Melbourne Law School - Theses
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ItemThe Ghanaian petroleum sector and the environment( 1998)Ghana spends a substantial portion of her foreign exchange earnings on the importation of crude oil. It is therefore important to the government that the country's petroleum potential be explored and if any finds are made, that such finds be produced speedily to save the country invaluable foreign exchange that goes into the importation of crude oil. There is also the hope that where such finds exceed local requirements, the excess would be exported to earn foreign exchange for development. The Ghanaian government is also aware that petroleum exploration and production have the potential to cause adverse environmental effects if the operations of the companies are not properly regulated and controlled. It is therefore necessary to appraise existing laws on pollution control to determine whether they are adequate to regulate pollution in the conduct of petroleum activities. Where the laws are inadequate, as this work has found to be the case in Ghana, the government need not wait until the legal regime is updated. Apart from the promulgation and enforcement of legislation, there are other legal techniques that may be employed to control environmental pollution in petroleum exploration and production areas. These are the criminal sanction technique, the regulatory or licensing technique, the negotiations and agreement technique and the property rights technique. This work reviews these techniques and the conditions needed for their successful operation, and assesses what each technique can contribute towards environmental protection in Ghana. The experiences of some countries which have employed these techniques are also reviewed. Based on this evaluation, the negotiations and agreement technique is recommended as the preferred option for Ghana. The form in which this technique should be adopted for implementation in Ghana is also recommended.
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ItemThe development of Australian law to protect undisclosed business information( 1998)Traditionally, information has not generally been regarded by the common law as being property and able to be legally protected in the same way as land, money or goods. Australian courts have demonstrated great reluctance to change this approach, even though information is increasingly considered to be a valuable asset, particularly by the business community. However, a change in the way information is regarded has taken place over the last four to five decades, resulting primarily from the increased use of computer technology. In Australian law, organisations or individuals who wish to restrict access to their business information and keep it confidential currently have limited legal means to achieve their aim. The breach of confidence action, contract law, copyright law and criminal law may all be used to protect information from unauthorised access or use but only to a certain extent. In most instances these traditional legal approaches require that there is a confidential or contractual relationship between the parties, that the information be in an original form, or that the unauthorised access be made using computer technology. There are particular deficiencies in the legal protection available when undisclosed business information is accessed by a party outside a contractual or confidential relationship, often through improper means. Ways in which these deficiencies, particularly in respect to the breach of confidence action, could be overcome have been proposed by a number of law reform bodies, in Australia and overseas. However, no legislative amendments adopting these proposals have been introduced in Australia and judicial decisions indicate that the courts are likely to continue a conservative approach to the protection of information to avoid creation of barriers to the free flow of information. Different legal approaches to the protection of business information have developed in continental Europe and America. However a review shows that deficiencies in the protection offered have not been fully overcome in these jurisdictions. More recently, a number of international developments have taken place which are of significance to the protection of business information. The developments take different forms, either as binding international agreements, or non-binding agreements. Examples are the Trade Related Aspects of Intellectual Property Agreement (TRIPS); the OECD Guidelines of Security for Information Systems and for Cryptography Policy; and the WIPO Model Provisions for Unfair Competition. These agreements establish new international standards relating to the protection of business information. The way in which these international agreements may become part of Australian domestic law and policy can be predicted and explained by analysing the nature and form of the relevant international agreements and the process by which they may become part of domestic law; by having regard to recent developments in this field in other countries; by analysing Australia's response to similar developments in the past, for example, the OECD Guidelines on the Protection of Privacy and Transborder flows of Personal Data; and by reviewing Australia's response so far to the latest developments relating to the protection of confidential business information.
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ItemThe law of money( 1998)Money occupies a central position in both the disciplines of law and economics. From the legal point of view, money constitutes a vital part of the legal system. Ever since the advance from a barter economy, money has become a central instrumentality of legal transactions. Seeking a legal definition of the phenomenon of money is, therefore, an invaluable exercise for the discipline of law. However, as money is an economic phenomenon, seeking to ascertain the meaning of money for legal purposes cannot be comprehensively pursued without due regard to economics. This thesis sets out to show the importance of monetary and other economic factors in analysing and applying the law of money. In particular, this thesis sets out to identify the principal functions performed by money from the viewpoint of their relevance in comprehensively defining the phenomenon for legal purposes. It examines the legal meaning of money in the context of such developments as the use of advancing technology to transmit by electronic means rights to money at ever increasing speeds and amounts across the globe, floating exchange rate markets, the changing role of gold from its once unique position as the quintessential international monetary reserve, the development of "electronic cash", and the tracing of money through a series of paperless transactions. When examining these developments, there is a focus on how legal analysis might be assisted by identifying the role performed by money in specific sets of circumstances. While attention is given to international monetary units, such as the Special Drawing Right and the European Currency Unit where relevant throughout the thesis, the development of the Euro as the currency of the European Union in the twenty-first century is not specifically addressed. This is an on-going and developing process, raising specific issues such as natural currency areas within the European Union necessarily outside the ambit of this thesis, which focuses on the law of money proceeding from an Australian viewpoint to more general materials especially in the English-speaking world. However, this thesis does draw from the non-English-speaking world for materials and examples that may well be of universal significance, and have unique ramifications, in the process of determining the meaning of money for legal purposes. While focussing on the future, the thesis carefully considers the past from the point of view of determining the extent to which the existing law is able to deal with what appear as entirely new phenomena, associated with technological advancement and apparent rapid globalisation.
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ItemInteraction between commercial & legal aspects of project finance in Australasia( 1997)The project finance technique emerged as a result of legal principles evolving to meet commercial needs. Its value - enabling companies to fund projects on other than their own credit standing and to diversify risks associated with projects - has been proved by a remarkable string of major developments which were unlikely to have been undertaken without such a financing method. Over the years, the technique has been adapted to a range of applications and industries. One of its most recent uses has been in private sector development of public infrastructure projects. It is in this climate of continued need for project financing that this thesis seeks to examine its development to date, its strengths and its weaknesses, and to consider what changes, if any, are needed to ensure its continued usefulness in the future. The growing body of work known as 'economic analysis of law' is used as a key to understanding these issues and to suggest possible ways forward. Risk is identified as being central to the project financing process. Its identification, allocation and mitigation are the building blocks of the technique. Parties trade risks and contractual arrangements are put in place to give effect to these compacts. These contracts have often been creative, responding to the commercial requirements of the particular development and the parties involved. Novel processes have been devised to deal with cases of project or operator failure, providing self governing and self executing regimes for the developments. These self contained mechanisms are a response to the fact that court adjudication of disputes in these transactions is often inappropriate. The sophistication of these arrangements, however, has also resulted in significant transaction costs. Lengthy and complex documentation is characteristic in these financings. The costs begin at the outset of the transaction in the time and money involved in negotiating documentation and, on an on-going basis, arise through the significant reporting burden usually imposed on borrowers and the restrictive provisions which require continual lender involvement in project decision making. The lengthy, detailed documentation provides the project management regime as it usually stipulates in great detail how the project is to be operated and what the borrower can and cannot do. However, the very long terms of these financings (at times 17 or 18 years), mean that parties are unlikely to succeed in anticipating and dealing comprehensively with every imaginable contingency. The use of such lengthy, detailed documentation will, therefore, be reviewed and a theoretical analysis presented of why project participants have adopted this strategy. This thesis also recommends alternative strategies for structuring the project finance relationship. The optimal solution for any project should still be determined on the specific circumstances on the case and is likely to combine elements of the current approach with some of the proposals suggested.
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ItemGold : money or commodity?( 1993)
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ItemThe regulation of government enterprises in Victoria : balancing efficiency and accountability( 1990)In a Westminster system such as that in Victoria, the regulation of government enterprises must strike a balance between the demands of government enterprises for autonomy, so as to maximise efficiency, and the public's demands for full accountability for the expenditure of public funds. Since 1982, in response to these demands, the Cain Government has followed a policy of "commercialising" the operations of major public enterprises, while simultaneously attempting to increase their accountability to the Government, Parliament and the public. While the initiatives flowing from this "dual purpose" policy have already achieved a measure of success in enhancing both the efficiency and accountability of government enterprises in Victoria, significant gaps remain, particularly in the area of accountability. Although it is to be hoped that the Cain Government will move to remedy this imbalance, the omissions in the policy should not be seen as overshadowing the Government's major achievements in the field of government enterprise regulation.
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