Melbourne Law School - Theses
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ItemThe challenge procedure under the World Trade Organisation agreement on government procurement : a model for Australia( 1998)The Commonwealth government is considering acceding to the World Trade Organisation Agreement on Government Procurement (AGP). The purpose of the AGP is to liberalise government procurement amongst member countries. Pursuant to Art. XX of the AGP, it is a requirement for a member country to have a procedure whereby suppliers can challenge government procurement decisions. A review of the existing mechanisms under Australian law for challenging procurement can be challenged. I believe that none of the existing measures are sufficient to meet the requirements of Art. XX. Accordingly, I suggest adopting a new challenge procedure, with any challenge to be heard by a new administrative body. This challenge procedure can cover either only AGP related procurement, or all Commonwealth government procurement. Further, whereas the challenge procedure can be limited to only the requirements of Art. XX, I recommend including other procedural points to make for a better procedure. Accordingly, recommendations are made for both a challenge procedure that meets the minimum requirement of the AGP and a preferred procedure.
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ItemThe Mental Health Act 1986: the end of informal detention of young persons within the Victorian psychiatric system?( 1997)This paper reviews the level of legal protection provided to young persons who require psychiatric treatment in Victoria, and considers the treatment, admission and detention options currently available to young persons and their families - voluntary, informal and involuntary - through use of a fictitious patient, Dale, and explores the ethical and legal dilemmas each option presents. The absence of statutory provisions relating to the capacity of young persons to consent to, or refuse medical treatment in Victoria, necessitates a review of the common law and an appraisal of statutory modification of the common law in other Australian jurisdictions, and suggests that there remains some uncertainty as to a young person's ability to refuse treatment, despite a general acceptance that in many situations young persons have capacity to make informed decisions. The paper concludes that the failure of the Mental Health Act 1986 (Vic) to acknowledge that some young persons have the capacity to make informed decisions regarding their mental health needs, has relegated young persons, admitted informally on the consent of a parent, to a position of considerable disadvantage in that they are denied the safeguards of the Mental Health Act, being unentitled to independent review of their detention. Amendment of the Mental Health Act is proposed, the purpose of which is the avoidance of informal status for young persons, ensuring that the only consent which is relevant, when considering involuntary status, is that of the person, and not that of a parent or guardian.
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ItemThe law relating to the protection and treatment of animals in Victoria( 1984)The subject matter of this thesis is the Victorian law relating to the protection and treatment of animals. Brief reference is made by way of comparison with the laws of other jurisdictions. This thesis attempts to survey the law and examine the way the law provides some protection for animals even though animals are not capable of holding or enforcing legal rights in our system of law. This is generally by way of protecting property rights of owners, the public morality or the public interest in the natural resource of animals. As traditional western attitudes have generally accepted man's dominant status over animals, the law reflects the greater weight to be given to human needs or benefits in balancing any conflicting interests of animals with human interests. Therefore, against the historical background of Chapter 1, the remaining chapters set out the law protecting animals attempting to show how the law has balanced the various competing interests involved. In Chapter 2 the Victorian statutory provisions relating to cruelty to animals are surveyed. They reflect that cruelty to animals is generally prohibited under the Protection of Animals Act 1966. However the concept of cruelty applied to animals requires that there be a balancing between the pain inflicted on the animal and the circumstances surrounding the infliction of pain. The statutory provisions reflect the concept. Cruelty is generally not prohibited under the Act if it can be justified as being reasonable in the circumstances, often on the, grounds that it can be justified in terms of serving a human need. The Act goes on to provide specific exemptions from the cruelty provisions for activities which are generally accepted in Western Society as essential or convenient for human activities or needs and these are not prohibited. The major exemptions relate to using animals for farming purposes, hunting purposes, experimental purposes and exterminating vermin. These are discussed in Chapters 3, 4 and 5. Chapter 6 surveys the law relating to animals used for entertainment purposes. The present law reflects a desire to balance the need to prohibit those sports and entertainments which offend against the moral standards of the community such as blood sports and the need to retain those activities where ill-treatment of animals can be justified in terms of a legitimate object such as an educational interest, in the case of wildlife parks and zoos or a sporting or commercial interest in the case of horse racing. Chapter 7 looks briefly at the Victorian law relating to the conservation of wildlife. The law on this subject reflects the Christian philosophy of preserving all animal species for God's kingdom to come. This basis for the law is strengthened by an increasing awareness of the need to preserve all the animal species as a requirement for preserving the natural balance of animal species necessary for the survival of all plant and animal life. However the law provides varying degrees of protection depending on the animal concerned. Animals which are not native to Australia and animals regarded as vermin do not receive this special protection, because their survival is not essential to the natural balance to be preserved. The law also makes exemptions to allow wildlife to be used for educational purposes such as in wildlife parks and for restricted commercial purposes, such as for sale and for breeding. Thus the law on this subject also reflects the balancing processes involved in preserving wildlife but allowing for some human activities which are recognised or established as sufficiently important to be exceptions to the rule of preserving wildlife. The law is, unless otherwise stated, as at February 1983.
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ItemPatents and the Human Genome Project: should the DNA sequences determined in the project be patentable, and would an application in respect of the DNA sequences be a patentable invention under the Patents Act 1990?( 1996)Ascertaining the sequence of the human genome has long been the 'holy grail' of the genetics world. The Human Genome Project is an internationally co-ordinated scientific effort aimed at finding the grail through the mapping and sequencing of all the DNA in the human genome. The project has been compared to the program to send a man to the moon, but those involved have described the project's implications for humanity as being far greater than that first step onto the surface of the moon.
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ItemTaxation of superannuation and other termination payments( 1992)Thesis Plan: This thesis provides an overview of the law and relevant procedures of the taxation of superannuation and other termination payments. Specifically the thesis details the various changes to the concessional taxation treatment afforded such payments from 1/7/1983 to the present. In addition various policy issues are examined in light of the recent release of the Federal Government Statement on the topic re “Security In Retirement: Planning For Tomorrow Today”.
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ItemShould Australian law grant greater protection to well-known and famous marks and if so, do the current Australian laws achieve this in the most efficient way possible?( 1993)This paper is concerned with a topic which has received much attention recently: what ought to be done at a national and international level to protect well-known and famous marks? The owners of well-known and famous marks often experience one or another of the following problems: 1. counterfeiting 2. dilution, and 3. appropriation by other traders in overseas countries .
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ItemThe criminal liability of corporations( 1993)This study is an examination of the various aspects of the criminal liability of corporations, including the existing law and its potential reform. The study begins with an examination of the theory and concept of corporate criminal liability, as it exists in Australian law. Particular reference is given to the persuasive influence of English law on the Australian conceptual framework, and the consequential restrictiveness of common law in relation to corporate criminal liability. This has prompted the use of various legislative techniques in Australia to broaden the application of what are, in practice, personal offences to corporations. The use of legislation has had limited success. The difficulty with much Australian legislation is that it has broadened a narrow doctrine, rather than reassessing some of the fundamental concepts. Other countries are now beginning to re-examine their existing approach to the criminality of corporations, and this study makes particular reference to American involvement in dealing with offending companies and their management. A study of corporate behaviour, indeed in the growth and change of status of the company in our society, raises many issues concerning corporate criminality, the types of crimes that can occur and the reasons why corporations may offend. An examination of corporate offences, and the potential harm that flows from breaches of the law, forms the basis for a re-assessment of existing law, and even the corporation itself as its exists in our society. Indeed the proposed Australian Model Criminal Code, with its recognition of corporate blameworthiness, is one enormous conceptual leap in changing the approach of law in dealing with corporations. However, a re-evaluation still needs to be made of existing criminal legislation, executive procedure, judicial procedure and potential sanctions. Furthermore, there must be a consideration of the end object that is sought by making a company criminally liable. The objective of any reform should be to achieve a law abiding corporation, where legal compliance is reflected in its structures and ethos, not the letter of the law. Sanctions to achieve such an ideal outcome may be found in other ways than merely through traditional punishment, such as fines, the alternatives being examined in this thesis.