Australian Tax Analysis : Cases, Commentary, Commercial Applications and Questions [9th Ed.]

Now in its ninth edition, Australian Tax Analysis: Cases, Commentary, Commercial Applications and Questions has a proven track record as a high-level work for students of taxation law written by a team of authors with many years experience. Taking into account the fact that the volume of material needed to be processed by today’s taxation student can be overwhelming, the well-chosen extracts and thought-provoking commentary in Australian Tax Analysis, 9th edition, provide readers with the depth of knowledge, and reasoning and analytical skills which will be required of them as practitioners. In addition to the carefully selected case extracts and the helpful commentary, each chapter is supplemented by engaging practice questions involving problem solving, commercial decision-making, legal analysis and quantitative application. All these elements combined make Australian Tax Analysis an invaluable aid to the understanding of a subject which can be both technical and complex.

Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

Review : "Networking : commercial television in Australia : a history" -- Nick Herd

Nick Herd begins his institutional history of Australian commercial television in the early 1890s, when an amateur inventor named Henry Sutton designed the ‘telephane’ with the intent of watching the Melbourne Cup in his home town of Ballarat. The ‘race that stops a nation’ was not broadcast live on television until 1960, but Sutton’s initiative indicates how closely sport and television were aligned in Australia even before the medium existed. The first licensed commercial stations to begin regular broadcasting went on air in Sydney and Melbourne shortly before the 1956 Melbourne Olympic Games, although Herd claims that this was ‘almost accidental’ rather than planned. (49) Only Melbourne viewers were able to see some events live, many via television sets in Ampol service stations following the company’s last minute sponsorship of coverage on Melbourne station GTV-9...

Surrogacy : competing interests or a tangled web?

Overseas commercial surrogacy is a legally challenging but commonly utilised form of assisted reproductive technology. Not only does it raise complex and competing policy issues, but it tests the relevant Family Law legislation which underpins parenting orders. Decisions handed down by the judiciary are inconsistent. Legislation is inadequate. But still the surge in surrogacy continues as surrogacy destinations such as India and Thailand continue to increase in popularity. Part one of this article addresses the competing interests of the illegality of overseas commercial surrogacy arrangements with the welfare of the child born as a result of such arrangements, and the inconsistent approaches taken by the judiciary. Part two concerns the interpretation of Family Law legislation by the courts in an attempt to provide intended couples and their children with certainty and finality, again resulting in inconsistent judicial decisions. Overseas commercial surrogacy is legally problematic, and intended parents need to be aware of its limitations.

The need for legislative reform of the privity doctrine in commercial contracts in Malaysia : a comparative analysis

This thesis commences with the proposition that the first limb of the doctrine of privity causes injustice to third party beneficiaries in Malaysia, particularly in commercial contracts. The doctrine of privity has been the subject of criticism by the judiciary and academic commentators in common law jurisdictions, mainly directed at the first limb of the doctrine, whereby only parties to a contract can sue and be sued. The first limb prevents a third party from enforcing benefits conferred on them by those contracts thereby resulting in third parties suffering loss and injustice to those parties. In several common law countries, such as England, Australia, New Zealand and Singapore, legislative reform of the doctrine has occurred. The legislative reform has abrogated to a significant extent the doctrine of privity in commercial contracts. Malaysia is a common law country, where the doctrine of privity is still applied to contracts. An analysis of Malaysian case law demonstrates that the most affected third party beneficiaries are those seeking to enforce insurance and construction contracts. While a small number of other third parties to commercial contracts, such as agreements to pay for work done, sale and purchase agreements and tenancy agreements are also affected, the detriment is not as significant. As a consequence, this thesis focuses primarily on the impact of the doctrine of privity on commercial contracts in the areas of insurance and construction in Malaysia The thesis aims to recommend appropriate reforms to address the injustices arising from the privity doctrine for third parties seeking to obtain the benefit of insurance and construction contracts, which may also benefit third parties to other types of commercial contracts. While the Malaysian insurance, consumer protection, negotiable instruments and agency laws allow third party beneficiaries to enforce benefits in contracts, the rights are found to be inadequate. As not all third parties seeking to enforce an insurance or construction contract can rely upon the legislation, the injustice arising from the doctrine of privity remains and needs to be addressed. To achieve this aim, a comparative analysis of the rights of third party beneficiaries under insurance and construction contracts in Malaysia, Australia and England is undertaken. The results of the analysis are used to identify appropriate elements for a legislative framework guided by the three essential criteria for effective law reform developed in the thesis. The three criteria are certainty, public interest and justice. The thesis recommends first the enactment of general legislation applicable to all commercial contracts including insurance contracts. Secondly, the thesis recommends specific targeted legislation to address the injustice faced by third party beneficiaries in construction contracts.

Access to commercial destinations within the neighbourhood and walking among Australian older adults

BACKGROUND: Physical activity, particularly walking, is greatly beneficial to health; yet a sizeable proportion of older adults are insufficiently active. The importance of built environment attributes for walking is known, but few studies of older adults have examined neighbourhood destinations and none have investigated access to specific, objectively-measured commercial destinations and walking. METHODS: We undertook a secondary analysis of data from the Western Australian state government's health surveillance survey for those aged 65--84 years and living in the Perth metropolitan region from 2003--2009 (n = 2,918). Individual-level road network service areas were generated at 400 m and 800 m distances, and the presence or absence of six commercial destination types within the neighbourhood service areas identified (food retail, general retail, medical care services, financial services, general services, and social infrastructure). Adjusted logistic regression models examined access to and mix of commercial destination types within neighbourhoods for associations with self-reported walking behaviour. RESULTS: On average, the sample was aged 72.9 years (SD = 5.4), and was predominantly female (55.9%) and married (62.0%). Overall, 66.2% reported some weekly walking and 30.8% reported sufficient walking (>=150 min/week). Older adults with access to general services within 400 m (OR = 1.33, 95% CI = 1.07-1.66) and 800 m (OR = 1.20, 95% CI = 1.02-1.42), and social infrastructure within 800 m (OR = 1.19, 95% CI = 1.01-1.40) were more likely to engage in some weekly walking. Access to medical care services within 400 m (OR = 0.77, 95% CI = 0.63-0.93) and 800 m (OR = 0.83, 95% CI = 0.70-0.99) reduced the odds of sufficient walking. Access to food retail, general retail, financial services, and the mix of commercial destination types within the neighbourhood were all unrelated to walking. CONCLUSIONS: The types of neighbourhood commercial destinations that encourage older adults to walk appear to differ slightly from those reported for adult samples. Destinations that facilitate more social interaction, for example eating at a restaurant or church involvement, or provide opportunities for some incidental social contact, for example visiting the pharmacy or hairdresser, were the strongest predictors for walking among seniors in this study. This underscores the importance of planning neighbourhoods with proximate access to social infrastructure, and highlights the need to create residential environments that support activity across the life course.

Commercial successes in the music industry

Commercial success in the music industry is obviously related to one’s ability to use musical artisanship as a basis for generating profits and to accumulate substantial wealth. That may seem fairly straightforward, but commercial success is an elusive concept that is continuously negotiated within the industry to determine both what should be considered “success” as well as how it should be measured. This entry discusses commercial success in the popular music industry and strategies used to achieve it.

What further benefit, if any, might Australia get from the ALI-III Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases?

In 2006, the American Law Institute (ALI) and the International Insolvency Institute (III) established a Transnational Insolvency Project and appointed Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (Netherlands) as Joint Reporters. The objective was to investigate whether the essential provisions of the ALI Principles of Cooperation among the NAFTA Countries (ALI-NAFTA Principles) and the annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases (ALI-NAFTA Guidelines) may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. In 2012, Professor Fletcher and Professor Wessels presented the report Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“ALI-III Report”) to the Annual Meetings of the American Law Institute and the International Insolvency Institute. In 2013, the Australian Academy of Law (AAL) provided support to the authors to undertake research on the possible benefits for Australia of courts and insolvency administrators of referring to the ALI-III Report when addressing international insolvency cases. This AAL project was at the request of the Council of Chief Justices of Australia and New Zealand. This research Report compares the Global Principles for Cooperation in International Insolvency Cases with the Cross-border Insolvency Act 2008 and the UNCITRAL Model Law as it has been adopted and has force of law in Australia. Further, it examines the Global Guidelines for Court-to-Court Communications in International Insolvency Cases in light of Australian cross-border insolvency and procedural law. Finally, it makes brief reference to and commentary on the Global Rules on Conflict–of-Laws Matters in International Insolvency Cases annexed to the ALI-III Report from the perspective of Australian choice of law rules.

Commentary on papers by Professor Fletcher and Mr Martin

In light of the time available today, I will limit my comments to addressing that aspect of Professor Fletcher’s paper in which he refers to the 2012 report he co-authored with Professor Wessels of the Netherlands for the American Law Institute (ALI) and the International Insolvency Institute (III) on Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases. I will comment on the potential benefits for Australian courts as well as insolvency administrators and their advisers in referring to the ALI-III Report - in light of Australia’s adoption of the UNCITRAL Model Law. In so doing, I would like to acknowledge the support of the Australian Academy of Law, under the leadership of The Hon Dr Kevin Lindgren for the research project underpinning these comments, as well as to acknowledge the contributions of my colleagues Associate Professor Sheryl Jackson and Mark Wellard.

The Performance Nexus - A framework for improving energy efficiency in existing commercial buildings by considering a whole-of-building approach

Efforts to reduce carbon emissions in the buildings sector have been focused on encouraging green design, construction and building operation; however, the business case is not very compelling if considering the energy cost savings alone. In recent years green building has been driven by a sense that it will improve the productivity of occupants,i something with much greater economic returns than energy savings. Reducing energy demand in green commercial buildings in a way that encourages greater productivity is not yet well understood as it involves a set of complex and interdependent factors. This paper outlines an investigation into these factors and focuses on better understanding the performance of and interaction between: design elements, internal environmental quality, occupant experience, tenant/leasing agreements, and building regulation and management. In doing so the paper presents a framework for improving energy efficiency in existing commercial buildings by considering a range of interconnected and synergistic elements.

The development of a simple multi-nodal tool to identify performance issues in existing commercial buildings

Australia’s building stock includes many older commercial buildings with numerous factors that impact energy performance and indoor environment quality. The built environment industry has generally focused heavily on improving physical building design elements for greater energy efficiency (such as retrofits and environmental upgrades), however there are noticeable ‘upper limits’ to performance improvements in these areas. To achieve a stepchange improvement in building performance, the authors propose that additional components need to be addressed in a whole of building approach, including the way building design elements are managed and the level of stakeholder engagement between owners, tenants and building managers. This paper focuses on the opportunities provided by this whole-of-building approach, presenting the findings of a research project undertaken through the Sustainable Built Environment National Research Centre (SBEnrc) in Australia. Researchers worked with a number of industry partners over two years to investigate issues facing stakeholders at base building and tenancy levels, and the barriers to improving building performance. Through a mixed-method, industry-led research approach, five ‘nodes’ were identified in whole-of-building performance evaluation, each with interlinking and overlapping complexities that can influence performance. The nodes cover building management, occupant experience, indoor environment quality, agreements and culture, and design elements. This paper outlines the development and testing of these nodes and their interactions, and the resultant multi-nodal tool, called the ‘Performance Nexus’ tool. The tool is intended to be of most benefit in evaluating opportunities for performance improvement in the vast number of existing low-performing building stock.

Greening Buildings : How can the performance of existing commercial buildings be improved?

Efforts to improve the performance of commercial buildings have often focused on encouraging green design, construction and building operation; however, the business case is not very compelling if considering the energy cost savings alone. In recent years green building has been driven by a sense that it will improve the productivity of occupants, something with even greater economic returns than energy savings. Reducing energy demand in commercial buildings in a way that encourages greater productivity is not yet well understood as it involves a set of complex and interdependent factors. This project investigates these factors and focuses on the performance of and interaction between: green design elements, indoor environment quality, tenant/ leasing agreements and culture, occupant experience, and building management practices.

Corporate sustainability reporting of major commercial banks in line with GRI : Bangladesh evidence

Purpose – This paper aims to examine the tendencies of sustainability reporting by major commercial banks in Bangladesh in comparison with global sustainability reporting indicators outlined in the GRI framework together with banks' predilection toward reporting 16 GRI financial service sector (FSS) specific performance indicators. Design/methodology/approach – Based on the GRI G3 guidelines, the paper investigated banks' reporting in five broad areas of sustainability, such as environment, labour practices and decent works, product responsibility, human rights and society. The 2008/2009 annual reports of 12 major commercial banks listed on Dhaka stock exchange were analysed and coded using a content-based technique. Findings – The results show that information on society is addressed most extensively with regard to extent of reporting. This is followed by the disclosures prepared on decent works and labour practices and environmental issues. Furthermore, the disclosures of product responsibility information and the information for human rights are rather scarce in banks' reporting; on the subject of FSS-specific disclosures, only seven items out of 16 are disclosed by all sample banks. Research limitations/implications – The findings of the study indicate that Bangladeshi commercial banks' social disclosures could develop in this style to become more holistic and over time (in association with the country's central bank involvement) to resemble a type of structured reporting to the point where they are properly labelled per se. Originality/value – The study contributes to the social disclosure literature, in particular in a developing countries banking sector context, seeing as it disseminates evidence of the standing on social disclosures practices at the level of GRI with developing countries' banks data.