Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 6 of 6
-
ItemSex work as work : labour regulation in the legal sex industry in Victoria( 2001-02)Prostitution occupies a significant place in academic research. It has been analysed from a range of disciplines including sociology and anthropology, women’s studies, criminology and law, and medicine and health services. Much of the recent scholarship in Australia concerning prostitution has focussed on the relationship between sex work and sexually transmissable diseases, and on the decriminalisation of prostitution. Despite the considerable number of studies into prostitution, there has been only limited consideration in Australia of prostitution as a form of waged labour. Some feminist theorists, writing from an historical perspective, have examined the concepts of sex and work and the way in which these are reproduced within the practice of prostitution.
-
ItemAutomating the internet: the law of electronic commerce, contracts and autonomous software agents: regulation of Agent-mediated online contracting: enforceability, liability and risk allocation( 2002)This thesis enquires into the regulation of online contracts formed by autonomous, artificially intelligent software programs, called 'Agents'. It provides an overview of the current state of the law as applied to Agents that negotiate and transact online. Agent transactions are fundamentally different from other computerised transactions, as Agent actions are autonomous, proactive and informed by their ‘intelligence’ and ‘experience’. This paper focuses on three specific areas: (a) the extent to which Agent-generated contracts are, and should be, enforceable; (b) the liability of parties involved in Agent transactions; and (c) the manner in which risk is, and should be, allocated in respect of errors involved in the use of contracting Agents. In exploring these key areas, this thesis considers whether or not the current law adequately deals with Agent-mediated contracts. Areas in which the law fails to satisfactorily resolve issues of enforceability, liability and risk allocation are highlighted, and modifications and reform necessary to achieve such resolution are suggested. This thesis commences with a review of the technical aspects of Agent software, and identifies characteristics that differentiate Agents from other software. We then examine legal doctrine that may be invoked, in current or modified form, to govern Agent contracting activity. Principles of contract law, agency law, and legislative schemes are analysed to ascertain the extent to which they apply to Agent-mediated contracts. In evaluating the operation of contract law, principal-agent law and legislative initiatives, the benchmark against which proposed methods of regulating Agents are measured is the extent to which a particular approach facilitates electronic comerce by providing a strong legal infrastructure. In summary, this thesis: (a) defines and characterises software Agents and discusses e-commerce scenarios in which Agents are, and could be, utilised; (b) reviews principles of contract and agency law, as well as e-commerce legislation, analysing their application to online Agent contracting activity; (c) identifies areas where the law fails to adequately govern Agent-mediated contracts; and (d) suggests ways in which the law may more effectively regulate this new sphere of contracting activity.
-
ItemA review of the federal investigatory powers of the Federal Commissioner of Taxation under sections 263 and 264 of the Income Tax Assessment Act 1936: a critical evaluation of the balance struck by the courts between the Commissioner's access powers and the rights of the individual( 2001)Section 264 of the Income Tax Assessment Act 1936 provides the Commissioner of Taxation with the power to seek information and documents. Section 263 provides the Commissioner with power to access premises. The present Commissioner has demonstrated a willingness to once again test the limits of section 264 before the Courts. The purpose of this paper is to examine where the balance of judicial authority has placed the boundaries on section 263 and more particularly 264 and whether any movements in those boundaries can be justified given the policies underlying section 264 and individual rights (such as the common law right of a client to legal professional privilege) or whether the decisions in respect of sections 264 and 263 are inconsistent with the approach of the Courts to investigatory powers in other contexts. In this context the paper examines a number of specific issues in respect of sections 264 and 263 including in particular the interaction between sections 263 and 264 and legal professional privilege. Until recently it had been judicially accepted that section 264 does not abrogate legal professional privilege. However in recent times the Commissioner has sought to challenge the scope of legal professional privilege in the context of section 264. The paper will evaluate recent decisions which suggest that section 264 abrogates legal professional privilege.
-
ItemDrafting enforceable limitations of liability in construction contracts for major projects( 2002)Engineering and construction contractors working on large industrial plants (each a "Contractor" or, collectively, "Contractors") employ various strategies to define, limit and manage risks associated with their business activities. The cornerstone of any successful risk management philosophy must be excellence in the performance of the Contractor's work on each construction project (each a "Project"). When a Contractor meets or exceeds its customers' expectations, there will usually be minimal risk associated with the work. Given the inherent risk in any Project, Contractors also rely heavily on legal risk management strategies. Many Contractors manage risk through corporate architecture, using different operating companies to conduct their various business activities with the aim of limiting their liability to the assets of the corresponding operating company in the event of a catastrophic loss. This device requires great care in implementation, which is beyond the scope of this paper. The primary legal strategy for the managem.ent of risk utilised by Contractors, and the substance of this paper, is the formation of contracts with customers and major subcontractors and suppliers, including the interplay between such contractual provisions and corresponding insurance protection. This paper focuses on a Contractor's most significant exposures to financial liability in the context of contract formation and considers how a Contractor can minimise such exposures through carefully drafted provisions on limitations of liability, insurance and indemnities. In discussing the reasoning behind such provisions, the paper examines how many of the standard form construction contracts fail to meet the commercial objectives of a Contractor seeking to actively manage its risk. The paper also considers the enforceability of such provisions in the light of recent case law. It does not address other important issues such as regulatory risks and payment risks. This paper is written from the perspective of a Contractor managing risks through contract formation and insurance. (From Introduction)
-
ItemSuperannuation: a public trust( 2002)Superannuation funds in Australia were originally established in an occupational environment and administered as private trusts. Superannuation funds are also collective investment schemes and, as such, can have commercial overtones. This thesis demonstrates how the judiciary and the government have both strained and extended private trust law in order to accommodate the distinctive features of the superannuation trust. Chapter 2 examines some of the tensions with traditional trust law by undertaking a survey of case law dealing with disability benefits. A detailed analysis of the statutory scheme contained in the superannuation legislation is undertaken in chapter 3. Chapter 4 will examine the impact of imposing 'merits review' - an administrative law mechanism - on private trustees. These developments suggest that superannuation trustees perform a public function. Yet the private form and source of superannuation benefits indicate that it is inappropriate to simply replace trust law standards with administrative law standards, unless it can be said that superannuation trustees now operate in the public domain. This question is explored in chapter 5 and analogies are drawn with the more public charitable trust. It is concluded that both the charitable trust and the superannuation trust operate within a hybrid 'public service' sector. A unique public model must therefore be formulated. Chapters 6 and 7 propose the specific features of the hybrid public model for superannuation trusts. Modifications to the current legal regime are identified in order to bolster the tentative trend in this direction. It is submitted that this public model offers a solution to the dilemmas currently encountered in conceiving a juristic framework for the modern superannuation trust in Australia.
-
ItemProtecting compilations: copyright is not the right regime( 2000)The thesis submits that copyright law is not the right regime to protect all compilations, particularly compilations that are collections of facts or non-copyright protected materials (‘factual compilations’) and especially those that are comprehensive and commonplace in their arrangement. It looks at what a compilation is and how the term 'compilation' has expanded over time. It looks at the justifications for protecting all compilations, especially factual compilations. It looks at the copyright protection of compilations and then discusses the problems with such copyright protection. It examines the inconsistency in the judicial decisions in Australia, the uncertainty of whether or not Australia will follow Feist Publications, Inc v Rural Telephone Service Co Inc and why copyright is not the right regime to protect all compilations. It briefly looks at the alternative means of protection available in Australia and the restrictions in their use. It then examines the proposals and solutions other countries have, in respect of protecting compilations, as well as proposals Australia has raised for protecting compilations. Finally, it suggests a solution in the form of a new regime. Currently copyright law leaves some compilation owners, particularly owners of factual compilations, uncertain whether the time, effort and expense in making their compilations will be adequately protected, or even protected at all, against unauthorised copying. This thesis suggests that protection of all compilations is justified and requires both the layout and the contents, so far as another should be required to go out and collect the contents themselves, of compilations to be protected. Compilations are collections of materials. Compilations can be distinguished from other types of literary works. The contents of many compilations do not originate from the author of the compilation whereas the contents of other literary works do originate from the author of the work. Unlike other literary works, much of the time and effort involved in making a compilation is in the research, collection and verification of the materials encompassed within the compilation rather than in the transcription or expression of the compilation. Copyright is meant to protect the expression rather than the facts behind the expression. In the ninety or so years that compilations have formed a part of the definition of a literary work the size and value of compilations have materially increased. Electronic compilations have highlighted the problems with copyright law. As a result of the inconsistent case law, doubt arises as to whether or not copyright protection is available for factual compilations. An examination of Anglo-Australian cases demonstrates the inconsistencies. There is uncertainty whether Australian law will be influenced by Feist which held that only the selection and arrangement of directories, and other fact-based works, that possessed some creativity could be protected by copyright. If Australia were to be influenced by that decision then many factual compilations would not be adequately protected, or even protected at all, by copyright. Contract law and the law of confidential information do provide protection for compilations but only when there is a contractual or fiduciary like relationship between the owner and the other party. The problem of finding the appropriate protection for all compilations is not confined to Australia. Other countries have introduced, or are trying to introduce, new regimes to provide protection for compilations. The present uncertainty and the current distortion of copyright should be removed and this thesis proposes a new regime which protects the investment of owners of compilations from others who, without permission, appropriate for their own commercial benefit the results of that investment. Such a new regime would protect the contents of compilations to the extent that others, for commercial purposes, would need to go to the original sources of information or seek a licence from the owner.