Weaving the Ethical Tapestry in These Changing Times – Contemporary Australian Discourses Regarding the Ethical Obligations of Australian Tax Practitioners
31 Pages Posted: 10 Dec 2015
Date Written: 2010
Consideration of tax ethics has been marginalised by a positivist construction of ‘law’ which underpins many models of ethical practice. Paradoxically, although these models of ethical practice express a positivist separation of law and morality, they incorporate approaches to tax legislation that are not positivist. Elaborating this paradox, and explaining its existence, are the subjects of this paper.
Australian legal positivism holds that the law is determinate - not admitting of discretion - and hence the application of law is a neutral task undertaken by those with the requisite professional skill. Moreover, Australian legal positivists seem optimistic regarding the capacity of Australia’s political institutions to deliver law that matches the will of at least the majority because, it is said, a majority holds its political representatives accountable.
According to Australian legal positivists, these twin themes of neutrality and democratic accountability mean that there is no role for ‘ethics’ in legal domains such as taxation law. ‘Ethics’ are only relevant to the extent that they have been assimilated within the law, and hence have become law. According to this view, ethics is outside the law and therefore an irrelevance because any law reflects the moral preferences of a majority and also because the application of that law does not entail ethical decisions but rather merely technical legal determinations.
Although some commentators have called for a change in the ethical outlook of tax practitioners, in general such calls are contradicted by the respective commentator’s own commitment to some form of legal positivism. In this paper the authors argue that if there is to be a change in professional tax ethics, the mainstream positivist construction of law must also be replaced with a model that accommodates ethics as part of the law (rather than externalising ethics from law, as positivism does). For such a change to occur, the authors suggest, at least one of the two propositions of Australian legal positivism noted above must be rejected.
The purpose of this paper is: 1. to review the differing ethical models with a view to identifying the degree to which they adopt a positivist approach to law; 2. to identify the ideological and institutional factors that sustain, or jeopardise, acceptance of each of the models with a view to understanding why the contingent social construct that is legal positivism has come to be accepted as the ‘commonsense’ construction of law; and 3. to make some observations upon the prospects for adoption of a different ethical model, one which might loosely be framed in terms of an obligation to promote administration of the tax system.
Suggested Citation: Suggested Citation