Melbourne Law School - Theses
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ItemSex work as work : labour regulation in the legal sex industry in Victoria( 2001-02)Prostitution occupies a significant place in academic research. It has been analysed from a range of disciplines including sociology and anthropology, women’s studies, criminology and law, and medicine and health services. Much of the recent scholarship in Australia concerning prostitution has focussed on the relationship between sex work and sexually transmissable diseases, and on the decriminalisation of prostitution. Despite the considerable number of studies into prostitution, there has been only limited consideration in Australia of prostitution as a form of waged labour. Some feminist theorists, writing from an historical perspective, have examined the concepts of sex and work and the way in which these are reproduced within the practice of prostitution.
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ItemAutomating the internet: the law of electronic commerce, contracts and autonomous software agents: regulation of Agent-mediated online contracting: enforceability, liability and risk allocation( 2002)This thesis enquires into the regulation of online contracts formed by autonomous, artificially intelligent software programs, called 'Agents'. It provides an overview of the current state of the law as applied to Agents that negotiate and transact online. Agent transactions are fundamentally different from other computerised transactions, as Agent actions are autonomous, proactive and informed by their ‘intelligence’ and ‘experience’. This paper focuses on three specific areas: (a) the extent to which Agent-generated contracts are, and should be, enforceable; (b) the liability of parties involved in Agent transactions; and (c) the manner in which risk is, and should be, allocated in respect of errors involved in the use of contracting Agents. In exploring these key areas, this thesis considers whether or not the current law adequately deals with Agent-mediated contracts. Areas in which the law fails to satisfactorily resolve issues of enforceability, liability and risk allocation are highlighted, and modifications and reform necessary to achieve such resolution are suggested. This thesis commences with a review of the technical aspects of Agent software, and identifies characteristics that differentiate Agents from other software. We then examine legal doctrine that may be invoked, in current or modified form, to govern Agent contracting activity. Principles of contract law, agency law, and legislative schemes are analysed to ascertain the extent to which they apply to Agent-mediated contracts. In evaluating the operation of contract law, principal-agent law and legislative initiatives, the benchmark against which proposed methods of regulating Agents are measured is the extent to which a particular approach facilitates electronic comerce by providing a strong legal infrastructure. In summary, this thesis: (a) defines and characterises software Agents and discusses e-commerce scenarios in which Agents are, and could be, utilised; (b) reviews principles of contract and agency law, as well as e-commerce legislation, analysing their application to online Agent contracting activity; (c) identifies areas where the law fails to adequately govern Agent-mediated contracts; and (d) suggests ways in which the law may more effectively regulate this new sphere of contracting activity.
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ItemThe effectiveness of special and differential treatment provisions for developing countries in the World Trade Organisation: implementation in practice and enforcement in dispute settlement( 2005)This thesis addresses the issue of the effectiveness of the World Trade Organisation (WTO) Special and Differential Treatment (S&D) provisions, both in their implementation in practice by the WTO Members, and in their enforcement in WTO dispute settlement process. This thesis argues that the implementation and enforcement of the S&D provisions have been mostly ineffective. In the implementation, this ineffectiveness has been indicated by several facts, including: the impeding of market access for developing countries in developed countries' markets; the failure to effectively safeguard developing countries' trading interests; there having been no real flexibility for developing countries in applying the WTO provisions; the inadequacy of the transitional periods; and the insufficiency of the technical assistance (TA) provided by developed countries. In the enforcement process, the ineffectiveness of the S&D provisions has been shown by a number of facts, including developing country failures to successfully invoke: the balance-of-payments (BOP) reason under Article XVIII:B of the General Agreement on Tariffs and Trade (GATT) 1994; the transitional periods under Article 27.2(b) of the Subsidies and Countervailing Measures (SCM) and Article 65 of the Trade-Related Aspects if Intellectual Property Rights (TRIPs) Agreement; and the special regard provisions under Article 15 of the Anti-Dumping (AD) Agreement. Failures have also occurred with regard to: the extension of time to prepare and present argumentation under Article 12.10 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU); and the special considerations in the surveillance of the implementation of recommendations and rulings under Article 21.2, 21.7 and 21.8 of the DSU. This thesis finds that the unenforceability of the S&D provisions has been the most significant contributing factor to their ineffectiveness. This unenforceability has been characterised by hortatory clauses, onerous conditions, and impracticability. Apart from the unenforceability, the ineffectiveness of the S&D provisions in the implementation has also been caused by: persistent barriers applied by developed countries; the ignorance or developed countries; the technical difficulties faced by developing countries, and the narrow scope of flexibility; the overwhelming size of the adjustment task in transitional periods; and the lack of a systematic scheme for technical assistance. Other reasons for the ineffectiveness of the S&D provisions have been in the enforcement process: the failure or developing countries to fulfil conditions required by the S&D provisions; the failure of developing countries to submit adequate prima facie evidence to support their claims or defences; and strict and narrow interpretation of the provisions by panels and the Appellate Body. This thesis recommends that both conceptual and practical reform be carried out immediately. Conceptually, the S&D provisions should be made effective. In this regard, they should be legally binding, substantially fair, and efficient. Practically, developing countries should: address their lack of resources, through national and international efforts; and enhance their laws and institutions and create new ones that satisfy international standards while being attentive to national interests. Developed countries should: reduce, or even eliminate, protectionist policies that undermine the significance of the S&D provisions. The WTO should intensify and better coordinate T A programs. Finally, panels and the Appellate Body need to apply a more flexible approach in interpreting the S&D provisions.
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ItemAn analysis of the office of Attorney General in Australia and directions for the future( 2007)It is often assumed that the office of Attorney General in Australia carries with it an obligation to act independently of political considerations that does not apply to other ministerial offices. This is the orthodox view. There is, however, another view, the heterodox view, of the office of Attorney General, according to which the ministerial office that bears the title ‘Attorney General’ cannot be distinguished from other ministerial offices in any significant respect. The question which this thesis considers is whether any reliable basis can be found for the orthodox view either in terms of the manner in which the office of Attorney General is constituted in the twenty-first century or at any time since its first establishment in Australia. The thesis identifies possible sources for the existence of an obligation to act independently and tests the accuracy of those sources against the historical and current operation of the office in Australia. Having carried out that analysis the thesis then examines options that could be considered for the future to assist the hopes and aims motivating the orthodox view of the office of Attorney General to be achieved. It is important to assess the legitimacy of the orthodox view because of the faith and trust that it places in the Attorney General in relation to the maintenance of the integrity or Australia's constitutional structures and the manner of the exercise or executive power. If it is unjustified then this belief and trust could result in the inappropriate allocation of important and largely un-reviewable responsibilities to the holder of the office. It may be time to let go of the title "Attorney General and adopt "Minister of Justice" instead. This will raise issues as to the ability of the Parliament to hold the executive to account, the independence of the judiciary both for the adjudication of matters before it and for its administration and how its expenditure of public funds can be authorised and scrutinised by the Parliament. Also raised will be the status and professional responsibilities of lawyers in government in the defence of the integrity of the legal and judicial system.
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ItemSuperannuation: a public trust( 2002)Superannuation funds in Australia were originally established in an occupational environment and administered as private trusts. Superannuation funds are also collective investment schemes and, as such, can have commercial overtones. This thesis demonstrates how the judiciary and the government have both strained and extended private trust law in order to accommodate the distinctive features of the superannuation trust. Chapter 2 examines some of the tensions with traditional trust law by undertaking a survey of case law dealing with disability benefits. A detailed analysis of the statutory scheme contained in the superannuation legislation is undertaken in chapter 3. Chapter 4 will examine the impact of imposing 'merits review' - an administrative law mechanism - on private trustees. These developments suggest that superannuation trustees perform a public function. Yet the private form and source of superannuation benefits indicate that it is inappropriate to simply replace trust law standards with administrative law standards, unless it can be said that superannuation trustees now operate in the public domain. This question is explored in chapter 5 and analogies are drawn with the more public charitable trust. It is concluded that both the charitable trust and the superannuation trust operate within a hybrid 'public service' sector. A unique public model must therefore be formulated. Chapters 6 and 7 propose the specific features of the hybrid public model for superannuation trusts. Modifications to the current legal regime are identified in order to bolster the tentative trend in this direction. It is submitted that this public model offers a solution to the dilemmas currently encountered in conceiving a juristic framework for the modern superannuation trust in Australia.
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ItemThe continued application of source-based taxation in an electronic commerce environment( 2002)The advent of electronic commerce has caused many to question the continued viability of sourced-based taxation. Characteristics of electronic commerce include the expected reduction in the need for certain intermediaries in the business process, as well as the borderless and intangible nature of the Internet, which allows a business to earn income without it having to maintain a physical presence in the market territory. In light of these characteristics it is not difficult to see how arguments calling for the abandonment of source-based taxation continue to be raised. While the thesis accepts these observations as being valid, nevertheless it will be argued that source-based taxation is theoretically justifiable for income that arises from international transactions which are conducted in an electronic commerce environment. However, it will also be argued that the way in which the source of income is defined needs to be reconceptualised because the application of source-based taxation under traditional principles may be rendered problematic in light of certain characteristics of electronic commerce that are significant from a tax perspective. In summary, three main outcomes will emerge from this research, which flow from the arguments undertaken in the thesis: 1. Source-based taxation is theoretically justifiable for income that arises from international transactions which are conducted in an electronic commerce environment. The implication of this assertion is that source-based taxation of electronic commerce transactions should continue. 2. The way in which source is currently defined for electronic commerce transactions needs to be reconceptualised because of certain characteristics of electronic commerce that are significant from a tax perspective. 3. Various models for this reconceptualisation can be considered and three possible models will be examined and analysed for this purpose.