Melbourne Law School - Theses
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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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ItemThe suspended sentence : introduction and use as a sentencing option in Victoria( 1992)This thesis examines the introduction of the suspended sentence of imprisonment as a sentencing option available to the courts in Victoria and the problems with its use. As the Victorian legislation regarding suspended sentences was based on earlier English legislation, the thesis looks at the first few years of the English experience and seeks to draw a comparison between the types of problems encountered in the two jurisdictions and the attempted resolution of these problems. It is to be argued that, since the introduction of the suspended sentence of imprisonment as a sentencing option in the criminal justice system of Victoria, an operational pattern similar to the English experience has developed and that: (i) the use of the suspended sentence as a penalty by the courts has failed to reflect the views of the Parliament of Victoria as to its position in the hierarchy of sentencing options, and (ii) the use of the suspended sentence as a means of reducing prison populations has failed, and (iii) the courts have failed to use the suspended sentence option in an appropriate manner. Until either the legislature or the courts have developed appropriate guidelines to rectify or control such use,the suspended sentence of imprisonment should itself be suspended, and if guidelines are not developed then it should be suspended or abolished as a sentencing option in Victoria.
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ItemMaking the polluter pay( 1991)This thesis considers the implementation of the polluter pays principle to the prosecution of offenders under the Environment Protection Act 1970 (Vic.). The history of the legislation and the mechanisms it establishes are examined. Alternative mechanisms of implementing the polluter pays principle are considered. The study is limited in the conclusions it reaches by concentrating upon prosecution, which is only one of a range of strategies available to implement the principle. Further research is needed to reach a final conclusion. However, the study reveals that a rational implementation of the principle is not possible unless the Environment Protection Authority takes an integrated approach to the available strategies, and guidelines are introduced for the imposition of penalties. It is recognized that the long-term significance of the polluter pays principle may be limited if pollution prevention approaches are successful. While pollution continues, implementation of the polluter pays principle should be sought as a fair allocation of the social costs caused by pollution.
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ItemA feminist analysis of prostitution regulation in Victoria( 1991)The thesis provides a feminist critique of prostitution regulation in Victoria. It commences with an overview of the various theoretical approaches which may be used when addressing the problem of prostitution and identifies the system adopted in Victoria as being predominantly regulatory. The approach taken in Victoria may be identified as being based upon the morally neutral public/private distinction. However it is alleged that this distinction has several shortcomings and is an inappropriate theory from which to address the problem of prostitution. It operates in a manner which protects the rights of males and discriminates against women and prostitutes. The regulatory approach, as implemented under the Prostitution Regulation Act 1986,is then examined in some depth and its various defects are exposed. Particularly evident is that there is implicit morality in the way in which the system operates and this operates to the disadvantage of the prostitute. Claims that the system has achieved some measure of equality are examined in Chapter 4. However what is revealed is that the laws which have been enacted in terms which are gender neutral have achieved formal, rather than real, equality. And, freedom for women in sexual matters have meant that women, including prostitutes are more accessible to men. It is concluded that the regulatory approach operates in a manner which allows for the perpetuation of assumptions about prostitutes and about women. These assumptions relate to the inevitability of prostitution , the male right to sex, the double standard,the role of women and prostitutes in society, and to the whole area of prostitution in general. These assumptions combine to protect male hegemony and ensure the continuance of male dominance. When examined from a feminist perspective it is demonstrated that these assumptions are open to challenge. Once questioned it is possible to construct an approach which will pave the way for the eradication of prostitution.
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ItemThe court and the factory the legal construction of occupational health and safety offences in Victoria( 1994)This thesis reports on an empirically based study of the manner in which Victorian Magistrates Courts constructed occupational health and safety (OHS) issues when hearing prosecutions for offences under the Industrial Safety, Health and Welfare Act 1981 (the ISHWA) and the Occupational Health and Safety Act 1985 (OHSA) from 1983 to 1991. These statutes established OHS standards for employers and other relevant parties. The State government enforced these standards through an OHS inspectorate which had a range of enforcement powers, including prosecution. After outlining the historical development of Victoria’s OHS legislation, the magistracy’s historical role in its enforcement, and the development of an enforcement culture in which inspectors viewed prosecution as a last resort, the study shows how the key provisions of the ISHWA and OHSA required occupiers of workplaces and employers to provide and maintain safe systems of work, including the guarding of dangerous machinery. Using a wide range of empirical research methods and legal materials, it shows how the enforcement policies, procedures and practices of the inspectorate heavily slanted inspectors workplace investigations and hence prosecutions towards a restricted and often superficial, analysis of incidents (or “events”) most of which involved injuries on machinery. There was evidence, however, that after the establishment of the Central Investigation Unit in 1989 cases were more thoroughly investigated and prosecuted. From 1990 the majority of prosecutions were taken under the employer’s general duty provisions, and by 1991 there was evidence that prosecutions were focusing on matters other than machinery guarding.