Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 10 of 15
-
Item
-
ItemAustralian interstate rivers : legal rights and administration( 1971)This thesis analyses the legal and administrative problems which arise in regulating Australian rivers that flaw along or across State boundaries. It commences by describing some practical difficulties that have occurred in recent years. It then ascertains the legal rights of the Commonwealth, the various States and private individuals to the use, flow or control of interstate rivers. In the light of the existing law, it points to weaknesses in the present administrative arrangements for reconciling. inter-government conflicts in water resources management and suggests an entirely new system that might be implemented.
-
ItemSimple in theory, not so in proof : how antitrust markets are established by evidence in federal court proceedings in Australia( 2002)Definition of a relevant market is the first and an essential step involved in determining whether or not there has been a contravention of certain of the substantive prohibitions under Part IV of the Trade Practices Act 1974 (Cth). The concept of a `market' for this purpose is based on settled, essentially economic, principles. However, proving the existence of a market, as a matter of evidence, in legal proceedings has been and remains a complex and uncertain exercise. The objectives of this thesis are to examine and critically evaluate the way in which the proof of markets under the Act has been handled in litigation before the Federal Court over the last 28 years. The primary sources for the research are the judgements that have been handed down by the Federal Court over this period in cases in which market definition has been a contested issue. While there is an abundance of literature on the relevant principles and their application in major cases, there has been no in-depth or systematic consideration of the issues of evidence and proof raised by this issue. For the purposes of examining the approach taken to the proof of a market, four principal categories of evidence are identified in the thesis - industry evidence, consumer evidence, quantitative evidence and expert opinion evidence. Issues of both form and substance that have arisen and the use that has been made of each category of evidence are explored in detail. For the purposes of evaluating the approach that has been taken to the proof of a market, a test of purposiveness is applied in the thesis. The question is posed, in other words, whether proof of the market has been approached with a view to identifying the existence (or otherwise) of close constraints on the commercial conduct of the firm(s) in question in the proceeding. It is concluded that, of the four categories of evidence examined, industry evidence has been the most effective in the sense that it has had the greatest impact on findings made concerning the relevant market. Consumer evidence has been bedevilled by concerns as to admissibility and weight and has been regarded as being of limited relevance in any event. Quantitative evidence has generally been unavailable and when available has proven unpersuasive. Overcoming initial reservations, there have been efforts to maximise the value derived from expert opinion evidence, particularly that of economists. Nevertheless, as some of these efforts themselves attest, such evidence has taken the form of submission more than it has of evidence and accordingly its role has been limited. The emphasis that has been placed on industry evidence is consistent with a purposive approach to market definition. It is this evidence that best enables a court to identify the sources and the extent of the constraints operating on the firm(s) in question. However, as is argued in this thesis, there are several important respects in which the analysis of industry evidence could and, indeed, should be more rigorously undertaken. Such rigour is required to ensure that markets are defined in a manner that reflects commercial realities and ultimately therefore to ensure that the substantive prohibitions under the Act are properly enforced.
-
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.
-
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.
-
ItemThe law relating to the rights and duties of landlords and tenants concerning residential premises : a re-assessment( 1975)Despite its vital importance to a large segment of the Australian public, very little attention in the past has been given to the need for a review of the existing law relating to the renting of residential premises. Although a large body of consumer protection legislation has been enacted in recent years by the Australian Government and many States, no such protection has been extended to consumers in the rental housing market. Indeed, although piecemeal legislative changes have been made from time to time by each State, there has never been a systematic all embracing review of the legal rights and duties of landlord and tenants of residential premises covering tenancies both in the private sector and in the public sector. This thesis is designed to rectify this deficiency. It argues for the need for a fundamental re-assessment of three aspects of the rights and duties of landlords and tenants: the common law principles, supplemented by State legislation, which are applicable to those tenancies unaffected by rent control legislation; the existing systems of rent control in Victoria, New South Wales and South Australia; and the relationship of three of the State Housing Commissions with their tenants. Changes in governmental policy are suggested where appropriate. The need for the various reforms and policy changes was dictated not only by library research but also by a' considerable, volume of field research undertaken in Melbourne, Sydney and Adelaide in the preparation of this study. The reforms suggested by the author represent a combination of original ideas and experience in other common law jurisdictions, especially the United States, Canada, the United Kingdom and New Zealand. The author has attempted to mould the reforms in such a manner as to preserve the most useful parts of the existing landlord-tenant law while abolishing those parts which have either outlived their usefulness or are unfair to one or both of the parties. The aim throughout has been to strike a fair balance between the rights and obligations of the landlord and the tenant.
-
Item
-
ItemWomen workers and the processes of the conciliation and arbitration system( 1984)The thesis studies the relationship between women workers and the Conciliation and Arbitration System. Its aim is twofold: to explain why particular policies were adopted by the Court/Commission and to assess the extent to which those policies disadvantaged women workers. Previous research has explained women's disadvantaged position by emphasising the role of judicial prejudice and sexist ideologies. The thesis rejects such simple explanations and tries to show that particular policies resulted from the interraction between the Conciliation and Arbitration System and its economic, political and ideological environment. The thesis emphasises the complexity of the processes which determined the law and, in particular, it stresses the role of economic and political forces in shaping legal policy. It also demonstrates that the issue of whether women were in fact disadvantaged by any particular policy can only be resolved through an examination of both the policy and its effects. The first five chapters examine Court/Commission policy on wages, skill, classifications, the sex-typing of work, redundancy protection and maternity leave. The final chapter considers the implications of the arguments adopted in the thesis for other studies of women and the law.
-
ItemThe legal nature and taxation implications of friendly society savings and investment assurances( 1986)The heyday of the friendly society movement in Australia, which spanned from the early days of colonisation until the mid-1930's, saw friendly societies as the main provider of social welfare benefits for a large proportion of the population. Since the advent of the modern 'welfare state', the movement drifted steadily into a state of decline. The 1980's, however, have heralded a remarkable rejuuination of the movement, based upon traditional friendly society ideals of providence and thrift. Instigating this revival are Victoria's friendly societies which now market an array of endowment type life assurance policies, designed to promote savings and investment returns for the movement's now diverse and rapidly growing membership. All Commonwealth insurance legislation specifically excludes insurances effected by friendly societies, and from a casual reading of the Victorian Friendly Societies Act 1958, the legislative power for societies to effect life assurances is y no means immediately apparent. Indeed, a closer reading of nineteenth this Act highlights that its / century English based provisions are inadequate, and often unintelligible so far as regulating and providing a satisfactory framework for the operation of modern friendly society life assurance activities. This paper provides a practical description of friendly society endowment assurances, and examines their legal nature and operation by tracing the legislative evolution of the enabling provision. The regulation and operation of these assurances within the scope of the Friendly Societies Act, is discussed at length, and where appropriate, critically analysed. Throughout the paper comparisons between Commonwealth life insurance legislation, which regulates similar assurances, is made with a view to further highlight the inadequacies of the present friendly society legislation. By design, Part 1 is very much descriptive in its content. This is due not only to the fact that modern friendly society life assurances have received little, or no legal comment, but also because a basic understanding of the nature and operation of these assurances is a prerequisite to the discussion of their taxation implications in Part 2. In Part 2, the paper essentially focuses on the taxation consequences of ownership of a friendly society life assurance policy. It does this by looking at the long standing traditional tax concessions applicable to these policies. These take the form of 'tax-free' reversionary bonuses attaching to life assurance policies generally, and until recently, a rebate for contributions. The discussion analyses in detail, recent legislative changes, which coincidental with the dramatic increase in friendly society assurance activities, have been introduced to prevent exploitation of these traditional taxation concessions. Brief attention is also given to the taxation status of the friendly societies themselves.
-
ItemMoratorium legislation in the Canadian and Australian rural sector : its history and present utility( 1989)A. The Analysis and Problem 1. At Common Law the rights of creditors were virtually absolute. 2. Over time, the law has whittled away the unimpeded rights of unsecured creditors through bankruptcy and insolvency legislation. 3. Secured Creditors have also had rights, throughout legal history, which were, virtually, inviolate. 4. In Canada and in Australia, bankruptcy legislation has had very little effect on the rights of secured creditors. 5. However, in times of crisis, even the rights of secured creditors have been restricted in the interest of the common good. 6. The pendulum continues to swing in favour of creating more rights in favour of debtors and restricting secured creditors' rights in Australia and Canada. 7. There is a strong lobby urging the restriction of secured creditors' rights as they relate to farm debtors due to the extreme economic hardship faced by those persons during the 1980's. B. The Issues 8. Whether it is appropriate to further expand the rights of debtors and to restrict the remedies of secured parties in any circumstances through moratorium legislation. 9. Whether farm debtors fit within the principles justifying interference with secured creditors' rights. 10. What safeguards should be inserted in such legislation to ensure that there is proper balance for the legitimate concerns of both debtors and creditors. C. Conclusions 11. Present legislation in Canada is deficient and does not properly assist either debtors or creditors involved in the present farm difficulties. 12. Australian legislation is superior because it has addressed all of the issues facing agriculture and has recognised that there must be adjustment in agriculture. 13. There is a place for moratorium legislation as a means to an end, namely, in promoting alterations in the agricultural sector to promote future efficiency and, potentially, to assist in the transition of nonviable farm enterprises out of the agricultural sector. 14. However, steps must be taken to preserve and protect the fundamental and historical freedoms of creditors.