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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ItemBioethics and human rights : mapping the boundaries of the human subject(University of Melbourne, 2007)
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ItemThe Milo�evi? trial : lessons for the conduct of complex international criminal proceedings(University of Melbourne, 2007)
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ItemTop-down reasoning and the judicial process : the case of unjust enrichment and quantum meruit in Australian law(University of Melbourne, 2007)
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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.