Melbourne Law School - Theses
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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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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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ItemRe-constructing a legal system in East Timor : challenges to introducing international legal norms and principles into post-conflict states under UN administration( 2007)The Report of the Panel on United Nations Peace Operations 2000 (Brahimi Report) proposed that the UN rely on a legal code as a potential response to problems of the kind encountered by transitional authorities in Kosovo and East Timor. These problems included limited or compromised local judicial capacity, loss of confidence in the pre-existing legal system, and the administration's lack of familiarity with local law and procedures. This research seeks to analyse the Brahimi Report's proposition in one of the two cases it refers to, relying on field work conducted in East Timor. Specifically, this paper seeks to identify the problems that were encountered by the UN justice teams and examine whether the availability of a model legal code would have significantly affected such issues. I also consider the connection between the problems encountered and the transitional authority's development and application of a mechanism for dealing with international crimes perpetrated. A final question it considers is if a model code would not have been enough to respond to the primary difficulties encountered, are there different approaches which might have been more successful, and could such approaches be useful in assisting future UN missions undertake judicial reconstruction and administration? As mentioned, the context of this research is an analysis of the UN-led judicial reconstruction and administration process undertaken in East Timor. The paper begins with a critique of the academic literature and proceeds to an analysis of research data collected over a nine-month period in rural East Timor. This data relies on firsthand observations of formal court proceedings, traditional dispute resolution procedures, the workings of the civilian police force and penitentiary system, and information obtained during 120 interviews conducted by the author. These interviews provide a unique and powerful insight into the impact that externally imposed judicial reform had on group that, while representing the principal socio-economic demographic, is often overlooked in academic studies, due to its isolation. It is this combination of academic analysis and primary field research that makes this paper an innovative and original contribution to the international legal discourse. The central argument is that the most significant problems affecting the judicial rehabilitation process in East Timor stemmed from incompatibilities between the legal models developed by the transitional administration and the legal cultures and resource endowments of East Timor. In many cases, these incompatibilities concerned provisions in the introduced law drawn from international human rights and criminal justice standards. The availability of a model legal code, based upon such standards, would not have resolved these problems. The central issue is the tension between the UN's commitment to upholding international legal principles and human rights, and the practicality and effectiveness of introducing such norms into post-conflict environments. Until this is resolved, the question of how to approach judicial administration, and how to respond when international standards are incompatible with the domestic legal tradition or national aspirations, will remain unanswered.