Melbourne Law School - Theses
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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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ItemTaxation of superannuation and other termination payments( 1992)Thesis Plan: This thesis provides an overview of the law and relevant procedures of the taxation of superannuation and other termination payments. Specifically the thesis details the various changes to the concessional taxation treatment afforded such payments from 1/7/1983 to the present. In addition various policy issues are examined in light of the recent release of the Federal Government Statement on the topic re “Security In Retirement: Planning For Tomorrow Today”.
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ItemThe new Philippine mineral regime: an opportunity for investment?( 1994)A ring of fire encircles the Pacific Basin, an unstable region of earthquakes, faulting and intense volcanic activity. It stretches from the tip of South America, up through the Andes, across the Aleutians, down through Japan and the Philippines to the tip of New Zealand. To the countries in the region, this geological volatility is both a misfortune and a blessing. It was a misfortune, indeed, to the local people who lived around the slopes of the Mt. Pinatubo volcano in the Philippines when it erupted in 1991. Their homes and farms were buried under metres of volcanic ash and it will be many years before they can return to the area to live. Yet when viewed from a broader perspective this geological instability has been a real boon to the Philippines, not merely because of the substantial export industry it has generated in souvenirs made out of volcanic ash, but because it is this same instability which has made the region fertile and resource rich. Over millions of years the tremendous pressures from within the earth have forced hot, mineral rich fluids up through faults created by earthquakes and faulting in the sub-surface rock. In that rock the minerals have cooled and concentrated to become mineral deposits, lying hidden underground until erosion reveals their presence to the human eye. Many of the world's major mineral deposits have been discovered in this region, such as the spectacular Hishikari deposit in Southern Japan, Erstberg in Indonesia and Bougainville in Papua New Guinea. The impact that this mineral endowment has had on the economic development of some of the countries in the region has been enormous. In PNG, for example, minerals make up more than 80% of the country's export income and generate revenue of over Aus$350 Million per annum. In Australia, they make up around 40% of export income, generating revenue of around Aus$30 Billion per annum. The significance of such revenue flows, particularly to developing countries, can not be underestimated. However a country's high geological potential will remain just that, unrealised potential, unless the country has access to sufficient funds to explore for new mineral deposits and to develop them when they are found. Few developing countries have sufficient domestic capital available to fund mineral development and for this reason many countries have in recent years been competing to attract foreign investment to assist in the development of their mineral industries. Vietnam, Laos, India, Peru, Argentina, Chile and others have all been taking steps to promote foreign investment by removing impediments to foreign investment, reducing government take and offering investment incentives. At the same time, Australian mining companies have been increasingly looking overseas for investment opportunities. Australian mining companies, in particular, have been seeking to place a greater percentage of their exploration/development budgets offshore in order to minimise their exposure to Australian sovereign risk, engendered by Australian Government decisions such as Coronation Hill, world heritage listings and more recently the Mabo legislation.
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ItemThe court and the factory the legal construction of occupational health and safety offences in Victoria( 1994)This thesis reports on an empirically based study of the manner in which Victorian Magistrates Courts constructed occupational health and safety (OHS) issues when hearing prosecutions for offences under the Industrial Safety, Health and Welfare Act 1981 (the ISHWA) and the Occupational Health and Safety Act 1985 (OHSA) from 1983 to 1991. These statutes established OHS standards for employers and other relevant parties. The State government enforced these standards through an OHS inspectorate which had a range of enforcement powers, including prosecution. After outlining the historical development of Victoria’s OHS legislation, the magistracy’s historical role in its enforcement, and the development of an enforcement culture in which inspectors viewed prosecution as a last resort, the study shows how the key provisions of the ISHWA and OHSA required occupiers of workplaces and employers to provide and maintain safe systems of work, including the guarding of dangerous machinery. Using a wide range of empirical research methods and legal materials, it shows how the enforcement policies, procedures and practices of the inspectorate heavily slanted inspectors workplace investigations and hence prosecutions towards a restricted and often superficial, analysis of incidents (or “events”) most of which involved injuries on machinery. There was evidence, however, that after the establishment of the Central Investigation Unit in 1989 cases were more thoroughly investigated and prosecuted. From 1990 the majority of prosecutions were taken under the employer’s general duty provisions, and by 1991 there was evidence that prosecutions were focusing on matters other than machinery guarding.