New Modalities in Tax Decision-Making: Applying European experience to Australia

This article criticises the current situation in judicial decision making which it says is overly dominated by ‘old fashioned’ conservative legalistic analysis. It compares this with the UK’s experience of the European challenge to its Common Law. The article urges Australian jurisprudence to learn from the European civil law. By this means, it suggests, core public policy imperatives will be permitted to shape the tax decision making agenda. This would make Australian tax judges more accountable for the application of policies against tax avoidance, and other policies behind statutory rules. The article concludes by urging Australian tax teachers to contribute to the development of a culture of accountability by judges and to take the lead in criticising the performance of judges in how they deal with policy and principles when making decisions.