Melbourne Law School - Theses
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ItemThe history of legal institutions in Victoria( 1942)It has become inveterate in English legal writings to fit all English colonies into a dichotomy – colonies acquired by conquest or cession, and colonies acquired by settlement or occupation. Important constitutional differences attach according to whether a particular colony falls within the one class or the other. To quote the words of Lord Watson in giving the advice of the Privy Council in Copper v Stuart:- “The extent to which English law is introduced into a British Colony and the manner of its introduction must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cessation. In which case there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.” The locus classicus dealing with the position of a colony of the former class, that acquired by conquest or cessation, is to be found in the judgment of Lord Mansfield in Campbell v Hall. Its essential feature lies in the fact that the laws there in force continue until they are altered or abrogated, and until that time British subjects are under their control. This feature is necessarily excluded by the circumstances in which a colony is acquired by settlement. In such a colony from the nature of things there can be no lex loci to which the settlers are amenable, no existing laws to contest the superiority, and no power in the settlers to establish laws independently of the mother country to which they still owe allegiance. In such a colony English law prevails as the birthright of the settlers, and the bond of allegiance between the colonial subjects and their sovereign. (From Introduction)
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ItemThe parens patriae and wardship jurisdiction of the Family Court of Australia: its history and current status( 1992)Before the Family Law Act 1975 (Cth) came into operation, the Supreme Court of each State exercised a complete jurisdiction over a child of a marriage. That jurisdiction included the jurisdiction conferred by the Matrimonial Causes Act 1959 - 1973 (Cth) and the state Supreme Courts' inherent parens patriae jurisdiction and wardship of court jurisdiction. With the passing of the Family Law Act 1975 (Cth), the Commonwealth Parliament did not include in that Act provisions that created a parens patriae jurisdiction and a wardship of court jurisdiction in the Family Court. Consequently, the jurisdiction over children of a marriage became fragmented between the Family Court exercising jurisdiction conferred by the Family Law Act, and the state Supreme Courts exercising their inherent parens patriae jurisdiction and wardship of court jurisdiction. This paper discusses the question whether it is a valid exercise of the Commonwealth's Marriage Power and the Matrimonial Causes Power for the Commonwealth to pass enactments creating a parens patriae jurisdiction and a wardship of court jurisdiction and vesting them in the Family Court of Australia.
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ItemAustralian water law: an historical and analytical background( 1971)The thesis traces the history of governmental intervention in Australian water management. At the State level, it examines traditional common law doctrines, their inadequacies to meet Australian demands, and the tensions between private rights and public control inherent in the Australian system of administrative rights to water. It argues for clearer recognition of the role of private law actions in such a system. At the national level it documents the history of the conflicts which have shaped the administration of inter-State rivers as a background to the integrated enquiries of other research students.