February 2013 Highlights

Subtitle 3.17 Offences

Updated by, Dr Ben McEniery, Barrister-at-Law, Supreme Court of Queensland

This Subtitle considers the offences provided for by the Bankruptcy Act 1966 (Cth). This update discusses offences committed by bankrupts during bankruptcy, after sequestration, on becoming bankrupt, or after discharge or annulment of bankruptcy. It also covers offences that may be committed by debtors and others in relation to arrangements under Pt X of the Bankruptcy Act 1966, and by trustees in bankruptcy. Finally, the commentary extends to specific provisions on procedure and trial under the Bankruptcy Act 1966.

Subtitle 3.18 Debt Agreements

Updated by Steven M Foale, Consultant, Maurice Blackburn Lawyers

Debt agreements under Pt IX of the Bankruptcy Act 1966 (Cth) are a legally binding agreement made between an insolvent debtor and their creditors, and are available as a flexible alternative to bankruptcy. This Subtitle covers the stages of proposal, processing, acceptance, and termination of a debt agreement; the eligibility, registration and supervision of debt agreement administrators; and the procedural requirements involved.

This update discussion contains expanded commentary on these requirements and references recent developments, such as Deputy Federal Commissioner of Taxation v Criniti [2009] FMCA 417, and the pending Review of Debt Agreements under the Bankruptcy Act 1966: Proposals Paper (October 2012) by the Attorney-General's Department.

Subtitle 6.1 Civil Defamation

Updated by Danielle Andrewartha, PhD Candidate and Research Associate, Faculty of Law, Monash University, Senior Consultant, McPhee Andrewartha

This Subtitle deals with the law of civil defamation in Australia, which operates through the interaction of common law and statute law. The enactment of substantially uniform defamation laws in all Australian jurisdictions from 2006 enhanced the common law’s efforts to accommodate defamation law with the implied freedom of political communication derived from the Constitution, as recognised by the High Court in Nationwide News Pty Ltd v Wills (Free Speech Case) (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v Commonwealth (Political Advertising Case) (1992) 177 CLR 106. These developments are a particular focus here, especially the High Court’s expansion of the common law defence of qualified privilege in respect of communications on government and political matters in Lange v Australian Broadcasting Corp (1997) 189 CLR 520. The implications of information technology development for defamation law are also considered, with an examination of the leading case in the area: Dow Jones & Co Inc v Gutnick [2002] HCA 56.

Subtitle 13.6 Dispute Systems Design

Updated by Dr Stephen Tully, Solicitor, Supreme Court of New South Wales, Legal Officer, Migration and Refugee Review Tribunals

The Subtitle is oriented around the process of Dispute Systems Design (DSD) as a form of dispute resolution. The goals and the theoretical framework, with reference to real examples, are examined in addition to the interest-based approach of DSD. The commentary also explores the characteristics of certain types of disputes and how they can be addressed through DSD and its principles. The implementation and application of DSD to customer complaints is examined while also considering the Australian Standard on Customer Satisfaction and its guidelines for complaint handling procedures. Finally, the disadvantages and advantages of DSD are considered.

Subtitle 14.3 Local Planning Schemes and Compensation

Updated by Joseph Claude Veneziano, Associate Editor, Local Government and Environmental Reports of Australia

This Subtitle comprehensively examines the format, purpose and structure of local planning schemes, which vary between each Australian jurisdiction. It includes the compliance requirements for both the public and government, and goes on to discuss the compensation for the effect of a scheme in each jurisdiction. The update includes key legislative changes, being the Planning and Development Act 2007 (ACT), Environmental Planning and Assessment Regulation 2000 (NSW), Sustainable Planning Act 2009 (Qld), Sustainable Planning Regulation 2009 (Qld), Development Regulation 2008 (SA), Land Use Planning and Approvals Regulations 2000 (Tas), Planning and Environment Regulations 2005 (Vic), Planning and Development Act 2005 (WA) and Planning and Development Regulations 2009 (WA).

Subtitle 24.4 International Taxation

Updated by Adam Ahmed, Legal Practitioner Director, Hemsley Lawyers, Daniel Ramon Diaz, Lawyer, Arnold Bloch Leibler, and Tom Roth, Associate, Baker & McKenzie

This Subtitle focuses on how various entities that are either foreign or principally foreign-based are addressed by Australian tax law. By outlining the legislative requirements of the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth), the Subtitle demonstrates how tax liability can be determined to apply to an individual or a company. To ensure that all possible sources of income are considered the Subtitle addresses the thin capitalisation, withholding tax rules and the position adopted in relation to controlled foreign companies and non-resident trusts. The Subtitle concludes with a thorough outline of the means by which the Commonwealth acts to prevent international tax avoidance and the adoption of double taxation agreements to ensure the minimum tax overlap between countries.

Subtitle 28.14 Restrictive Covenants

Updated by Dr Hossein Esmaeili, Associate Professor, Flinders Law School, Flinders University and Brendan Grigg, Lecturer, Flinders Law School, Flinders University

This Subtitle addresses the laws surrounding restrictive covenants, specifically examining situations in which the burden and benefit of covenant will run at common law and at equity. It also examines the position of restrictive covenants within the Torrens system and the existence of the Conveyancing Act 1919 (NSW), Land Titles Act 1980 (Tas), Transfer of Land Act 1958 (Vic) and Transfer of Land Act 1893 (WA), which have all made express provisions allowing covenants to be listed on the Torrens register. This Subtitle contains restructured and expanded commentary on significant decisions such as Forestview Nominees v Perpetual Trustees Western Australia Ltd [1998] HCA 15, Bird v Trustee Executors & Agency Co Ltd [1957] VR 619 and Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd [2001] FCA 1672.