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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ItemThe law and transsexuals( 1982)The development of our Common Law as well as the law of most other societies has been based on certain fundamental assumptions about sex. Only two sexes exist, male and female. Everyone is classified as belonging to one or the other by anatomical sex at birth. A person's social and legal status may depend on his or her sex, which until recently was regarded as immutable. Transsexual surgery became a modern reality in 1952 when the much publicized case of Christine Jorgensen was brought to world attention. Since that time transsexuality has become both a dilemma and controversy in medicine, psychiatry and the law. There is no clear legal theory for determining how to accommodate the transsexual into our legal system. with the development in modern surgery the essential criteria for determining sex are being re examined. Although the dilemma of sex determination may initially seem far removed from the real concerns of lawyers, recent cases such as Corbett v Corbett , M.T. v J.T. and C and D3 make clear the need to re-evaluate accepted legal classification. (From Introduction)
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ItemCapital gains tax and the resources industry( 1988)In one of the most significant events in the history of government funding since the introduction of uniform taxation, the Federal Labor Treasurer, Paul Keating, announced the introduction of a Capital Gains Tax for Australia on 19 September 1985. This paper assesses the application of this new form of impost to one of the largest and most capital intensive industry sectors in Australia, the resources industry. Such an analysis must necessarily be considered in the context of the peculiar Federal and State regulatory frameworks governing the exploration and exploitation of minerals and petroleum. In particular, the following discussion will focus on the precise scope and operation of the terms 'asset' and 'property' - which together operate as the fulcrum of the capital gains tax provisions. It is the object of this paper to show that non-proprietary 'assets' are not adequately included within the ambit of the capital gains tax provisions. On the premise that property law concepts necessarily underpin the capital gains tax provisions, an examination will be conducted of the 'proprietary' nature of various mining rights, including permits, leases, licences, royalty interests and information. The potential application of capital gains tax in the resources industry turns heavily on the resolution of this 'threshold' issue. It will be seen that the capital gains tax provisions incorporated into the Income Tax Assessment Act 1936 (Cth) (the Assessment Act) do not, apart from three separate sections, address themselves specifically to the resources industry. It is this decision to deny the resources industry special consideration that has created the most widespread uncertainty and enduring resentment, particularly in view of the industry's historically preferred tax treatment. It will be submitted that specific attention must be given in the capital gains tax provisions to the wide variety of traditional mining and petroleum 'interests', rather than attempting to mould them into a definitional context with a clear cornmon law proprietary bias.
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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.