Melbourne Law School - Theses
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ItemWomen workers and the processes of the conciliation and arbitration system( 1984)The thesis studies the relationship between women workers and the Conciliation and Arbitration System. Its aim is twofold: to explain why particular policies were adopted by the Court/Commission and to assess the extent to which those policies disadvantaged women workers. Previous research has explained women's disadvantaged position by emphasising the role of judicial prejudice and sexist ideologies. The thesis rejects such simple explanations and tries to show that particular policies resulted from the interraction between the Conciliation and Arbitration System and its economic, political and ideological environment. The thesis emphasises the complexity of the processes which determined the law and, in particular, it stresses the role of economic and political forces in shaping legal policy. It also demonstrates that the issue of whether women were in fact disadvantaged by any particular policy can only be resolved through an examination of both the policy and its effects. The first five chapters examine Court/Commission policy on wages, skill, classifications, the sex-typing of work, redundancy protection and maternity leave. The final chapter considers the implications of the arguments adopted in the thesis for other studies of women and the law.
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ItemThe current position of the application of the doctrines of penalty and relief against forfeiture to security contracts( 1984)This thesis proposes to examine the position that is currently occupied by two doctrines developed by Courts of Equity, as they are applied to relief sought against the legal consequences of default by a borrower under various forms of security contracts. These are the doctrine of penalty and the doctrine of relief against forfeiture. In relation to security contracts, the need for such remedies results from a failure at two levels, firstly the failure of legislators to respond to the need for comprehensive consumer protection legislation, and secondly the failure of lawyers to evolve consistent forms of security contracts in order to fulfil genuine security needs without injustice to either party. Given the accepted views of freedom of contract, it is difficult to see any justification for the court's remaking of a contract between commercial parties all supported by expert legal advice, which should obviate the need for the protection still necessary in the case of consumers. Accepting that there is a place for such equitable relief, the remedies provided under the doctrine of penalty and, to a lesser extent relief against forfeiture, suffer in their application to security contracts from some inherent defects which render them inappropriate in many circumstances for the purpose of providing a just remedy. If, however, the concept of justice is to remain within our legal system, then such discretionary remedies should always be a part of it, but their place in the system should be that of last resort. They have no place in relieving the legislators and lawyers from their responsibilities for reform.
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ItemThe law relating to the protection and treatment of animals in Victoria( 1984)The subject matter of this thesis is the Victorian law relating to the protection and treatment of animals. Brief reference is made by way of comparison with the laws of other jurisdictions. This thesis attempts to survey the law and examine the way the law provides some protection for animals even though animals are not capable of holding or enforcing legal rights in our system of law. This is generally by way of protecting property rights of owners, the public morality or the public interest in the natural resource of animals. As traditional western attitudes have generally accepted man's dominant status over animals, the law reflects the greater weight to be given to human needs or benefits in balancing any conflicting interests of animals with human interests. Therefore, against the historical background of Chapter 1, the remaining chapters set out the law protecting animals attempting to show how the law has balanced the various competing interests involved. In Chapter 2 the Victorian statutory provisions relating to cruelty to animals are surveyed. They reflect that cruelty to animals is generally prohibited under the Protection of Animals Act 1966. However the concept of cruelty applied to animals requires that there be a balancing between the pain inflicted on the animal and the circumstances surrounding the infliction of pain. The statutory provisions reflect the concept. Cruelty is generally not prohibited under the Act if it can be justified as being reasonable in the circumstances, often on the, grounds that it can be justified in terms of serving a human need. The Act goes on to provide specific exemptions from the cruelty provisions for activities which are generally accepted in Western Society as essential or convenient for human activities or needs and these are not prohibited. The major exemptions relate to using animals for farming purposes, hunting purposes, experimental purposes and exterminating vermin. These are discussed in Chapters 3, 4 and 5. Chapter 6 surveys the law relating to animals used for entertainment purposes. The present law reflects a desire to balance the need to prohibit those sports and entertainments which offend against the moral standards of the community such as blood sports and the need to retain those activities where ill-treatment of animals can be justified in terms of a legitimate object such as an educational interest, in the case of wildlife parks and zoos or a sporting or commercial interest in the case of horse racing. Chapter 7 looks briefly at the Victorian law relating to the conservation of wildlife. The law on this subject reflects the Christian philosophy of preserving all animal species for God's kingdom to come. This basis for the law is strengthened by an increasing awareness of the need to preserve all the animal species as a requirement for preserving the natural balance of animal species necessary for the survival of all plant and animal life. However the law provides varying degrees of protection depending on the animal concerned. Animals which are not native to Australia and animals regarded as vermin do not receive this special protection, because their survival is not essential to the natural balance to be preserved. The law also makes exemptions to allow wildlife to be used for educational purposes such as in wildlife parks and for restricted commercial purposes, such as for sale and for breeding. Thus the law on this subject also reflects the balancing processes involved in preserving wildlife but allowing for some human activities which are recognised or established as sufficiently important to be exceptions to the rule of preserving wildlife. The law is, unless otherwise stated, as at February 1983.
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ItemLegal professional privilege: its rationale and exceptions( 1984)The object of this thesis is to critically examine the rationale of legal professional privilege and its common law and statutory exceptions. It is contended that the effect of the privilege in excluding relevant and otherwise admissible evidence is justifiable so long as the privilege is applied consistently with its underlying rationale and is closely confined by its exceptions. The traditiona1 rationale of the privilege and the 'lawyer's brief' theory are discussed. The approach of the High Court of Australia to the privilege is analysed in light of recent decisions. It is noted that the privilege is no longer a mere rule of evidence but a general and substantive principle. An important aim in examining the common law and statutory exceptions to the privilege is to consider the extent to which the exceptions can be reconciled with the policy of the privilege. Some common law exceptions have yet to be recognized in Australia. The third party exception, however, which appears to be accepted in this country, conflicts with the rationale of the privilege and should be abolished. With regard to the statutory exceptions, provisions expressly abrogating the privilege are rare. There is also legislation which may arguably override the privilege by necessary implication. The principles applied by courts in construing such legislation are discussed. The increasing regulation of society coupled with the vesting of wide investigative powers on administrative officers have posed a major challenge to the continued existence of the privi1ege. It is necessary that the privilege be preserved. The functioning of our legal system depends on protecting the freedom of communication between legal advisers and their clients.