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VOLUME 45(1)

History and Memory in Constitutional Adjudication

JUSTICE DAPHNE BARACK-EREZ

This article considers the different ways in which judicial decisions use and narrate history. It distinguishes between several forms of judicial recourse to history, including the difference between decisions which refer to general history and decisions that refer to the hsitory of legal documents; and the difference between decisions on factual controversies that have hisorical significance and decisions that take judicial notice of history. At the same time, this article recognises that the division between these categories is not clear-cut. An analysis of constitutional case law sheds light on the ways in which courts harness historical events in order to justify their normative choices. More speciically, while some judicial decisions cite history in order to justify continuity with the past, others regard history as a cautionary tale that calls for a change of direction. In between, some decisions opt for a middle route, supporting continuity with historical decisions but offering new interpretations of their lessons. This article concludes by examining decisions that try to 'learn' from history, illuminating the enduring challenge in drawing different and even conflicting lessons from the very same historical event.

Taxing Sovereign Wealth Funds: Looking to Singapore for Inspiration

SALLY-ANN JOSEPH

The taxation of sovereign wealth funds is an important issue for governments as they are both investors and need to attract investment. Operating in global markets, how these funds are taxed can affect investment location decisions. In Australia there are currently no legislative provisions for these investments and issues of residency, applicability and terminoloy hamper the use of tax treaties.

The basis of how sovereign wealth funds are taxed in Australia in administrative where tax exemptions are provided on the basis of private ruling applications. It is an inefficient and costly process which lacks certainty. Over the period 2009 to 2011 the government of the day proposed legislating itspractices dealing with sovereign wealth funds. In 2010 Singapore introduced a fund exemption scheme, markedly different from that proposed in Australia. Yet it is a method that is able to be adapted to the Australian income tax legislation. It avoids definitional issues by targeting the entities the policy aims to cover, is compatible with a self-assessment system and provides flexibility in policy making. Recommendations with accompanying considerations are made with respect to incorporating Singapore's tax exemption for sovereign wealth funds into the Australiant tax legislation.

Non-Military Space Testing in the Woomera Prohibited Aera: Opportunities for the Australia Space Industry?

MELISSA DE ZWART AND DALE STEPHENS

Australiant tax legislation. The Australian Civil Space Industry is poised at a crucial moment in its history. Careful strategic decisions need to be made regarding whether Australia will continue to take a back seat in the space race or whether it will join the growing space technology industry, providing major opportunities for Australian innovators. This cannot occur if the current legal and regulatory frameworks do not facilitate research activities and investment. The Australian Government is currently reviewing the Space Activities Act 1998 and the Space Activities Regulations 2001. This article will consider the unique role played by the Woomera Prohibited Area in the Woomera Range (and by extension Australia) may once again play an important role in the research, development and testing of space technology.

This article will place the legal restrictions regarding access to and use of the Woomera Range within the context of the proposed revision of the Australian legislation regulating civil space activities.

Protecting Consumer Privacy and Data Security: Regulatory Challenges and Potential Future Directions

STEPHEN CORONES AND JULIET DAVIS

This article considers the regualtory problem of online tracking behaviour, lack of consent to data collection, and the security of data collected with or without consent. Since the mid-1990s the US Federal Trade Commission has been using its power under the US consumer protection regime to regulate these problems. The Australian Competition and Consumer Commission (ACCC), on the other hand, has yet to bring civil or criminal proceedings for online privacy or data security breaches, which indicates a reluctance to employ the Australian Consumer Law (ACL) in this field. Recent legislative action instead points to a greater application of the specifically targeted laws under the Privacy Act, and the powers of the Office of the Australian Information Commissioner (OAIC), to protect consumer privacy and data security. This article contends that while specific legislation setting out, and publicly enforcing, businesses' legal obligations with respect to online privacy and data protection is an appropriate regualtory response, the ACL's broad, general protections and public and/or private enforcement mechanisms also have a role to play in protecting consumer privacy and data security.

The Importance fo Full and Frank Disclosure in Family Law Financial Proceedings and the Many Consequences of Non-Disclosure

HUGH P K KOPSEN AND ROBYN CARROLL

Since 2009 the question of residence of individuals has assumed greater importance given: the removal of the S23AG exemption, the great number of Australians working overseas, the pressure on the Commonwealth budget following the Global Financial Crisis, and the numbe rof recent income tax disputes. The removal of the exemption was also followed by a period that ushered in the new Australian Taxation Office (ATO), with the appointment of Commissioner Jordan in 2013, a new vision and the loss of many experience staff. This article reviews recent income taxation issues involved in teh residence status of Australians working overseas, the role of the AAT and the new ATO. The paper finds an admirable consistency by the AAT in determining the resides and the permanent place of abode tests in accordance with the well-established precedents. The recent AAT cases also reveal an aggressive positioning by ATO auditors and objection review officers. The ATO's approach to the question of residency and IT2650 should be reviewed and the problematic ATO residency tool removed.

Who's the Legislator Anyway? How the FATF's Global Norms Reshape Australian Counter Terrorist Financing Laws

DORON GOLDBARSHT

This article focuses on the Australian implementation of the Financial Action Task Force (FATF) Recommendations, so-called 'soft law' instruments, which represent the international standard in Counter Terrorist Financing (CTF) but which force legislators to conform. The article will fill the gaps existing int he literature today by focusing on the origins and motives of broad CTF legislation in Australia, then detailing each of the FATF's CTF Recommendations and the ways in which they are implemented in Australia. This approach differs significantly from other literature in the field, which deals solely with Australian implementation of one of the FATF's components. The current paper's examination will reveal the CTF regime in Australia, a decade after the FATF's first CTF Mutual Evaluation Report on Australia, and its decisive influence.