March 2013 Highlights

Subtitle 2.1 Administrative Law System

Updated by Mark A Robinson SC, Barrister, Supreme Court of New South Wales and High Court of Australia, Barrister, Wentworth Chambers

The theoretical bases underlying the administrative law system are the focus of this Subtitle. The Subtitle examines the administrative system in its legal and constitutional context, and the nature, exercise and control of administrative acts. An important development that the author examines is the constitutional entrenchment and protection of administrative law in the States as a result of the decision of the High Court of Australia in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; 84 ALJR 154; 190 IR 437; [2010] HCA 1.

Subtitle 2.2 Delegated Legislation

Updated by Mark A Robinson SC, Barrister, Supreme Court of New South Wales and High Court of Australia, Barrister, Wentworth Chambers

This Subtitle discusses delegated legislation, which is a form of legislation made by persons or bodies other than Parliament. This update includes in-depth commentary on the Legislative Instruments Act 2003 (Cth), as well as the statutory instruments allowing the creation of delegated legislation in each State and Territory. Discussion in this update is focused on drafting, consultation, registration and tabling standards. This update includes commentary on the landmark cases Minister for Foreign Affairs & Trade v Magno (1992) 37 FCR 298 and Plaintiff M47/2012 v Director General of Security (2012) 86 ALJR 1372; [2012] HCA 46

Subtitle 3.3 Voluntary Bankruptcy

Updated by Dr Colin Anderson, Associate Professor, School of Law, Queensland University of Technology

This Subtitle deals with the law enabling a person in a hopeless financial position to initiate voluntary bankruptcy and so have the opportunity to "start again" free of debt. The mechanism by which this is done is the "debtor’s petition". Through examination of the Bankruptcy Act 1966 (Cth) and pertinent case law, the Subtitle discusses who can present a debtor’s petition (including in relation to individuals, joint debtors, and partnerships), when a debtor’s petition cannot be presented, and the procedures on and after voluntary bankruptcy. Abuse of the process and consequences of the same, are also considered. Reference is made to creditors’ petitions too.

Subtitle 4.4 Receivers and Managers

Updated by Adjunct Professor Richard Fisher AM, Solicitor, Supreme Court of New South Wales, Adjunct Professor, Faculty of Law, University of Sydney, General Counsel, University of Sydney and James Marshall, Solicitor, Supreme Court of New South Wales, Partner, Ashurst Australia

This Subtitle discusses the terms and the effect of the appointment of a receiver or of a receiver and manager to a company’s property, including the powers, duties and liabilities of the receiver. This update examines major developments in this area following the introduction of the Personal Property Securities Act 2009 (Cth), including the appointment of a receiver under a "PPSA security interest", and the priority of secured creditors as against a receiver’s appointer where the creditor has a "purchase money security interest". The Subtitle also examines the changes to the Goods and Services Tax (GST) legislation in relation to the GST liability of receivers, in particular the enactment of Div 58 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) following the decision in Deputy Federal Commr of Taxation v PM Developments Pty Ltd (2008) 173 FCR 247; 70 ATR 741; [2008] FCA 1886. In this comprehensive update, the authors also discuss important developments in the case law, including Newtronics Pty Ltd v Atco Controls Pty Ltd (2008) 69 ACSR 317; [2008] VSC 566 and South Johnstone Mill Ltd v Dennis (2007) 163 FCR 343; [2007] FCA 1448.

Subtitle 31.12 Administration

Updated by Robin H Woellner, Adjunct Professor, James Cook University, and Adjunct Professor University of New South Wales

This Subtitle examines the key elements of tax administration in Australia. This includes the responsibilities of taxpayers and tax professionals, the Australian Taxation Office’s powers of investigation and collection of information, private, public and oral rulings, income tax returns and assessments, reviews and appeals of tax decisions, collection and recovery of tax owing, and the imposition of penalties for breaches of taxation laws and other provisions. This Subtitle includes changes to the administration of tax in Australia as a result of the Tax Agent Services Act 2009 (Cth) and the Tax Agent Services Regulations 2009 (Cth). This Subtitle also includes discussions on recent relevant cases such as May v Federal Commissioner of Taxation (1999) 92 FCR 152; 42 ATR 270; [1999] FCA 287; Re Optimise Group Pty Ltd and Federal Commissioner of Taxation (2010) 79 ATR 953; 53 AAR 117; [2010] AATA 782; Sent v Federal Commissioner of Taxation (2012) 57 AAR 27; 128 ALD 24; [2012] FCA 382 and Federal Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146; 82 ALJR 1177; 69 ATR 41; [2008] HCA 32.

April 2013 planned updates (please note that updates are subject to change):

• 8 Contracts: Specific 8.2 “Real Estate Agents”
• 14 Environment and Natural Resources 14.12 “Mining”
• 26 Labour Law 26.5 “Workers’ Compensation”
• 28 Real Property 28.15 “Physical Limits to Land”
• 33 Torts 33.11 “Concurrent Torts”