Melbourne Law School - Theses
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ItemFusion development between law and equity( 1994)This thesis attempts to present a structured definition of the concept of fusion in a modern legal environment. It examines the forces and influences which have encouraged and shaped fusion developments and goes on to consider the manifestations of actual and potential fusions occurring in a variety of different legal and equitable doctrines. The recognition and acceptance of fusion does not necessarily signify the automatic destruction of all jurisdictional distinctions between law and equity and it is hoped that a systematic analysis of what fusion refers to and how it is evidenced within our legal infrastructure will allay this fear. Fusion is literally defined as a close union of things. The intimacy of this union is variable; it can range from a complete blending of two separate objects to a close interaction between those objects. When considering fusion in the context of the growing intimacy between the common law and equity jurisdiction, the same principles apply. There are different measures of fusion which are continually occurring between legal and equitable doctrines and not all fusion involves a complete meltdown of jurisdictional distinctions. Some fusion simply encourages a change in attitude or approach to a principle. This sort of fusion is an interactive rather than a merging fusion because it influences related doctrines instead of subsuming them. Some of the main jurisdictional difficulties encountered within a modern Judicature system are increasingly being addressed through fusion developments. Common concerns experienced by the courts include the perpetuation of doctrinal and discretionary inconsistencies between law and equity which are outdated and unnecessary and the artificial imposition of jurisdictional constraints in the application of remedy. Fusion can offer a rationalised, interactive alternative to strict jurisdictional segregation thereby providing a viable method for the resolution of these concerns. The difficulty in implementing fusion stems, however, from a lack of understanding about the nature of consequences of the concept. If fusion is constantly perceived to be an absolute merger rather than a discrete integrating process then inevitably any reference to fusion will be considered radical and unjustified. (From Introduction)
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ItemThe criminal liability of corporations( 1993)This study is an examination of the various aspects of the criminal liability of corporations, including the existing law and its potential reform. The study begins with an examination of the theory and concept of corporate criminal liability, as it exists in Australian law. Particular reference is given to the persuasive influence of English law on the Australian conceptual framework, and the consequential restrictiveness of common law in relation to corporate criminal liability. This has prompted the use of various legislative techniques in Australia to broaden the application of what are, in practice, personal offences to corporations. The use of legislation has had limited success. The difficulty with much Australian legislation is that it has broadened a narrow doctrine, rather than reassessing some of the fundamental concepts. Other countries are now beginning to re-examine their existing approach to the criminality of corporations, and this study makes particular reference to American involvement in dealing with offending companies and their management. A study of corporate behaviour, indeed in the growth and change of status of the company in our society, raises many issues concerning corporate criminality, the types of crimes that can occur and the reasons why corporations may offend. An examination of corporate offences, and the potential harm that flows from breaches of the law, forms the basis for a re-assessment of existing law, and even the corporation itself as its exists in our society. Indeed the proposed Australian Model Criminal Code, with its recognition of corporate blameworthiness, is one enormous conceptual leap in changing the approach of law in dealing with corporations. However, a re-evaluation still needs to be made of existing criminal legislation, executive procedure, judicial procedure and potential sanctions. Furthermore, there must be a consideration of the end object that is sought by making a company criminally liable. The objective of any reform should be to achieve a law abiding corporation, where legal compliance is reflected in its structures and ethos, not the letter of the law. Sanctions to achieve such an ideal outcome may be found in other ways than merely through traditional punishment, such as fines, the alternatives being examined in this thesis.