Melbourne Law School - Theses
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ItemAn analysis of aspects of the Australian law of corporate taxation( 1970)The aim of this thesis is to investigate by close analysis the legislation and case law on certain aspects of the Australian law-relating to corporate taxation . To provide some limits within which detailed analysis might. be made within a reasonable compass the study was limited to some of the aspects of corporate taxation law which would be of interest to American manufacturers exporting to Australia, licensing manufacture in Australia, and manufacturing in Australia. The aspects covered are corporate residence, general. business income, royalties, interest, dividends, and section 260 of the Income Tax Assessment Act 1936-1969 (the Act's statutory anti-avoidance provision).
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ItemThe Commonwealth Industrial Court, 1956-1973( 1974)The issue of separation of powers in the Australian Federation has been one that bas occupied the High Court since its inception. Despite this it was not until 1956 that the Court squarely faced the question of whether or not it was constitutionally permissible to combine in the Commonwealth Court of Conciliation and Arbitration both judicial end non judicial power. In deciding the question in the negative the High Court made necessary the establishment of the Commonwealth Industrial Court.
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ItemAustralian interstate rivers : legal rights and administration( 1971)This thesis analyses the legal and administrative problems which arise in regulating Australian rivers that flaw along or across State boundaries. It commences by describing some practical difficulties that have occurred in recent years. It then ascertains the legal rights of the Commonwealth, the various States and private individuals to the use, flow or control of interstate rivers. In the light of the existing law, it points to weaknesses in the present administrative arrangements for reconciling. inter-government conflicts in water resources management and suggests an entirely new system that might be implemented.
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ItemIndustry, industrial disputes and the constitution( 1971)This thesis is concerned with s.51(xxxv) of the Constitution which gives the Commonwealth Parliament the power to make laws with respect to the prevention and settlement of industrial disputes by means of conciliation and arbitration. The constitutional power is examined from the point of view of which groups and types of employees are capable of taking part in "industrial disputes" as comprehended therein. When the Commonwealth Parliament first passed legislation under s.51(xxxv) it set up a single Federal tribunal to deal with labour disputes. From the employees' point of view the right to an audience before that tribunal was to be gained by the registration of representative organisations under the Act and the question arose as to the basis on which parties to such labour disputes were to be permitted to obtain registration. Because of the limitations on the Commonwealth jurisdiction which were envisaged as a result of the presence of the adjective "industrial" in para. (xxxv) it was not surprising that the Commonwealth Parliament decided that the basis of such registration would he participation in industry and, as a result, the scope given to expressions such as "industry" and "industrial employment" has always been of significance in so far as understanding of the jurisdiction of the tribunal set up under the Commonwealth Conciliation and Arbitration Act is concerned. The early part of this thesis (contained in Chapters II - IV) is concerned with a historical background to Australian industrial legislation and with the reaction of the Commonwealth Parliament and the High Court to pressures caused by employees attempting to bring themselves within the provisions of the Act by combining themselves into groups so that they might be regarded as collectively engaged in "industry" or in "industries" as defined at various points of time in the Act. The substance of this examination is contained in Chapter IV which traces the relevant amendments to the definitions and registration provisions after 1904. The second part of the thesis (contained in Chapters V - VII) is not concerned with the Conciliation and Arbitration Act or with the question of industrial groupings. It is concerned with attempts made to withhold the application of the Federal industrial power from certain types of persons by reference to the nature of the employment of those persons. It has been said that some employment is not industrial by nature and that, in view of the fact that the constitutional power of the Commonwealth is limited by the presence of the expression "industrial disputes" in s.51(xxxv), persons engaged in such employment cannot take part in any system devised by the Commonwealth Parliament for the maintenance of peaceful labour relations in Australia. Chapters V - VII (together with Chapter VITI) are concerned with an examination of this question and its real relevance to a determination of the extent of the power granted in s.51(xxxv). It will be seen that the cases examined in this part of the thesis reveal some confusion on the part of the High Court between the jurisdiction conferred on the Commonwealth Parliament by the Constitution and that conferred on the Commonwealth industrial tribunal by the Conciliation and Arbitration Act and this tendency has made the task of organising this thesis into separate parts an extremely difficult one. For example, from one point of. view it might have been preferable to have examined the 1 recent case of Pirfield v. Framki in the earlier part of the thesis as that case deals with the meaning of "industry" from the point of view of the registration provisions in the Act. However, as the decision cannot properly be understood without reference to material appearing in Chapters VI and VII, it has seemed most desirable to devote a separate Chapter to that case, and the considerations discussed therein, towards the conclusion of the thesis. The only other point which need be made at this preliminary stage relates to the extent to which certain aspects 0f historical background have been examined. At first glance this examination may be thought to be excessive. However, when all things are considered, the cases dealt with in this thesis ultimately come back to questions of impression and, in this regard, it is essential to know something about the reasons for the formation of certain general impressions as to the extent of the Commonwealth industrial power. An examination 1. (1970) 44 A.L.J.R. 391. of the course of employer-employee disputes and the development of organisations of employees in Australia and Great Britain is contained in Chapter V and, in view 0f the way in which attempts have been made to limit the concept of industry (assuming that concept to lie at the basis of the Federal power), it has proved convenient to examine the efforts of the English Courts to draw a distinction between "manual" and "non-manual" employment. This examination is to be 1. found in Appendix A.
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ItemWinding up on the just and equitable ground( 1973)This is a study of winding up on the just and equitable ground, mainly at the instance of members as contributories. The typical cases are (a) where the object for which the company was formed is impossible of further or any attainment;. and (b) where the petitioner has lost confidence in the controllers or, in the case of a quasi-partnership, in other members. In either case the petitioning contributory seeks to be relieved from his contractual obligation to contribute to the capital of the company or, in the case of a company limited by guarantee, to contribute in the event of its being wound up and in an article in (1964) 27 Modern Law Review 282, 305 Dr.B.H. McPherson suggested that Winding up on the just and equitable ground might amount to little more than the application to that contractual obligation of the doctrines of discharge by frustration and on account of breach. This thesis originally set out to verify that hypothesis, but in the course of study it became apparent that the contractual analysis was an aid to understanding rather than a complete solution to the problems presented by Section 222(1)(h). In the first place, a winding up order is a discretionary equitable remedy, so that the common law doctrines of discharge by frustration and on account of breach are modified by the discretionary considerations applicable to equitable remedies generally and in particular equitable remedies in contract. Secondly, it is submitted, the Court does not apply those doctrines directly or even by analogy. Their apparent application stems from the fact that in the majority of cases they do produce a result which is just and equitable. The Court, looking to those ultimate reasons rather than to any application of common law doctrine, usually comes to the same result - but not always. There are cases where a remedy is granted in the absence of circumstances analogous to frustration or breach as well as cases where an order is refused notwithstanding that those circumstances have been shown to obtain. The main illustration is afforded by the Court's recognition of what Sir Owen Dixon once called "general intention and common understanding among the members". A company may have a great many objects stated in its memorandum and its articles may be in standard form, but if there is an express or implied arrangement among the members that its activities are to be directed to one object only or as to the manner in which its affairs are to be conducted the Court will have regard to that arrangement. If the main object becomes impossible or if the understanding among the members breaks down, although the contract expressed in the memorandum and articles has not been frustrated or breached, it may be just and equitable that the company be wound up. Although the contractual analysis has been retained as an invaluable aid, the thesis is now more than just a verification of the original hypothesis. It covers the field generally but concentrates on those areas where an original contribution seemed possible. The main such area is the concept of general intention and common understanding, which not only requires the contractual analysis to be modified but also that attention be given to problems of enforcement against persons not parties to the arrangement and to the consequences in terms of admissible proof. The law and principles of equity are stated from materials available to me in Melbourne at approximately 30th June, 1973.
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ItemThe law relating to the rights and duties of landlords and tenants concerning residential premises : a re-assessment( 1975)Despite its vital importance to a large segment of the Australian public, very little attention in the past has been given to the need for a review of the existing law relating to the renting of residential premises. Although a large body of consumer protection legislation has been enacted in recent years by the Australian Government and many States, no such protection has been extended to consumers in the rental housing market. Indeed, although piecemeal legislative changes have been made from time to time by each State, there has never been a systematic all embracing review of the legal rights and duties of landlord and tenants of residential premises covering tenancies both in the private sector and in the public sector. This thesis is designed to rectify this deficiency. It argues for the need for a fundamental re-assessment of three aspects of the rights and duties of landlords and tenants: the common law principles, supplemented by State legislation, which are applicable to those tenancies unaffected by rent control legislation; the existing systems of rent control in Victoria, New South Wales and South Australia; and the relationship of three of the State Housing Commissions with their tenants. Changes in governmental policy are suggested where appropriate. The need for the various reforms and policy changes was dictated not only by library research but also by a' considerable, volume of field research undertaken in Melbourne, Sydney and Adelaide in the preparation of this study. The reforms suggested by the author represent a combination of original ideas and experience in other common law jurisdictions, especially the United States, Canada, the United Kingdom and New Zealand. The author has attempted to mould the reforms in such a manner as to preserve the most useful parts of the existing landlord-tenant law while abolishing those parts which have either outlived their usefulness or are unfair to one or both of the parties. The aim throughout has been to strike a fair balance between the rights and obligations of the landlord and the tenant.
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ItemThe Australian model of alternative dispute resolution for family disputes : could it work in Germany? : a comparative study with particular reference to the German constitution( 1992)The aim of this thesis is to examine whether alternative dispute resolution methods can be introduced into German family law. The thesis compares the Australian model of the application of alternative dispute resolution methods to family conflicts with the existing German situation. Particular attention is paid to those fundamental rights and principles contained in the German Constitution which may have an impact on the introduction of alternative dispute resolution methods. The conclusion is drawn that the position of the individual, marriage and the family in the German Constitution as well as the individual's right to effective legal protection not only allow but actually demand the introduction of alternative dispute resolution. methods. The comparison of the German and Australian situations also serves to throw new light on the Australian model of alternative dispute resolution methods for family disputes. The examination of fundamental legal principles such as the rule of law, the separation of powers and the autonomy of the individual, which are effective in both states, lends further support to the strengths of alternative dispute resolution methods as established in Australian family law. The examination also identifies a number of areas where, in contrast, the efficacy of alternative dispute resolution methods in Australia could be further improved.
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ItemSub judice contempt regarding publications : an evaluation and proposals for reform with particular attention to Australia's international law obligations( 1992)The current Australian law of sub judice contempt as it relates to publications attempts to strike a balance between two competing public interests: the public interest in freedom of speech and the public interest in the proper administration of justice. In Chapter I the adequacy of this approach to the values underlying the sub judice rules is examined. In that Chapter it is submitted that such an approach to the values underlying the sub judice rules should not be endorsed. Rather than couching the values underlying the sub judice rules in terms of competing public interests, it is suggested that those values should be recast in terms of a conflict between individual rights. It is submitted that, if the values underlying the sub judice rules are correctly characterised as individual rights, those rights are the right to freedom of speech and the right to a fair trial. The social-scientific literature concerning the free press-fair trial debate is evaluated to determine whether those rights are competing, or complementary. On the basis of that literature, it is concluded that pre-trial media comment can have a significant detrimental effect upon the capacity of the judicial system to provide a fair trial; and that no remedial or other preventative measure, whether alone or in conjunction with other measures, can counter the adverse effects of prejudicial media comment. In Chapter I it will also be argued that, as a matter of policy, the right to freedom of speech should yield to the right to a fair trial to the extent necessary to resolve any conflict which might arise between those rights. It is submitted that a publisher who publishes material which denies to another person his or her right to a fair trial should be punished for publishing the material and that liability for prejudicing another person's right to a fair trial should be imposed irrespective of the publisher's intention. It is suggested, however, that liability should not be imposed upon a publisher which has taken all reasonable steps to avoid the risk of harm from arising. In Chapter II, Australia's international obligations as they relate to the law of sub judice contempt regarding publications are identified. In that Chapter it is argued that the right to a fair trial, provided by article 14 of the International Covenant on Civil and Political Rights (ICCPR), encompasses the right to have a trial free of prejudicial media or other comment. It is suggested that, unlike the right to a fair trial provided by article 14 of ICCPR which is an absolute right, the right to freedom of speech provided by article 19 of ICCPR is a qualified right. Thus a State could legitimately restrict freedom of speech on the ground that the restriction is necessary for the protection of the right to a fair trial. On that basis, it is submitted that Australia would not be in breach of its international obligations if it places a limitation upon one individual's right to freedom of speech to protect another individual's right to fair trial. Further, if Australia does not place a limitation upon the right to freedom of speech and as a result of that failure an individual's right to a fair trial is prejudiced, Australia will be in breach of its international obligations. In Chapter III, the current Australian law relating to sub judice contempt by publication and the various proposals suggested for its reform are evaluated in light of the considerations of policy examined in Chapter I and Australia's international obligations as identified in Chapter II. A number of suggestions are made for reforming the law so that it achieves the resolution of the values underlying the sub judice rules which the considerations of policy examined in Chapter I and Australia's international obligations discussed in Chapter II require.
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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.