Melbourne Law School - Theses
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ItemNo Preview AvailableDeveloping the constitution : a politico-legal essay(University of Melbourne, 1932?)
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ItemAn examination of Teutonic law( 1893)
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ItemAn analysis of aspects of the Australian law of corporate taxation( 1970)The aim of this thesis is to investigate by close analysis the legislation and case law on certain aspects of the Australian law-relating to corporate taxation . To provide some limits within which detailed analysis might. be made within a reasonable compass the study was limited to some of the aspects of corporate taxation law which would be of interest to American manufacturers exporting to Australia, licensing manufacture in Australia, and manufacturing in Australia. The aspects covered are corporate residence, general. business income, royalties, interest, dividends, and section 260 of the Income Tax Assessment Act 1936-1969 (the Act's statutory anti-avoidance provision).
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ItemAustralian interstate rivers : legal rights and administration( 1971)This thesis analyses the legal and administrative problems which arise in regulating Australian rivers that flaw along or across State boundaries. It commences by describing some practical difficulties that have occurred in recent years. It then ascertains the legal rights of the Commonwealth, the various States and private individuals to the use, flow or control of interstate rivers. In the light of the existing law, it points to weaknesses in the present administrative arrangements for reconciling. inter-government conflicts in water resources management and suggests an entirely new system that might be implemented.
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ItemThe recovery of mistaken payments( 1970)The aim of this dissertation is to provide a survey and analysis of the occasions upon which payments made by mistake may be recovered. The dissertation is divided into four parts : Part I deals with the historical foundations and the philosophical implications of the action, money had and received, which is commonly employed to recover mistaken payments. The "gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." This then is the broad theme or general criterion that I have tried to bear in mind and introduce throughout this dissertation : is the defendant, in the circumstances, obliged by the ties of natural justice and equity to make restitution? Part II deals with the recovery of money paid under mistake of fact. More specific criteria need to be formulated than that already given in order to ascertain when recovery will be allowed. A test based upon fundamentality of error is posited. Part III deals with the recovery of payments made under mistake of law, after discussing briefly the distinction between mistakes of law and of fact. Since payments made voluntarily under mistake of law cannot, as a rule, be recovered, it is necessary to investigate when a payment may be termed "voluntary". Exceptions to the general rule both at law and in equity are considered. Part IV sets out limitations, qualifications, and defences to actions for the recovery of mistaken payments. Throughout this dissertation I have referred in the main to English and Australian decisions; but I have also drawn on those of other Commonwealth countries. Occasional reference has been made to American law which, as revealed in the pages of the American Law Institute's Restatement of the Law of Restitution, provides an interesting contrast with our local experience and perhaps predicts its destiny. The law is stated as on 31st May, 1970.
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ItemThe law of theft in Victoria( 1967)My theme in this thesis is the contention that the substantive law of theft in Victoria is in an unsatisfactory condition and urgently in need of fundamental and comprehensive reform; and that this is so principally for the following two reasons. Firstly, concepts and rules framed in the early English common law for a relatively primitive society and inadequate for the complex framework and activities of the modern occupationally diversified economy still form the basis of much of the present law of theft. Rigid and circumscribed or artificial and fictional uses, in the law of larceny, of the concept of possession,-when reference should be to modern concepts of ownership of property interests-and of the requirement of trespass, -when reference should be to modern concepts of misappropriation- are examples of this. A legal theory framed only for tangibles has proved incapable of facile and useful adaptation to intangibles. Secondly, the history of the law of theft has been marked by piecemeal, ad hoc improvisation, whether by judiciary or legislature, in the successive creation of new offences, or attempted gap-filling in or between old offences, as each new exigency of theory arose. This has led to a confusing multiplicity of authoritatively distinct, though sometimes overlapping, offences-all within the general sphere of theft. It resembles the planting of fruit trees too close together, as in a thicket where none thrived, though one healthy tree, if planted alone, would have done. In such an atmosphere the law has often lost touch with the realities of everyday life. In certain important respects the position is substantially the same in Victoria today. In the pages which follow I shall endeavour to substantiate my contention by a critical examination of the law and its history, with particular reference to certain fundamental problems, and shall finally discuss, in the light of that examination, the sort of reform which seems to be indicated.
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ItemIndustry, industrial disputes and the constitution( 1971)This thesis is concerned with s.51(xxxv) of the Constitution which gives the Commonwealth Parliament the power to make laws with respect to the prevention and settlement of industrial disputes by means of conciliation and arbitration. The constitutional power is examined from the point of view of which groups and types of employees are capable of taking part in "industrial disputes" as comprehended therein. When the Commonwealth Parliament first passed legislation under s.51(xxxv) it set up a single Federal tribunal to deal with labour disputes. From the employees' point of view the right to an audience before that tribunal was to be gained by the registration of representative organisations under the Act and the question arose as to the basis on which parties to such labour disputes were to be permitted to obtain registration. Because of the limitations on the Commonwealth jurisdiction which were envisaged as a result of the presence of the adjective "industrial" in para. (xxxv) it was not surprising that the Commonwealth Parliament decided that the basis of such registration would he participation in industry and, as a result, the scope given to expressions such as "industry" and "industrial employment" has always been of significance in so far as understanding of the jurisdiction of the tribunal set up under the Commonwealth Conciliation and Arbitration Act is concerned. The early part of this thesis (contained in Chapters II - IV) is concerned with a historical background to Australian industrial legislation and with the reaction of the Commonwealth Parliament and the High Court to pressures caused by employees attempting to bring themselves within the provisions of the Act by combining themselves into groups so that they might be regarded as collectively engaged in "industry" or in "industries" as defined at various points of time in the Act. The substance of this examination is contained in Chapter IV which traces the relevant amendments to the definitions and registration provisions after 1904. The second part of the thesis (contained in Chapters V - VII) is not concerned with the Conciliation and Arbitration Act or with the question of industrial groupings. It is concerned with attempts made to withhold the application of the Federal industrial power from certain types of persons by reference to the nature of the employment of those persons. It has been said that some employment is not industrial by nature and that, in view of the fact that the constitutional power of the Commonwealth is limited by the presence of the expression "industrial disputes" in s.51(xxxv), persons engaged in such employment cannot take part in any system devised by the Commonwealth Parliament for the maintenance of peaceful labour relations in Australia. Chapters V - VII (together with Chapter VITI) are concerned with an examination of this question and its real relevance to a determination of the extent of the power granted in s.51(xxxv). It will be seen that the cases examined in this part of the thesis reveal some confusion on the part of the High Court between the jurisdiction conferred on the Commonwealth Parliament by the Constitution and that conferred on the Commonwealth industrial tribunal by the Conciliation and Arbitration Act and this tendency has made the task of organising this thesis into separate parts an extremely difficult one. For example, from one point of. view it might have been preferable to have examined the 1 recent case of Pirfield v. Framki in the earlier part of the thesis as that case deals with the meaning of "industry" from the point of view of the registration provisions in the Act. However, as the decision cannot properly be understood without reference to material appearing in Chapters VI and VII, it has seemed most desirable to devote a separate Chapter to that case, and the considerations discussed therein, towards the conclusion of the thesis. The only other point which need be made at this preliminary stage relates to the extent to which certain aspects 0f historical background have been examined. At first glance this examination may be thought to be excessive. However, when all things are considered, the cases dealt with in this thesis ultimately come back to questions of impression and, in this regard, it is essential to know something about the reasons for the formation of certain general impressions as to the extent of the Commonwealth industrial power. An examination 1. (1970) 44 A.L.J.R. 391. of the course of employer-employee disputes and the development of organisations of employees in Australia and Great Britain is contained in Chapter V and, in view 0f the way in which attempts have been made to limit the concept of industry (assuming that concept to lie at the basis of the Federal power), it has proved convenient to examine the efforts of the English Courts to draw a distinction between "manual" and "non-manual" employment. This examination is to be 1. found in Appendix A.
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ItemSome legal aspects of Australian trade with and investment in Fiji( 1970)This work examines only some of the legal aspects of Australian trade with and investment in Fiji, most of it in fact being devoted to a consideration of investment rather than trade. The viewpoint adopted throughout is that of the Australian corporate investor. Considerations of space have precluded any attempt to deal exhaustively with matters affecting investors, let alone exporters. Selection of subject matter has therefore been based on the criteria of interest, importance and/or uniqueness. The first chapter deals mainly with the background features against which investment in the Colony will occur. Its inclusion is justified on the basis that the function of the lawyer in the present context is not restricted to an examination of existing law but encompasses, for example, an examination of the possibilities of perhaps drastic law reform in relevant areas. Essential to such an examination is a knowledge of background conditions in the Colony. Illustrative of the fluid state of matters discussed, was the announcement in March, 1970 by Colonial Sugar Refining Company Limited that it may divest itself of its Fijian holdings in 1972. This came in response to the Denning award which set up a new scheme of payment to cane growers by the company. It has variously been interpreted as a means of exerting pressure for the future adoption of a pricing structure suitable to the company, and as a statement of positive intent designed to foreshadow expropriation. Further, an announcement setting a specific date for independence may be expected in the near future. A consideration of the exchange control laws and policies of Australia and Fiji ends the chapter. The first part of the second chapter concerns the choice confronting the investor as to the constitution of its investment. Reference is made to various factors likely to influence that decision. The second part of the chapter deals with the organization of a Fijian subsidiary company, reference being made to the incorporation process and to provision that might be made for local equity participation. The third chapter discusses the problems of commercial financing in the Colony and the possibilities of obtaining finance from government and international sources. No consideration is given to commercial financing in Australia. It also refers to the types of securities that might be expected and given and, having regard to the possibility of either local or institutional equity participation, discusses matters affecting the relationship between a company and its minority shareholders. The fourth chapter discusses the various incentives that are made available either to investors in Fiji or exporters from Australia. The fifth chapter discusses restrictions affecting investors in Fiji either directly or via their personnel, and also deals with matters governing the employment of personnel in the Colony. It should be added, firstly, that dollars and pounds have been used interchangeably where Fijian currency is discussed. The Colony switched to decimal currency in January, 1969, but all Fijian legislation dealt with here is expressed in the old currency. Secondly, Fijian legislation is sometimes cited as e.g. "the Fiji Companies Ordinance" or simply "the Companies Ordinance". The former citation is used mainly where it serves to avoid confusion. The latter is perfectly correct. Thirdly, there is no regular system of law reporting operating in the Colony. Finally, most references to Australian companies legislation adopt the term of convenience "the Uniform Companies Act 1961", consequent on the passage, in each State of the Commonwealth, of Companies Acts similar to the Uniform Companies Bill, produced in 196I by consultation between State and Commonwealth Ministers.
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ItemThe history of legal institutions in Victoria( 1942)It has become inveterate in English legal writings to fit all English colonies into a dichotomy – colonies acquired by conquest or cession, and colonies acquired by settlement or occupation. Important constitutional differences attach according to whether a particular colony falls within the one class or the other. To quote the words of Lord Watson in giving the advice of the Privy Council in Copper v Stuart:- “The extent to which English law is introduced into a British Colony and the manner of its introduction must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cessation. In which case there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.” The locus classicus dealing with the position of a colony of the former class, that acquired by conquest or cessation, is to be found in the judgment of Lord Mansfield in Campbell v Hall. Its essential feature lies in the fact that the laws there in force continue until they are altered or abrogated, and until that time British subjects are under their control. This feature is necessarily excluded by the circumstances in which a colony is acquired by settlement. In such a colony from the nature of things there can be no lex loci to which the settlers are amenable, no existing laws to contest the superiority, and no power in the settlers to establish laws independently of the mother country to which they still owe allegiance. In such a colony English law prevails as the birthright of the settlers, and the bond of allegiance between the colonial subjects and their sovereign. (From Introduction)
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ItemAustralian water law: an historical and analytical background( 1971)The thesis traces the history of governmental intervention in Australian water management. At the State level, it examines traditional common law doctrines, their inadequacies to meet Australian demands, and the tensions between private rights and public control inherent in the Australian system of administrative rights to water. It argues for clearer recognition of the role of private law actions in such a system. At the national level it documents the history of the conflicts which have shaped the administration of inter-State rivers as a background to the integrated enquiries of other research students.