Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 8 of 8
-
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.
-
ItemThe law of theft in Victoria( 1967)My theme in this thesis is the contention that the substantive law of theft in Victoria is in an unsatisfactory condition and urgently in need of fundamental and comprehensive reform; and that this is so principally for the following two reasons. Firstly, concepts and rules framed in the early English common law for a relatively primitive society and inadequate for the complex framework and activities of the modern occupationally diversified economy still form the basis of much of the present law of theft. Rigid and circumscribed or artificial and fictional uses, in the law of larceny, of the concept of possession,-when reference should be to modern concepts of ownership of property interests-and of the requirement of trespass, -when reference should be to modern concepts of misappropriation- are examples of this. A legal theory framed only for tangibles has proved incapable of facile and useful adaptation to intangibles. Secondly, the history of the law of theft has been marked by piecemeal, ad hoc improvisation, whether by judiciary or legislature, in the successive creation of new offences, or attempted gap-filling in or between old offences, as each new exigency of theory arose. This has led to a confusing multiplicity of authoritatively distinct, though sometimes overlapping, offences-all within the general sphere of theft. It resembles the planting of fruit trees too close together, as in a thicket where none thrived, though one healthy tree, if planted alone, would have done. In such an atmosphere the law has often lost touch with the realities of everyday life. In certain important respects the position is substantially the same in Victoria today. In the pages which follow I shall endeavour to substantiate my contention by a critical examination of the law and its history, with particular reference to certain fundamental problems, and shall finally discuss, in the light of that examination, the sort of reform which seems to be indicated.
-
ItemConsumer redress mechanisms : a comparative study of procedural approaches to consumer grievances( 1977)This study examines, on a comparative basis, the procedural avenues open to a consumer who desires to redress a particular wrong of a small monetary nature relating to the purchase or acquisition of a particular commodity or service. The major premise of this work is that the existing orthodox methods of redressing civil claims, of small value, are totally insufficient and unsuitable for processing and adjudicating upon such claims. The function and effectiveness of public agencies, in pursuing individual claims, is examined. Both state and federal agencies' powers are considered. The study then turns to examining the aims and role of small claims fora in both the United States and Australia. The dichotomy of court and tribunal structures is of particular importance; the study examines all major aspects of the fora and relies upon empirical surveys conducted in the United States and Australia. Next the class- action device is examined in the Anglo-Australian context (drawing particular comparison with both the New York- and Canadian experiences). Study, in some detail, is then made of the U.S. Federal Rule 23 since its inception in 1966. Finally, in a brief fashion, this study examines a number,of other initiatives (including Legal Aid) aimed at.:resolving or assisting consumer grievances. A number of conclusions, in relation to each of the above specific areas, are drawn. It is also possible to draw several conclusions of a general nature relating to both consumer and legal matters.
-
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.
-
ItemDrainage of surface waters : common law rights and Victorian legislation( 1976)This thesis considers the different rules applied by the courts in common law jurisdictions to the problem of disposing of unwanted surface waters and also examines the Victorian Drainage of Land Bill 1975 and earlier legislation. It commences with a study of English decisions and then examines, in detail, the three rules generally applied, describes their weaknesses and advantages and compares them with the rules applied to other categories of water. In the course of this examination the legal rights of private individuals pertaining to the use, control and. disposal of surface waters in respect of each rule is ascertained. This study points out weaknesses in the three rules and suggests modifications to them and to the rule applied in Victoria. In the final chapter, a comparison is made between the present law and the Drainage of Land Bill 1975 and the effect this Bill is likely to have. It also suggests amendments to the Bill as presented to the Victorian Parliament.
-
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.
-
ItemTax administration -- the assessment( 1981)One area of procedure encompassed by the topic, Tax Administration, is the statutory assessment. It is that area of Tax Administration to which this thesis is directed. The making of an income tax assessment is probably to be regarded as the primary function of the Commissioner of Taxation under the Income Tax Assessment Act 1936. Almost every action and procedure undertaken by the Commissioner has some relationship to his duty to make assessments. The assessment-making procedure, which is fundamental (in the scheme of the Act) to the creation of an enforceable obligation to pay income tax, includes a process of applying the provisions of the Act to a state of facts with a view to determining the liability of the taxpayer concerned. The nature of the assessment is discussed by reference to the statutory provisions which authorise the making of and objection to an assessment. The thesis proceeds by way of examination of the following topics: the assessment, the notice of assessment, validity in procedure and "assessment", authority to make an assessment, amended assessment, right to challenge an assessment. (The final chapter considers the assessment in the context of the review procedure of Part V of the Income Tax Assessment Act) . A theme of the thesis is that the Income Tax Assessment Act is concerned only with a valid assessment, that is, one made intra vires, and further, that not every assessment-like calculation or determination is the assessment contemplated by the Act. Thus, if the requirements of "assessment" are not satisfied then there is no "assessment" even though there is jurisdiction to assess in the particular circumstances. Where there is jurisdiction to assess then any assessment made will be a valid assessment, and this notwithstanding any identifiable mala fides or impropriety on the part of the Commissioner of Taxation or his delegate which is associated with the making of that assessment.
-
Item