Melbourne Law School - Theses
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ItemNo Preview AvailableBail and legal aid in Victorian magistrates courts(University of Melbourne, 1986)
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ItemReinventing Indonesian foreign investment law : a rationale for reform(University of Melbourne, 1996)
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ItemNo Preview AvailableProtest, public order and police power : a perspective of Queensland events 1977-1979(University of Melbourne, 1980)1. Public protest was prevalent in England prior to the extension of the franchise to citizens without property or position. Such protest helped to shape the English system of constitutional government. It was not contained by an adequate public order machinery but by the implementation of the criminal law relating to treason and unlawful assembly. 2. The Australian colonies inherited the English public order machinery and criminal law. The convict environs necessitated a military-style machinery and repressive criminal laws. Public protest was tolerated but much Irish activity was seen to be seditious. 3. With the advent of the motor car, police became traffic controllers as well as keepers of the peace. Thus, in regulating public protest, police had to have regard for the smooth flow of motor traffic and the preservation of the peace. Since 1966, public protest has been an integral and effective part of the Australian political process. The Vietnam war, the Springbok Rugby tour and the export of uranium have evoked public protest which has affected the formulation of government policy. Most jurisdictions have accorded citizens the right or general privilege to demonstrate; Queensland has not. 4. In Queensland, police retained the function of issuing or refusing permits for processions, meetings and other political activities on roads and footpaths. The government rejected submissions for tighter judicial supervision of this function from 1966 to 1969. Since then, police officers appear to have been influenced by government policy while exercising that function. The abolition of an applicant's right of appeal to a magistrate from a police officer who refused a permit led to a convergence of government and police policy relating to the refusal of permits for political activities in 1977; it may have contributed to government interference with the administration of the police force. 5. Conflict between the police and citizenry ensued; in the years 1977 to 1979, 1,972 arrests were made at demonstrations. In determining charges, the Magistrates' Courts applied law which was uncertain to facts which were inevitably disputed. Recourse to the superior courts was too tardy to assist the Magistrates' Courts in the application of law. When there was recourse, no clear, indisputable resolution of questions of law was forthcoming. Such a resolution would have spared the Magistrates' Courts prolonged involvement in cases of a political nature. 6. Legislative reforms providing the right to demonstrate, the proper exercise of police discretions and the vigilance of courts are required if "law and order" is to be a reality rather than a slogan in Queensland.
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ItemAudio-visual works co-produced in Australia and Canada : conflict of policy and of copyright theory(University of Melbourne, 1992)
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ItemProtecting privacy and confidentiality in the age of HIV(University of Melbourne, 1993)The thesis examines the extent to which Australian and New Zealand law provide private legal remedies for the unauthorised accessing, disclosure and use of personal information. The thesis emphasises some of the issues relating to privacy and confidentiality arising with respect to medical information, taking HIV/AIDS information as a frequent, and topical exemplar. This discussion is informed by the results of an empirical study into information privacy issues within HIV/AIDS health care contexts. However, the focus of the thesis is also broader, aiming to integrate these issues into a rationalisation of the law of privacy and confidence as it relates to personal information. The law impacting upon the protection of personal information has become increasingly complex, particularly in federal systems like Australia. This complexity is demonstrated within the medical information context, where the duties of health professionals are uneasily regulated by a complex web of legislation, superimposed upon an unsettled body of common law principles. Apart from sector-specific legislation regulating a narrow issue (e.g. computer trespass offences), and despite the apparent trend toward data protection legislation, the thesis reflects the view that the common law continues to be the backbone of the law of privacy and confidence, drawing from a range of legal actions for this purpose. The action for breach of confidence, as the dominant means of protection, deserves detailed discussion. Despite its usual application to trade secrets, recent developments point toward an evolving body of principles which accommodate the particular issues which the protection of sensitive, personal information, such as HIV status, raises. The limits of the duty of confidence, and more generally, law's protection of privacy interests in information, inevitably involves some balancing of privacy interests against well-recognised, competing interests such as freedom of speech. The uncertainty of the law in this area is particularly detrimental for health professionals. It is an uncertainty which reflects division of opinion over the limits for protection and control of information. Its legal resolution requires an appreciation not only of the force of competing public interests, but of other private duties, and of other remedies, particularly defamation, which also reflect a balancing of intangible, yet competing interests.
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ItemThe Confucian misgivings : Liang Shu-Ming's narrative about law( 1999)This thesis is about Liang Shu-ming (ikx, 1893-1988), a figure of deep spiritual meaning in the realm of Chinese legal thinking. It aims to explore his thinking concerning law, in particular, his reworking of the traditional Chinese legal ideas in terms of the New-Confucianism. The major intellectual interest throughout this thesis is to offer a study on China's legal legacy, through Liang Shu-ming's eyes. I follow the formula of the parallel between Life and Mind (ll c) , Physis and limos. I will compare Liang Shu-ming's narrative with his own practical orientation and with the theories of other interlocutors. I will put Liang Shu-ming into the social context of modern Chinese history, in particular, the context of the unprecedented crisis of meaning in the legal realm and the collapse of a transcendental source for Chinese cultural identity in the light of modernity. The evaluation provided by my thesis could be helpful in clarifying the deep structures and significance of the present Chinese legal system through historically exploring Liang Shu-ming's misgivings. This thesis consists of three parts. Part I will present Liang Shuming's theoretical concerns about the concept of law, the source and meaning of law in Chinese socio-cultural contextualisations, the interaction between humanity and law, and in particular, limos and the underlying presumptions about the ideal human life and human order. This examination will support the thesis that the necessity of rethinking our legal tradition is derived from the urgency of getting an undistorted understanding about our own way of life itself. Part II will present an analysis of his understandings about constitutionalism, in particular, his critical articulations on the predicaments China has had to face in modifying and transplanting Western models. In order to explain my subject's various characteristics, a comparative analysis of Liang Shu-ming and his contemporaries, in both China and the West, will then be used to clarify the nature of constitutionalism, as a foreign body, in a place like China. In Part III, Liang Shu-ming's comparative insight about the Western legal tradition and spirit, and his attitude to and rationale for the conceptual and institutional transplantation of Western law in China, will be articulated. Here Liang Shu-ming unveiled a paradox beneath the process of so-called modernization by drawing inspiration from the West in modernizing China. That is to say, China has been facing a dilemma: either the refusal to imitate or the merely horizontal transplantation. He argued neither of them would be healthy for China. While refusal would result in something definitely worse, a simple horizontal transplantation would also be harmful. The intrinsic tension underlying this dilemma has consequently perplexed the legal shaping process in modern China. In the Conclusion, the creative tension between life and mind, limos and Physis as symbolism and substance will again be reflected in China's quest for the "new law". If a conclusion could suggest itself, however, it would be, "A Code is not at once a history and a system", but, "Our history is our code."
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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.