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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ItemAudio-visual works co-produced in Australia and Canada : conflict of policy and of copyright theory(University of Melbourne, 1992)
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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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ItemThe comprehensibility of legal language : is plain English the solution ?( 1997)This thesis seeks to establish whether plain English offers a complete, a partial, or no solution to the drafting of legal documents which are more comprehensible, particularly to lay persons. Built on limited prior research this thesis further identifies the characteristics of traditional legal English and establishes that they are constant across all types of traditional legal writing. Many of these characteristics have been shown by psycholinguists, cognitive psychologists and other researchers, to cause comprehension problems particularly in lay persons. Some flow directly from the search for certainty. Others result from a firm but mistaken belief held by lawyers that the semantic links within a sentence are stronger than those between sentences. Consequently a legal rule is incorporated within a single sentence structure often of extreme syntactic complexity. Further evidence is here presented to show that this is a major cause of comprehension problems in lay persons. Two types of discourse analysis have been used to establish that the single legal rule/single sentence structure lacks linguistic justification. Two characteristics of traditional legal English were found to be necessary properties of legal writing. The expression of the mandatory and discretionary form of the speech act is essential in legislation. The markers of the performative utterances, 'shall' and 'may', may cause comprehension problems for lay persons. These problems are compounded by the unthinking use of these markers to express commissive acts. Technical terms and terms of art were also found to be essential to the precise communication of legal concepts. Eighteen sets of plain English guidelines were evaluated, first on the basis of published research and then on information gained from the testing carried out for this thesis. A model of the process of drafting plain English documents was created and used to generate an improved set of plain English guidelines. These guidelines were used to redraft a so called 'plain English' document. This yielded further improvements in comprehension. The value of plain English in the drafting of legal documents was assessed. Plain English was found to offer a partial solution
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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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ItemInteraction between commercial & legal aspects of project finance in Australasia( 1997)The project finance technique emerged as a result of legal principles evolving to meet commercial needs. Its value - enabling companies to fund projects on other than their own credit standing and to diversify risks associated with projects - has been proved by a remarkable string of major developments which were unlikely to have been undertaken without such a financing method. Over the years, the technique has been adapted to a range of applications and industries. One of its most recent uses has been in private sector development of public infrastructure projects. It is in this climate of continued need for project financing that this thesis seeks to examine its development to date, its strengths and its weaknesses, and to consider what changes, if any, are needed to ensure its continued usefulness in the future. The growing body of work known as 'economic analysis of law' is used as a key to understanding these issues and to suggest possible ways forward. Risk is identified as being central to the project financing process. Its identification, allocation and mitigation are the building blocks of the technique. Parties trade risks and contractual arrangements are put in place to give effect to these compacts. These contracts have often been creative, responding to the commercial requirements of the particular development and the parties involved. Novel processes have been devised to deal with cases of project or operator failure, providing self governing and self executing regimes for the developments. These self contained mechanisms are a response to the fact that court adjudication of disputes in these transactions is often inappropriate. The sophistication of these arrangements, however, has also resulted in significant transaction costs. Lengthy and complex documentation is characteristic in these financings. The costs begin at the outset of the transaction in the time and money involved in negotiating documentation and, on an on-going basis, arise through the significant reporting burden usually imposed on borrowers and the restrictive provisions which require continual lender involvement in project decision making. The lengthy, detailed documentation provides the project management regime as it usually stipulates in great detail how the project is to be operated and what the borrower can and cannot do. However, the very long terms of these financings (at times 17 or 18 years), mean that parties are unlikely to succeed in anticipating and dealing comprehensively with every imaginable contingency. The use of such lengthy, detailed documentation will, therefore, be reviewed and a theoretical analysis presented of why project participants have adopted this strategy. This thesis also recommends alternative strategies for structuring the project finance relationship. The optimal solution for any project should still be determined on the specific circumstances on the case and is likely to combine elements of the current approach with some of the proposals suggested.
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ItemInsurable interest, indemnity and third party rights under general contracts of insurance and the Insurance Contracts Act 1984 : a comparative study( 1997)On 1 January 1986 a new era dawned for the development of insurance law in Australia, for on that day the provisions of the Insurance Contracts Act 1984 (Cth) (hereafter referred to as 'the Act') came into operation. Section 3 of the Act repeals for Australia certain Imperial Acts including the Life Assurance Act 1774, the Fires Prevention (Metropolis) Act 1774 and the Marine Insurance Act 1788. In so far as contracts of general insurance) can be governed by the laws of the Commonwealth of Australia, this repeal brought to an end a period of development of insurance law relating to:- a.. the concept of insurable interest; b. the principle of indemnity; and c. the rights of, and the classes of, persons entitled to make claims under contracts of general insurance. That development had commenced prior to the passage of the repealed Imperial Acts, but had been accelerated by, and as a result of, their passage. In Part III the Act lays down new rules with respect to the concept of insurable interest. Moreover, by sections 44, 45, 48, 49 and 76 certain material alterations are made to the law relating to: - a. the principle of indemnity; and b. the rights of, and the classes of, persons entitled to make claims under contracts of general insurance. In this thesis I propose to investigate and describe the law relating to:- a. insurable interest; b. the principle of indemnity; and c. the right of, and the classes of, persons entitled to make claims under contracts of general insurance, 1. as it had developed prior to the passage of the now repealed Imperial Acts, and their precursors; 2. as it developed after the passage of the now repealed Imperial Acts until the date of their repeal; 3. as it has been affected by the repeal and the new regime provided by the Act; and 4. as it is likely to develop in the future. Furthermore I propose to draw a comparison with the laws operating in the Netherlands, France and Germany at the relevant times to ascertain whether, and to what extent, such laws influenced the English law or were influenced by it. Finally the laws presently operating in those countries will also be examined by me to consider whether any, and if so which, recent continental developments might be useful, as indicating a solution to problems likely to face Australian Courts in the immediate future.