60-second interview with John Glover

John Glover , 13/2/2019

Prof John Glover teaches at the Royal Melbourne Institute of Technology’s (RMIT) University Graduate School of Business and Law and practises as a barrister at Owen Dixon Chambers East, Melbourne.

What does your firm or organisation do?

I teach the Laws of Equity, Wills, Trusts and Taxation at RMIT (Royal Melbourne Institute of Technology) University’s Graduate School of Business and Law, while most of my work at Australia’s Victorian Bar focuses on trusts and taxation.

What is the most important thing STEP does, in your opinion?

STEP has a vital role in advancing knowledge and debate on trusts and estates matters. From a personal point of view, I much value the opportunity to meet and interact with colleagues at STEP State conferences in Australia.

You will be speaking at the STEP Australia Conference in May. What will you be speaking on and what are the main issues?

I’ll be discussing unexplained wealth orders, ‘effective control’ of discretionary trusts and the Proceeds of Crime Act 2002.

Attendees may be unaware of how unexplained wealth order amendments to the Proceeds of Crime Act apply to trust assets. If the Commissioner of Taxation expresses suspicion, trust controllers may be compelled to attend court and demonstrate, on the balance of probabilities, that trust assets were not acquired in contravention of the Tax Administration Act 1953 and comparable legislation.

If this is not achieved, courts must order that the difference between a trust’s total wealth and its legitimate wealth (ie the unexplained wealth amount) be paid to the Commonwealth. There is no need to establish triggering tax offences; trust assets are simply confiscated if their provenance is unexplained.

Unexplained wealth order provisions apply only imperfectly to discretionary trusts. If a person is not the trustee or appointor, he/she may not be considered to be in effective control of a discretionary trust.

There are no deeming provisions in the Income Tax Assessment Act 1936 where a trustee is ‘accustomed’ or ‘might be expected’ to act in accordance with a person’s directions.

What will be the key point or points that you would want attendees to take away?

In my view, there are problems with the application of the unfair wealth order regime to discretionary trusts. This is important as 80 per cent of Australian trusts are discretionary in form and there are over 845,000 trusts in Australia, but the message to practitioners is ‘don’t despair!’

What do you most like about your job, and feel is most worthwhile?

I find it challenging to work at the intersection of trusts and tax law categories.

What would you say to a young person thinking of a career in this industry?

If you’re teaching at a university, be prepared to teach in areas outside your interests, and write on one or two specific subjects. I’d also recommend giving presentations at practitioner events.

If you’re practising as a barrister, you’ll need to adjust to having a lot of work at certain times but at other times much less. You may also find that appearing in court may involve unfamiliar areas of practice.

What do you feel are the main challenges facing your organisation at the moment, and how will you deal with them?

As a university teacher I find online teaching and dealing with ‘virtual’ students a challenge.

In my work as a barrister, it can be challenging to work without large-firm support systems. Despite this, it’s paramount to maintain the independence of barristers and their judgment. They must be prepared to give advice to clients that may be contrary to the commercial interests of the solicitors’ firms briefing them.

Prof John Glover teaches and researches in equity, trusts and taxation law at the Graduate School of School of Business & Law, RMIT University, in Melbourne.

He also practises as a barrister in the fields of trusts and taxation and has appeared in state Supreme Courts and the Federal Court of Australia. Since 1998 he has been a sessional member of Victorian Civil and Administrative Tribunal (Review and Regulation - Taxation List).

He has written Equity, Restitution & Fraud (LexisNexis, Sydney, 2004), Commercial Equity: Fiduciary Relationships (Butterworths, Sydney, 1995) and Fraud, Insolvency and Civil Wrongs: Property Rights in Common Law Legal Systems (Dosije, Belgrade, 2011) (in Serbian translation), as well as over 60 book chapters and articles in refereed law journals. He is also a co-author of Ford & Lee: The Law of Trusts 5th edition (2015).

Between 2016 and 2018, he was employed by the Australian Taxation Office on a project to examine how the tax system performs in relation to trusts, with a particular focus on discretionary trusts linked to high-net-worth individuals.