Melbourne Law School - Theses
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ItemProtecting privacy and confidentiality in the age of HIV(University of Melbourne, 1993)The thesis examines the extent to which Australian and New Zealand law provide private legal remedies for the unauthorised accessing, disclosure and use of personal information. The thesis emphasises some of the issues relating to privacy and confidentiality arising with respect to medical information, taking HIV/AIDS information as a frequent, and topical exemplar. This discussion is informed by the results of an empirical study into information privacy issues within HIV/AIDS health care contexts. However, the focus of the thesis is also broader, aiming to integrate these issues into a rationalisation of the law of privacy and confidence as it relates to personal information. The law impacting upon the protection of personal information has become increasingly complex, particularly in federal systems like Australia. This complexity is demonstrated within the medical information context, where the duties of health professionals are uneasily regulated by a complex web of legislation, superimposed upon an unsettled body of common law principles. Apart from sector-specific legislation regulating a narrow issue (e.g. computer trespass offences), and despite the apparent trend toward data protection legislation, the thesis reflects the view that the common law continues to be the backbone of the law of privacy and confidence, drawing from a range of legal actions for this purpose. The action for breach of confidence, as the dominant means of protection, deserves detailed discussion. Despite its usual application to trade secrets, recent developments point toward an evolving body of principles which accommodate the particular issues which the protection of sensitive, personal information, such as HIV status, raises. The limits of the duty of confidence, and more generally, law's protection of privacy interests in information, inevitably involves some balancing of privacy interests against well-recognised, competing interests such as freedom of speech. The uncertainty of the law in this area is particularly detrimental for health professionals. It is an uncertainty which reflects division of opinion over the limits for protection and control of information. Its legal resolution requires an appreciation not only of the force of competing public interests, but of other private duties, and of other remedies, particularly defamation, which also reflect a balancing of intangible, yet competing interests.
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ItemMediation in environmental disputes : a cross cultural analysis( 1993)Environmental disputes are developing as one of the most important areas of conflict in Australia. The ability to manage them through effective processes is crucial to Australia's continued economic, social and political stability. Environmental mediation is a process of environmental conflict management which has received and continues to receive increasing interest. This . study will describe and analyse its use in Australia, Japan and the United States of America. The possible implications or "lessons" this may have for Australia will then be discussed. These "lessons" concern the importance of preserving conflict in the public domain, the need to avoid making environmental disputes a purely administrative issue, the need to maintain or enhance the role of the courts, and the problematic nature of the process of institutionalisation of environmental mediation services. The future development and implementation of environmental mediation will depend upon the characteristics that such disputes take on within Australian institutional frameworks.
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ItemGold : money or commodity?( 1993)
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Item‘Industrial disputes’ and the jurisdiction of the federal industrial tribunal( 1993)What constitutes an 'industrial dispute' for the purposes of s. 51 (xxxv) of the Commonwealth Constitution and s. 4 of the Australian Industrial Relations Act 1988 (Cth) is crucial for the determination of union-employer relations. Ultimately the ambit of the phrase 'industrial dispute' determines those matters that may legitimately be raised by a federally registered union with an employer before the Australian Industrial Relations Commission (hereafter the federal tribunal). The central thesis advanced here is that since 1904 the High Court has employed alternating approaches to identifying an 'industrial dispute'. One approach is that an 'industrial dispute' means no more than the traditionally perceived notion of an individual employer-employee dispute. The other approach is a much broader view, in that such a dispute relates to collective employment relations. Put at its most basic level, I submit in this thesis that the jurisdiction of the federal tribunal has been shaped less by the particular words 'industrial dispute' than by the perception of the kind of employment relationship with which these words are concerned. (From introduction)
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ItemShould Australian law grant greater protection to well-known and famous marks and if so, do the current Australian laws achieve this in the most efficient way possible?( 1993)This paper is concerned with a topic which has received much attention recently: what ought to be done at a national and international level to protect well-known and famous marks? The owners of well-known and famous marks often experience one or another of the following problems: 1. counterfeiting 2. dilution, and 3. appropriation by other traders in overseas countries .
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ItemThe criminal liability of corporations( 1993)This study is an examination of the various aspects of the criminal liability of corporations, including the existing law and its potential reform. The study begins with an examination of the theory and concept of corporate criminal liability, as it exists in Australian law. Particular reference is given to the persuasive influence of English law on the Australian conceptual framework, and the consequential restrictiveness of common law in relation to corporate criminal liability. This has prompted the use of various legislative techniques in Australia to broaden the application of what are, in practice, personal offences to corporations. The use of legislation has had limited success. The difficulty with much Australian legislation is that it has broadened a narrow doctrine, rather than reassessing some of the fundamental concepts. Other countries are now beginning to re-examine their existing approach to the criminality of corporations, and this study makes particular reference to American involvement in dealing with offending companies and their management. A study of corporate behaviour, indeed in the growth and change of status of the company in our society, raises many issues concerning corporate criminality, the types of crimes that can occur and the reasons why corporations may offend. An examination of corporate offences, and the potential harm that flows from breaches of the law, forms the basis for a re-assessment of existing law, and even the corporation itself as its exists in our society. Indeed the proposed Australian Model Criminal Code, with its recognition of corporate blameworthiness, is one enormous conceptual leap in changing the approach of law in dealing with corporations. However, a re-evaluation still needs to be made of existing criminal legislation, executive procedure, judicial procedure and potential sanctions. Furthermore, there must be a consideration of the end object that is sought by making a company criminally liable. The objective of any reform should be to achieve a law abiding corporation, where legal compliance is reflected in its structures and ethos, not the letter of the law. Sanctions to achieve such an ideal outcome may be found in other ways than merely through traditional punishment, such as fines, the alternatives being examined in this thesis.