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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ItemSome aspects of collective agreements in Australia( 1972)A predominant feature of the Australian industrial relations system is the role of the state and its specialised industrial relations agencies in the resolution of industrial conflict and the establishment of the rules of the work place. Australia has aroused international interest by its use of compulsory conciliation and arbitration as the major, formal rule-making process. Far less attention has been paid to the role played by collective negotiations, yet the fostering of this role has always been a formal objective of the regulated system. In recent years, its incidence, scope and influence have increased substantially. In this thesis I have proceeded from the general hypothesis that collective negotiations in the context of a compulsory arbitration system differ both quantitatively and qualitatively from the process and outcome of collective bargaining in systems where the constraints and influence of compulsory arbitral machinery are lacking. I have sought to examine the particular hypothesis that, the elements of an industrial relations system being inter-dependent, collective negotiations as a process of rule determination in Australia are strongly related to the legal, institutional, operational and environmental features of the conciliation and arbitration system. To this end, I have examined the role and structure of collective negotiations, and the form, content and legal status of collective agreements. The conclusion reached is that, in the course of the inquiry, substantial evidence of this inter-relationship is detected and identified Thus the thesis is very much an applied work. It draws specifically on seven detailed case studies of selected collective negotiations in private and public employment in Australia and, more generally, on less intensively documented references. In addition, a special examination is made of those collective agreements which have been brought within the jurisdiction of the Commonwealth and State tribunals by being processed as "statutory agreements". Research methods have consisted mainly of interviews and examination of primary and secondary source materials. (From Preface)
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ItemAustralian water law: an historical and analytical background( 1971)The thesis traces the history of governmental intervention in Australian water management. At the State level, it examines traditional common law doctrines, their inadequacies to meet Australian demands, and the tensions between private rights and public control inherent in the Australian system of administrative rights to water. It argues for clearer recognition of the role of private law actions in such a system. At the national level it documents the history of the conflicts which have shaped the administration of inter-State rivers as a background to the integrated enquiries of other research students.