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Australian Business Law Review
Volume 35, Number 1, February 2007
Corporate governance and SMEs: The forgotten stakeholders?
A D Clarke
This article examines the proposition that SMEs are the forgotten stakeholders in the fair, efficient and effective management of Australian corporate governance. This argument is predicated on the basis that the "corporate governance market" is essentially and overwhelmingly aimed at large listed and other public companies of a size and stature beyond the usual remit of SMEs. In line with the broader issue referred to above, it is assumed that the rules, norms and best practice related to the contemporary Australian corporate governance project will automatically filter down to SMEs. This assumption ignores the technical and rapidly expanding nature of that project, characterised as it is by John Farrar's four-fold definition of corporate governance enveloping hard, soft and hard-soft or hybrid law. The difficulty for SMEs is that neither resources nor practical guidance are offered to their multi-tasking managers and directors charged with corporate governance compliance. It is only by means of default that the system of corporate governance takes into account the interests of SMEs. The CLERP reforms, for example, have affected SMEs disproportionately, as their key personnel are stretched to providing compliance and monitoring, in addition to maintaining the ongoing management of firms. It is argued that the current approach is both politically unfair and economically inefficient. Legislators need to re-imagine the contemporary nature and architecture of SMEs; in this way, corporate governance can be refigured so as to better reflect the particularities of, and challenges faced by, Australia's huge array of SMEs. This article is in five parts. First it briefly examines competing concepts of SMEs. It then considers three key matters that inform the architecture and operation of corporate governance in Australia: politics, resources, and so-called "trickle-down" effects. The final part contains suggestions for re-examining Australian corporate governance so as to make it more relevant to, and appropriate for, SMEs.
The taxation of international maritime leasing profits: Has the commissioner's ship come in?
In light of McDermott Industries (Ault) Pty Ltd v Commissioner of Taxation, and Draft Taxation Ruling TR 2006/D8, this article considers the current Australian taxation position of profits arising from the cross-border leasing of vessels in the maritime industry. It focuses on the tax treaties to which Australia is a party, in particular the application of the business profits provisions of those treaties, and the deemed existence of a permanent establishment where substantial equipment, owned by a fiscal non-resident, is used within Australian waters.
What is an exclusionary provision? Newspapers, rugby league, liquor and beyond
I S Wylie
Practitioners have long struggled to identify whether and when their clients entering into joint ventures or other pro-competitive arrangements might inadvertently fall foul of the per se proscription of exclusionary provisions in ss 4D and 45(2) of the Trade Practices Act 1974 (Cth). Proposed amendments following the Dawson Review in 2004 partially addressed this issue by providing for common treatment of price fixing and exclusionary provisions with the introduction of a broader joint venture defence with a competition test. The resulting Dawson Bill finally passed in the Senate on 19 October 2006. At the time of writing, it is relevantly anticipated to commence on l January 2007, but it does not make any change for non-joint venture arrangements. The current legislation was the subject of two High Court decisions in 2003, South Sydney and Rural Press. Most recently, the first instance judgment in Woolworths, which considered in some detail and sought to apply those cases, was delivered on 30 June 2006. This article accordingly explores the current state of the Australian case law and legislation, how effectively it is being applied and whether there is room or need for change.
CONSUMER DEALINGS - Chris Field
Reviewing Australian consumer protection
COMPETITION LAW AND MARKET REGULATION - Stephen Corones
Does mandatory access threaten infrastructure investment?
BOOK REVIEW - Peter Lithgow
Class Actions in Australia by Damian Grave and Ken Adams