The Senate committee hearings with testimony from high profile executives from some very large corporations have brought to notice the strategies to shift profits in order to avoid paying taxes in Australia. The companies claim that they are acting legally. The counter claim is that such manipulation of the law is unfair – it is not ethical.
I am not competent to deal with the all complexities on tax law or the international agreements that are relevant to this problem. But even those who are competent do seem to suggest that there are problems largely arising from the failure of the law to keep up with changing technology in relation to the jurisdictional character of a nation state. Trevor Boucher has provided such a contribution on this blog.
This is not a new problem. The growth of large corporations in both Europe and the emerging US was greatly assisted by the introduction in law of limited liability for business corporations. This change enabled the mobilisation of significant capital in order to undertake extensive enterprises.
Limited liability was a compromise on the part of the community in which the corporation was located to limit liability where it would normally have arisen in order to get things done for the benefit of the community. However the internationalisation of business enterprises in the twentieth century has complicated the nation state basis of the location and operation of corporations. This has been vastly accelerated with the growth of the internet and of information technology generally. It is not surprising that the IT companies Google and Apple are in the spotlight in the present debate.
Within nation states business corporations have gained significant influence on governments. To some extent, we see that here in Australia but it is a trend that has advanced to a far greater degree in the US. The capacity of the US government to secure legislation against the interests of business corporations is now very limited.
There is no ethical reason that should inhibit governments making laws that favour business corporations, or any other organisations such as unions, charities, or a multitude of other corporations as long as those laws serve a discernible good for the community which the government exists to serve. Such tax concessions are in principle not much different from grants given to organisations or groups in the community. Enormous subsidies to the car industry over the years have been justified on the basis of a benefit to the community. That is in essence an ethical judgement.
Similarly grants to private schools, sporting bodies and a host of other community organisations are judgements made on the basis of a benefit to the community. Not everyone agrees with every decision made by the government or particular ministers. But that is part of the democratic character of the society in which we live. People are free to seek to influence such decisions either to lobby for them or to campaign against them. If they are to make a success of such endeavours they need to persuade either the broad community or those with authority to make decisions that their case is based on the benefit of the community. That becomes an essentially ethical question – what is for the good of the community.
In the current debate there is some talk about whether the corporation is acting unethically – is the profit shifting for tax avoidance unethical, or in its more usual form in the debate is it unfair. In a number of senses the corporation has some of the characteristics of a person – it can be sued for example. It has a corporate memory, it has patterns of internal operating relationships that can be seen to be more or less attractive in ethical terms. It can be seen to have a corporate memory, though like the memory of an individual that does not mean that that memory will or should determine future actions. However it is hard to see the corporation as in itself an ethical agent in the same sense in which a human individual is. Nonetheless it remains the case that the corporation is a complex set of internal and external relationships which are susceptible of ethical appraisal.
The key issue in the present situation is the decision making structure of the corporation, ultimately of the board. In general board members are required to decide matters in terms of the purpose and well being of the corporation. They are bound by what we might call an ethical obligation to the benefit of the corporation. But as individuals they remain ethical agents who are not just board members but also citizens who belong to a community. Their obligation to the corporation is secondary to their obligation to the community.
An analogous issue applies to the taxation laws of a country. Significantly these are related to treaties the country has entered into in relation to taxation and trade. Subverting the operation of those treaties is surely an ethically ambiguous activity. In this sense the actions of Google and Apple, if they are indeed legal under our laws and treaties then it is difficult not to see them as thereby ethical. If, however, those laws no longer satisfy the community benefit or fairness test then it becomes an ethical obligation to campaign to change them.
When they seem to us to be somehow unfair our options essentially are to work to reform the terms of operating, the law and the treaties. Trevor Boucher has shown in his blog that this is not any easy task.
However I think there are two things that can be attempted that might enable a better judgement. The actual facts of the law (see Boucher) and the details of what the companies actually do should be made transparent to public examination. That at least would enable clarity of thought. I think it is entirely reasonable to seek to persuade the company to change its practices. They don’t have to do what they are doing. So bringing informed pressure on the relevant board members would be an appropriate strategy.
Clearly we need to persuade our government to address these issues and to seek to bring the law and the relevant treaties into line with the changed circumstances. Again there is nothing like exposure to public gaze.
In all this however we would be wise to recognise that Australia is a minnow internationally in this and we should expect the international giants to look after their own interests.
Bruce Kaye is an Anglican Theologian currently an Adjunct Research Professor At Charles Sturt University. He previously taught a course on the rise and role of the business corporation at UNSW. He was formerly General Secretary of the Anglican Church of Australia.