Sorry about crappy formatting, these are just copy/pasted from word documents off Moodle. As you can see most of them follow a similar format (i.e. here is a topic from the reading guide, here are some cases you must consider, analyse). Most assignments are worth 40% of the final mark and are optional, meaning you can choose not to do it and sit a 100% exam instead.
Tax policy is an elective and quite differently structured to most standard law subjects so the assignment question is also quite different (also it's a compulsory assignment, FML)
Property A (compulsory subject) assignment
Spoiler
Analyse the following two cases which consider whether or not sperm is capable of being the object of property rights.
In upholding the rights of a wife to the sperm extracted from her now deceased husband during his life and stored by the respondent, White J in Bazley v Wesley Monash IVF [2011] 2 Qd R 207, 215-216, at [33] held that:
The conclusion, both in law and in common sense, must be that the straws of semen currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death. The relationship between the respondent and the deceased was one of bailor and bailee for reward because, so long as the fee was paid, and contact maintained, the respondent agreed to store the straws. The arrangement could also come to an end when the respondent [sic – deceased] died without leaving a written directive about the semen, but plainly the bailor, or his personal representatives, maintained ownership of the straws of semen and could request the return of his property. Furthermore, it must be implied into the contract of bailment, that the semen would, if requested, be returned in the manner which it was held, which preserved its essential characteristics as frozen semen capable of being used. Any extra costs associated with that redelivery would be at the applicant’s expense.
In the case of Re Edwards (2011) 81 NSWLR 198, RA Hulme J upheld the rights of a wife to the sperm extracted from her husband after his death and found that (at 214-215, [84], [86], [87], [91]):
Bazley v Wesley Monash IVF Pty Ltd and the cases from other jurisdictions provide support for the conclusion of property. Although they are not binding, they are, collectively, persuasive of the view that the law should recognise the possibility of sperm being regarded as property, in certain circumstances, when it has been donated or removed for the purpose of being used in assisted reproductive treatment. Yearworth shows a preparedness of the England and Wales Court of Appeal to extend the law considerably beyond Doodeward v Spence. However, the conclusion of property in the present case can be made under the High Court's longstanding authority without any need for further exploration of the limits of the law…
If the deceased's sperm is capable of being regarded as property, the question is then, whose property? It was not Mr Edwards' property…. upon the authority of Doodeward v Spence, as Mr Edwards did not have property in his semen when he was alive, it did not form part of the assets of his estate upon his death…
Subject to a consideration of various discretionary aspects to which I am next to turn, in my view Ms Edwards is the only person in whom an entitlement to property in the deceased's sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. Noone else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that Ms Edwards is entitled to possession of the sperm.
Compare, contrast and evaluate the cases with specific reference to how the following matters influenced the reasoning of the courts:
• The nature of the objects of the property rights claimed: how do the decisions relate to the traditional common law position of not recognising property in the human body?
• The status of the subjects claiming those property rights: to what extent does the recognition of property rights in these cases depend on the social status of the claimants?
• The types of rights claimed: to what extent are the decisions influenced by the characterisation of the rights claimed as being rights to title over the objects or rights merely to possession?
• Which theories justifying private property have the courts drawn upon?
Are the cases rightly decided?
Your answer should draw on the cases themselves as well as your own broader research of the issues. While you should have an understanding of the context within which the decisions are made, you do not need to research areas of law beyond property law such as the law of estates or the laws relating to assisted reproductive treatment.
Referencing should comply with the Australian Guide to Legal Citation (Melbourne University Law Review Association Inc, Melbourne Journal of International Law Inc, 3rd ed, 2010). A bibliography must be provided.
Property B (compulsory subject) assignment
Spoiler
In Giumelli v Giumelli (1999) 196 CLR 101, the High Court made the following observations:
2. In submissions to this Court, the term "constructive trust" was used to identify the nature of the equitable remedy granted by the Full Court. Care is required in the use of the term "constructive" in this context. Professor Scott has pointed out (Scott on Trusts, 4th ed (1989), vol 5, §462.4):
"It is sometimes said that when there are sufficient grounds for imposing a constructive trust, the court 'constructs a trust.' The expression is, of course, absurd. The word 'constructive' is derived from the verb 'construe,' not from the verb 'construct'. ... The court construes the circumstances in the sense that it explains or interprets them; it does not construct them."
The relief granted by the Full Court involved a trust that was "constructive" in that way. The Full Court so interpreted the circumstances as obliging the appellants, in good conscience, not to retain their beneficial interest in the whole of the Dwellingup property and as requiring them to answer the respondent's equity by bringing about a subdivision of the Promised Lot and conveying the title to it. The equity of the respondent was seen by the Full Court as sufficiently strong as not only to prevent the appellants from insisting upon their strict legal rights but also, in respect of the Promised Lot, to convey it to the respondent.
3. A constructive trust of this nature is a remedial response to the claim to equitable intervention made out by the plaintiff. It obliges the holder of the legal title to surrender the property in question, thereby bringing about a determination of the rights and titles of the parties…
9. … [ B ]y obliging the appellants to execute a conveyance, the equity established by the respondent did more than prevent the appellants from insisting upon their strict legal rights as present owners. On the other hand, the respondent did not establish an immediate right to positive equitable relief as understood in the same sense that a right to recover damages may be seen as consequent upon a breach of contract.
10. … Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust.
Is the account of the court’s role at [10] consistent with the characterisation of the constructive trust at [2]? In answering this question, you must also consider the reliance upon Giumelli v Giumelli in the following two pieces of judicial reasoning:
Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 at [143]-[145], [151], [165]-[172] (per Ward J);
Donis v Donis [2007] VSCA 89 at [18]–[24] (per Nettle J).
Trusts (compulsory subject) assignment
Spoiler
On what legal basis (or bases) is an object of a discretionary trust entitled to access trust information? In your answer, you must address the following issues:
(a) In what circumstances can a trustee (or trustees) of a discretionary trust refuse to disclose trust information?
(b) How, if at all, are these rules related to the characterisation of a trust as a relationship with respect to property?
(c) Is there a need for law reform to clarify the rights and obligations relating to access to trust information, especially in the context of discretionary trusts?
Tax policy (elective) assignment
Spoiler
The Business Council of Australia (BCA) recently released the Action Plan for Enduring Prosperity which, among a broad range of reform recommendations, proposes ‘a comprehensive overhaul of Australia’s taxation system’ in order to make the tax system simpler and ‘more competitive’. Recommendations include ‘improve[ing] the tax mix with a view to moving, over time, to a system where there is less reliance on capital and income taxes and more reliance on efficient and less volatile indirect taxes.’ Among the recommendations is a proposal to broaden the base and increase the rate of the Goods and Services Tax (GST) in part to fund a 5 per cent decrease to the company income tax rate:
Consideration should be given to raising the rate of GST as well as broadening its base as a means of providing additional revenue to replace revenue forgone from the abolition and reduction of other taxes. This process should include arrangements to provide appropriate compensation for households.
The proposal attracts widespread criticism including a campaign attacking the proposals by the lobby group, GetUp,. Australia’s peak welfare body, the Australian Council of Social Services (ACOSS), releases a response to the proposals stating that a fairer approach to tax reform would be to engage in progressive tax reform that expands the income tax base. ACOSS’ position, informed by an earlier report it released on the issue, provides that:
Different kinds of income should be taxed more consistently so that people contribute to meeting the needs of the community according to their ability to pay…The share of tax revenue from high income earners should increase and that from low and middle income earners should reduce…The overall share of tax revenue from taxes on investment incomes and assets should not be reduced. This implies that the share of revenue raised from taxes on income should not fall and the share from consumption taxes should not rise…The overall level of revenue from corporate and business income taxes should increase (and at least not decline).
You are a policy adviser working for a non-partisan, independent think-tank - Fiscal Independence. The role of your organisation is to advance informed debate on fiscal policy. You have been asked to contribute to the policy debate by producing a feature length article for a leading policy journal that summarises the major issues raised by the BCA proposal in a manner that is accessible to a general policy audience. Although you are encouraged to express your own opinion, the editor emphasises the need to canvass the merits of the arguments on all sides of the debate. You are also directed to advise on how the political context of translating any reform proposal into law would influence the prospects of any proposed reform.