Melbourne Law School - Theses

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    Reinventing Indonesian foreign investment law : a rationale for reform
    Saragih, Barita. (University of Melbourne, 1996)
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    Reinventing Indonesian foreign investment law : a rationale for reform
    Saragih, Barita. (University of Melbourne, 1996)
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    Representation and reasoning in law: legal theory in the artificial intelligence and law movement
    Hunter, Daniel Ashley Douglas ( 1996)
    Over the past few decades there has emerged a group of researchers who , have used computerised techniques to investigate the nature of legal reasoning. These researchers have formed what is called the 'artificial intelligence and law movement.' Members of the movement have built computer systems which automate legal reasoning, and in so doing have assumed that certain models of legal reasoning are correct. This dissertation argues that in many instances the models relied on by artificial intelligence research are no longer commonly accepted as valid by legal theoreticians. It further argues that until the artificial intelligence and law movement begins to recognise alternative legal theoretical models of reasoning, it is - unlikely to produce accurate, reliable and useful automated legal reasoning systems. The dissertation examines the four main reasoning paradigms in the artificial intelligence and law movement: deductive reasoning, analogical reasoning, inductive reasoning and sub-symbolic (neural network) reasoning. In each of these reasoning paradigms it shows that there is an extensive legal theoretical literature which is largely ignored by artificial intelligence research. It reviews the different models presented by legal theorists in each of these paradigms, in, order to show the limitations of artificial intelligence assumptions about the paradigm. The dissertation reviews a representative sample of artificial intelligence and law implementations in each of the reasoning paradigms, and assesses the type of legal theory implicitly adopted in each It argues that, generally, the models of legal reasoning adopted in each paradigm by artificial intelligence research has been formalistic, static, and mechanical. As a consequence, the implementations have been computationally tractable, but unconvincing in legal theoretical terms. The dissertation shows how alternative legal theoretical models of reasoning may be incorporated into existing artificial intelligence approaches. The dissertation concludes with an indication of how in future artificial intelligence and law research might provide useful models of legal reasoning, and how it might inform legal theory.
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    Unadjudicated claims to equitable interests under a constructive trust: their assessment as property under the pension assets test
    O'Connor, Pamela Anne ( 1995-07)
    The Social Security Act 1991 incorporates the general legal meaning of property in its definition of an asset, for the purpose of the pension means test. This creates the opportunity for pension applicants to argue that assessable assets held by them should be reduced by the amount of any equitable proprietry rights held by others in the assets. The Federal Court has held in Kintominas v Secretary, DSS and in Kidner v Secretary, DSS that equitable proprietry claims under remedial doctrines, such as under the constructive trust doctrine discussed in Baumgartner v Baumgartner are to be regarded as property even though there has been no judicial declaration of their existence, no dispute between the legal owner and the person claiming an equitabe interest, an no unconscionable abuse of title rights by the legal owner. This thesis argues that the Federal Court’s approach is not the preferable one, for three main reasons. The first relates to the changing nature of the constructive trust to a necessary element. The second is that, at a time when the constructive trust in Australia is in transition from the traditional institutional conception to a remedial paradigm along North American lines, the beneficial interest should no longer be viewed as existing independently of a judicial decree. The third argument is that, even if an equitable interest under a remedial constructive trust is accepted as existing independently of a curial declaration, it cannot be valued for the purposes of the assets test.
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    Insolvent trading under the corporations law: the amending insolvent trading legislation introduced by the Corporate Law Reform Act 1992 addresses the major inadequacies of its predecessor, but also leaves a number of issues unresolved
    Coburn, Niall F. ( 1996)
    The Corporate Law Reform Act (1992) (Cwth) (the Act) received Royal Assent on 24 December 1992. The provisions of the Act became operative in two stages: Parts 2, 3, 6 and 7 commenced on 1 February 1993 and Parts 4 and 5 commenced on 23 June 1993. The Act introduced a new insolvent trading regime into the Corporations Law replacing s 592 and related provisions. The new regime introduced significant changes to the Corporations Law (Law). Some of the main features are; imposing on directors a duty to prevent the company from engaging in insolvent trading, implementation of new statutory defences, introduction of provisions that relate to holding companies, decriminalisation of the insolvent trading provision and civil penalty orders for contravention of 588G in the absence of dishonest intent, new criminal proceedings for contravening 588G in circumstances of dishonesty, liquidators standing to take proceedings and power given to the court to make compensation orders for liquidators and creditors. (from introduction)
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    ‘Industrial disputes’ and the jurisdiction of the federal industrial tribunal
    Stern, Esther ( 1993)
    What constitutes an 'industrial dispute' for the purposes of s. 51 (xxxv) of the Commonwealth Constitution and s. 4 of the Australian Industrial Relations Act 1988 (Cth) is crucial for the determination of union-employer relations. Ultimately the ambit of the phrase 'industrial dispute' determines those matters that may legitimately be raised by a federally registered union with an employer before the Australian Industrial Relations Commission (hereafter the federal tribunal). The central thesis advanced here is that since 1904 the High Court has employed alternating approaches to identifying an 'industrial dispute'. One approach is that an 'industrial dispute' means no more than the traditionally perceived notion of an individual employer-employee dispute. The other approach is a much broader view, in that such a dispute relates to collective employment relations. Put at its most basic level, I submit in this thesis that the jurisdiction of the federal tribunal has been shaped less by the particular words 'industrial dispute' than by the perception of the kind of employment relationship with which these words are concerned. (From introduction)
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    Fusion development between law and equity
    Hepburn, Samantha ( 1994)
    This thesis attempts to present a structured definition of the concept of fusion in a modern legal environment. It examines the forces and influences which have encouraged and shaped fusion developments and goes on to consider the manifestations of actual and potential fusions occurring in a variety of different legal and equitable doctrines. The recognition and acceptance of fusion does not necessarily signify the automatic destruction of all jurisdictional distinctions between law and equity and it is hoped that a systematic analysis of what fusion refers to and how it is evidenced within our legal infrastructure will allay this fear. Fusion is literally defined as a close union of things. The intimacy of this union is variable; it can range from a complete blending of two separate objects to a close interaction between those objects. When considering fusion in the context of the growing intimacy between the common law and equity jurisdiction, the same principles apply. There are different measures of fusion which are continually occurring between legal and equitable doctrines and not all fusion involves a complete meltdown of jurisdictional distinctions. Some fusion simply encourages a change in attitude or approach to a principle. This sort of fusion is an interactive rather than a merging fusion because it influences related doctrines instead of subsuming them. Some of the main jurisdictional difficulties encountered within a modern Judicature system are increasingly being addressed through fusion developments. Common concerns experienced by the courts include the perpetuation of doctrinal and discretionary inconsistencies between law and equity which are outdated and unnecessary and the artificial imposition of jurisdictional constraints in the application of remedy. Fusion can offer a rationalised, interactive alternative to strict jurisdictional segregation thereby providing a viable method for the resolution of these concerns. The difficulty in implementing fusion stems, however, from a lack of understanding about the nature of consequences of the concept. If fusion is constantly perceived to be an absolute merger rather than a discrete integrating process then inevitably any reference to fusion will be considered radical and unjustified. (From Introduction)
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    The status of clergy of the Anglican Church of Australia: employees or office holders?
    Phillips, Barry ( 1997)
    The acceptance of the traditional view that clergy are the holders of an office has been the subject of challenge over past years and is increasingly being challenged nowadays. In particular, there have been claims by clergy and their dependents for worker's compensation benefits, claims by clergy for wrongful or unfair dismissal and claims by third parties alleging vicarious liability on the part of the Church. Changes in technology, among other matters, have led to an increase in the number of employees who work from a home office. When the remuneration, associated fringe benefits and other entitlements received by clergy are taken into account, it appears that there is little difference between the employee working from a home office and clergy holding parish appointments. This thesis re-considers the status of clergy in the Anglican Church of Australia. There is considered first the administration of the Anglican Church of Australia. This is followed by a consideration of the concept of employment and the concept of an office. Associated with this consideration are two matters which require specific examination. The first of these is the incidence of income tax. Most clergy have income tax deducted at source in accordance with the 'pay as you earn' provisions of the relevant legislation. Yet, these provisions are applicable only to employees. The issue which arises, and which is examined, is whether by participating in this method of payment of income tax clergy are estopped from denying an employment status. It is concluded that both in law and by direction of the Commissioner of Taxation this is merely a matter of convenience and does not constitute evidence of employment status. The second of the associated issues is that of the parson's freehold. The concept of a 'living' is not part of the law or practice of the Anglican Church of Australia. Had it been so, it would have added considerable weight to the argument in favour of the status of office holder. Accordingly, the support for office holder status is weakened. A review of the common law in Australia and elsewhere leads to the conclusion that the status of office holder is still the accepted view. The employment relationship is a contractual relationship made between two parties, an employee and an employer. Therefore, there is examined the issue of who might be the employer of the clergy. The conclusion is that there is no person or body who has sufficient involvement, control or responsibility to be described correctly as an employer. Finally, there is a consideration of the source of the responsibilities and rights of clergy. The conclusion is that the traditional view of clergy as office holders has not been displaced and is still applicable to-day.