Melbourne Law School - Theses
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ItemThe regulation of essential service insolvencies and the public interest : case studies of Australia's electricity industry and Melbourne's public transport industry( 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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ItemThe integration of complementary and alternative medicine into health care : regulating for consumer choice, autonomy and responsibility( 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.
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ItemFirst world convention and third world corruption : the OECD convention on bribery in international commercial transactions and foreign subsidiary corporations in the Philippines( 2007)This thesis examines the application of the OECD Convention on Bribery in International Commercial Transactions (the Convention) to corrupt practices facilitated by foreign subsidiary corporations with particular focus on commercial contracts in the Philippines. The dynamics of bribe payments in two Philippine infrastructure contracts are studied in light of specific provisions of the Convention. The two case studies show that the corruption of Filipino government officials need not be directly carried out by foreign nationals nor by foreign international corporations. This is because the bribery may be facilitated by resident representatives of resident subsidiaries, or by resident representatives of domestic corporations. Also, a labyrinth of personal connections allows bribe proceeds to reach the intended Filipino public officials without the foreign corporation's officers necessarily having to meet officers of the parent corporation. The thesis finds that while the Convention's approach to addressing the problem of corruption internationally is unprecedented, its practical effectiveness is challenged by its ambivalent provisions on jurisdiction and elements of the offence. Further, unless local commitment to enforce and implement the Convention is strong,, currently entrenched business practices will be difficult to reform. The liberality accorded member countries to implement the provisions of the OECD Convention within the existing principles of their respective legal systems has resulted in diverse and variant implementing statutes such that the particular commission of the crime of bribery of a foreign public official may result in some liability in one jurisdiction, but not in another. The OECD Convention is the first of its kind in the international regime. It could have made a difference in curbing transnational corruption. But it did not and does not. END
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ItemThe introduction of the consolidation regime into the income tax assessment act 1997 (CTH) : an analysis of the effect on the subsidiary disposal decision for a corporate group( 2007)In 1998, the Australian Government appointed John Ralph to conduct a review of Australian business taxation. Under its terms of reference, the Review of Business Taxation (`the Review') was required to make recommendations regarding the design of the business tax system, ongoing policy-making, drafting of legislation and the administration of business taxation. As a preliminary step, the Review released a number of discussion papers. In the first of these, A Strong Foundation, the Review set out what it considered to be an appropriate design framework for business taxation, and identified three national taxation objectives that should provide `high level guidance for the design and operation of the business tax system'. One of these objectives was optimising economic growth. In particular, the Review indicated that: An internationally competitive economy will require, and be sustained by, efficient economic use of its resources. To that end, a vital precondition for international competitiveness 'vill be to ensure that the business tax system does not influence business decisions unnecessarily. The culmination of the work of the Review was the release of the report, A Tax System Redesigned: More Certain, Equitable and Durable (`the Ralph Report'), which set out the Review's final recommendations for business tax reform. The cornerstone of the new business tax system recommended in the Ralph Report was the so-called `consolidation regime', which would permit certain corporate groups to be treated as a single entity for tax purposes. This recommendation was accepted by the Government and enacted, and, as a result, since 1 July 2002 certain corporate groups have been able to choose to be treated as a single entity for tax purposes. To what extent does this consolidation regime comply with the original design framework put forward by the Review in A Strong Foundation? In particular, does it satisfy the `vital precondition' that it `does not influence business decisions unnecessarily'? In this thesis, I consider this issue by focusing on one particular business decision that could be affected by the consolidation regime; namely, the decision by a corporate group to dispose of a subsidiary (`the subsidiary disposal decision'). I examine the ways in which the consolidation regime might influence this decision, and assess the extent to which this renders the consolidation regime liable to the charge of influencing the subsidiary disposal decision unnecessarily. I focus on four examples of where the consolidation regime could affect the subsidiary disposal decision: the payment of a pre-sale dividend by the subsidiary (or `target'); a presale debt reconstruction in relation to the target; some particular cost base issues; and the liability, as between group members, to pay tax under the consolidation regime. I conclude that the consolidation regime influences the subsidiary disposal decision. I then suggest that, because that influence is difficult to justify having regard to the national tax objectives set in A Strong Foundation, the consolidation regime influences the subsidiary disposal decision `unnecessarily'.
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ItemFantasies of 'female genital mutilation' : flesh, law and freedom through psychoanalysis( 2007)In 1996 the Crimes (Female Genital Mutilation) Act was passed in Victoria, Australia. The consultation with migrant communities, affected by the practices, was almost non-existent. The methods of the consultation, the implementation of the legislation and the use of the term "female genital mutilation" were objected to by the migrant communities. This objection and implementation mirrored similar legislative initiatives and similar methods of implementation in the United States, Canada, Scotland, England and Egypt. This thesis is an analysis of the speech on, and against, female genital mutilation. The analysis explores the texture of this speech, understood as a particular and invested arrangement of fantasy. This fantasy concerns the relation between the liberal subject and the sovereign. The relation is parsed in terms of the economic, the psychoanalytic and the political. These are the three idioms through which fantasies, of female genital mutilation emerge in contemporary times as a fantasy of flesh cut and the possibility of free speech. The thesis has four parts. In the first part it explores fantasies of subjectivity understood as the constitution of a mutilated woman against a fantasy of a non-mutilated liberal subject (as a postcolonial concern). The context for the exploration is firstly the emergence of the above mentioned Crimes (Female Genital Mutilation) Act 1996, and secondly its relations to the formation of the modern liberal subject (Rousseau, Hobbes, Schmitt and Freud). In Part B the thesis explores economies of flesh. First and foremost the economy is staged as a relation between the subject and the sovereign. This relation is figured as a tension between a fantasy of circumcision and a fantasy of mutilation. The psychoanalytic theories of Lacan and the political theories of Agamben are called to aid this exploration. In Part C the thesis discusses the politics of freedom articulated in sovereign democratic politics. Here the thesis moves from its focus on female genital mutilation legislation and places it in the contemporary politics of the `war on terror', evocations of national community and the problematics of a cultural pluralism. These are understood in terms of the differential orientations to loss (of freedom and speech)'; known as melancholia, psychosis and mourning. Mourning is the concern of Part D. In doing so the thesis returns to the speech on and against female genital mutilation and their invocations of human rights. The limits is figured in this part by reference to the protest of an African woman who says `I am not mutilated.' The figure of this woman returns us to the dialectic of flesh and speech that this thesis has argued embodies western fantasies of female genital mutilation. What is lost, but returns to haunt the liberal subject, imagining itself sovereign, is the possibility of freedom and an authorised loss of speech, in a democratic politics worthy of the name.