Melbourne Law School - Theses
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ItemWomen workers and the processes of the conciliation and arbitration system( 1984)The thesis studies the relationship between women workers and the Conciliation and Arbitration System. Its aim is twofold: to explain why particular policies were adopted by the Court/Commission and to assess the extent to which those policies disadvantaged women workers. Previous research has explained women's disadvantaged position by emphasising the role of judicial prejudice and sexist ideologies. The thesis rejects such simple explanations and tries to show that particular policies resulted from the interraction between the Conciliation and Arbitration System and its economic, political and ideological environment. The thesis emphasises the complexity of the processes which determined the law and, in particular, it stresses the role of economic and political forces in shaping legal policy. It also demonstrates that the issue of whether women were in fact disadvantaged by any particular policy can only be resolved through an examination of both the policy and its effects. The first five chapters examine Court/Commission policy on wages, skill, classifications, the sex-typing of work, redundancy protection and maternity leave. The final chapter considers the implications of the arguments adopted in the thesis for other studies of women and the law.
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ItemThe legal nature and taxation implications of friendly society savings and investment assurances( 1986)The heyday of the friendly society movement in Australia, which spanned from the early days of colonisation until the mid-1930's, saw friendly societies as the main provider of social welfare benefits for a large proportion of the population. Since the advent of the modern 'welfare state', the movement drifted steadily into a state of decline. The 1980's, however, have heralded a remarkable rejuuination of the movement, based upon traditional friendly society ideals of providence and thrift. Instigating this revival are Victoria's friendly societies which now market an array of endowment type life assurance policies, designed to promote savings and investment returns for the movement's now diverse and rapidly growing membership. All Commonwealth insurance legislation specifically excludes insurances effected by friendly societies, and from a casual reading of the Victorian Friendly Societies Act 1958, the legislative power for societies to effect life assurances is y no means immediately apparent. Indeed, a closer reading of nineteenth this Act highlights that its / century English based provisions are inadequate, and often unintelligible so far as regulating and providing a satisfactory framework for the operation of modern friendly society life assurance activities. This paper provides a practical description of friendly society endowment assurances, and examines their legal nature and operation by tracing the legislative evolution of the enabling provision. The regulation and operation of these assurances within the scope of the Friendly Societies Act, is discussed at length, and where appropriate, critically analysed. Throughout the paper comparisons between Commonwealth life insurance legislation, which regulates similar assurances, is made with a view to further highlight the inadequacies of the present friendly society legislation. By design, Part 1 is very much descriptive in its content. This is due not only to the fact that modern friendly society life assurances have received little, or no legal comment, but also because a basic understanding of the nature and operation of these assurances is a prerequisite to the discussion of their taxation implications in Part 2. In Part 2, the paper essentially focuses on the taxation consequences of ownership of a friendly society life assurance policy. It does this by looking at the long standing traditional tax concessions applicable to these policies. These take the form of 'tax-free' reversionary bonuses attaching to life assurance policies generally, and until recently, a rebate for contributions. The discussion analyses in detail, recent legislative changes, which coincidental with the dramatic increase in friendly society assurance activities, have been introduced to prevent exploitation of these traditional taxation concessions. Brief attention is also given to the taxation status of the friendly societies themselves.
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ItemReforming the corporate entity principle from a creditors' perspective( 1986)On 28 July 1892 Aron Salomon incorporated Aron Salomon and Company, Limited together with six members of his family. In performing this relatively simple task, he could little have suspected what was about to befall him. Within one year he was to go from riches to ruin. Within two years he was to have his reputation shredded. And within four years he was to have his name enshrined in legal history. In Salomon v. Salomon &. Co.,Ltd. the House of Lords unanimously held that, in English law, companies were legal entities in their own right, completely separate from their owners, and that companies were not the agents or trustees of their owners. This paper will examine this "corporate entity principle" from the viewpoint of trade creditors of companies. It is the thesis of this paper that the corporate entity principle as affirmed in Salomon should, and can, be modified in Australia to more adequately protect trade creditors. Trade creditors are the group who would most like to see the effect of Salomon modified in their favour, and are the group who have had the least success so far in attempting to do this. They have been chosen as the focus of this study precisely because of this lack of success. If the corporate entity principle can be shifted for them, it can be shifted for any other group. To expound on the thesis of this paper, it is first necessary to understand the decision in Salomon and to see the way in which it has been applied by the courts in Australia. Chapters 1 and 2 attempt to provide this background. Chapter 2 also contrasts the approach to the corporate entity principle taken by the courts in Australia with that of the English courts. Even though it is almost 90 years since the House of Lords decided Salomon, Chapter 2 makes it clear that Salomon is still good law in Australia. Chapter 3 suggests that not everyone is happy that this is so, and examines possible reasons why the corporate entity principle has remained intact for so long despite the criticisms that have been levelled against it. In a similar vein, Chapter 4 explores the suggestion that changes made when the Companies Code (2) was introduced in 1981 (in particular, the introduction of s.556(1)) have obviated the need for further changes to the principle. Both these attempts to pre-empt the need to discuss the thesis fail, so Chapter 5 discusses reasons why the corporate entity principle should be modified. Chapter 6 examines possible ways of modifying the principle in the light of the problems highlighted in the preceding chapters. Chapter 7 briefly summarizes the findings of this paper.
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ItemMoratorium legislation in the Canadian and Australian rural sector : its history and present utility( 1989)A. The Analysis and Problem 1. At Common Law the rights of creditors were virtually absolute. 2. Over time, the law has whittled away the unimpeded rights of unsecured creditors through bankruptcy and insolvency legislation. 3. Secured Creditors have also had rights, throughout legal history, which were, virtually, inviolate. 4. In Canada and in Australia, bankruptcy legislation has had very little effect on the rights of secured creditors. 5. However, in times of crisis, even the rights of secured creditors have been restricted in the interest of the common good. 6. The pendulum continues to swing in favour of creating more rights in favour of debtors and restricting secured creditors' rights in Australia and Canada. 7. There is a strong lobby urging the restriction of secured creditors' rights as they relate to farm debtors due to the extreme economic hardship faced by those persons during the 1980's. B. The Issues 8. Whether it is appropriate to further expand the rights of debtors and to restrict the remedies of secured parties in any circumstances through moratorium legislation. 9. Whether farm debtors fit within the principles justifying interference with secured creditors' rights. 10. What safeguards should be inserted in such legislation to ensure that there is proper balance for the legitimate concerns of both debtors and creditors. C. Conclusions 11. Present legislation in Canada is deficient and does not properly assist either debtors or creditors involved in the present farm difficulties. 12. Australian legislation is superior because it has addressed all of the issues facing agriculture and has recognised that there must be adjustment in agriculture. 13. There is a place for moratorium legislation as a means to an end, namely, in promoting alterations in the agricultural sector to promote future efficiency and, potentially, to assist in the transition of nonviable farm enterprises out of the agricultural sector. 14. However, steps must be taken to preserve and protect the fundamental and historical freedoms of creditors.
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ItemThe Role of the National Companies and Securities Commission in regulating takeovers( 1982)When the Commonwealth and State Ministers met in Maroochydore in May 1978 to settle on the form of co-operative legislation relating to companies and securities, a number of options were open to them. One alternative put forward in relation to takeovers, was the establishment of a takeovers panel or committee, with a broad power to determine guidelines and to deal with takeovers on a case by case basis. The other alternative was to continue with a system of legal prescription. Although such a system had been tried in Australia for a number of years with little success, it was felt that such an approach had great advantages of certainty. It was also felt that defects which had become apparent under the takeover provisions of the Uniform Companies Act 1961, could be overcome. It was proposed to overcome those defects by drawing the basic prohibition more widely, to cover acquisitions rather than offers and invitations for shares. It was also proposed to confer on the administering body wide powers and discretions to enable a more flexible approach in the administration of the legislation. The purpose of this thesis is to examine the role of the National Companies and Securities Commission (the NCSC) in the regulation of takeover activity. Under the Commonwealth and State co-operative agreement, the NCSC has an important role to play in the regulation of the securities industry and company law generally. Accordingly, powers have been conferred on the NCSC by the SlA and the CA. This thesis - -deals with those powers only in so far - as they relate to takeover activity. Regulation of takeovers involves a conflict between law and economics. The law is concerned with principles of equity whereas economics Is concerned with allocational efficiency. The NCSC must have regard to both factors. In Chapter 1 it is proposed to consider the reasons why takeovers occur, what interests might be affected by takeover activity and to consider the aims of takeover regulation. Chapter 2 examines the systems of regulation takeover activity which operate in the United Kingdom and the United States. The United Kingdom adheres to a system of self regulation of takeovers and mergers, while the United States had adopted a legislative approach. Although the Australian approach has been to relate a legislative framework, many matters of detail have been borrowed from both models. The development of the co-operative scheme Is examined in Chapter 3. This chapter traces the history of the agreement between the Commonwealth and the States on companies and securities. Some consideration is also given to the form of the co-operative agreement. Essentially this involves the following techniques: (1) all parties to the agreement adopt uniform legislation; and (2) uniform administration is achieved by the investment of a single body with powers by both the Commonwealth and the States. However, the role of the State administrations is preserved under the agreement by the requirement that the NCSC delegate, to the maximum extent practicable, to State administrations. Chapter 4 considers that aspect of the co-operative legislation which deals with takeovers, primarily the Companies (Acquisition of Shares) Act. Although this thesis does not purport to deal exhaustively with the legislative provisions, some consideration of the legislation Is essential, as it constitutes the framework within which the NCSC must operate. In Chapter 5, the various powers conferred on the NCSC, relating to the regulation of takeovers, are considered. The nature and scope of these powers vary greatly. The NCSC has many powers relating to the manner and form of takeovers. It also has powers of enforcement, and powers which confer great flexibility in administration of the legislation. Although many of these powers appear to be extremely wide, there are a number of limitations. Chapter 6 deals with the possibility, of controls which can be exercised to restrict the Commission's powers. The most serious limitation involves the likelihood of judicial review. Control can also be exercised by nonjudicial means, such as by the Ministerial Council which comprises the relevant Minister from each jurisdiction which is a party to the Agreement. The conclusion looks at the problems facing the Commission in the exercise of its powers, and considers the arguments for and against an increase in those powers.
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ItemResources joint ventures and the Trade Practices Act( 1989)Joint ventures are a popular form of enterprise structure in the resources sector in Australia. Despite the absence of hard data, it is estimated that at least half the expenditure on mineral exploration and virtually all petroleum exploration in Australia in recent years has been through joint venture arrangements. So it is elsewhere, and in other fields. In resource exploration and exploitation, engineering and construction, manufacturing, and research and development, various forms of joint ventures are being relied on increasingly as vehicles for business. In competition policy terms, the creation and activities of joint ventures present special .problems. Whereas competition policy seeks to encourage competition between participants in the marketplace, joint venture arrangements involve cooperation between participants, often resulting in a lessening of competition. There are advantages and disadvantages to be weighed; a balancing test involving beneficial economic effects, and anti-competitive detriments. The task of legislators and competition authorities (in Australia, the Trade Practices Commission) has been and remains to develop and implement a framework which allows joint ventures to develop in an economically beneficial way, whilst at the same time circumscribing their anti-competitive effects. The object of this paper is to examine the approach to this problem which has been developed in Australia, and distilled in the Trade Practices Act 1974 ("the Act"), in the context of resources joint ventures. It is timely to undertake such an examination The Act has now been in force for 15 years and its principles have been applied in a number of determinations, particularly in the last two years. I have adopted what I hope is a relatively straightforward approach to this task. First, in Part 2 of the paper, I attempt to identify the characteristics of resources joint ventures in Australia which are significant in the context of competition policy. Also in this part, I outline the costs and benefits of joint ventures, as they are perceived in competition theory. Secondly, in Part 3 of the paper, I describe the competition provisions of Part IV of the Trade Practices Act, and the adjudication provisions set out in Part VII. Whilst these will be familiar to many readers, they are included here not only for the sake of completeness and the aid of those unfamiliar with the Act, but also because a detailed understanding of these provisions is essential to the analysis and discussion which follows. These provisions embody the regulatory approach to the problem, which is in essence to subject joint ventures to the full spectrum of competition laws (with limited exceptions), but subject to an adjudication process which permits authorised contraventions on public benefit grounds. In Part 4, the meaning of some concepts which are essential to the practical application of the competition and authorisation provisions (namely, "competition", "market", "public benefit" and "dominance") is explained. This is done by reference to decided cases and also to the determinations of the Trade Practices Commission ("the Commission") in the case studies discussed in the Schedule to this paper. Part 5 of the paper examines the competition issues which arise upon the formation of a joint venture. This involves a consideration of Section 50 of the Act (which proscribes mergers or acquisitions leading to market dominance) in relation to the joint venturers individually (the "parents") and the joint venture itself (the "child"). In Part 6, I examine some specific provisions of resources joint venture agreements which have the potential to contravene the Act. These are, namely, area of mutual interest, assignment and non-competition provisions. Also in this part, the trade practices implications of joint venturers' cooperative marketing and joint acquisition arrangements are considered. Throughout the paper, extensive references are made to various determinations of the Commission made since the inception of the Act, which involve resources joint ventures. Summaries of these determinations and the issues which they have considered are set out in the Schedule. These cases provide practical illustrations of the types of competition issues to which resources joint ventures give rise, and the public benefits which have been accepted as outweighing anti-competitive detriment. It is important to emphasize at the outset that competition policy does not operate in a vacuum. Not only does the cause of competition require to be subordinated from time to time to the greater economic benefits which flow from joint ventures; it must also take its place in the ranks of other government policies, not all of which are compatible with it. Examples of this dilemma can be found in the paper; specifically with respect to government policies dealing with crude oil marketing and tenement licensing. Reconciliation of these conflicting policy goals is of course the daunting task of the bureaucracy and the legislature. It is also important to acknowledge the matters which I have not addressed in this paper. First, I have confined my analysis to those provisions of agreements or types of conduct which are an integral part of, or peculiar to, resources joint ventures. This is not to say however that this paper presents a comprehensive picture of the interface between resources joint ventures and competition law. Many activities engaged in by joint venturers with respect to their joint ventures may involve anti-competitive forms of conduct (such as exclusive dealing, tying, predatory pricing or refusals to deal) which invoke the provisions of the Act. However, these forms of conduct are not peculiar to joint ventures, and it is not within the scope of this paper to deal with them. Secondly, the paper is confined to an analysis of the Australian Trade Practices Act. The extra-territorial application of foreign competition and anti-trust laws is not addressed.(2) Thirdly, the paper does not contain any comparative analysis of competition laws in other countries. The issues which are discussed in this paper have been addressed (to varying extents) in the United States, Canada, Japan and the EEC nations. Had time and space permitted, it would have been of interest to compare the approaches adopted by these various countries, and to consider whether an alternative approach should be adopted here.(3) Shortly before this paper was completed, the High Court handed down its decision in the Queensland Wire case (4) The decision in that case has signalled the court's preparedness to adopt a purposive approach to the application of the Act, bearing in mind its objective of fostering competition. This, coupled with the more visible and assertive role being adopted by the Commission, has heightened and reinforced the need for joint venturers to have the Act, and competition policy generally, firmly in mind when contemplating their agreements and arrangements
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ItemLegal aspects of state agreements for the development of mineral deposits, with particular reference to the Greenvale agreement( 1980)The State Agreement has proved, in practice, a solid foundation for large mineral development ventures. However, the State Agreement requires considerable care to be taken in its negotiation and drafting if that foundation is to be supportable as a matter of law, rather than being reliant for its effect solely upon the continuing goodwill of the parties. The object of this paper is to identify considerations to which the draftsman should advert, and the efficacy of the drafting options which are available to accommodate those considerations. A further object is to evaluate the extent to which the State Agreement confers the benefits usually claimed for it, as outlined in Chapter 1. Particular reference is made throughout to the Greenvale Project which provides a case study of certain of the difficulties, and possible solutions, which need to be considered in the development and administration of a State Agreement. The law as stated is, unless otherwise indicated, that in force on August 1, 1980.
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