State Regulation and Non-state Law
Edited by Hanneke van Schooten and Jonathan Verschuuren
Chapter 9: Barristers Beyond the Law: State and Non-State Actors Work in Partnership to Enforce Legal and Moral Norms
Jenny Job 1. INTRODUCTION It can come as something of a surprise when so-called pillars of society break the rules and choose non compliance. This was the situation in the Australian state of New South Wales (NSW) in the late 1990s and early 2000s when many barristers chose to ignore their obligations to comply with taxation law by using bankruptcy law to nullify their debts to the Australian Taxation Oﬃce (ATO). In doing so, they also chose to ignore the rules of their profession about behaving ethically. Even more surprising, the Bar Association chose not to enact the sanctions in its rules and, initially, did not deal with the non compliance of its members. The tax oﬃce, its peers and the community trusted and expected the Bar Association to self regulate. The actions of the barristers concerned broke state and non-state laws, denied the community the use of millions of dollars in taxes, exposed their culture to public scrutiny and tarnished the reputation of the profession. The challenge for the tax oﬃce was in securing compliance in such a situation. Prosecution was an option, one typically used by taxation administrations, but this problem was not conﬁned to just a few individuals. As well, bankruptcy law is not administered by the tax oﬃce. Other options for ensuring compliance were needed. Despite the supposed clarity that has been given to the deﬁnition of law through distinguishing legal and moral norms (Tamanaha 1995), it has by no...
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