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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ItemInternational law, economic liberalization, and the movement of natural persons( 2007)The movement of natural persons constitutes one of the modes of supply for services identified under the General Agreement on Trade in Services (`GATS'). However, entry regulations have been recognised as a major barrier to such movement. Proponents of strict visa requirements often justify their position by invoking the sovereign right of states to adjudicate the entry of foreigners into their territory to protect the welfare of their society. Highlighting the cumbersome nature of procedures for the application and processing of these visas through an examination of the immigration laws of the US, Britain, Germany, France, Canada, and Australia, this thesis argues that the administration of that right in an unreasonable, subjective and discriminatory manner is inconsistent with Members' specific commitments on Mode 4 and the provision of art VI(1) of the GATS. It is argued that the general and security exceptions embodied in arts XIV and XIV bis of the GATS should not be seen as allowing Members the right to adopt any measure they wish domestically, even if it is welfare-related, to regulate the movement of natural persons. Such an interpretation could render unenforceable the specific commitments and relevant WTO obligations on Mode 4 of service supply. The thesis further suggests that the psychological nature of the barrier on the movement of natural persons from developing to developed countries may not be given expression through legal reasoning. In order to support this argument, a case study of Australian business visa requirements will be offered to give an account of the administration of the sovereign's right to adjudicate the entry of the foreigner at the moment of the encounter between the foreigner and the host. The host (abuses) his or her right to interrogate the foreigner to establish the foreigner's `genuineness', by, asking questions for which honest answers are not easy to provide. This encounter will be discussed through engaging with Jacques Derrida's reading of Immanuel Kant's right to hospitality. The findings of this research can prove significant given that the impasse on the liberalisation of the movement of natural persons was one of the difficulties that resulted in the collapse of the Doha Development Round of multilateral trade negotiations.