Melbourne Law School - Theses
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ItemNo Preview AvailableProtest, public order and police power : a perspective of Queensland events 1977-1979(University of Melbourne, 1980)1. Public protest was prevalent in England prior to the extension of the franchise to citizens without property or position. Such protest helped to shape the English system of constitutional government. It was not contained by an adequate public order machinery but by the implementation of the criminal law relating to treason and unlawful assembly. 2. The Australian colonies inherited the English public order machinery and criminal law. The convict environs necessitated a military-style machinery and repressive criminal laws. Public protest was tolerated but much Irish activity was seen to be seditious. 3. With the advent of the motor car, police became traffic controllers as well as keepers of the peace. Thus, in regulating public protest, police had to have regard for the smooth flow of motor traffic and the preservation of the peace. Since 1966, public protest has been an integral and effective part of the Australian political process. The Vietnam war, the Springbok Rugby tour and the export of uranium have evoked public protest which has affected the formulation of government policy. Most jurisdictions have accorded citizens the right or general privilege to demonstrate; Queensland has not. 4. In Queensland, police retained the function of issuing or refusing permits for processions, meetings and other political activities on roads and footpaths. The government rejected submissions for tighter judicial supervision of this function from 1966 to 1969. Since then, police officers appear to have been influenced by government policy while exercising that function. The abolition of an applicant's right of appeal to a magistrate from a police officer who refused a permit led to a convergence of government and police policy relating to the refusal of permits for political activities in 1977; it may have contributed to government interference with the administration of the police force. 5. Conflict between the police and citizenry ensued; in the years 1977 to 1979, 1,972 arrests were made at demonstrations. In determining charges, the Magistrates' Courts applied law which was uncertain to facts which were inevitably disputed. Recourse to the superior courts was too tardy to assist the Magistrates' Courts in the application of law. When there was recourse, no clear, indisputable resolution of questions of law was forthcoming. Such a resolution would have spared the Magistrates' Courts prolonged involvement in cases of a political nature. 6. Legislative reforms providing the right to demonstrate, the proper exercise of police discretions and the vigilance of courts are required if "law and order" is to be a reality rather than a slogan in Queensland.
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ItemWomen workers and the processes of the conciliation and arbitration system( 1984)The thesis studies the relationship between women workers and the Conciliation and Arbitration System. Its aim is twofold: to explain why particular policies were adopted by the Court/Commission and to assess the extent to which those policies disadvantaged women workers. Previous research has explained women's disadvantaged position by emphasising the role of judicial prejudice and sexist ideologies. The thesis rejects such simple explanations and tries to show that particular policies resulted from the interraction between the Conciliation and Arbitration System and its economic, political and ideological environment. The thesis emphasises the complexity of the processes which determined the law and, in particular, it stresses the role of economic and political forces in shaping legal policy. It also demonstrates that the issue of whether women were in fact disadvantaged by any particular policy can only be resolved through an examination of both the policy and its effects. The first five chapters examine Court/Commission policy on wages, skill, classifications, the sex-typing of work, redundancy protection and maternity leave. The final chapter considers the implications of the arguments adopted in the thesis for other studies of women and the law.
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ItemRecent developments in the law of consumer guarantees and indemnities( 1985)A brief examination of the history of the guarantee reveals that equity treated the guarantor as a favoured debtor, given the absence of real benefit to the guarantor. However, these protections have largely been removed by standard form guarantee contracts used by, credit providers, and the law is also otherwise deficient in protecting consumer guarantors. As the expansion of the use of credit in recent years has meant that guarantees are now sometimes given carelessly and thoughtlessly, by persons without adequate education and resources to protect their interests, regulation is required (Chapter 1). The statutory regulation of guarantees before the passing of the Credit Act was inadequate. After examining the scope and nature of the Credit Act, the effect of the Credit Act on the regulation of guarantees is examined (Chapter 2). The extent to which the common law and statute law regulate pre-contractual information given to guarantors is then examined. It is concluded that room for improvement exists (Chapter 3). The extent to which the common law and statute law regulate the exercise of undue influence, unfair pressure and the making of unconscionable bargains is then examined and it is concluded that developments will occur rapidly in this area (Chapter 4). Common law and statutory provisions which discharge the guarantor from liability are then examined in the light of the operation of the Credit Act and it is concluded that some flaws exist both in principle and in the operation of the law (Chapter 5). The extent to which the guarantor is entitled to control the appropriation of payments made by the debtor, and the extent to which the guarantor's liability is coextensive with that of the debtor is then examined and some changes suggested (Chapter 6). The guarantor's rights to have action taken first against the debtor and the debtor's assets, the guarantor's rights to notice before action, and the right of indemnification after action, are then examined (Chapter 7). The possible reasons for the non-regulation of guarantees are examined and dismissed; past suggestions for reform and possible future reforms are examined (Chapter 8). Standard form contracts of guarantee are discussed and the text of a draft fair, simple English, standard form guarantee is suggested (Chapter 9). The law is as stated at 30 November, 1985.
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ItemThe Role of the National Companies and Securities Commission in regulating takeovers( 1982)When the Commonwealth and State Ministers met in Maroochydore in May 1978 to settle on the form of co-operative legislation relating to companies and securities, a number of options were open to them. One alternative put forward in relation to takeovers, was the establishment of a takeovers panel or committee, with a broad power to determine guidelines and to deal with takeovers on a case by case basis. The other alternative was to continue with a system of legal prescription. Although such a system had been tried in Australia for a number of years with little success, it was felt that such an approach had great advantages of certainty. It was also felt that defects which had become apparent under the takeover provisions of the Uniform Companies Act 1961, could be overcome. It was proposed to overcome those defects by drawing the basic prohibition more widely, to cover acquisitions rather than offers and invitations for shares. It was also proposed to confer on the administering body wide powers and discretions to enable a more flexible approach in the administration of the legislation. The purpose of this thesis is to examine the role of the National Companies and Securities Commission (the NCSC) in the regulation of takeover activity. Under the Commonwealth and State co-operative agreement, the NCSC has an important role to play in the regulation of the securities industry and company law generally. Accordingly, powers have been conferred on the NCSC by the SlA and the CA. This thesis - -deals with those powers only in so far - as they relate to takeover activity. Regulation of takeovers involves a conflict between law and economics. The law is concerned with principles of equity whereas economics Is concerned with allocational efficiency. The NCSC must have regard to both factors. In Chapter 1 it is proposed to consider the reasons why takeovers occur, what interests might be affected by takeover activity and to consider the aims of takeover regulation. Chapter 2 examines the systems of regulation takeover activity which operate in the United Kingdom and the United States. The United Kingdom adheres to a system of self regulation of takeovers and mergers, while the United States had adopted a legislative approach. Although the Australian approach has been to relate a legislative framework, many matters of detail have been borrowed from both models. The development of the co-operative scheme Is examined in Chapter 3. This chapter traces the history of the agreement between the Commonwealth and the States on companies and securities. Some consideration is also given to the form of the co-operative agreement. Essentially this involves the following techniques: (1) all parties to the agreement adopt uniform legislation; and (2) uniform administration is achieved by the investment of a single body with powers by both the Commonwealth and the States. However, the role of the State administrations is preserved under the agreement by the requirement that the NCSC delegate, to the maximum extent practicable, to State administrations. Chapter 4 considers that aspect of the co-operative legislation which deals with takeovers, primarily the Companies (Acquisition of Shares) Act. Although this thesis does not purport to deal exhaustively with the legislative provisions, some consideration of the legislation Is essential, as it constitutes the framework within which the NCSC must operate. In Chapter 5, the various powers conferred on the NCSC, relating to the regulation of takeovers, are considered. The nature and scope of these powers vary greatly. The NCSC has many powers relating to the manner and form of takeovers. It also has powers of enforcement, and powers which confer great flexibility in administration of the legislation. Although many of these powers appear to be extremely wide, there are a number of limitations. Chapter 6 deals with the possibility, of controls which can be exercised to restrict the Commission's powers. The most serious limitation involves the likelihood of judicial review. Control can also be exercised by nonjudicial means, such as by the Ministerial Council which comprises the relevant Minister from each jurisdiction which is a party to the Agreement. The conclusion looks at the problems facing the Commission in the exercise of its powers, and considers the arguments for and against an increase in those powers.
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ItemThe concept of dishonesty in the law of theft in Victoria and England( 1983)This paper is en empirical examination of the concept of dishonesty in England and Victoria from its inception as a result of the recommendations of the Criminal Law Revision Committee in England to the present state of the authorities in England and Victoria. The paper follows the authorities in chronological order first in England and then in Victoria. Each authority is examined and analysed in order to see how the Courts have come to terms with the new concept in defining it, how the concept has developed and changed and the connection of the new concept with the old concepts of larceny and related offences. General criticisms are offered where it is believed that the Courts have strayed from the concept or where the Courts appear confused about defining the concept or where the reasoning appears erroneous. The adequacy or otherwise of the concept as it presently stands is assessed and what advantages and disadvantages exist in the two jurisdictions. Finally, a proposal for reform is suggested having regard to the present state of the authorities.
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ItemLegal aspects of state agreements for the development of mineral deposits, with particular reference to the Greenvale agreement( 1980)The State Agreement has proved, in practice, a solid foundation for large mineral development ventures. However, the State Agreement requires considerable care to be taken in its negotiation and drafting if that foundation is to be supportable as a matter of law, rather than being reliant for its effect solely upon the continuing goodwill of the parties. The object of this paper is to identify considerations to which the draftsman should advert, and the efficacy of the drafting options which are available to accommodate those considerations. A further object is to evaluate the extent to which the State Agreement confers the benefits usually claimed for it, as outlined in Chapter 1. Particular reference is made throughout to the Greenvale Project which provides a case study of certain of the difficulties, and possible solutions, which need to be considered in the development and administration of a State Agreement. The law as stated is, unless otherwise indicated, that in force on August 1, 1980.
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ItemThe current position of the application of the doctrines of penalty and relief against forfeiture to security contracts( 1984)This thesis proposes to examine the position that is currently occupied by two doctrines developed by Courts of Equity, as they are applied to relief sought against the legal consequences of default by a borrower under various forms of security contracts. These are the doctrine of penalty and the doctrine of relief against forfeiture. In relation to security contracts, the need for such remedies results from a failure at two levels, firstly the failure of legislators to respond to the need for comprehensive consumer protection legislation, and secondly the failure of lawyers to evolve consistent forms of security contracts in order to fulfil genuine security needs without injustice to either party. Given the accepted views of freedom of contract, it is difficult to see any justification for the court's remaking of a contract between commercial parties all supported by expert legal advice, which should obviate the need for the protection still necessary in the case of consumers. Accepting that there is a place for such equitable relief, the remedies provided under the doctrine of penalty and, to a lesser extent relief against forfeiture, suffer in their application to security contracts from some inherent defects which render them inappropriate in many circumstances for the purpose of providing a just remedy. If, however, the concept of justice is to remain within our legal system, then such discretionary remedies should always be a part of it, but their place in the system should be that of last resort. They have no place in relieving the legislators and lawyers from their responsibilities for reform.
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ItemThe operation of judicial discretion in insurance law( 1983)The primary objective of this thesis is to critically examine the operation of a jurisprudential concept in a specific legal arena viz, the operation of judicial discretions in insurance law. Judicial discretions have been the subject of much modern thinking, writing and debate. The fundamental issues of what judges do in hard cases, whether they exercise discretion in the "strong" sense, whether there is necessarily a discretion rather than a legal principle, the different "senses" of discretion, and whether judicial discretions differ from other sorts of discretion, are extensively dealt with in the writings of Hart, Dworkin, and MacCormick and the myriad of jurisprudents who continue to contribute to the literature on the subject. For my part it is not proposed to add to this discussion in this thesis. Rather I wish to outline my views on judicial discretions in the next chapter, and with such outline in mind proceed to examine, the operation of the concept (as I view it) in insurance law. As a practitioner in the field of insurance law, I consider this arena an excellent one for the proposed exercise. There are, in my view, enormous penumbras of uncertainty in insurance law making it a complex and challenging field for legal advisers. Among the broad areas which give rise to such penumbras the following deserve particular attention because of the volume of litigation they attract: - the proper construction and legal effect of policy wordings; - the proper construction and legal effect of provisions in insurance legislation; - classification of insurance intermediaries particularly in the absence of adequate contractual documentation between insurer and intermediary; - industry usages or practices, in the face of conflicting evidence of same, and a general absence of documentation. The division of this thesis into the chapters specified in the Table of - Contents, reflects these areas of specific interest. Having critically examined the models of judicial discretion posited by Hart, Dworkin and MacCormick, I wish to turn my attention to the operation of the . concept as I view it, to insurance legislation (chapter 3), and case law (chapter 4). It is anticipated that such practical examination will reveal trends from which tentative conclusions might be drawn about the use of judicial discretions as an instrument of justice and social welfare in the insurance field. This topic will be dealt with in chapter 5. Allied to this topic will be an examination of the likely impact of proposed insurance law reform on judicial discretion (chapter 6) . A summary of my conclusions will form the text of the final chapter.