Melbourne Law School - Theses
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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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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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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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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.