Melbourne Law School - Theses
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ItemLimitation periods in child sexual assault litigation in Victoria(University of Melbourne, 2005)
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ItemFreedom and fairness in contract law : a republican theory of contract law(University of Melbourne, 2005)
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ItemNo Preview AvailableMeasures to deter illegal, unreported and unregulated fishing in the Southern Ocean in the absence of flag state control(University of Melbourne, 2005)Overfishing threatens the viability of high seas living resources. Furthermore, controls to prevent overfishing are inadequate. Illegal, Unreported and Unregulated (IUU) fishing is a product of overfishing and affects all marine fisheries. Southern Ocean fisheries have been particularly targeted by IUU fishing. No scholar has fully examined the efforts of CCAMLR and Australia to adopt measures to deter IUU fishing in the Southern Ocean. The original contribution of this work lays in the author's analysis of action taken by the CCAMLR Commission and Australia. The research in Chapters 4 and 5 is original work in that no other scholar has approached the issue of IUU fishing in the Southern Ocean in this manner or to the depth demonstrated. Chapter 5 in particular stands alone as original work on Australia's efforts to deter IUU fishing. There is a paucity of published work in this area and reliance upon court decisions, governmental publications and NGO material has been necessary. My conclusions are that in the absence of flag State control, alternative measures and strategies have proved to be effective in influencing the behaviour of IUU fishing vessels. By improving coastal State surveillance, enhancing regional co-operation, imposing port and market State controls, establishing IUU vessel databases and vigorously prosecuting offenders, RFMOs and coastal States can jointly increase the risk of conducting IUU fishing activities. At the same time financial returns can be diminished so that engaging in IUU fishing becomes economically unattractive.
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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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ItemLiability for insolvent group companies in Australia : regulatory regimes and reform proposals(University of Melbourne, 2002)This thesis considers the situation where one or more companies in a corporate group becomes insolvent or is wound up. It examines the remedies available to minority shareholders and creditors. It also examines the liability of (i) directors of a subsidiary, (ii) a parent company or affiliate within the group, (iii) directors of a parent or affiliate companies within the group, and (iv) lenders. A consideration of the rights and liabilities of these various parties is made in the context of an examination of the adequacy of Australian law to deal with certain harmful governance practices that may occur in a group. In order to measure the adequacy of existing Australian regimes in tackling certain harmful governance practices, a multistage process is undertaken. This process involves identifying in chapter 2 the different constituencies involved in a corporate group. These are minority and majority shareholders, managers of group companies, involuntary and voluntary creditors. Chapter 2 also identifies and examines specific harmful governance practices that may occur in a corporate group and the prejudicial impact that these practices have on minority shareholders and involuntary creditors. Chapter 3 builds on the framework established in chapter 2 by considering whether the Australian regulatory regime adequately protects the interests of minority shareholders and involuntary creditors against the harmful governance practices identified in chapter 2. This task involves a consideration of the following questions: (i) which regimes impact on the identified harmful practices that may occur in a group? (ii) on whom does the law impose liability? and how is liability imposed? (iii) which constituency is the provision most likely to protect? (iv) does the provision adequately protect the constituency from the particular harmful governance practice that may occur within a group? Deficiencies in the current regulatory regime are identified in chapter 3. Chapter 4 considers whether the proposals for reform recommended by the Companies and Securities Advisory Committee (CASAC) in its final report removes these deficiencies. Chapter 5 considers the German regime with regard to particular issues arising from CASAC's proposals and chapter 6 sets out the writer's conclusions and recommendations for reform to the Corporations Law.
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ItemEthnic federalism in Ethiopia : a case study( 2001)Ethno-territorial self-identification is the salient feature of sub-Saharan African societies. Yet, the organization of state power in these societies has been predicated upon the assumption that resort to a centralised unitary system of government is essential for unity and development. In doing so it has disregarded and suppressed the diversities permeating the societies. This has generated the political mobilisation of ethnic communities, giving rise not only to conflicts organised and waged along ethnic lines but also to the decomposition or near decomposition of states in Africa. My thesis is grounded in the federal idea that unless the issue of ethnicity is confronted by resorting to institutional mechanisms that ensure equality and political space for ethnic communities while facilitating co-operation and compromise among them, peace and stability will continue to be elusive. The main focus of my thesis is my own country, Ethiopia, which is the only African country that confronts directly the challenges of ethnic diversity by adopting a federal system organised on the basis of the recognition and institutionalisation of the right of ethno-territorial communities to self-determination. The examination of Ethiopia's experience may be of considerable relevance for many African countries and generates significant insights into the potential as well as the problems of reconstituting state power by adopting a federal system organised along the lines of ethno-territorial communities. Although Ethiopia's experiment with ethnic federalism is a crucial institutional means for ensuring ethnic self-autonomy and inter-ethnic shared rule, I will argue that its viability and success hinges upon its dissociation from the Westminster style democracy with which it is currently linked and on the extent to which it advances power-sharing democracy.
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ItemOfficers' accountability in managed investment schemes( 2005)The thesis examines the ways in which the directors and other officers of a company that operates a managed investment scheme can be held legally accountable for maladministration of the scheme's affairs. It demonstrates that the officers' legal accountability for maladministration arises under a combination of corporations law principles, equitable principles that apply to the officer as a consequence of the fiduciary relationship between the operator and the investors, and (where they apply) the regulatory regimes governing the provision of financial services and the operation of registered schemes. The thesis identifies the types of conduct on the part of an officer that can result in personal liability under these principles, and examines remedies and sanctions that are available to the operator, the investors, scheme creditors, and the State.
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ItemRejecting the feudal doctrine of tenure within a pluralist land culture : toward an allodial land model( 2005)This thesis argues that the feudal doctrine of tenure, as it exists in the Commonwealth jurisdictions of Australia, Canada and New Zealand, should be abolished in favour of an allodial land system. The feudal doctrine of tenure is a derivation of English history which had no relevance to colonial cultures where indigenous existence was an actuality. The tendency of colonial jurists to ignore the existence of indigenous inhabitants resulted in the application of a land system which was wholly inappropriate for the regulation of indigenous and non-indigenous land interests. As the courts increasingly recognise the validity of indigenous title, some of the fundamental problems with feudal tenure have become more apparent. The fact that feudal tenure has been largely utilised as a device for assuming absolute Crown sovereignty over all land, thereby denying the validity of indigenous title, has meant that it has never had a bi-cultural focus. It is argued that an allodial system, based broadly on the tenets of the model introduced during the republican revolution within the United States, but with significant legislative regulation, would provide a much more responsive and culturally neutral system. The removal of the sovereignty discourse from the land framework would allow land interests to develop according to their individual cultural origins. This would create an equitable and balanced land system better equipped to embrace the developments of contemporary common law jurisprudence.
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ItemCybercrimes : legislative measures for Thailand( 2005)The thesis examines the effectiveness of existing Thai criminal law when applied to cybercrimes, that is crimes which could not have been committed before the digital age. Specifically, the thesis examines the application of the Thai criminal laws on breach of privacy, trespass, theft, and destruction of property to cybercrime fact patterns including, for instance, computer hacking, theft of intangible assets, denial of service attacks, and propagation of computer viruses and worms. The analysis in the thesis will show that the current Thai criminal law fails to adequately cover cybercrime fact patterns. The thesis further examines the issues relating to the international character of cybercrimes, specifically the issues involving jurisdiction and international cooperation. The analysis shows that the current practice of mutual legal assistance in criminal matters is not appropriate for the purpose of bringing cyber criminals to justice. In light of these findings, relying on traditional Thai law may jeopardise the prosecution of cyber criminals. It is concluded that a new approach is needed and that protection through comprehensive statutory control is an effective way to prosecute cyber criminals. The thesis therefore suggests a proposed model of Thai cybercrime legislation, primarily based on the Cybercrime Convention. Draft of the proposed Thai cybercrime legislation should also take into consideration certain provisions of the United States Computer Fraud and Abuse Act, the United Kingdom Computer Misuse Act 1990, and the Australian Cybercrime Act 2001 (Cth), provisions of which are consistent with or will soon be consistent with the Convention. This approach is supported because this area of law requires international harmonisation. Adopting these legal texts would hence bring Thai cybercrime law to be into line with international instruments.
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