International Governance and Law
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International Governance and Law

State Regulation and Non-state Law

Edited by Hanneke van Schooten and Jonathan Verschuuren

Around the world, the role of national regulation is often hotly debated. This book takes as its starting point the fact that legislatures and regulators are criticized for overregulation and for producing poor-quality regulation which ignores input from citizens and stifles private initiative. This situation has enhanced the role of non-state law, in forms such as self-regulation and soft law. In this book, international scholars in various fields of law, as well as socio-legal studies, address the question to what extent non-state law currently influences state regulation, and what the consequences of non-state law are likely to be for state regulation.
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Chapter 9: Barristers Beyond the Law: State and Non-State Actors Work in Partnership to Enforce Legal and Moral Norms

Jenny Job


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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