Melbourne Law School - Theses
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ItemNo Preview AvailableZones of cooperation : the emergence of a cooperative and functional Australian approach to the resolution of disputes over maritime jurisdiction and sovereign rights(University of Melbourne, 2003)This thesis attempts to demonstrate the emergence of a cooperative and functional Australian approach to the resolution of overlapping claims to maritime jurisdiction and sovereign rights. Maritime boundary arrangements agreed by Australia and its northern neighbours - Papua New Guinea, Indonesia and now, East Timor � reveal a strong Australian resolve to overcome difficult and complex geographical, geomorphological, historical and political obstacles to agreement through a thorough and patient process of negotiation. With Indonesia and Papua New Guinea respectively, Australia has adopted the unique approach of agreeing to separate boundaries delimiting overlapping claims to sovereign rights in respect of the seabed on the one hand, and the water column on the other. The adoption of distinct lines for these distinct categories of maritime sovereign rights gives rise to a number of practical difficulties, the most acute being the exercise of jurisdiction in areas where Australian seabed jurisdiction underlies the water column rights of its northern neighbours. Common to the finely balanced regimes agreed under the 1978 Torres Strait Treaty and the 1997 Australia-Indonesia Maritime Delimitation Treaty is the prescription that the state intending to conduct marine activities pursuant to one set of sovereign rights must variously cooperate, inform, consult or seek agreement so as to avoid the unannounced infringement of the treaty partner's rights or interests. In the Timor Gap, maritime boundaries have proven elusive, necessitating the pursuit of more creative approaches to the resolution of overlapping maritime claims. Guided by the wording of article 83(3) of the 1982 United Nations Convention on the Law of the Sea, Australia has concluded with Indonesia (the 1989 Timor Gap Treaty) and subsequently with East Timor (the 2002 Timor Sea Treaty) 'provisional arrangements of a practical nature' that have underpinned ongoing petroleum activities in the Timor Gap whilst at the same time preserving the disputant states' maritime claims and negotiating positions in respect of permanent maritime boundaries. Similarly, the International Unitisation Agreement fir Greater Sunrise provides a secure and 'sovereignty-neutral' legal and fiscal framework for the development of a major gas resource that straddles two distinct jurisdictional regimes. None of these agreements involved the intervention of a third party, nor reference of the overlapping claims to a process of arbitration, and appear, at least in part, to be motivated by the clear and unambiguous Australian preference for a press of bilateral negotiations to discuss, consider and eventually resolve its overlapping maritime claims. There is no stronger expression of this preference than the Australian Government's decision in 2002 to withdraw maritime boundary disputes from the scope of its consent to the compulsory jurisdictions of the International Court of Justice and the International Tribunal on the Law of the Sea. The Australian approach is based on a belief that parties to a negotiation are in a better position than third parties to achieve stable and desirable outcomes that are conducive to cooperation in the management of marine resources. Whatever the motivations for this distinctive approach, Australia has emerged as a global leader in the negotiation, design and conclusion of creative and cooperative maritime arrangements aimed at overcoming otherwise intractable maritime sovereignty disputes. The raft of arrangements agreed between Australia and her northern neighbours is an exemplar to other disputant states of the utility of creative international legal regimes to underpin access to the marine and seabed resources between them.
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ItemInherent patentability in Australian, United Kingdom and EPC law : a history( 2003)The purpose of this Thesis is to trace the history of judicial constructions of inherent patentability in the patent systems of Australia, the United Kingdom and, by operation of the Convention on the Grant of European Patents (`EPC'), the European Patent Organization. Inherently patentable subject matter is subject matter the characteristics of which are considered at law to make it inherently suitable for patent protection. Historically, the basic subject matter of patent protection has been the invention, and the concept of inherent patentability has been understood with reference to the distinction between inventions on one hand, and discoveries and other inherently noninventive subject matter on the other. The same distinction applies to varying degrees in contemporary Australian, United Kingdom, and EPC law by virtue of the express requirement in each of those jurisdictions for an invention that is patentable. It should be emphasised, however, that whilst the term `invention' has long been used to denote inherently patentable subject matter, the relevant legal concept is inherent patentability, and it is the development of that concept that has led legal understandings of the term `invention' rather than vice versa. The historical analysis of inherent patentability undertaken in this Thesis is presented in two Parts. The focus of the first Part (Chapters 1-3) is on Anglo-Australian law, meaning the law of the United Kingdom prior to its adoption of the EPC in 1977 and Australian law to date. The focus of the second Part (Chapters 4-6) is on the law of the European Patent Organization and the United Kingdom since its adoption of the EPC in 1977. In Chapter 1 I consider the origins of the common law invention and its development until 1623, when the Statute of Monopolies 1623 (Eng) was enacted and the foundations of the modern Australian and United Kingdom patent systems established. In Chapters 2 and 3 I analyze the development of inherent patentability within the Anglo-Australian patent system from commencement of the Statute of Monopolies to the present. In Chapter 4 I consider the origins of the model of inherent patentability adopted by the Contracting States of the EPC (including the United Kingdom) in the mid-1970s, and in Chapters 5 and 6 I analyze the development of inherent patentability in the hands of the United Kingdom courts and the European Patent Office. My purpose in writing this Thesis has not been to argue the case for the contemporary patent system's accommodation (or otherwise) of one or more classes of subject matter, but rather to explore and analyse the evolution of the threshold requirement of patentability in each of the jurisdictions considered. To that end I have focused primarily on the (reported and unreported) decisions of the courts, as well as selective decisions of patent administrators. In the case of the EPC I have relied on the decisions of the Boards of Appeal, with additional reference to decisions of the first instance departments of the European Patent Office where appropriate. I have also relied on background legislative material and related historical sources, and on the work of other academics in the area. A bibliography of the sources I have used appears after the main text. On matters of style and citation the Thesis complies with the Australian Guide to Legal Citation, with additional guidance, where necessary, from the 17th edition of The Bluebook: A Uniform System of Citation. A final point should be made regarding my citation of cases in Chapter 2. For reasons of brevity I have given only one citation for each of the cases referred to in that Chapter. Despite this, many of the cases are reported in several different nominate (that is, pre-1865 `named' English) reports, and many of those reports have since been reprinted in the English Reports or All England Reports Reprint and, most usefully, in the 11 volumes of Hayward's Patent Cases 1800-1883 (1987). With the assistance of those volumes I have compiled a more complete list of citations for the cases relied on, which is included in the bibliography.
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ItemAustralian contemporary art and the blindness of copyright law : a neo-romantic view( 2003)This paper explores the blindness of copyright to Australian contemporary art. Firstly, by reviewing the historical development of the term `artistic work' found in the Copyright Act 1968 (Cth) and its meaning in contemporary case law. Then, by examining what a definition of art might be through empirical research with artists and a review of current artistic practices in Australia. It concludes with a model for reform of the definition of `artistic work' that is based on a neo-romantic authorship approach to copyright. Historically, `art copyright' was a true artist's right advocated by artists, unlike literary copyright, which was advocated by publishers. During the 19th century, art copyright accommodated artistic practices, particularly when it moved from, a law about facsimile, mechanical reproduction technologies to a law about works of art. It took an expansive, authorship approach to a broad range of artistic expression. However, legislative reform through the 20th century confined the definition of `artistic work' to 19th century art techniques and objects by using exhaustive terminology in copyright law. This undermined the legal value of the intellectual processes undertaken by artists in the creation of artistic material. The review of the case law shows judicial determinations, among different categories of `artistic work', are inconsistent. There are some indications that judicial applications of aesthetic judgements continue to cloud the legal concept of art, notwithstanding a policy that asserted that aesthetic determinations were to be avoided. Together, this means that copyright law now operates to exclude much contemporary art. The research with artists suggests a more fluid, open, inclusive model of art copyright that both returns the focus of copyright back to the author, and avoids aesthetic judgements. The artists outlined at least four objectives that could be achieved by reform to the category of `artistic work' and associated terms `material form' and `originality'. Artists seek recognition and status through copyright law. Artists require some control over copying their work particularly where the copying is for commercial purposes. Artists seek the right to be acknowledged as authors of a work of art, and to control the integrity of the work. Thus, a broader view of art than that currently adopted in Australian copyright law is required to accommodate contemporary art practices. Consequently, a unique model is proposed that retains the concept of `artistic work' on historical grounds but also because it preserves status for artists. It provides an open, technology-neutral system for the assessment of art, devoid of aesthetic assessments through the use of guidelines, which are based on the research with artists to assist with determinations of what is `artistic'. The following revised legislative definition of `artistic work' is proposed: artistic work includes a painting, sculpture, drawing, print, photograph, work of architecture, work of craftsmanship or other work of art but does not include a circuit layout within the meaning of the Circuits Layouts Act 1989.
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ItemCustom as a source of supranational internet commerce law( 2003)The Internet has changed the world. Its impact on the global society has been enormous, redefining almost every aspect of our life. It has also added a new quality to traditional commerce that in many instances has drastically transformed the way companies and individuals trade. However, electronic commerce is not a legally safe environment, as there exists a regulatory gap that introduces uncertainty surrounding rights and obligations in cyberspace. This may result in unexpected outcomes for e-commerce participants involved in litigation.
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ItemEmployment protection of casual employees( 2003)Summary of Argument: This paper aims to make a contribution to the literature by examining the employment protection of workers characterised by the Australian Bureau of Statistics as casual employees (' ABS casual employees'). In undertaking this examination, this paper seeks to compare the employment protection of ABS casual employees with that available to other employees. The examination commences by discussing the key approaches that courts and industrial tribunals have taken in determining whether a worker is a casual employee under a particular industrial instrument. It then analyses the employment protection of ABS casual employees in the following areas: • protection against unfair dismissal; • entitlement to notice at common law and statute; and • protection in the event of redundancies. It concludes that the employment protection of ABS casual employees is generally inferior to that available to other employees with a sub-group of such employees, namely, those engaged pursuant to a series of distinct contracts enjoying even more slender employment protection.
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ItemTowards a binding international human rights regime for transnational corporations( 2003)Since its elaboration in the aftermath of the Second World War, international human rights law has remained primarily concerned with the relationship between the State and the individual; in particular, the obligations that the State owes to individuals (and peoples) and the legal rights that each individual may claim ‘by virtue of being a human being’. Under international human rights law, the State is primarily responsible for upholding and implementing the full diversity of human rights. At the national level, the State is required, as part of its international duties, to ensure that private entities within its jurisdiction do not violate the rights that the State is obligated to protect. Where private entities do violate those human rights, the State has a duty to make available means of redress for victims who have had their rights transgressed. Individuals are therefore entitled to make claims at the national level against those private entities that violate their rights. Where the State fails to protect human rights, including by failing to provide means of redress for private entity violation, it is said to be in breach of its international duties. The rights and duties just outlined constitute the ‘classical approach’ to international human rights law, whereby only the State is obligated to respect, ensure and protect the human rights of individuals. This approach to international human rights law contemplates that the State has international duties that require it to impose obligations on private entities not to violate human rights. Thus the obligations of private entities are derived from international law, but are not imposed directly by international law. (From Introduction)
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ItemThe Indonesian mineral regime: a model for the future: "Learning from other countries in implementing regulatory change"( 2003)Political turmoil and rising social and economic demands have put the Indonesian mining industry in a difficult situation. At the time when industry is experiencing record low prices, critics argue that the Indonesian mineral regime has failed to achieve a proper socioeconomic balance between government, developers and local communities. The government had always claimed, however, that the regime has long been one of the most successful instruments available for attracting and sustaining foreign investment in the mineral sector. Data from the Department of Mines and Energy suggests that the mineral industry has been a key ingredient in the development of the national economy. The mineral regime, nonetheless, faces great critical pressure from the public and the government is moving to respond to these pressures, especially as regards to creating a better form of decentralised mineral agreement that deals more effectively with traditional right-holders who claim mineral exploitation right. Do these demands mean that risks for mineral investments have increased, that resources developers will be subject to demands that cannot be met, or that mining will become an uncertain and unpredictable industry? Can the government create an improved contract system in order to enable the industry to emerge as a stronger more viable and more secure sector, which is at the same time, beneficial for the government and local communities? This thesis focuses on reviewing the socio-economic function and performance of Indonesian CoW system and traditional rights to mineral-rich lands. The thesis also adopts a comparative approach examining similar contracts and equivalent regimes from seven countries. Finally, the thesis makes detailed recommendation for reform of the Indonesian mineral regime drawing on the comparative study.