Melbourne Law School - Theses
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ItemMoratorium legislation in the Canadian and Australian rural sector : its history and present utility( 1989)A. The Analysis and Problem 1. At Common Law the rights of creditors were virtually absolute. 2. Over time, the law has whittled away the unimpeded rights of unsecured creditors through bankruptcy and insolvency legislation. 3. Secured Creditors have also had rights, throughout legal history, which were, virtually, inviolate. 4. In Canada and in Australia, bankruptcy legislation has had very little effect on the rights of secured creditors. 5. However, in times of crisis, even the rights of secured creditors have been restricted in the interest of the common good. 6. The pendulum continues to swing in favour of creating more rights in favour of debtors and restricting secured creditors' rights in Australia and Canada. 7. There is a strong lobby urging the restriction of secured creditors' rights as they relate to farm debtors due to the extreme economic hardship faced by those persons during the 1980's. B. The Issues 8. Whether it is appropriate to further expand the rights of debtors and to restrict the remedies of secured parties in any circumstances through moratorium legislation. 9. Whether farm debtors fit within the principles justifying interference with secured creditors' rights. 10. What safeguards should be inserted in such legislation to ensure that there is proper balance for the legitimate concerns of both debtors and creditors. C. Conclusions 11. Present legislation in Canada is deficient and does not properly assist either debtors or creditors involved in the present farm difficulties. 12. Australian legislation is superior because it has addressed all of the issues facing agriculture and has recognised that there must be adjustment in agriculture. 13. There is a place for moratorium legislation as a means to an end, namely, in promoting alterations in the agricultural sector to promote future efficiency and, potentially, to assist in the transition of nonviable farm enterprises out of the agricultural sector. 14. However, steps must be taken to preserve and protect the fundamental and historical freedoms of creditors.
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ItemResources joint ventures and the Trade Practices Act( 1989)Joint ventures are a popular form of enterprise structure in the resources sector in Australia. Despite the absence of hard data, it is estimated that at least half the expenditure on mineral exploration and virtually all petroleum exploration in Australia in recent years has been through joint venture arrangements. So it is elsewhere, and in other fields. In resource exploration and exploitation, engineering and construction, manufacturing, and research and development, various forms of joint ventures are being relied on increasingly as vehicles for business. In competition policy terms, the creation and activities of joint ventures present special .problems. Whereas competition policy seeks to encourage competition between participants in the marketplace, joint venture arrangements involve cooperation between participants, often resulting in a lessening of competition. There are advantages and disadvantages to be weighed; a balancing test involving beneficial economic effects, and anti-competitive detriments. The task of legislators and competition authorities (in Australia, the Trade Practices Commission) has been and remains to develop and implement a framework which allows joint ventures to develop in an economically beneficial way, whilst at the same time circumscribing their anti-competitive effects. The object of this paper is to examine the approach to this problem which has been developed in Australia, and distilled in the Trade Practices Act 1974 ("the Act"), in the context of resources joint ventures. It is timely to undertake such an examination The Act has now been in force for 15 years and its principles have been applied in a number of determinations, particularly in the last two years. I have adopted what I hope is a relatively straightforward approach to this task. First, in Part 2 of the paper, I attempt to identify the characteristics of resources joint ventures in Australia which are significant in the context of competition policy. Also in this part, I outline the costs and benefits of joint ventures, as they are perceived in competition theory. Secondly, in Part 3 of the paper, I describe the competition provisions of Part IV of the Trade Practices Act, and the adjudication provisions set out in Part VII. Whilst these will be familiar to many readers, they are included here not only for the sake of completeness and the aid of those unfamiliar with the Act, but also because a detailed understanding of these provisions is essential to the analysis and discussion which follows. These provisions embody the regulatory approach to the problem, which is in essence to subject joint ventures to the full spectrum of competition laws (with limited exceptions), but subject to an adjudication process which permits authorised contraventions on public benefit grounds. In Part 4, the meaning of some concepts which are essential to the practical application of the competition and authorisation provisions (namely, "competition", "market", "public benefit" and "dominance") is explained. This is done by reference to decided cases and also to the determinations of the Trade Practices Commission ("the Commission") in the case studies discussed in the Schedule to this paper. Part 5 of the paper examines the competition issues which arise upon the formation of a joint venture. This involves a consideration of Section 50 of the Act (which proscribes mergers or acquisitions leading to market dominance) in relation to the joint venturers individually (the "parents") and the joint venture itself (the "child"). In Part 6, I examine some specific provisions of resources joint venture agreements which have the potential to contravene the Act. These are, namely, area of mutual interest, assignment and non-competition provisions. Also in this part, the trade practices implications of joint venturers' cooperative marketing and joint acquisition arrangements are considered. Throughout the paper, extensive references are made to various determinations of the Commission made since the inception of the Act, which involve resources joint ventures. Summaries of these determinations and the issues which they have considered are set out in the Schedule. These cases provide practical illustrations of the types of competition issues to which resources joint ventures give rise, and the public benefits which have been accepted as outweighing anti-competitive detriment. It is important to emphasize at the outset that competition policy does not operate in a vacuum. Not only does the cause of competition require to be subordinated from time to time to the greater economic benefits which flow from joint ventures; it must also take its place in the ranks of other government policies, not all of which are compatible with it. Examples of this dilemma can be found in the paper; specifically with respect to government policies dealing with crude oil marketing and tenement licensing. Reconciliation of these conflicting policy goals is of course the daunting task of the bureaucracy and the legislature. It is also important to acknowledge the matters which I have not addressed in this paper. First, I have confined my analysis to those provisions of agreements or types of conduct which are an integral part of, or peculiar to, resources joint ventures. This is not to say however that this paper presents a comprehensive picture of the interface between resources joint ventures and competition law. Many activities engaged in by joint venturers with respect to their joint ventures may involve anti-competitive forms of conduct (such as exclusive dealing, tying, predatory pricing or refusals to deal) which invoke the provisions of the Act. However, these forms of conduct are not peculiar to joint ventures, and it is not within the scope of this paper to deal with them. Secondly, the paper is confined to an analysis of the Australian Trade Practices Act. The extra-territorial application of foreign competition and anti-trust laws is not addressed.(2) Thirdly, the paper does not contain any comparative analysis of competition laws in other countries. The issues which are discussed in this paper have been addressed (to varying extents) in the United States, Canada, Japan and the EEC nations. Had time and space permitted, it would have been of interest to compare the approaches adopted by these various countries, and to consider whether an alternative approach should be adopted here.(3) Shortly before this paper was completed, the High Court handed down its decision in the Queensland Wire case (4) The decision in that case has signalled the court's preparedness to adopt a purposive approach to the application of the Act, bearing in mind its objective of fostering competition. This, coupled with the more visible and assertive role being adopted by the Commission, has heightened and reinforced the need for joint venturers to have the Act, and competition policy generally, firmly in mind when contemplating their agreements and arrangements
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ItemCapital gains tax and the resources industry( 1988)In one of the most significant events in the history of government funding since the introduction of uniform taxation, the Federal Labor Treasurer, Paul Keating, announced the introduction of a Capital Gains Tax for Australia on 19 September 1985. This paper assesses the application of this new form of impost to one of the largest and most capital intensive industry sectors in Australia, the resources industry. Such an analysis must necessarily be considered in the context of the peculiar Federal and State regulatory frameworks governing the exploration and exploitation of minerals and petroleum. In particular, the following discussion will focus on the precise scope and operation of the terms 'asset' and 'property' - which together operate as the fulcrum of the capital gains tax provisions. It is the object of this paper to show that non-proprietary 'assets' are not adequately included within the ambit of the capital gains tax provisions. On the premise that property law concepts necessarily underpin the capital gains tax provisions, an examination will be conducted of the 'proprietary' nature of various mining rights, including permits, leases, licences, royalty interests and information. The potential application of capital gains tax in the resources industry turns heavily on the resolution of this 'threshold' issue. It will be seen that the capital gains tax provisions incorporated into the Income Tax Assessment Act 1936 (Cth) (the Assessment Act) do not, apart from three separate sections, address themselves specifically to the resources industry. It is this decision to deny the resources industry special consideration that has created the most widespread uncertainty and enduring resentment, particularly in view of the industry's historically preferred tax treatment. It will be submitted that specific attention must be given in the capital gains tax provisions to the wide variety of traditional mining and petroleum 'interests', rather than attempting to mould them into a definitional context with a clear cornmon law proprietary bias.