Open Journal Systems at the Victoria University of Wellington Library
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Dissonance between Fact and Law: The Example of Visual Artistic Practice and Income Tax Concessions for Peak Copyright
Get PDFThe principal income tax statutes of both New Zealand and Australia provide special concessions for taxpayers who earn exceptional copyright income in a year of assessment. As authors (creators) of copyright-protected artistic works, visual artists are potential beneficiaries of these preferences but, because they typically produce singular artworks that are not licensed for reproduction, they cannot directly benefit from copyright or, as a consequence, tax concessions granted to copyright assignors or licensors. In New Zealand, a taxpayer who receives peak copyright payments can opt to average those receipts over more than one assessment year. An Australian taxpayer can spread their more broadly defined assessable professional income and, if they operate a professional arts business, may enjoy an exception to the non-commercial loss rules, and so may claim net losses in the year they are incurred. The substantive provisions of neither the Income Tax Act 2007 nor the Income Tax Assessment Act 1997 (Cth) expressly incorporates provisions of copyright legislation but both taxing statutes explicitly import copyright terminology and, implicitly, concepts and doctrine. Examination of differences between fact and law is a significant field of legal research. In taxation studies, John Prebble's identification of "ectopia" presents the best-known analysis. Prebble characterises income tax law as "ectopic" (out of place), inasmuch as it is dislocated from the facts to which it relates. Copyright law is likewise dislocated from typical artistic practice. When copyright principles are incorporated into income tax legislation, the relevant provisions may be doubly estranged from the facts to which they relate. This article, which has an Australasian jurisdictional focus but also draws on Quebecois tax legislation, investigates that possibility and considers, in particular, the consequences for equity in income taxation
Rating of Māori Land: A Legal History
Get PDFThis article deals with the rating of Māori freehold land as a case study of a field of law where Māori Land Law and Taxation Law overlap. Rates, are, of course, a type of tax. For Māori landowners, paying rates and rates debts were probably the most important tax-related problem they had to confront. The issue was not only that Māori landowners often could not afford to pay rates. While that was the case, the real issue was the overlay between Māori land law and tax law as such. The real problem with rating of Māori land was the Māori land law system itself. This article explains why this is so, and utilises rating law as a window into the complexities of the statutory Māori land law system and the complexities it caused to Māori landowners
Intellectual Property's Territorial Framework and the Macro-Level Contradiction with Tax Policy
Get PDFMany large intellectual property owning firms have not paid "fair taxes" in the territories where they achieve sales and licences of their products. Rather, they tend to utilise regimes where they pay as little tax as possible. The international taxation system has allowed this to happen extensively. This is currently under challenge from some governments and the OECD. In this tribute to renowned tax scholar, John Prebble, the territorial nature of intellectual property is explained. Territoriality is a key organising principle of the existence of intellectual property rights, their exploitation and enforcement. At a high-level the territorial nature of intellectual property is not consistent with what happens to the profits of its exploitation, rather at a macro-level the frameworks of the international intellectual property regime and the international tax regimes are in contradiction
Future-Proof Doctrine or Relic of an Equitable Past? Unconscionable Conduct in the Fair Trading Amendment Act 2021
Get PDFThe Fair Trading Amendment Act 2021 introduced a New Zealand prohibition on "unconscionable conduct" in trade. Previously, the law on unconscionable conduct was found in the equitable doctrine of unconscionable bargain. This article describes how New Zealand law has moved away from equitable unconscionability with this new prohibition. This article critically analyses some of the legal, social and economic justifications for introducing the prohibition, finding that some of the Ministry of Business, Innovation and Employment's justifications are not persuasive. The s 7 prohibition is based strongly on an equivalent section in the Australian Competition and Consumer Act 2010 (Cth). It is argued that long-standing doctrinal issues with Australia's prohibition provided a strong basis for New Zealand to pursue a different standard. Finally, this article explores the "unfair commercial practices" doctrines in the United States and European Union through the lens of anti-consumer practices in digital marketplaces. The conclusion is that the unfair commercial practices doctrine captures a wider range of anti-consumer conduct than does unconscionable conduct
Climate Adaptation Law Reform: a lot of argument still to come
No full textNew Zealand’s existing law and policy is not adequate to provide for appropriate adaptation to the effects of climate change. The government has adopted recommendations to replace the current Resource Management Act with a new suite of resource management laws, including for climate adaptation. The recommendations include bold measures to ensure that people and property are not subject to climate hazards in the future, and for funding mechanisms to enable the required changes. Much policy is still to be developed but the potential exists for better adaptation planning and decisions, with more certainty and lower litigation risks. This article summarises the proposed reforms and comments on how well they provide what is needed for better climate adaptation laws
Building Act Reform for Building Users
Get PDFThe Building Act 1991 established the New Zealand government’s role in ensuring the safety, health, independence and well-being of building users. To this end, the 1991 Act and subsequent iterations recognise that people with disabilities need buildings that meet disability design standards. However, these standards are not required for the design of private dwellings. This article uncovers the historical practices that made such exclusion acceptable, and challenges policymakers to rethink the relationship between government, private dwellings and the health and wealth of the nation. The purpose is to highlight flaws in the framing of the review of the current Building Act, identify critical questions that need to be addressed by policy analysts, and call for a full review of the Act’s failure to achieve its stated purposes
Changing Freshwater Management in New Zealand: looking to the future we must look back
Get PDFFreshwater management policy in New Zealand is currently undergoing major upheaval. It is abundantly clear that the existing policy failed its stated goal, to protect freshwaters for future generations. Therefore, this is a crucial time to look back and see where policy failed so we can avoid repeating the same mistakes. The implementation failures included setting inadequate objectives, failing to monitor outcomes, and failing to adequately enforce even those compromised objectives. Furthermore, there were policy shortcomings, revealed by an almost total failure to deal with the diffuse nature of the biggest environmental impacts
Adapting to Avoidable and Unavoidable Climate Change: What must Aotearoa New Zealand do?
Get PDFThe Intergovernmental Panel on Climate Change report Climate Change 2022: impacts, adaptation and vulnerability gives a stark warning of the urgency to adapt to avoidable and unavoidable climate change impacts and to transition to a more climate-resilient future. Aotearoa New Zealand has made some progress in setting up the institutional and planning frameworks for adaptation, but implementation is slow. Delay will increase the adverse consequences for humans and ecosystems, widen the adaptation gap, and increase the cost and damage burden to current and future generations, and those least able to adjust. Taking proactive actions today to avoid further exposure will enable a fairer and more robust and effective path for adaptation. Here we develop a report card for Aotearoa New Zealand’s adaptation effort and recommend what we must do next
House Prices and Wealth Inequality in New Zealand
Get PDFThis article discusses the relationship between house prices, the wealth distribution and wealth inequality. It considers long-term changes in overall wealth distribution in New Zealand and the share of wealth that is held in the form of housing. It also explores the potential impact of large increases in house prices using a ‘scenario’ approach – modelling the effect of house price growth scenarios on the 2018 wealth distribution and, in turn, wealth inequality, while holding all else constant. The article shows how looking at headline measures can obscure changes in wealth inequality between groups. It also reinforces the value of complementing such analysis with measures that illustrate other dimensions of wellbeing
Fuel Poverty or Energy Hardship? Analysing the literature, the proposed official definition, and the views of experts in Aotearoa New Zealand
No full textFuel poverty is a serious condition in New Zealand, caused by the inability to afford sufficient energy services and resulting in detriment to health and wellbeing. Inconsistent ways of describing and measuring fuel poverty affect the perception and depth of the issue and the proposed interventions. This article analyses the proposed definition and indicators of energy hardship developed by the Ministry of Business, Innovation and Employment, in addition to the literature and the perspectives of five New Zealand experts. Findings suggest that the proposed energy hardship description and measures are well-aligned with the recommendations given by the interviewed experts and the literature findings on fuel poverty, which bodes well for effective interventions to minimise the issue
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