Melbourne Law School - Theses
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ItemThe impact of Australia's refugee status determination system on its implementation of its refugee convention obligation on non-refoulement( 1994)Under article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention), Australia has a non-refoulement obligation in respect of `refugees'. This thesis examines whether Australia is violating article 33 of the Refugee Convention by failing to identify the `refugees' amongst its on-shore refugee status claimants. In the absence of a safe third country prepared to receive them, Australia has no choice but to allow persons identified as `refugees' to remain in its territory. The problem is that the Australian Government has goals for the nation it serves and the political party it represents which it believes will be jeopardised to the extent that it is unable to choose which aliens get to reside in Australia and which do not. In consequence, the Australian Government bas a negative attitude towards on-shore refugee status clat. Inimants. This negative attitude has transmitted itself to the officers of the Department of Immigration and Ethnic Affairs (DIEA) who are responsible for making refugee status determinations at the primary stage. DIEA decision makers tend to be overly restrictive in their interpretation and application of key elements of the Refugee Convention definition of `refugee'. On the other hand, the courts and the Refugee Review Tribunal (R.R.T.) - institutions which do not have the political agenda of the Australian Government - have come close to interpreting and applying the Refugee Convention definition of `refugee' in line with international standards. The problem is that not all refugee status claimants can afford to pursue R.R.T. and/or judicial review. This leaves open the possibility that Australia is risking breach of article 33 of the Refugee Convention by repatriating persons who are refugees but have not been identified as such. In order for Australia to avoid breaching article 33, its domestic legal and administrative regime considered as a whole must attain a standard of reasonable efficacy in the implementation of that article. In order for Australia to be assured of attaining a standard of reasonable efficacy, Australia's on-shore refugee status determination process must be designed to meet certain minimum procedural standards. These minimum procedural standards are: the use of an inquisitorial determination system; the maintenance of an independent documentation and research centre; the elimination of factors which could lead to incorrect adverse credibility assessments; the provision to claimants of all information available to the decision-maker; the use of independent, impartial, specialised, full-time, career decision-makers who are carefully selected and adequately trained; adequate access to legal assistance by claimants; the provision of an opportunity to be heard in person and by the decision-maker; the processing of claims without undue delay and adequate rights of review. Australia's refugee status determination system falls short of meeting these minimum procedural standards in some significant respects. It is conceivable that a State's other humanitarian protection measures may sufficiently compensate for an inadequate refugee status determination process by serving as a safety net for Refugee Convention refugees who are not identified by the refugee status determination process. Australia's humanitarian protection mechanisms, however, are not an adequate safety net for such persons.
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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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ItemThe Australian model of alternative dispute resolution for family disputes : could it work in Germany? : a comparative study with particular reference to the German constitution( 1992)The aim of this thesis is to examine whether alternative dispute resolution methods can be introduced into German family law. The thesis compares the Australian model of the application of alternative dispute resolution methods to family conflicts with the existing German situation. Particular attention is paid to those fundamental rights and principles contained in the German Constitution which may have an impact on the introduction of alternative dispute resolution methods. The conclusion is drawn that the position of the individual, marriage and the family in the German Constitution as well as the individual's right to effective legal protection not only allow but actually demand the introduction of alternative dispute resolution. methods. The comparison of the German and Australian situations also serves to throw new light on the Australian model of alternative dispute resolution methods for family disputes. The examination of fundamental legal principles such as the rule of law, the separation of powers and the autonomy of the individual, which are effective in both states, lends further support to the strengths of alternative dispute resolution methods as established in Australian family law. The examination also identifies a number of areas where, in contrast, the efficacy of alternative dispute resolution methods in Australia could be further improved.
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ItemSub judice contempt regarding publications : an evaluation and proposals for reform with particular attention to Australia's international law obligations( 1992)The current Australian law of sub judice contempt as it relates to publications attempts to strike a balance between two competing public interests: the public interest in freedom of speech and the public interest in the proper administration of justice. In Chapter I the adequacy of this approach to the values underlying the sub judice rules is examined. In that Chapter it is submitted that such an approach to the values underlying the sub judice rules should not be endorsed. Rather than couching the values underlying the sub judice rules in terms of competing public interests, it is suggested that those values should be recast in terms of a conflict between individual rights. It is submitted that, if the values underlying the sub judice rules are correctly characterised as individual rights, those rights are the right to freedom of speech and the right to a fair trial. The social-scientific literature concerning the free press-fair trial debate is evaluated to determine whether those rights are competing, or complementary. On the basis of that literature, it is concluded that pre-trial media comment can have a significant detrimental effect upon the capacity of the judicial system to provide a fair trial; and that no remedial or other preventative measure, whether alone or in conjunction with other measures, can counter the adverse effects of prejudicial media comment. In Chapter I it will also be argued that, as a matter of policy, the right to freedom of speech should yield to the right to a fair trial to the extent necessary to resolve any conflict which might arise between those rights. It is submitted that a publisher who publishes material which denies to another person his or her right to a fair trial should be punished for publishing the material and that liability for prejudicing another person's right to a fair trial should be imposed irrespective of the publisher's intention. It is suggested, however, that liability should not be imposed upon a publisher which has taken all reasonable steps to avoid the risk of harm from arising. In Chapter II, Australia's international obligations as they relate to the law of sub judice contempt regarding publications are identified. In that Chapter it is argued that the right to a fair trial, provided by article 14 of the International Covenant on Civil and Political Rights (ICCPR), encompasses the right to have a trial free of prejudicial media or other comment. It is suggested that, unlike the right to a fair trial provided by article 14 of ICCPR which is an absolute right, the right to freedom of speech provided by article 19 of ICCPR is a qualified right. Thus a State could legitimately restrict freedom of speech on the ground that the restriction is necessary for the protection of the right to a fair trial. On that basis, it is submitted that Australia would not be in breach of its international obligations if it places a limitation upon one individual's right to freedom of speech to protect another individual's right to fair trial. Further, if Australia does not place a limitation upon the right to freedom of speech and as a result of that failure an individual's right to a fair trial is prejudiced, Australia will be in breach of its international obligations. In Chapter III, the current Australian law relating to sub judice contempt by publication and the various proposals suggested for its reform are evaluated in light of the considerations of policy examined in Chapter I and Australia's international obligations as identified in Chapter II. A number of suggestions are made for reforming the law so that it achieves the resolution of the values underlying the sub judice rules which the considerations of policy examined in Chapter I and Australia's international obligations discussed in Chapter II require.
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ItemThe role and function of the ASX and its listing rules( 1992)In a joint submission to the Australian Stock Exchange Limited ("ASX") dated December 1989 (the "Joint Submission") the Law Institute of Victoria and the Law Council of Australia expressed the view that: "The ASX should be contained to its role of ensuring that the market is informed, efficient and fair, and not be allowed to effectively legislate on substantive issues of law outside this role."1 It was suggested in the Joint Submission that the ASX, through its listing rules, had over-extended its role so as to encroach on substantive company law matters which were more properly within the province of Parliament. 2 These criticisms have resulted in a considerable degree of public debate on the proper role of the ASX and the scope of its listing rules.3 In response to the Joint Submission and the public debate, a discussion paper was released by the ASX in October 1990 (the "Discussion Paper")4 in which the ASX expressed its views on these issues and invited submissions from interested members of the public. In its Discussion Paper, the ASX largely defended its perception of its current role in the business community and argued that the listing rules did not exceed their proper scope (although this view has since been refined). It was conceded by the ASX, however, that some of the concerns expressed in the Joint Submission relating to the drafting and adoption of listing rules had some validity".5 It was also conceded that some listing rules would be better contained in legislation. Both the Joint Submission and the Discussion Paper of the ASX will be examined in detail in this paper. Central to the argument concerning the proper scope of the ASX listing rules are sections 777 and 1114 of the Corporations Law (formerly sections 42 and 14 respectively of the Securities Industry Act 1980) which grant "statutory recognition" to the listing rules. On the view put forward in the Joint Submission, the listing rules do not have the clarity expected of legislation, which gives rise to uncertainty of their application in practice.6 Such uncertainty is increased, so it is said,7 by the fact that in the foreword to the listing rules, the ASX states that it looks to listed companies to comply with the "spirit' as well as the letter" of the listing rules. According to the Joint Submission, this gives rise to the undesirable possibility of action under the Corporations Law (formerly under Securities Industry Act 1980) to enforce the spirit of the listing rules.8
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ItemAdministrative law and immigration control in Australia: actions and reactions( 1992)The conduct of a sustained immigration programme is a notoriously delicate business for governments. Australia's experience over the last two decades well demonstrates the difficulties inherent in balancing labour market and other demographic demands with the public's natural resistance to any large-scale influx of foreigners. After the abolition of the White Australia Policy in 1973, the number and cultural diversity of people eligible to settle in the country increased dramatically. The growth of visible minorities within the community, coupled with the gradual decline in the country's economic fortunes, brought immigration to the forefront of public consciousness in a manner not seen since the end of World War II. By the mid 1980s, it had become the subject of a most vigorous, and potentially divisive, public debate. Arguments ranged over the benefits and burdens of large-scale immigration; the racial mix of migrants; the criteria for selecting them; and the problem of illegal immigration, and what to do about it. (From introduction)
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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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ItemThe parens patriae and wardship jurisdiction of the Family Court of Australia: its history and current status( 1992)Before the Family Law Act 1975 (Cth) came into operation, the Supreme Court of each State exercised a complete jurisdiction over a child of a marriage. That jurisdiction included the jurisdiction conferred by the Matrimonial Causes Act 1959 - 1973 (Cth) and the state Supreme Courts' inherent parens patriae jurisdiction and wardship of court jurisdiction. With the passing of the Family Law Act 1975 (Cth), the Commonwealth Parliament did not include in that Act provisions that created a parens patriae jurisdiction and a wardship of court jurisdiction in the Family Court. Consequently, the jurisdiction over children of a marriage became fragmented between the Family Court exercising jurisdiction conferred by the Family Law Act, and the state Supreme Courts exercising their inherent parens patriae jurisdiction and wardship of court jurisdiction. This paper discusses the question whether it is a valid exercise of the Commonwealth's Marriage Power and the Matrimonial Causes Power for the Commonwealth to pass enactments creating a parens patriae jurisdiction and a wardship of court jurisdiction and vesting them in the Family Court of Australia.