Melbourne Law School - Theses
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ItemProtective measures applicable to child complainants of sexual offences in the South African criminal justice system( 2008)Testifying in a courtroom is a stressful experience for any witness. This stress is heightened where the witness is a child complainant of a sexual offence. Not only will this child have to testify about the intimate details of the offence, but he or she will also have to do so in the presence of the alleged perpetrator in the formal environment of the courtroom surrounded by unfamiliar people dressed in black robes. The South African legislature has taken some cognizance of the difficulties that these vulnerable witnesses may face whilst giving evidence in the courtroom and has enacted various provisions which make protective measures available to them. Such protective measures include closing the court to the public during the testimony of the complainant, permitting the complainant to give evidence through closed-circuit television thereby avoiding confrontation with the accused and the formal courtroom environment, as well as permitting the child to give evidence through an intermediary who conveys the questions of counsel to the child in a language and form the child can understand. This study is based on a review of the relevant authority, judicial pronouncements thereon, academic literature on the subject, and to a limited extent empirical research of the practical application of these provisions in the South African courts. The aim of this study is to determine whether these provisions are achieving the purpose behind their enactment and therefore effectively providing protection to child complainants of sexual offences. The conclusion is reached that these provisions, are riddled with deficiencies and are further erratically applied. The provision which makes it mandatory to close the courts to the public during . the testimony of the complainant is completely ignored and prosecutors are still bringing applications for the closure of the courts, leaving presiding judicial officers with a discretion as to whether or not the public should be excluded from the trial during the testimony of the complainant. Furthermore, witnesses are often not aware of the provision which permits them to bring an application to give evidence via closed-circuit television. It has been argued that child complainants of sexual offences will always meet the requirements set out in that provision and that they should therefore be given an automatic right to give their evidence via closed-circuit television. On the other hand, witnesses have no standing to bring an application for the appointment of an intermediary and such an application can only be brought by the prosecution. Once the prosecution has decided whether or not to bring such an application, it is further subject to the discretion of the presiding judicial officer who may refuse to grant the application: This discretion has resulted in the inconsistent application of the section and an arbitrary application of the law which fails to uphold the values enshrined in the South African Constitution. It has been recommended that a more uniform and objective approach to invoking this protective measure is required. This study. recommends in closing that legislative reform is indeed necessary in order to provide more -effective and uniform protection to child complainants of sexual offences within the South African criminal justice system.
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ItemLaw, medical practice and policy development( 2008)This application is based on a range of achievements Which establish, as required by Regulation 3.16 of the university's statutes, that 'I have made `a substantial and original contribution to legal scholarship' (see Part A); and that my work `is of such standard as to give [me] authoritative standing in the field of [my] study [Health and Medical Law]' (see Part B). My achievements include scholarly critique and analysis and cross-disciplinary publications in leading international journals (see Part C).
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ItemA model law for anti-doping in sport( 2006)The objective of this thesis is to show that the development of a model law for adoption by nation states is an essential step in legal efforts to combat doping in sport, and to make recommendations on the content of this legislation. Drugs in sport are an issue of significant public and media interest. In a society where athletes are also role models, the use of performance-enhancing and recreational drugs by sportsmen and women is widely condemned. In recent years enormous efforts have been made by both sporting organisations and governments to put a structure in place to support sports' anti-doping rules. This has resulted in the creation of the World Anti-Doping Agency (WADA) and the development of the World Anti-Doping Code. However, these rules remain private in nature and therefore are inadequate to address all the problems presented by doping. To this end, the UNESCO International Convention Against Doping in Sport was also adopted in 2005. This thesis examines what further legal measures are required to combat doping, and focuses on the development of a model law that can be adopted by governments to implement the Convention and tackle doping issues. A model law is recommended as the best way to harmonise the legal approach to doping across nations, and to provide a tool to the numerous nations currently lacking the capacity to devise an appropriate legal response to the issue. It would be appropriate for the model law to be situated as a model of best practice within the World Anti-Doping Program housed by WADA, after appropriate development in conjunction with UNESCO. In devising the argument for a model law and recommendations as to its content, the current domestic anti-doping laws of four countries have been examined, along with the special issue of human rights as they apply to anti-doping.
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ItemThe impact of Australia's refugee status determination system on its implementation of its refugee convention obligation on non-refoulement( 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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ItemIn the public interest? The application of section 41(1)(d) of the Conciliation and Arbitration Act (Cth) in the SEQEB dispute( 1991)In late 1984, the Queensland branch of the Electrical Trades Union (ETU) embarked on a major campaign of industrial action in opposition to attempts by the South East Queensland Electricity Board (SEQEB) to introduce contract labour. The campaign was to have far-reaching consequences for the individual members of the ETU and for the regulation of industrial relations in the Queensland electricity industry. On February 11, 1985 approximately 900 members of the ETU who were on strike were summarily dismissed by SEQEB. Soon after, the Queensland Industrial Conciliation and Arbitration Commission was stripped of its jurisdiction to deal with industrial disputes in the electricity industry. The Queensland government established a specialist tribunal to deal with industrial affairs in the electricity industry, and enacted legislation which conferred sweeping powers on employers in the electricity industry to deal with employees engaging in industrial action. The ETU responded to these events by seeking an award of the Federal Conciliation and Arbitration Commission, which would override the system of regulation set in place by the Queensland government. The Queensland government and electricity authorities vigorously opposed the granting of the award sough by the ETU. This thesis examines the successful application pursued by the Queensland electricity authorities before the Conciliation and Arbitration Commission, whereby the Commission refrained from proceeding to make the award sought by the ETU on the ground that to do so would not be in the public interest. By analysing the flaws in the Commission's exercise of the public interest discretion, the thesis attempts to enunciate principles governing the proper exercise of the Commission's power to refrain from granting an award on public interest grounds.
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ItemDirectors' duties, creditors' rights and shareholder intervention( 1991)The time is ripe for a critical analysis of the scope of directors' duties, the role of shareholder intervention and the ability of company creditors to obtain remedies. Company directors are now the object of intense public scrutiny. Popular sentiment, law reform bodies and the judiciary all appear to favour expanding the duties owed by directors and increasing the ability of minority shareholders and company creditors to complain of breaches. Before any reforms are introduced, the existing law needs to be reassessed: it may already be capable of meeting the proposed demands. This thesis puts forward the view that no change to the existing law is necessary. It proposes a new analysis of the existing law to provide a logical legal framework for determining standing to sue, appropriate remedies and the effectiveness of shareholder intervention. This analysis suggests that shareholders and company creditors have greater rights than was previously thought: for this reason the existing law is adequate to meet the increased demands proposed. The absence of an adequate analytical framework in this area of the law is most evident in the debates concerning both directors' duties to creditors and the role of directors in company takeovers. The former are analyzed in detail in this thesis, but the same analysis is equally applicable to the latter. The analytical framework proposed to remedy this deficiency requires that a simple but fundamental distinction be drawn between directors' duties to act for proper purposes and directors' duties of loyalty to the company. The consequences of such a simple distinction are far-reaching: different remedies, different possibilities for shareholder intervention and different classes of possible complainants are appropriate for breaches of the different duties. It is these consequences which give the proposed analytical framework its value.
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ItemNon-combatant immunity as a norm of international humanitarian law( 1990)This thesis examines the current status and content of non-combatant immunity, a fundamental principle of the international humanitarian law of armed conflict. It analyses both the customary and conventional status of the rule in international and non-international armed conflicts. The thesis first describes the evolution and jurisprudential basis of the principle of non-combatant immunity from the time of the development of the modern nation State through to its establishment as part of the emerging independent ius in bello. The thesis then examines a number of interrelated factors which in the period since the Second World War have combined to threaten the viability of the norm of non-combatant immunity. These factors include the development of the right to self-determination of peoples, the rise of guerilla warfare linked with but by no means confined to such conflicts, and most significantly, the allegations that wars of self-determination are "just" wars. Such wars are alleged to affect the independence of the lus in bello from the ius ad bellum. The impact of the use of force in such struggles is examined to see if there is any legal foundation for such a theory. In this context, the new developments in the law of armed conflict, in particular Article 1(4) of the 1977 Additional Protocol I to the Geneva Conventions of 1949, are assessed. The thesis argues that the independence of the ius in bello from the lus ad bellum, a fundamental premise of humanitarian law, has survived these new developments. Moreover, the principle of non-combatant immunity is not only a conventional rule but has acquired the status of a norm of customary international law equally applicable to all parties in traditional international armed conflicts. The thesis also examines the distinction that has traditionally been drawn by the law of armed conflict between international and non-international armed conflicts. The thesis argues that this rigid division is slowly being eroded and that non-combatant immunity is a customary rule in some large-scale non-international armed conflicts.