Melbourne Law School - Theses

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    ‘Industrial disputes’ and the jurisdiction of the federal industrial tribunal
    Stern, Esther ( 1993)
    What constitutes an 'industrial dispute' for the purposes of s. 51 (xxxv) of the Commonwealth Constitution and s. 4 of the Australian Industrial Relations Act 1988 (Cth) is crucial for the determination of union-employer relations. Ultimately the ambit of the phrase 'industrial dispute' determines those matters that may legitimately be raised by a federally registered union with an employer before the Australian Industrial Relations Commission (hereafter the federal tribunal). The central thesis advanced here is that since 1904 the High Court has employed alternating approaches to identifying an 'industrial dispute'. One approach is that an 'industrial dispute' means no more than the traditionally perceived notion of an individual employer-employee dispute. The other approach is a much broader view, in that such a dispute relates to collective employment relations. Put at its most basic level, I submit in this thesis that the jurisdiction of the federal tribunal has been shaped less by the particular words 'industrial dispute' than by the perception of the kind of employment relationship with which these words are concerned. (From introduction)
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    Taxation of superannuation and other termination payments
    Adsett, Ashley B. ( 1992)
    Thesis Plan: This thesis provides an overview of the law and relevant procedures of the taxation of superannuation and other termination payments. Specifically the thesis details the various changes to the concessional taxation treatment afforded such payments from 1/7/1983 to the present. In addition various policy issues are examined in light of the recent release of the Federal Government Statement on the topic re “Security In Retirement: Planning For Tomorrow Today”.
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    Legislating our right to die
    Hum, Fiona Catherine ( 1997)
    This thesis argues that the enactment by the Northern Territory Legislative Assembly in 1995 of the Rights of the Terminally Ill Act 1995 (NT), (‘the Act’) did not advance, but rather diminished, a patient’s right to request and receive assistance to die at the time it was in operation. The author suggests the Act failed to achieve the goal of balancing competing interests (patient autonomy versus procedural safeguards) and instead created unnecessarily complex legal and institutional obstacles for terminally ill patients. Despite the positively stated intentions of the main proponent of the legislation, Mr Perron, the parliamentary drafters of the Act erred on the side of caution. Consequently, it was difficult, if not at times impossible, for persons to use the Act in a way which led to results consistent with the Act’s intended purpose. The complex procedural regime set up by the Act, indicates a regressive shift from a patient’s right to undertake an autonomous decision-making process towards a decision process governed by medical paternalism and State intervention. The central argument presented in this thesis is that the rights of patients to take control of their own body and the manner of their own death, will be eroded rather than enhanced if the legislation in the form discussed becomes enacted. Possible alternatives to legislating on euthanasia and physician-assisted suicide are suggested by the author.
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    Can Victorian union members be personally liable for the unlawful conduct of their unions?
    Angelopoulos, Anastasios ( 1995)
    Workers join unions for a number of different reasons. It may be that they hold a deep conviction in the class struggle of workers against capital, or else they believe for practical reasons that they will have a more effective voice in the workplace and their interests will be better protected by joining a trade union. Alternatively, it may be that the place of employment operates as a closed shop and thereby only allows union members to work. In those circumstances, the workers have no real choice of whether or not to join the union. Whatever the reason for joining a union, in order to become a member and to maintain membership, each worker is required to pay their membership dues which may for example be payable weekly, monthly, quarterly or annually. If a worker does not pay the amount due, he or she may be fined by the union, have his or her membership cancelled, or even be pursued in the civil courts. In addition to membership dues, which may be used for a number of different purposes (such as administration of the union, support for local, national or international causes, and even affiliation to political parties), a union member may also be required to pay fines imposed or levies which have been struck by the union. There may be a range of different reasons for the imposition of fines or levies. For example, the union may have been successfully sued by a third party or penalised for its involvement in unlawful conduct which may be industrial in nature. Rather than bear the full financial burden of the judgment debt, the union may seek to spread the cost either in whole or in part amongst its members. If the activity was industrial in nature and involved a particular class of members who were seeking to promote their interests as opposed to the interests of the union as a whole, the union may seek to penalise those members with a fine for any costs it has incurred. A union may not be the only person who seeks to impose financial obligations on members beyond their membership dues. Third parties who have been injured or suffered a loss as a result of union activity may be of the opinion that their claim may be more successful if pursued against the individual members involved in the unlawful conduct rather than the union. They may also believe that they have a better chance of being compensated for their losses if the personal assets of the members are greater than those of the particular union. A similar result may be reached by virtue of legislation. Legislative provisions may penalise the individual union members involved in the unlawful conduct rather than the union, even if such persons are promoting the interests of the union and are acting under the instructions of the governing body of the union. If it is possible for third parties to pursue union members directly whether at common law or under legislation for the unlawful conduct of their union, then members are potentially subject to very wide financial obligations. Union members may not have anticipated such obligations when they joined the union. Thus the question for consideration in this thesis is as follows: Can Victorian union members be personally liable for the unlawful conduct of their unions? Associated with this question are further issues. The scope of liability may depend upon the legal status of the union, the common law, the industrial legislation under which the unions operate or other legislation directed at the industrial activities of unions. A further related matter is whether the principles have equal application if the union itself as opposed to an aggrieved third party (injured as a result of the general or industrial unlawful conduct of the union) seeks contribution or reimbursement from its members for its legal liabilities. In attempting to identify the circumstances in which members may be held personally liable for the unlawful conduct of their union it is important to analyse the following preliminary issues: 1. The meaning of the term "union"; 2. The legal status of unions that operate in Victoria; and 3. The scope of legal responsibility of such unions for the conduct of their agents.
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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.