Melbourne Law School - Theses

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    Limitation periods in child sexual assault litigation in Victoria
    Waller, Vivian. (University of Melbourne, 2005)
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    Freedom and fairness in contract law : a republican theory of contract law
    Sharpe, Michelle. (University of Melbourne, 2005)
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    Bioethics and human rights : mapping the boundaries of the human subject
    Bird, Jo Naomi. (University of Melbourne, 2007)
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    Measures to deter illegal, unreported and unregulated fishing in the Southern Ocean in the absence of flag state control
    Baird, Rachel J. (Rachel Jane) (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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    The regulation of essential service insolvencies and the public interest : case studies of Australia's electricity industry and Melbourne's public transport industry
    Wardrop, E. Ann ( 2007)
    This thesis critically explores the regulation of the insolvency of essential services and the public interest through an examination of the common law and legislative responses in Australia, the United Kingdom and the United States. Drawing on understandings of the public interest gained from its analysis the thesis proposes a model of the public interest that may be used to justify representation of non-creditor interests within insolvency proceedings of essential services. The model also identifies non-creditor public interest considerations that extend beyond continuity of supply. The thesis then undertakes case studies of the regulation of insolvency within the Australian electricity industry and Melbourne's public transport industry to examine how effectively public interest issues have been addressed and how these are balanced against the interests of the firm and its creditors. The thesis argues that a fundamental problem of the regulation of insolvent essential services is balancing the general public's interest in the fate of the insolvent firm with the interests of others stakeholders, particularly creditors. The thesis demonstrates there is a great deal of inconsistency of response to this issue both within and between the jurisdictions under consideration. Focussing on the public interest in the continuity of supply, the United Kingdom has enacted ad hoc insolvency procedures which are initiated by the state and oust creditor control mainly in relation to the monopoly sector of various essential services. A different approach in the United States has meant public interest considerations are built into its insolvency law through a combination of legislative prescription, judicial interpretation of the Bankruptcy Code and a limited willingness to grant non-creditor representation rights in insolvency proceedings of essential services. The thesis argues that the integration model of the United States allows an appropriate balance to be struck between the interests of the firm and its creditors and the broader public interest when regulating the insolvency of essential services. In contrast Australia has not enacted ad hoc insolvency procedures or expressly integrated the public interest within its insolvency law. The case study of the Australian electricity industry shows, however, that the public interest in the continuity of supply is managed by allowing creditors' rights to be affected radically by utilities regulation such a state step-in rights and retailer of last regulation. The thesis demonstrates the fragmented and inconsistent nature of these provisions. The case study of Melbourne's train and tram industry and the examination of South Australia's privatisation of its electricity assets by way of lease show the ways in which private contracting rather than utilities regulation can manage public interest issues. The thesis concludes that while the public's interest in the continuity of supply of essential services in Australia is generally satisfactorily dealt with under current arrangements, what is less clear is whether public interest issues beyond continuity of supply will be given sufficient weight in insolvency proceedings, particularly in the context of a reorganising firm. The thesis argues it is within this area that there is space for integrating public interest considerations within Australia's insolvency law by expressly requiring the court to consider the public interest in such proceedings. Incorporating public interest considerations that recognise non-creditor stakeholder interests into Australian insolvency law requires theoretical justification. The thesis argues there are sound theoretical arguments for expanding insolvency's law role to accommodate broader stakeholder interests in the context of the insolvency of essential services and that the model of the public interest proposed by the thesis may be used as a basis for a court to grant representation rights to non-creditor interests within insolvency proceedings of essential services in Australia.
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    The integration of complementary and alternative medicine into health care : regulating for consumer choice, autonomy and responsibility
    Brophy, Catherine Elizabeth ( 2007)
    This thesis explicates the role that the law, and particularly regulation, can play in the integration of evidence-based complementary and alternative medicine (CAM) into the Australian health care system. It outlines a regulatory framework to move Australia beyond an ad hoc approach to integration to a national, co-ordinated and systematic one, informed by the guiding principles of choice, autonomy and responsibility. Integration is necessary to ensure that all Australians have the option of safe and effective CAM. A holistic approach - a metaphor, the `regulatory space of health care', and a broad definition of regulation, legal orderings (statutes and common law) and non-legal orderings (guidelines and norms) - is adopted to analyse the current level-of integration of CAM in Australia. This integrative map provides the necessary background to consider key elements of the regulatory framework necessary for integration. A national policy, a national body, a model of integration and regulatory strategies are proposed and discussed. A partnership model of integration is recommended as both biomedicine and CAM have a singular contribution to health care in the future. The model of integration must preserve the integrity of each health care paradigm. It must provide scope for the continued development and exploration of health solutions arising out of the philosophy and methodology of biomedicine and CAM. A holistic relational model, referral, multidisciplinary, and other linking mechanisms, are proposed to unify the two health care paradigms into one health care system. To spearhead, steer and co-ordinate the regulatory change process, a national body - an Australian National Centre for Integrative Healthcare (ANCIH) is recommended. As integration will involve a re-negotiation of the regulatory space of health care, to make room for evidence-based CAM to share in health infrastructure, this national body will require the authority to work with all the stake-holders to effect change.