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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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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ItemThe status of clergy of the Anglican Church of Australia: employees or office holders?( 1997)The acceptance of the traditional view that clergy are the holders of an office has been the subject of challenge over past years and is increasingly being challenged nowadays. In particular, there have been claims by clergy and their dependents for worker's compensation benefits, claims by clergy for wrongful or unfair dismissal and claims by third parties alleging vicarious liability on the part of the Church. Changes in technology, among other matters, have led to an increase in the number of employees who work from a home office. When the remuneration, associated fringe benefits and other entitlements received by clergy are taken into account, it appears that there is little difference between the employee working from a home office and clergy holding parish appointments. This thesis re-considers the status of clergy in the Anglican Church of Australia. There is considered first the administration of the Anglican Church of Australia. This is followed by a consideration of the concept of employment and the concept of an office. Associated with this consideration are two matters which require specific examination. The first of these is the incidence of income tax. Most clergy have income tax deducted at source in accordance with the 'pay as you earn' provisions of the relevant legislation. Yet, these provisions are applicable only to employees. The issue which arises, and which is examined, is whether by participating in this method of payment of income tax clergy are estopped from denying an employment status. It is concluded that both in law and by direction of the Commissioner of Taxation this is merely a matter of convenience and does not constitute evidence of employment status. The second of the associated issues is that of the parson's freehold. The concept of a 'living' is not part of the law or practice of the Anglican Church of Australia. Had it been so, it would have added considerable weight to the argument in favour of the status of office holder. Accordingly, the support for office holder status is weakened. A review of the common law in Australia and elsewhere leads to the conclusion that the status of office holder is still the accepted view. The employment relationship is a contractual relationship made between two parties, an employee and an employer. Therefore, there is examined the issue of who might be the employer of the clergy. The conclusion is that there is no person or body who has sufficient involvement, control or responsibility to be described correctly as an employer. Finally, there is a consideration of the source of the responsibilities and rights of clergy. The conclusion is that the traditional view of clergy as office holders has not been displaced and is still applicable to-day.
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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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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.
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ItemElectronic commerce on the Internet: legal issues of contracts on the World Wide Web( 1996)In the early nineties, despite the widespread knowledge of the potential uses of the Internet, many businesses and information technologists scoffed at using it as a medium for business. It was thought that the technology, capacity and critical mass would not make the Internet a suitable medium for electronic commerce. However, by the last quarter of 1994 there were over 10,000 companies offering information and services for sale over the Internet. This figure is now expected to grow to over one million businesses by the year 2000 despite the lack of clear laws governing commercial activity on the Internet. This paper is intended to investigate the issues of electronic commerce and the difficulties contracting parties face on the Internet which would not normally arise in conventional transactions. In addition, as one of the primary interest in the Internet comes from the easy and quick access to overseas markets, the paper will also consider the international aspects of Internet transactions. It is not the intention for the paper to be a comprehensive or definitive treatise on contract or international law, but rather consider the intriguing issues raised by electronic contracting in the domestic and international context. Chapter 1 is a concise introduction to the technology of the Internet and its workings to provide a background for the discussion that follows. Chapter 2 looks at the unresolved international issues that will arise out of trans-border Internet trade. Chapters 3 and 4 will then review the impact of Internet technology and how it challenged the current practices of proving the existence of contracts and the formation of contract. In chapter 5 we look at how the law deals with the specific issues of software being sold on-line and the attempts by Internet-stores to avoid statutory conditions designed to protect the consumer.
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ItemHow effective are current drug education programs as a means of preventing illicit substance abuse in teenagers( 1999)Western Governments have been obliged to tackle illicit substance abuse by focusing on health issues, this has resulted in preventative policies that direct drug education through schools. As a consequence there are hundreds of drug education programs and the majority are competing for funding under the same auspice. Victoria's response has been to develop a prevention program known as Get Real and phase it into Victorian schools over a three year period. The three year period ended in 1999 and due to a change of Government the Get Real program has been re-funded for another 12 months, this is despite the fact there have been no formal evaluations conducted about its success or otherwise. This program has been examined in relation to its own objectives and juxtaposed against two other main programs operating in schools in Australia. The results suggest Get Real is on the road to achieving its objectives which are to provide students with a realistic knowledge hasp about drugs and their effects. However, its broader goal which is to prevent illicit substance abuse cannot be evaluated because there are no studies that show its success or otherwise. Based on the hypothesis thill drug education programs prevent illicit substance abuse in teenagers, Get Real's curriculum was compared with other similar programs and the research done on these programs suggest drug education programs do not successfully prevent illicit substance abuse. The best Get Real and other programs can hope to achieve, is to provide realistic information and develop children's social skills and empower them with the knowledge and self esteem to make their own decisions. And to know that they alone are responsible for their choices and the consequences that follow from these choices.