Melbourne Law School - Theses
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ItemThe Ghanaian petroleum sector and the environment( 1998)Ghana spends a substantial portion of her foreign exchange earnings on the importation of crude oil. It is therefore important to the government that the country's petroleum potential be explored and if any finds are made, that such finds be produced speedily to save the country invaluable foreign exchange that goes into the importation of crude oil. There is also the hope that where such finds exceed local requirements, the excess would be exported to earn foreign exchange for development. The Ghanaian government is also aware that petroleum exploration and production have the potential to cause adverse environmental effects if the operations of the companies are not properly regulated and controlled. It is therefore necessary to appraise existing laws on pollution control to determine whether they are adequate to regulate pollution in the conduct of petroleum activities. Where the laws are inadequate, as this work has found to be the case in Ghana, the government need not wait until the legal regime is updated. Apart from the promulgation and enforcement of legislation, there are other legal techniques that may be employed to control environmental pollution in petroleum exploration and production areas. These are the criminal sanction technique, the regulatory or licensing technique, the negotiations and agreement technique and the property rights technique. This work reviews these techniques and the conditions needed for their successful operation, and assesses what each technique can contribute towards environmental protection in Ghana. The experiences of some countries which have employed these techniques are also reviewed. Based on this evaluation, the negotiations and agreement technique is recommended as the preferred option for Ghana. The form in which this technique should be adopted for implementation in Ghana is also recommended.
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ItemThe development of Australian law to protect undisclosed business information( 1998)Traditionally, information has not generally been regarded by the common law as being property and able to be legally protected in the same way as land, money or goods. Australian courts have demonstrated great reluctance to change this approach, even though information is increasingly considered to be a valuable asset, particularly by the business community. However, a change in the way information is regarded has taken place over the last four to five decades, resulting primarily from the increased use of computer technology. In Australian law, organisations or individuals who wish to restrict access to their business information and keep it confidential currently have limited legal means to achieve their aim. The breach of confidence action, contract law, copyright law and criminal law may all be used to protect information from unauthorised access or use but only to a certain extent. In most instances these traditional legal approaches require that there is a confidential or contractual relationship between the parties, that the information be in an original form, or that the unauthorised access be made using computer technology. There are particular deficiencies in the legal protection available when undisclosed business information is accessed by a party outside a contractual or confidential relationship, often through improper means. Ways in which these deficiencies, particularly in respect to the breach of confidence action, could be overcome have been proposed by a number of law reform bodies, in Australia and overseas. However, no legislative amendments adopting these proposals have been introduced in Australia and judicial decisions indicate that the courts are likely to continue a conservative approach to the protection of information to avoid creation of barriers to the free flow of information. Different legal approaches to the protection of business information have developed in continental Europe and America. However a review shows that deficiencies in the protection offered have not been fully overcome in these jurisdictions. More recently, a number of international developments have taken place which are of significance to the protection of business information. The developments take different forms, either as binding international agreements, or non-binding agreements. Examples are the Trade Related Aspects of Intellectual Property Agreement (TRIPS); the OECD Guidelines of Security for Information Systems and for Cryptography Policy; and the WIPO Model Provisions for Unfair Competition. These agreements establish new international standards relating to the protection of business information. The way in which these international agreements may become part of Australian domestic law and policy can be predicted and explained by analysing the nature and form of the relevant international agreements and the process by which they may become part of domestic law; by having regard to recent developments in this field in other countries; by analysing Australia's response to similar developments in the past, for example, the OECD Guidelines on the Protection of Privacy and Transborder flows of Personal Data; and by reviewing Australia's response so far to the latest developments relating to the protection of confidential business information.
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ItemThe law of money( 1998)Money occupies a central position in both the disciplines of law and economics. From the legal point of view, money constitutes a vital part of the legal system. Ever since the advance from a barter economy, money has become a central instrumentality of legal transactions. Seeking a legal definition of the phenomenon of money is, therefore, an invaluable exercise for the discipline of law. However, as money is an economic phenomenon, seeking to ascertain the meaning of money for legal purposes cannot be comprehensively pursued without due regard to economics. This thesis sets out to show the importance of monetary and other economic factors in analysing and applying the law of money. In particular, this thesis sets out to identify the principal functions performed by money from the viewpoint of their relevance in comprehensively defining the phenomenon for legal purposes. It examines the legal meaning of money in the context of such developments as the use of advancing technology to transmit by electronic means rights to money at ever increasing speeds and amounts across the globe, floating exchange rate markets, the changing role of gold from its once unique position as the quintessential international monetary reserve, the development of "electronic cash", and the tracing of money through a series of paperless transactions. When examining these developments, there is a focus on how legal analysis might be assisted by identifying the role performed by money in specific sets of circumstances. While attention is given to international monetary units, such as the Special Drawing Right and the European Currency Unit where relevant throughout the thesis, the development of the Euro as the currency of the European Union in the twenty-first century is not specifically addressed. This is an on-going and developing process, raising specific issues such as natural currency areas within the European Union necessarily outside the ambit of this thesis, which focuses on the law of money proceeding from an Australian viewpoint to more general materials especially in the English-speaking world. However, this thesis does draw from the non-English-speaking world for materials and examples that may well be of universal significance, and have unique ramifications, in the process of determining the meaning of money for legal purposes. While focussing on the future, the thesis carefully considers the past from the point of view of determining the extent to which the existing law is able to deal with what appear as entirely new phenomena, associated with technological advancement and apparent rapid globalisation.
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ItemThe challenge procedure under the World Trade Organisation agreement on government procurement : a model for Australia( 1998)The Commonwealth government is considering acceding to the World Trade Organisation Agreement on Government Procurement (AGP). The purpose of the AGP is to liberalise government procurement amongst member countries. Pursuant to Art. XX of the AGP, it is a requirement for a member country to have a procedure whereby suppliers can challenge government procurement decisions. A review of the existing mechanisms under Australian law for challenging procurement can be challenged. I believe that none of the existing measures are sufficient to meet the requirements of Art. XX. Accordingly, I suggest adopting a new challenge procedure, with any challenge to be heard by a new administrative body. This challenge procedure can cover either only AGP related procurement, or all Commonwealth government procurement. Further, whereas the challenge procedure can be limited to only the requirements of Art. XX, I recommend including other procedural points to make for a better procedure. Accordingly, recommendations are made for both a challenge procedure that meets the minimum requirement of the AGP and a preferred procedure.
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ItemChallenging the dominant paradigm: the contribution of the welfare member to administrative review tribunals in Australia( 1998)This research examined the contribution of welfare members to multidisciplinary merits review tribunals in Australia. It utilised observation of hearings in the Commonwealth Social Security Appeals Tribunal and the Victorian Mental Health Review Board, and a detailed member questionnaire to members of all disciplines in both jurisdictions. The research concluded that welfare members, whether presiding or otherwise, were generally very competent in hearings. They were seen by their colleagues as especially skilled in managing applicant behaviour, in ensuring hearing informality and comprehensibility, and in the assessment of applicant behaviour. Although members or all disciplines participated actively, the presiding member took the principal role and was the most active member within hearings, regardless of discipline. Members, except for medical members, tended to be diverse in their questioning, and did not focus on particular issues or areas of concern to any large extent. Notwithstanding this generality, their colleagues saw welfare members as critical to management of the hearing process, to ensuring that applicants were heard and understood, and in dealing and communicating with applicants who were angry, distressed or otherwise ill at ease with the hearing process. The insights and understandings of the welfare member were also essential in decision-making in those matters where an assessment of behaviour, or its explanation, was central to the determination of matters raised in administrative review hearings. Any move to streamline Federal or State administrative review tribunals therefore needs to consider how the membership of new review bodies will maintain the availability of these insights to tribunal decision-making. Any move away from multi-disciplinary hearings risks jeopardising the justice and fairness imperatives and the capacity of the tribunal to reach the correct decision. In turn, community confidence in the administrative review process can only decline.
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ItemThe Indonesian regime of mineral regulation: analysis of the current system and proposals for reform( 1998)Indonesian mineral law (which places emphasis on state-owned and operated mines) is ineffective because, in practice, the private sector (which comprises mainly foreign investment mining companies) carries out most of today’s major mining operations through a contract system which, to some extent, excludes the law. The Mining Act 1967 authorises state corporations to enter such contracts, in practice however, more than one hundred unratified mining contracts (the so-called ‘Contracts of Work’) have been concluded by the government directly with private parties. The Act limits the activities of national private parties in terms of minerals, size of mineral deposits, and their capacity to involve foreign investors in their mining activities. The situation is now that the government does not have sufficient funds to support state mining corporations. The status of most of these corporations has been changed from ‘state companies’ or ‘public corporations’ to ‘limited liability companies’. Thus, the state’s theoretical monopoly in the mining industry has not been applied in practice. The Mining Act 1967 has not, however, been amended to reflect this. Further, there has been a significant shift in the operational sphere of mining law, mainly due to the introduction of environmental and planning law, as well as a relaxation of the foreign investment regime in response to increasing economic globalisation. Reform is therefore required and, in particular, by adopting the concept of privatisation. With privatisation, foreign investors may be offered opportunities to hold licences, and the law may come to better reflect commercial reality and provide mining ventures with more certainty and security. The first part of this dissertation is a discussion of the current mineral regime. The second part looks at the problem of regime in practice and two cases of land compensation are examined. Part three recommends reforms, including, in particular, changing the types of licence by reducing tiers from six to two (exploration and exploitation licences); introducing a system of legislative ratification for government agreements; the passing of separate regulations for quarrying minerals controlled by governors in provinces; and the changing of the mining council’s power to include arbitration on mining disputes.