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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    From committee to commission?: the evolution of the Mekong River Agreements with reference to the Murray-Darling Basin Agreements
    Chi, Bui Kim ( 1997)
    The Murray-Darling Basin Agreements had their genesis in disputes between upstream States (Victoria and New South Wales) and a downstream State (South Australia) over the use of basin waters. While originally the disputes concerned navigation, for most of the twentieth century, the rivers' use for irrigation has been of more importance. The 1914 Murray Waters Agreement, between the Commonwealth government and those of the three basin States, was essentially a compact defining allocation of water to the parties concerned. Agreements on the Murray-Darling basin have evolved from this narrowly-based concept to one in which the natural resources of the basin are to be managed as a whole. At the same time, an institutional structure for the operation of water control works has developed which is able to make policy for resource management in the basin. The present Agreement covers water, land and environmental resources, and contains provisions for strategies intended to enable the integrated and sustainable development of the basin in the future. The Mekong Agreements, rather than representing a consistent evolution towards a legal framework for comprehensive basin management, have instead reflected the political evolution of the region. The 1957 Statute was a limited compact establishing the Mekong Committee for the Co-ordination of Investigation. It made no provision for basin management, nor for the equitable use or sharing of basin water. It was established to a large extent as an expression of the influence of the United States in the region. Its successor, the Joint Declaration of 1975, was a more comprehensive document, and used the Helsinki Rules of 1966 as a model. While it included principles of cooperation between riparian States, which could be used to ensure equitable use of water, it did not provide an adequate institutional structure for the management of basin resources. The 1975 Declaration was drafted during a hiatus in the conflict in South East Asia; and because one of the signatory States - the Republic of Vietnam (South Vietnam) - ceased to exist with the fall of Saigon, it was never applied. Interim arrangements were in place until 1995 during the absence of Cambodia from the international body politic. The drafting of new arrangements was then precipitated by Thailand's expulsion of the head of the Mekong Secretariat, effectively bringing the status quo to an end. The Mekong Agreement of 1995 establishes a new Commission, and states its purpose to be the sustainable development of basin resources. It relies on a co-operative approach, rather than establishing comprehensive criteria for water use, with the exception of the Mekong mainstream in the dry season. In addition, there is no provision for projects on tributaries to be submitted to the Commission for an evaluation of their effect downstream. In contrast to the arrangement under the Murray-Darling Basin Agreement, it confers no powers on the Commission to control basin waters, or to manage the regime in an effective manner, and to ensure equity between basin States. If development in a rational and equitable manner is assured, legal and institutional arrangements should be able to endure the ebb and flow of international relations. The need for an appropriate instrument to accommodate changing circumstances in the Mekong basin is made the more important by the prospect of the two upper basin States (China and Myanmar) joining the Agreement in the future. The Murray-Darling Basin Agreement, while it is a less than ideal model for legislation in this field, nevertheless offers guidance on how the new Mekong Agreement may be developed. This applies both to the management of basin resources, and to the preparation of strategies directed towards the objectives of the Agreement. The 1995 Mekong Agreement will be examined in the perspective that legislation should be stable and not static. While the Agreement has been duly praised for its intention of developing the basin through co-operation between States, this thesis looks at ways in which it may be improved. Significant issues effecting the choice of institutional and legal arrangements in both basins are identified and discussed. Findings from this comparison suggest a context for the further evolution of the institutional and legal framework to support the rational management and sustainable development of the Mekong basin.
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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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    Electronic commerce on the Internet: legal issues of contracts on the World Wide Web
    Tan, Harry S. K. ( 1996)
    In the early nineties, despite the widespread knowledge of the potential uses of the Internet, many businesses and information technologists scoffed at using it as a medium for business. It was thought that the technology, capacity and critical mass would not make the Internet a suitable medium for electronic commerce. However, by the last quarter of 1994 there were over 10,000 companies offering information and services for sale over the Internet. This figure is now expected to grow to over one million businesses by the year 2000 despite the lack of clear laws governing commercial activity on the Internet. This paper is intended to investigate the issues of electronic commerce and the difficulties contracting parties face on the Internet which would not normally arise in conventional transactions. In addition, as one of the primary interest in the Internet comes from the easy and quick access to overseas markets, the paper will also consider the international aspects of Internet transactions. It is not the intention for the paper to be a comprehensive or definitive treatise on contract or international law, but rather consider the intriguing issues raised by electronic contracting in the domestic and international context. Chapter 1 is a concise introduction to the technology of the Internet and its workings to provide a background for the discussion that follows. Chapter 2 looks at the unresolved international issues that will arise out of trans-border Internet trade. Chapters 3 and 4 will then review the impact of Internet technology and how it challenged the current practices of proving the existence of contracts and the formation of contract. In chapter 5 we look at how the law deals with the specific issues of software being sold on-line and the attempts by Internet-stores to avoid statutory conditions designed to protect the consumer.
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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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    The new Philippine mineral regime: an opportunity for investment?
    Mander, Kirsten G. ( 1994)
    A ring of fire encircles the Pacific Basin, an unstable region of earthquakes, faulting and intense volcanic activity. It stretches from the tip of South America, up through the Andes, across the Aleutians, down through Japan and the Philippines to the tip of New Zealand. To the countries in the region, this geological volatility is both a misfortune and a blessing. It was a misfortune, indeed, to the local people who lived around the slopes of the Mt. Pinatubo volcano in the Philippines when it erupted in 1991. Their homes and farms were buried under metres of volcanic ash and it will be many years before they can return to the area to live. Yet when viewed from a broader perspective this geological instability has been a real boon to the Philippines, not merely because of the substantial export industry it has generated in souvenirs made out of volcanic ash, but because it is this same instability which has made the region fertile and resource rich. Over millions of years the tremendous pressures from within the earth have forced hot, mineral rich fluids up through faults created by earthquakes and faulting in the sub-surface rock. In that rock the minerals have cooled and concentrated to become mineral deposits, lying hidden underground until erosion reveals their presence to the human eye. Many of the world's major mineral deposits have been discovered in this region, such as the spectacular Hishikari deposit in Southern Japan, Erstberg in Indonesia and Bougainville in Papua New Guinea. The impact that this mineral endowment has had on the economic development of some of the countries in the region has been enormous. In PNG, for example, minerals make up more than 80% of the country's export income and generate revenue of over Aus$350 Million per annum. In Australia, they make up around 40% of export income, generating revenue of around Aus$30 Billion per annum. The significance of such revenue flows, particularly to developing countries, can not be underestimated. However a country's high geological potential will remain just that, unrealised potential, unless the country has access to sufficient funds to explore for new mineral deposits and to develop them when they are found. Few developing countries have sufficient domestic capital available to fund mineral development and for this reason many countries have in recent years been competing to attract foreign investment to assist in the development of their mineral industries. Vietnam, Laos, India, Peru, Argentina, Chile and others have all been taking steps to promote foreign investment by removing impediments to foreign investment, reducing government take and offering investment incentives. At the same time, Australian mining companies have been increasingly looking overseas for investment opportunities. Australian mining companies, in particular, have been seeking to place a greater percentage of their exploration/development budgets offshore in order to minimise their exposure to Australian sovereign risk, engendered by Australian Government decisions such as Coronation Hill, world heritage listings and more recently the Mabo legislation.
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    The court and the factory the legal construction of occupational health and safety offences in Victoria
    Johnstone, Richard Stephen ( 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.
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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.