Melbourne Law School - Theses
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ItemReinventing Indonesian foreign investment law : a rationale for reform(University of Melbourne, 1996)
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ItemWar crimes against women and international war crimes tribunals( 1996)This thesis reviews the treatment of women in practice and theory in regards to laws of war and gender prosecution in international war crimes tribunals. Dating back two thousand years, rape and sexual abuse of women has been commonplace during periods of armed conflict, and punishment of these crimes has been a low, or nonexistent, priority. From the evolution of the customs of war in the Middle Ages, to the first codification of the laws of war, to the initiation of international instruments regulating war, to international tribunals to punish war criminals of World War P, gender based violence against women during wartime has been shamefully neglected in both domestic and international laws (human rights and humanitarian). As such, the thesis combines the historical survey of the treatment of women in past war crimes tribunals, with practical steps to prosecute gender crimes in present war crimes tribunals, and with propositions to amend the laws to provide future protections. This thesis reviewed the history and establishment of the Nuremberg and Tokyo War Crimes Tribunals. In reviewing these tribunals, and subsequently the trials, special emphasis was placed on the crimes within the jurisdiction of the tribunals, and the Allied power's eagerness to invoke innovative crimes regarding persecution on religious or political grounds, particularly regarding the massacre of the Jews, but their reluctance to afford the most minimum of efforts to prosecute gender related offenses. In order to reconcile the international communities neglect of women's issues, the status of women in domestic and international law and practice was reviewed, both in the past and in the present, and scenarios presented as to how certain issues have contributed to the failure of the legal community to address women's issues, and suggestions made as to how some of these problems can be rectified. With the past history as a cornerstone of proof of the urgent need to afford adequate protection to women during wartime, and the desperate need to support this protection with enforcement, the Balkan conflict will be reviewed, and the International Criminal Tribunal for the former Yugoslavia will be analysed. Reports of gender specific violence will include rape, forced prostitution, genocide, torture, sexual mutilation, forced impregnation, forced sterilization, and forced maternity. Particular emphasis will be placed upon instances of organized, systematic rape and cases of single, isolated rape, and the prosecution of these offenses under the terms of the Yugoslav Statute. The central argument throughout the thesis will be that all gender based violence against women committed as a direct result of the armed conflict should be explicitly defined and rigorously punished as serious violations of international humanitarian law. An extensive analysis will be presented on ways in which the Yugoslav Tribunal, and subsequently the Rwandan and future tribunals, can prosecute gender related violence, and why they must do so. Throughout the thesis, reviewing women's subordination from 500 B.C. to the present, it will be consistently argued that the abuses against women in wartime are subjugated in part because women have not been afforded sufficient recognition and protection domestically. Domestically, women continue to be discriminated against when the international community ignores the abuses committed against them, or labels wartime abuses as belonging in the domestic sphere. Violence against women in wartime continues to be regarded as a natural occurrence of war, typically rejected for investigation or prosecution by both the domestic and international communities. As the poor treatment of women domestically marginalizes the attention given to victims of wartime violence, lack of attention to wartime violence against women marginalizes all women. The continuous circle of ignoring gender specific abuse against women continues, with neither domestic nor international laws affording adequate attention, protection, or redress. However, it appears that the cycle of complacency about gender issues in the international community has come to a halt, with several indictments in the Yugoslav Tribunal charging defendants with sexual assault offenses. Successful prosecution of gender related crimes in the Yugoslav and Rwandan Tribunals will not only provide current victims with a remedy, but will also extend protections to women in ongoing and future armed conflicts, by terminating the impunity with which sex crimes have previously been afforded.
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ItemRepresentation and reasoning in law: legal theory in the artificial intelligence and law movement( 1996)Over the past few decades there has emerged a group of researchers who , have used computerised techniques to investigate the nature of legal reasoning. These researchers have formed what is called the 'artificial intelligence and law movement.' Members of the movement have built computer systems which automate legal reasoning, and in so doing have assumed that certain models of legal reasoning are correct. This dissertation argues that in many instances the models relied on by artificial intelligence research are no longer commonly accepted as valid by legal theoreticians. It further argues that until the artificial intelligence and law movement begins to recognise alternative legal theoretical models of reasoning, it is - unlikely to produce accurate, reliable and useful automated legal reasoning systems. The dissertation examines the four main reasoning paradigms in the artificial intelligence and law movement: deductive reasoning, analogical reasoning, inductive reasoning and sub-symbolic (neural network) reasoning. In each of these reasoning paradigms it shows that there is an extensive legal theoretical literature which is largely ignored by artificial intelligence research. It reviews the different models presented by legal theorists in each of these paradigms, in, order to show the limitations of artificial intelligence assumptions about the paradigm. The dissertation reviews a representative sample of artificial intelligence and law implementations in each of the reasoning paradigms, and assesses the type of legal theory implicitly adopted in each It argues that, generally, the models of legal reasoning adopted in each paradigm by artificial intelligence research has been formalistic, static, and mechanical. As a consequence, the implementations have been computationally tractable, but unconvincing in legal theoretical terms. The dissertation shows how alternative legal theoretical models of reasoning may be incorporated into existing artificial intelligence approaches. The dissertation concludes with an indication of how in future artificial intelligence and law research might provide useful models of legal reasoning, and how it might inform legal theory.
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ItemInsolvent trading under the corporations law: the amending insolvent trading legislation introduced by the Corporate Law Reform Act 1992 addresses the major inadequacies of its predecessor, but also leaves a number of issues unresolved( 1996)The Corporate Law Reform Act (1992) (Cwth) (the Act) received Royal Assent on 24 December 1992. The provisions of the Act became operative in two stages: Parts 2, 3, 6 and 7 commenced on 1 February 1993 and Parts 4 and 5 commenced on 23 June 1993. The Act introduced a new insolvent trading regime into the Corporations Law replacing s 592 and related provisions. The new regime introduced significant changes to the Corporations Law (Law). Some of the main features are; imposing on directors a duty to prevent the company from engaging in insolvent trading, implementation of new statutory defences, introduction of provisions that relate to holding companies, decriminalisation of the insolvent trading provision and civil penalty orders for contravention of 588G in the absence of dishonest intent, new criminal proceedings for contravening 588G in circumstances of dishonesty, liquidators standing to take proceedings and power given to the court to make compensation orders for liquidators and creditors. (from introduction)
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ItemNegligence by corporate health care providers: vicarious liability or non-delegable duty of care?( 1996)Summary of Argument: Hospitals were formerly protected from legal liability. The Common Law is eroding this immunity. Initially this has been done by expanding the doctrine of vicarious liability, but that doctrine has been unable to cope with modern hospital relationships, which have involved the use of independent contractor doctors, who are not directly salaried by a hospital. A doctrine of non-delegable duty of a hospital has emerged, in part to cope with the liability of independent contractors of a hospital. Extensive comparisons are made by me with the laws of hospital liability in England, United States of America and Canada. A line has been presently drawn by Australian courts to exclude hospital liability where an independent contractor doctor treats a hospital patient as a private patient. I analyse and criticise this approach. I argue that there are strong arguments for the extension of the doctrine of non-delegable duty to cover the situation of all negligence which occurs within the four walls of a hospital, notwithstanding that a negligent doctor may be an independent contractor. My thesis demonstrates that the doctrine of vicarious liability has serious short-comings when applied to modern hospital relationships, and I examine these failings in comparison with the competing doctrine of non-delegable duty. I examine the rationale for the existence and expansion of non-delegable duty. Social explanations have been forthcoming from recent judicial decisions in Australia and elsewhere which justify the expansion of the doctrine, and these are fully considered by me. Independent contractor doctors form part of the community utility of a hospital and are inseparably connected with the activities of employed staff, particularly during surgery or other medical practices involving the effort of a team. There is no proper legal basis for the exclusion of hospital liability for the negligence of independent contractors, who work within a hospital.
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ItemEnforcement of foreign arbitral awards in Indonesia: a legal and practical analysis( 1996)Indonesia has ratified the 1958 New York Convention and promulgated Supreme Court Regulation No 1/1990 as its implementing regulation for the recognition and enforcement of foreign arbitral awards. In addition, Indonesia is also the party to the 1965 ICSID Convention. Therefore, foreign arbitral awards should now be enforceable, in theory at least. Yet, in practice the enforcement of foreign arbitral awards in Indonesia remains uncertain. This thesis examines legal and practical problems related to the enforcement of foreign arbitral awards in Indonesia. They include, first, uncertainty as to the application of the competence-competence principle and non-recognition of the severability principle. Secondly, uncertainty as to the legal status of the colonial laws on arbitration, in particular, the provisions of article 100 of the Reglement op de Burgerlijke Rechtsvordering (Regulation on Civil Procedure for European) which are potentially confusing and lead to ambiguity. Thirdly, and related to the first and second matters, uncertainty remains as to the availability of means of recourse against the arbitral awards and in respect of obtaining leave for enforcement. Finally, there are several unclarified matters in Supreme Court Regulation No 1/1990, in particular, the definition and criteria of "foreign arbitral awards", "commercial law" and “public policy” reservations. In addition, this thesis also analyses the academic drafts for reform of current arbitration law. These drafts deal more comprehensively with the practical implementation of arbitration agreements. They recognise the competence-competence principle, provide for the minimal involvement of court in arbitration proceedings and establish simple procedures for the enforcement of foreign arbitral awards. The drafts do, however, retain Supreme Court Regulation No 1/1990 which requires proof of the existence of a bilateral agreement, commercial matter or law and public policy to enforce foreign awards, thus maintaining long-standing problems in enforcement from a lack of definition in the rules. In addition, the problem of the status of the severability principle is not resolved in the drafts.
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ItemLegal avenues for protection of the work of Aboriginal artists( 1996)Summary of Argument: The aim of this paper is to consider the legal avenues by which Aboriginal artists or their communities may seek solutions to the problem of appropriation of their art. It will also consider what legislative or other changes might be introduced in order to resolve any such problems. The paper will suggest that legislative or other changes should be the product of consultation with Aboriginal artists and communities, and be clearly directed to legal problems faced by them. In particular, legal change should be as far as possible consistent with Aboriginal laws and customs existing across Australia, while not compromising basic principles of Australian intellectual property law. The attempt to impose an inflexible legislative scheme may be counter-productive. The paper will outline a proposal for legal change which, it will be submitted, is capable of accommodating a variety of Aboriginal customs and laws. The paper will consider the capacity of the Copyright Act 1968 (Cth), and of equitable doctrines of trust and breach of confidence, to resolve the problems of Aboriginal artists and communities in a manner consistent with Aboriginal law. Through an analysis of the decided cases, and through an examination of statutory and judge-made law, it will be established that the existing law is not capable adequately of meeting Aboriginal needs. In particular, the existing law is not capable of accommodating the communal nature of Aboriginal ownership of intellectual property rights in art, its lack of limitation in time, and the variety of interests which individuals or groups may possess in a work of art, or in a story or design underlying such a work. It will be suggested that it is undesirable to attempt to define the interests of Aboriginal groups or individuals in a work of art in advance. At the same time it is necessary that the law in this area be relatively workable and certain. It is possible, it will be submitted, to accommodate these two goals by adopting in relation to questions of appropriation of Aboriginal art principles similar to those adopted in relation to Aboriginal land in the Mabo decision. Such principles could, it will be submitted, be translated into practical proposals for legislative change which would be consistent with basic principles of intellectual property law, and would in addition be relatively consistent with Aboriginal customs and laws.
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ItemPatents and the Human Genome Project: should the DNA sequences determined in the project be patentable, and would an application in respect of the DNA sequences be a patentable invention under the Patents Act 1990?( 1996)Ascertaining the sequence of the human genome has long been the 'holy grail' of the genetics world. The Human Genome Project is an internationally co-ordinated scientific effort aimed at finding the grail through the mapping and sequencing of all the DNA in the human genome. The project has been compared to the program to send a man to the moon, but those involved have described the project's implications for humanity as being far greater than that first step onto the surface of the moon.
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ItemUnauthorised commercial exploitation of athletes( 1996)This thesis explores the extent to which the law recognises a legally enforceable right to the 'celebrity status' of an athlete. An analysis of the sporting industry demonstrates that due to the centrality of sport to Australian culture, the personalities of celebrity athletes are of economic value to potential sponsors and thus to themselves. In Australia, due to an absence of protection based on general privacy, property and equitable concepts, the athlete has to rely on piecemeal and incidental protection under principles of defamation, passing off, breaches of the Trade Practices Act 1974 (Cth) and intellectual property law. While recent developments highlight the willingness of courts to assist in unauthorised appropriation cases, it is submitted that the focus of the available remedies render them inadequate to provide complete and comprehensive protection. The United States of America, Canada and the major European countries provide specific and additional protection to personality. Not only is Australia out of step with these countries, but is also arguably in breach of international conventions which recognise a right to privacy. That the community disapproves of illegitimate exploitations is evidenced through voluntary codes of practice prohibiting the practice. Accordingly, legal reform is necessary to provide complete protection against the unauthorised commercial exploitation of personality. Arguments supporting the introduction of a new remedy include philosophical grounds, economic fairness and compatibility with international law. Furthermore, there exists judicial and academic recognition of the need for reform. Three options are provided as to the form the new remedy should take. The preferred solution is the introduction of a new tort dealing with the appropriation of personality.