Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 10 of 12
-
ItemThe Confucian misgivings : Liang Shu-Ming's narrative about law( 1999)This thesis is about Liang Shu-ming (ikx, 1893-1988), a figure of deep spiritual meaning in the realm of Chinese legal thinking. It aims to explore his thinking concerning law, in particular, his reworking of the traditional Chinese legal ideas in terms of the New-Confucianism. The major intellectual interest throughout this thesis is to offer a study on China's legal legacy, through Liang Shu-ming's eyes. I follow the formula of the parallel between Life and Mind (ll c) , Physis and limos. I will compare Liang Shu-ming's narrative with his own practical orientation and with the theories of other interlocutors. I will put Liang Shu-ming into the social context of modern Chinese history, in particular, the context of the unprecedented crisis of meaning in the legal realm and the collapse of a transcendental source for Chinese cultural identity in the light of modernity. The evaluation provided by my thesis could be helpful in clarifying the deep structures and significance of the present Chinese legal system through historically exploring Liang Shu-ming's misgivings. This thesis consists of three parts. Part I will present Liang Shuming's theoretical concerns about the concept of law, the source and meaning of law in Chinese socio-cultural contextualisations, the interaction between humanity and law, and in particular, limos and the underlying presumptions about the ideal human life and human order. This examination will support the thesis that the necessity of rethinking our legal tradition is derived from the urgency of getting an undistorted understanding about our own way of life itself. Part II will present an analysis of his understandings about constitutionalism, in particular, his critical articulations on the predicaments China has had to face in modifying and transplanting Western models. In order to explain my subject's various characteristics, a comparative analysis of Liang Shu-ming and his contemporaries, in both China and the West, will then be used to clarify the nature of constitutionalism, as a foreign body, in a place like China. In Part III, Liang Shu-ming's comparative insight about the Western legal tradition and spirit, and his attitude to and rationale for the conceptual and institutional transplantation of Western law in China, will be articulated. Here Liang Shu-ming unveiled a paradox beneath the process of so-called modernization by drawing inspiration from the West in modernizing China. That is to say, China has been facing a dilemma: either the refusal to imitate or the merely horizontal transplantation. He argued neither of them would be healthy for China. While refusal would result in something definitely worse, a simple horizontal transplantation would also be harmful. The intrinsic tension underlying this dilemma has consequently perplexed the legal shaping process in modern China. In the Conclusion, the creative tension between life and mind, limos and Physis as symbolism and substance will again be reflected in China's quest for the "new law". If a conclusion could suggest itself, however, it would be, "A Code is not at once a history and a system", but, "Our history is our code."
-
ItemThe Ghanaian petroleum sector and the environment( 1998)Ghana spends a substantial portion of her foreign exchange earnings on the importation of crude oil. It is therefore important to the government that the country's petroleum potential be explored and if any finds are made, that such finds be produced speedily to save the country invaluable foreign exchange that goes into the importation of crude oil. There is also the hope that where such finds exceed local requirements, the excess would be exported to earn foreign exchange for development. The Ghanaian government is also aware that petroleum exploration and production have the potential to cause adverse environmental effects if the operations of the companies are not properly regulated and controlled. It is therefore necessary to appraise existing laws on pollution control to determine whether they are adequate to regulate pollution in the conduct of petroleum activities. Where the laws are inadequate, as this work has found to be the case in Ghana, the government need not wait until the legal regime is updated. Apart from the promulgation and enforcement of legislation, there are other legal techniques that may be employed to control environmental pollution in petroleum exploration and production areas. These are the criminal sanction technique, the regulatory or licensing technique, the negotiations and agreement technique and the property rights technique. This work reviews these techniques and the conditions needed for their successful operation, and assesses what each technique can contribute towards environmental protection in Ghana. The experiences of some countries which have employed these techniques are also reviewed. Based on this evaluation, the negotiations and agreement technique is recommended as the preferred option for Ghana. The form in which this technique should be adopted for implementation in Ghana is also recommended.
-
ItemThe development of Australian law to protect undisclosed business information( 1998)Traditionally, information has not generally been regarded by the common law as being property and able to be legally protected in the same way as land, money or goods. Australian courts have demonstrated great reluctance to change this approach, even though information is increasingly considered to be a valuable asset, particularly by the business community. However, a change in the way information is regarded has taken place over the last four to five decades, resulting primarily from the increased use of computer technology. In Australian law, organisations or individuals who wish to restrict access to their business information and keep it confidential currently have limited legal means to achieve their aim. The breach of confidence action, contract law, copyright law and criminal law may all be used to protect information from unauthorised access or use but only to a certain extent. In most instances these traditional legal approaches require that there is a confidential or contractual relationship between the parties, that the information be in an original form, or that the unauthorised access be made using computer technology. There are particular deficiencies in the legal protection available when undisclosed business information is accessed by a party outside a contractual or confidential relationship, often through improper means. Ways in which these deficiencies, particularly in respect to the breach of confidence action, could be overcome have been proposed by a number of law reform bodies, in Australia and overseas. However, no legislative amendments adopting these proposals have been introduced in Australia and judicial decisions indicate that the courts are likely to continue a conservative approach to the protection of information to avoid creation of barriers to the free flow of information. Different legal approaches to the protection of business information have developed in continental Europe and America. However a review shows that deficiencies in the protection offered have not been fully overcome in these jurisdictions. More recently, a number of international developments have taken place which are of significance to the protection of business information. The developments take different forms, either as binding international agreements, or non-binding agreements. Examples are the Trade Related Aspects of Intellectual Property Agreement (TRIPS); the OECD Guidelines of Security for Information Systems and for Cryptography Policy; and the WIPO Model Provisions for Unfair Competition. These agreements establish new international standards relating to the protection of business information. The way in which these international agreements may become part of Australian domestic law and policy can be predicted and explained by analysing the nature and form of the relevant international agreements and the process by which they may become part of domestic law; by having regard to recent developments in this field in other countries; by analysing Australia's response to similar developments in the past, for example, the OECD Guidelines on the Protection of Privacy and Transborder flows of Personal Data; and by reviewing Australia's response so far to the latest developments relating to the protection of confidential business information.
-
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
-
ItemThe law of money( 1998)Money occupies a central position in both the disciplines of law and economics. From the legal point of view, money constitutes a vital part of the legal system. Ever since the advance from a barter economy, money has become a central instrumentality of legal transactions. Seeking a legal definition of the phenomenon of money is, therefore, an invaluable exercise for the discipline of law. However, as money is an economic phenomenon, seeking to ascertain the meaning of money for legal purposes cannot be comprehensively pursued without due regard to economics. This thesis sets out to show the importance of monetary and other economic factors in analysing and applying the law of money. In particular, this thesis sets out to identify the principal functions performed by money from the viewpoint of their relevance in comprehensively defining the phenomenon for legal purposes. It examines the legal meaning of money in the context of such developments as the use of advancing technology to transmit by electronic means rights to money at ever increasing speeds and amounts across the globe, floating exchange rate markets, the changing role of gold from its once unique position as the quintessential international monetary reserve, the development of "electronic cash", and the tracing of money through a series of paperless transactions. When examining these developments, there is a focus on how legal analysis might be assisted by identifying the role performed by money in specific sets of circumstances. While attention is given to international monetary units, such as the Special Drawing Right and the European Currency Unit where relevant throughout the thesis, the development of the Euro as the currency of the European Union in the twenty-first century is not specifically addressed. This is an on-going and developing process, raising specific issues such as natural currency areas within the European Union necessarily outside the ambit of this thesis, which focuses on the law of money proceeding from an Australian viewpoint to more general materials especially in the English-speaking world. However, this thesis does draw from the non-English-speaking world for materials and examples that may well be of universal significance, and have unique ramifications, in the process of determining the meaning of money for legal purposes. While focussing on the future, the thesis carefully considers the past from the point of view of determining the extent to which the existing law is able to deal with what appear as entirely new phenomena, associated with technological advancement and apparent rapid globalisation.
-
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.
-
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.
-
ItemGerman real property law and the conclusive land title register( 1999)The primary objective of this study is to make a significant contribution to our understanding of the origins and background of those principles of the Australian Torrens land title registration system which were originally adopted in 1858 from the German land title registration system developed in the Hanseatic cities of Northern Europe. The substantial derivation of the contemporary German land title registration system, which implements the principles in Book Three of the German Civil Code, from the same system invites analysis of it as well, not least to see how it has adapted to the challenges to real property law posed by immense social and technological changes later in the nineteenth century and across the twentieth. (From introduction)
-
ItemJurisprudential and cultural perspectives on the implementation of procedural justice in administrative law in the People's Republic of China( 1999)Initially, this thesis represents a theoretical argument about the values of procedure in different social settings. In particular, it explores the implications of such concepts as democracy, justice, efficiency and social stability from a procedural perspective. The argument shows that the role of procedure is indispensable to the concepts. Then the thesis specifically examines the role of procedure in ensuring justice and legality in the administrative state through a comparison between the Civil and Anglo-American legal traditions. In the context of China, the thesis shows that the underdevelopment of fair legal procedures in ancient China relates to the intention of ancient Chinese law, fa, and its tradition of li and 'non-litigation' (wu song). From the transformation period of Chinese law, dating back to the middle of the nineteenth century, the concerns about independent procedural laws in China increased. This was evidenced by the corresponding legislation drawing on the ideas and experiences of Western countries in both the late Qing dynasty and Republican China. In the People's Republic of China, the modernisation and Westernisation of Chinese law encountered a setback for decades. Legal instrumentalism prevailed. Procedural law was seriously underestimated. From the late 1970s, Chinese lawyers began to rebuild the legal system following a series of economic and ideological changes caused by a social reform. However, law cannot be implemented without the means to do so. Thus the lawyers began to highlight the role of procedural laws in overcoming the impact of legal instrumentalism. The thesis applies the initial theoretical argument to a discussion of the role of procedure in ensuring administrative legality in the People's Republic of China in view of Chinese tradition, its modern situations and contemporary experiences. The focus in this context is the necessity and possibility of enacting a comprehensive administrative procedure Act. Looking at the experiences of Western countries and the existing features of Chinese legislation, it suggests that the best way to provide a procedural framework for administrative activities in China is to selectively and separately codify the procedures. Finally, a conclusion is drawn on the whole.
-
ItemFrom committee to commission?: the evolution of the Mekong River Agreements with reference to the Murray-Darling Basin Agreements( 1997)The Murray-Darling Basin Agreements had their genesis in disputes between upstream States (Victoria and New South Wales) and a downstream State (South Australia) over the use of basin waters. While originally the disputes concerned navigation, for most of the twentieth century, the rivers' use for irrigation has been of more importance. The 1914 Murray Waters Agreement, between the Commonwealth government and those of the three basin States, was essentially a compact defining allocation of water to the parties concerned. Agreements on the Murray-Darling basin have evolved from this narrowly-based concept to one in which the natural resources of the basin are to be managed as a whole. At the same time, an institutional structure for the operation of water control works has developed which is able to make policy for resource management in the basin. The present Agreement covers water, land and environmental resources, and contains provisions for strategies intended to enable the integrated and sustainable development of the basin in the future. The Mekong Agreements, rather than representing a consistent evolution towards a legal framework for comprehensive basin management, have instead reflected the political evolution of the region. The 1957 Statute was a limited compact establishing the Mekong Committee for the Co-ordination of Investigation. It made no provision for basin management, nor for the equitable use or sharing of basin water. It was established to a large extent as an expression of the influence of the United States in the region. Its successor, the Joint Declaration of 1975, was a more comprehensive document, and used the Helsinki Rules of 1966 as a model. While it included principles of cooperation between riparian States, which could be used to ensure equitable use of water, it did not provide an adequate institutional structure for the management of basin resources. The 1975 Declaration was drafted during a hiatus in the conflict in South East Asia; and because one of the signatory States - the Republic of Vietnam (South Vietnam) - ceased to exist with the fall of Saigon, it was never applied. Interim arrangements were in place until 1995 during the absence of Cambodia from the international body politic. The drafting of new arrangements was then precipitated by Thailand's expulsion of the head of the Mekong Secretariat, effectively bringing the status quo to an end. The Mekong Agreement of 1995 establishes a new Commission, and states its purpose to be the sustainable development of basin resources. It relies on a co-operative approach, rather than establishing comprehensive criteria for water use, with the exception of the Mekong mainstream in the dry season. In addition, there is no provision for projects on tributaries to be submitted to the Commission for an evaluation of their effect downstream. In contrast to the arrangement under the Murray-Darling Basin Agreement, it confers no powers on the Commission to control basin waters, or to manage the regime in an effective manner, and to ensure equity between basin States. If development in a rational and equitable manner is assured, legal and institutional arrangements should be able to endure the ebb and flow of international relations. The need for an appropriate instrument to accommodate changing circumstances in the Mekong basin is made the more important by the prospect of the two upper basin States (China and Myanmar) joining the Agreement in the future. The Murray-Darling Basin Agreement, while it is a less than ideal model for legislation in this field, nevertheless offers guidance on how the new Mekong Agreement may be developed. This applies both to the management of basin resources, and to the preparation of strategies directed towards the objectives of the Agreement. The 1995 Mekong Agreement will be examined in the perspective that legislation should be stable and not static. While the Agreement has been duly praised for its intention of developing the basin through co-operation between States, this thesis looks at ways in which it may be improved. Significant issues effecting the choice of institutional and legal arrangements in both basins are identified and discussed. Findings from this comparison suggest a context for the further evolution of the institutional and legal framework to support the rational management and sustainable development of the Mekong basin.