s work on the government of the self to suggest another way of understanding this process. It examines a range of prescriptive texts that provide students with advice about how to study law and ‘survive’ law school. In doing so, it posits that this apparent loss of social ideals does not necessarily always signify that the student has become politically conservative or has had a negative educational experience. While these legal personae may appear outwardly conservative, and indeed still reflect particular gendered or raced perspectives, by examining the messages that these texts offer students, this article suggests that an apparent loss of social ideals can be the result of a productive shaping of the self. The legal persona they fashion can incorporate social justice ideals and necessitate specific ways of acting on those ideals. This analysis adds to the growing body of research that uses Foucault’s work to rethink common narratives of power and the shaping of the self in legal education, and provides legal educators with new ways of reflecting on the effects of legal education.

Legal education and the 'idealistic student': using Foucault to unpack the critical legal narrative

It appears that few of the students holding ‘socially idealistic’ goals upon entering law school actually maintain these upon graduation. The critical legal narrative, which explains and seeks to act upon this shift in the graduate’s ‘legal identity’, posits that these ideals are repressed through power relations that create passive receptacles into which professional ideologies can be deposited, in the interests of those advantaged by the social and legal status quo. Using the work of Michel Foucault, this paper unpacks the assumptions underpinning this narrative, particularly its arguments about ideology, power, and the subject. In doing so, it will argue this narrative provides an untenable basis for political action within legal education. By interrogating this narrative, this paper provides a new way of understanding the construction of the legal identity through legal education, and a new basis for political action within law school.

Submission to House Standing Committee on Infrastructure and Communications : inquiry into the role and potential of the National Broadband Network

Just as telecommunications has played a key role in the global economy,1 high-speed broadband will have a significant role to play in the future of the digital economy. In particular high-speed broadband will have a role to play in the delivery of applications and services necessary for acquiring, and maintaining into the future Australia and Australians’ appropriate education level; community; health services, information provision and support; government services and engagement and participation by the public in the political process.

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.

Charities and the industry commission

On 27 October 1994 the Industry Commission (the Commission) handed down a draft report on its inquiry into charitable organisations. The Commission had spent nearly 12 months investigating community social welfare organisations (CSWOs) including the appropriateness of the present taxation treatment of charitable organisations. The draft report makes recommendations for the taxation of CSWOs including alterations to their exemption from sales tax, fringe benefits tax and other indirect taxes with alterations to the threshold of tax deductible gifts and range of organisations qualifying for public benevolent status. This article examines the current taxation treatment for these organisations and the recommended changes made by the Industry Commission.

An Italian legal case note

The present paper intends to enlighten a particular aspect of charitable organizations which is their registration in the regional lists for voluntary organizations. The aforementioned decision ruled that these organizations are entitled to adopt the form of cooperative society and consequently, when all the other legal requirements are complete, charitable organizations are to be enrolled. The registration has been subject to many criticisms and it is necessary to bring some light on a topic that hides behind it many legal and cultural repercussions concerning the role and the activities of nonprofit organizations in the Italian context.

Civil and Criminal Liability of Players

The liability of players in their particular sporting fields has increasingly become prevalent in the minds of government, sport administrators, the medical and legal professions and the parents and players themselves. This awareness has arisen for numerous reasons. Due to the enormous volume of sport to which the community is being exposed through the varied levels of the media together with our aspirations towards a healthier lifestyle and longevity, participation in sports has increased. Accordingly, sports injury litigation has increased. A number of other factors may be advanced to explain the increase. Sport has become big business all over the world. A talent for sport may bring the lucky player fame and fortune. It is not surprising therefore, where such ambitions are frustrated by deliberately or carelessly inflicted injury to the player, thought will be given to seeking compensation for that injury in the courts of law. Other factors are that litigation is on the increase as a means of dispute resolution and lawyers see sporting organisations better able to afford compensation to their players because they are more likely to carry insurance.

Sharing environmental data : the role of an information policy framework and copyright licensing

Advances in information and communication technologies have brought about an information revolution, leading to fundamental changes in the way that information is collected or generated, shared and distributed. The importance of establishing systems in which research findings can be readily made available to and used by other researchers has long been recognized in international scientific collaborations. If the data access principles adopted by international scientific collaborations are to be effectively implemented they must be supported by the national policies and laws in place in the countries in which participating researchers are operating.

Managing distraction and attention in diverse cohorts : 21st century challenges to law student engagement

It is imperative that we consider the use of current and emerging technologies in terms of the nature of our learners, the physical environment of the lecture theatre, and how technology may help to support appropriate pedagogies that facilitate the capturing of student attention in active engaging learning experiences. It is argued that a re-evaluation of pedagogy is required to address the tech-savy traits of the 21st century learner and the extent to which their mobile devices are capable of not only distracting them from learning but also enhancing face-to-face learning experiences.