Melbourne Law School - Theses
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ItemThe Victorian treaty process: towards an authentic and meaningful form of Indigenous self-determination?( 2020)This thesis offers a reflection on the transformative potential of the Victorian treaty process with regard to self-determination of the Aboriginal community of Victoria. It postulates that the creation of an Indigenous political constituency through the First Peoples’ Assembly, together with the preponderance given to Aboriginal voices throughout the treaty process and the collaborative approach observed by the Victorian government, testify to the emergence of a political culture based on the accommodation of the interests and aspirations of both Indigenous peoples and the Victorian state. In the meantime, it stresses the challenges of a consensual form of self-determination, which arise from the weak negotiating leverage of Aboriginal parties, the structural weaknesses of the treaty making process, as well as the dissatisfaction and disillusionment among a significant part of the Aboriginal community. Also, drawing on the treaty experience in countries with a colonial history close to Australia, as well as on the crucial and extensive work carried out by Indigenous advocacy, the thesis provides a set of key avenues for the elaboration of a treaty framework and the conclusion of subsequent agreements carrying an authentic and meaningful form of Indigenous self-determination.
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ItemThe regulation of essential service insolvencies and the public interest : case studies of Australia's electricity industry and Melbourne's public transport industry( 2007)This thesis critically explores the regulation of the insolvency of essential services and the public interest through an examination of the common law and legislative responses in Australia, the United Kingdom and the United States. Drawing on understandings of the public interest gained from its analysis the thesis proposes a model of the public interest that may be used to justify representation of non-creditor interests within insolvency proceedings of essential services. The model also identifies non-creditor public interest considerations that extend beyond continuity of supply. The thesis then undertakes case studies of the regulation of insolvency within the Australian electricity industry and Melbourne's public transport industry to examine how effectively public interest issues have been addressed and how these are balanced against the interests of the firm and its creditors. The thesis argues that a fundamental problem of the regulation of insolvent essential services is balancing the general public's interest in the fate of the insolvent firm with the interests of others stakeholders, particularly creditors. The thesis demonstrates there is a great deal of inconsistency of response to this issue both within and between the jurisdictions under consideration. Focussing on the public interest in the continuity of supply, the United Kingdom has enacted ad hoc insolvency procedures which are initiated by the state and oust creditor control mainly in relation to the monopoly sector of various essential services. A different approach in the United States has meant public interest considerations are built into its insolvency law through a combination of legislative prescription, judicial interpretation of the Bankruptcy Code and a limited willingness to grant non-creditor representation rights in insolvency proceedings of essential services. The thesis argues that the integration model of the United States allows an appropriate balance to be struck between the interests of the firm and its creditors and the broader public interest when regulating the insolvency of essential services. In contrast Australia has not enacted ad hoc insolvency procedures or expressly integrated the public interest within its insolvency law. The case study of the Australian electricity industry shows, however, that the public interest in the continuity of supply is managed by allowing creditors' rights to be affected radically by utilities regulation such a state step-in rights and retailer of last regulation. The thesis demonstrates the fragmented and inconsistent nature of these provisions. The case study of Melbourne's train and tram industry and the examination of South Australia's privatisation of its electricity assets by way of lease show the ways in which private contracting rather than utilities regulation can manage public interest issues. The thesis concludes that while the public's interest in the continuity of supply of essential services in Australia is generally satisfactorily dealt with under current arrangements, what is less clear is whether public interest issues beyond continuity of supply will be given sufficient weight in insolvency proceedings, particularly in the context of a reorganising firm. The thesis argues it is within this area that there is space for integrating public interest considerations within Australia's insolvency law by expressly requiring the court to consider the public interest in such proceedings. Incorporating public interest considerations that recognise non-creditor stakeholder interests into Australian insolvency law requires theoretical justification. The thesis argues there are sound theoretical arguments for expanding insolvency's law role to accommodate broader stakeholder interests in the context of the insolvency of essential services and that the model of the public interest proposed by the thesis may be used as a basis for a court to grant representation rights to non-creditor interests within insolvency proceedings of essential services in Australia.
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ItemEffective public participation in major projects( 2006)The thesis explores ways to make public participation processes for major projects more effective. Reviews and analysis of public participation theories and practices are provided, with particular attention to legislative requirements and judicial findings in Victoria, Australia. The questionnaire and interview findings from participants in the two Victorian case studies - the Advisory Committee for the Melbourne 2006 Commonwealth Games Village and Coode Island Community Consultative Committee -- provide first hand accounts of participants' experiences with these processes. Their responses are studied in composite to further understand `the public' as well as the participant groups making up the public to understand their views. The analysis suggests that public participation processes in Victoria need to be improved. While some guidance on conducting public participation is provided by the Victorian government and other levels of government, much of this does not directly address issues of power imbalances, politics and other practical considerations. The research findings reveal a groundswell of dissatisfaction with public participation in major projects. While case study participants strongly supported the principles of public participation they were disappointed with its reality. Significant differences between participant groups related to their evaluations of the effectiveness of these processes, their awareness of public participation legal requirements, their preference for strengthening these requirements and the appropriate levels and methods for engaging the public. Participant groups with higher levels of influence provided more positive evaluations of these processes and were less interested in strengthening their legislative requirements and appeal rights than those with the least influence. This dissertation makes several valuable contributions to town planning and legal research. The research provides valuable information on how laws work in their social and economic contexts. It provides a rich and comprehensive understanding of where public participation in major projects is failing and how it can be improved in a manner that meets the needs and abilities of a diverse public. This dissertation springs from empirical research which, though widely used in social science research, is not widely utilised in legal research. Such cross-evaluation can be especially useful for international legal research given that differences in legal systems limit the extent to which findings can he compared. This study's research methods and data can be used by subsequent researchers to test their validity and reliability. The research critically examines the applicability of an international convention to public participation in major projects. It is suggested that the three pillars of the Aarhus Convention should be viewed as progressive layers creating a pyramid of participation. The Effective Major Project Public Participation Model advocates providing basic legal requirements that focus on providing good information, followed by appropriate participation and access to independent review, while recognising the need for participant goodwill and voluntary guidelines. This model is supported by a framework, detailing key participation steps and considerations along with a matrix of preferable participation options for major projects.
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ItemFantasies of 'female genital mutilation' : flesh, law and freedom through psychoanalysis( 2007)In 1996 the Crimes (Female Genital Mutilation) Act was passed in Victoria, Australia. The consultation with migrant communities, affected by the practices, was almost non-existent. The methods of the consultation, the implementation of the legislation and the use of the term "female genital mutilation" were objected to by the migrant communities. This objection and implementation mirrored similar legislative initiatives and similar methods of implementation in the United States, Canada, Scotland, England and Egypt. This thesis is an analysis of the speech on, and against, female genital mutilation. The analysis explores the texture of this speech, understood as a particular and invested arrangement of fantasy. This fantasy concerns the relation between the liberal subject and the sovereign. The relation is parsed in terms of the economic, the psychoanalytic and the political. These are the three idioms through which fantasies, of female genital mutilation emerge in contemporary times as a fantasy of flesh cut and the possibility of free speech. The thesis has four parts. In the first part it explores fantasies of subjectivity understood as the constitution of a mutilated woman against a fantasy of a non-mutilated liberal subject (as a postcolonial concern). The context for the exploration is firstly the emergence of the above mentioned Crimes (Female Genital Mutilation) Act 1996, and secondly its relations to the formation of the modern liberal subject (Rousseau, Hobbes, Schmitt and Freud). In Part B the thesis explores economies of flesh. First and foremost the economy is staged as a relation between the subject and the sovereign. This relation is figured as a tension between a fantasy of circumcision and a fantasy of mutilation. The psychoanalytic theories of Lacan and the political theories of Agamben are called to aid this exploration. In Part C the thesis discusses the politics of freedom articulated in sovereign democratic politics. Here the thesis moves from its focus on female genital mutilation legislation and places it in the contemporary politics of the `war on terror', evocations of national community and the problematics of a cultural pluralism. These are understood in terms of the differential orientations to loss (of freedom and speech)'; known as melancholia, psychosis and mourning. Mourning is the concern of Part D. In doing so the thesis returns to the speech on and against female genital mutilation and their invocations of human rights. The limits is figured in this part by reference to the protest of an African woman who says `I am not mutilated.' The figure of this woman returns us to the dialectic of flesh and speech that this thesis has argued embodies western fantasies of female genital mutilation. What is lost, but returns to haunt the liberal subject, imagining itself sovereign, is the possibility of freedom and an authorised loss of speech, in a democratic politics worthy of the name.
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ItemCompensation for compulsory acquisition in Victoria( 1974)This thesis explores in some detail the law of compensation for compulsory acquisition in the State of Victoria. An historical survey Is undertaken in Chapter One of Victorian legislation to give the background to and an understanding of the current legislative provisions. These provisions are analysed. Chapter two discusses the relevant case law while chapter three shows the actual practice of a sampling of acquiring authorities in the State of Victoria. Chapter four branches out and takes a quick survey of the legislation in several other jurisdictions. Chapter five pinpoints the major areas of concern and makes some recommendations for improvements in the law.
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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.
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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.
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ItemThe regulation of government enterprises in Victoria : balancing efficiency and accountability( 1990)In a Westminster system such as that in Victoria, the regulation of government enterprises must strike a balance between the demands of government enterprises for autonomy, so as to maximise efficiency, and the public's demands for full accountability for the expenditure of public funds. Since 1982, in response to these demands, the Cain Government has followed a policy of "commercialising" the operations of major public enterprises, while simultaneously attempting to increase their accountability to the Government, Parliament and the public. While the initiatives flowing from this "dual purpose" policy have already achieved a measure of success in enhancing both the efficiency and accountability of government enterprises in Victoria, significant gaps remain, particularly in the area of accountability. Although it is to be hoped that the Cain Government will move to remedy this imbalance, the omissions in the policy should not be seen as overshadowing the Government's major achievements in the field of government enterprise regulation.
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ItemRecent developments in the law of consumer guarantees and indemnities( 1985)A brief examination of the history of the guarantee reveals that equity treated the guarantor as a favoured debtor, given the absence of real benefit to the guarantor. However, these protections have largely been removed by standard form guarantee contracts used by, credit providers, and the law is also otherwise deficient in protecting consumer guarantors. As the expansion of the use of credit in recent years has meant that guarantees are now sometimes given carelessly and thoughtlessly, by persons without adequate education and resources to protect their interests, regulation is required (Chapter 1). The statutory regulation of guarantees before the passing of the Credit Act was inadequate. After examining the scope and nature of the Credit Act, the effect of the Credit Act on the regulation of guarantees is examined (Chapter 2). The extent to which the common law and statute law regulate pre-contractual information given to guarantors is then examined. It is concluded that room for improvement exists (Chapter 3). The extent to which the common law and statute law regulate the exercise of undue influence, unfair pressure and the making of unconscionable bargains is then examined and it is concluded that developments will occur rapidly in this area (Chapter 4). Common law and statutory provisions which discharge the guarantor from liability are then examined in the light of the operation of the Credit Act and it is concluded that some flaws exist both in principle and in the operation of the law (Chapter 5). The extent to which the guarantor is entitled to control the appropriation of payments made by the debtor, and the extent to which the guarantor's liability is coextensive with that of the debtor is then examined and some changes suggested (Chapter 6). The guarantor's rights to have action taken first against the debtor and the debtor's assets, the guarantor's rights to notice before action, and the right of indemnification after action, are then examined (Chapter 7). The possible reasons for the non-regulation of guarantees are examined and dismissed; past suggestions for reform and possible future reforms are examined (Chapter 8). Standard form contracts of guarantee are discussed and the text of a draft fair, simple English, standard form guarantee is suggested (Chapter 9). The law is as stated at 30 November, 1985.