Melbourne Law School - Theses

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    The development of Australian law to protect undisclosed business information
    Jackson, Margaret Anne ( 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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    Interaction between commercial & legal aspects of project finance in Australasia
    Scheinkestel, Nora L ( 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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    Insurable interest, indemnity and third party rights under general contracts of insurance and the Insurance Contracts Act 1984 : a comparative study
    De Koning, John P. M ( 1997)
    On 1 January 1986 a new era dawned for the development of insurance law in Australia, for on that day the provisions of the Insurance Contracts Act 1984 (Cth) (hereafter referred to as 'the Act') came into operation. Section 3 of the Act repeals for Australia certain Imperial Acts including the Life Assurance Act 1774, the Fires Prevention (Metropolis) Act 1774 and the Marine Insurance Act 1788. In so far as contracts of general insurance) can be governed by the laws of the Commonwealth of Australia, this repeal brought to an end a period of development of insurance law relating to:- a.. the concept of insurable interest; b. the principle of indemnity; and c. the rights of, and the classes of, persons entitled to make claims under contracts of general insurance. That development had commenced prior to the passage of the repealed Imperial Acts, but had been accelerated by, and as a result of, their passage. In Part III the Act lays down new rules with respect to the concept of insurable interest. Moreover, by sections 44, 45, 48, 49 and 76 certain material alterations are made to the law relating to: - a. the principle of indemnity; and b. the rights of, and the classes of, persons entitled to make claims under contracts of general insurance. In this thesis I propose to investigate and describe the law relating to:- a. insurable interest; b. the principle of indemnity; and c. the right of, and the classes of, persons entitled to make claims under contracts of general insurance, 1. as it had developed prior to the passage of the now repealed Imperial Acts, and their precursors; 2. as it developed after the passage of the now repealed Imperial Acts until the date of their repeal; 3. as it has been affected by the repeal and the new regime provided by the Act; and 4. as it is likely to develop in the future. Furthermore I propose to draw a comparison with the laws operating in the Netherlands, France and Germany at the relevant times to ascertain whether, and to what extent, such laws influenced the English law or were influenced by it. Finally the laws presently operating in those countries will also be examined by me to consider whether any, and if so which, recent continental developments might be useful, as indicating a solution to problems likely to face Australian Courts in the immediate future.
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    The impact of Australia's refugee status determination system on its implementation of its refugee convention obligation on non-refoulement
    Taylor, Savitri P ( 1994)
    Under article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention), Australia has a non-refoulement obligation in respect of `refugees'. This thesis examines whether Australia is violating article 33 of the Refugee Convention by failing to identify the `refugees' amongst its on-shore refugee status claimants. In the absence of a safe third country prepared to receive them, Australia has no choice but to allow persons identified as `refugees' to remain in its territory. The problem is that the Australian Government has goals for the nation it serves and the political party it represents which it believes will be jeopardised to the extent that it is unable to choose which aliens get to reside in Australia and which do not. In consequence, the Australian Government bas a negative attitude towards on-shore refugee status clat. Inimants. This negative attitude has transmitted itself to the officers of the Department of Immigration and Ethnic Affairs (DIEA) who are responsible for making refugee status determinations at the primary stage. DIEA decision makers tend to be overly restrictive in their interpretation and application of key elements of the Refugee Convention definition of `refugee'. On the other hand, the courts and the Refugee Review Tribunal (R.R.T.) - institutions which do not have the political agenda of the Australian Government - have come close to interpreting and applying the Refugee Convention definition of `refugee' in line with international standards. The problem is that not all refugee status claimants can afford to pursue R.R.T. and/or judicial review. This leaves open the possibility that Australia is risking breach of article 33 of the Refugee Convention by repatriating persons who are refugees but have not been identified as such. In order for Australia to avoid breaching article 33, its domestic legal and administrative regime considered as a whole must attain a standard of reasonable efficacy in the implementation of that article. In order for Australia to be assured of attaining a standard of reasonable efficacy, Australia's on-shore refugee status determination process must be designed to meet certain minimum procedural standards. These minimum procedural standards are: the use of an inquisitorial determination system; the maintenance of an independent documentation and research centre; the elimination of factors which could lead to incorrect adverse credibility assessments; the provision to claimants of all information available to the decision-maker; the use of independent, impartial, specialised, full-time, career decision-makers who are carefully selected and adequately trained; adequate access to legal assistance by claimants; the provision of an opportunity to be heard in person and by the decision-maker; the processing of claims without undue delay and adequate rights of review. Australia's refugee status determination system falls short of meeting these minimum procedural standards in some significant respects. It is conceivable that a State's other humanitarian protection measures may sufficiently compensate for an inadequate refugee status determination process by serving as a safety net for Refugee Convention refugees who are not identified by the refugee status determination process. Australia's humanitarian protection mechanisms, however, are not an adequate safety net for such persons.
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    Administrative law and immigration control in Australia: actions and reactions
    Crock, Mary E. ( 1992)
    The conduct of a sustained immigration programme is a notoriously delicate business for governments. Australia's experience over the last two decades well demonstrates the difficulties inherent in balancing labour market and other demographic demands with the public's natural resistance to any large-scale influx of foreigners. After the abolition of the White Australia Policy in 1973, the number and cultural diversity of people eligible to settle in the country increased dramatically. The growth of visible minorities within the community, coupled with the gradual decline in the country's economic fortunes, brought immigration to the forefront of public consciousness in a manner not seen since the end of World War II. By the mid 1980s, it had become the subject of a most vigorous, and potentially divisive, public debate. Arguments ranged over the benefits and burdens of large-scale immigration; the racial mix of migrants; the criteria for selecting them; and the problem of illegal immigration, and what to do about it. (From introduction)
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    Defamation and the internet
    Collins, Matthew ( 1999)
    The Internet is a unique and revolutionary medium of communication. The objective of this dissertation is to identify whether there are areas in which reform of the rules of Australian civil defamation law needs to be undertaken to meet the challenges posed by this new medium and, if so, to advocate desirable reforms. The methodology by which the dissertation sets out to achieve its objective is a systematic analysis of how the defamation cause of action, defences and remedies, as well as relevant jurisdiction and choice of law rules, apply, or are likely to apply, to material published via the Internet. It is possible to distil five features of communication via the Internet which are of relevance to the operation of the rules of civil defamation law: - Internet communications do not respect geographical boundaries: they involve the transfer of signals from computers in indeterminate locations, to other computers in indeterminate locations, via routes which are indeterminate; - intermediaries, in the form of Internet service providers and network operators, play a central role in all Internet communications; - material published via the Internet can be republished to a wide and geographically diverse audience more easily than material published via other means; - material on the Internet is organised through the use of hyperlinks which blur the distinction between where one publication ends and the next begins; - the Internet can be used in a wide variety of ways, to resemble almost any other medium, including the telephone, the postal service, radio, television, newspapers or libraries. Once the way in which the Internet works and is used is understood, it is possible to predict how most of the rules of defamation law would apply to material published via the Internet. The outcome of the research undertaken in this dissertation is that most of those rules are capable of being applied without the need for reform. In other areas, however, the existing rules give rise to uncertainty, or undesirable outcomes, when applied to Internet publications. In those areas, reform is desirable. Ultimately, four areas of reform of the existing rules of defamation law are identified, and desirable reforms suggested: 1 Reform to clarify whether different types of Internet publication are libel or slander. 2 Reform to ensure that intermediaries of Internet publications are only liable for civil defamation where their conduct is sufficiently culpable to warrant the attribution of liability. 3 Expansion of the remedies available in civil defamation law to provide successful plaintiffs with more effective means of vindicating their reputations where they have been damaged by defamatory Internet publications. 4 Reform of the choice of law rules applicable to intra-Australian publications, by adoption of a rule that substantive rights and liabilities are determined by applying solely the law of the place (or places) of publication, regardless of the place in which proceedings are brought and determined.