Melbourne Law School - Theses

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Start date: 2000 × Type: PhD thesis × End date: 2007 ×

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    Freedom and fairness in contract law : a republican theory of contract law
    Sharpe, Michelle. (University of Melbourne, 2005)
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    Bioethics and human rights : mapping the boundaries of the human subject
    Bird, Jo Naomi. (University of Melbourne, 2007)
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    Measures to deter illegal, unreported and unregulated fishing in the Southern Ocean in the absence of flag state control
    Baird, Rachel J. (Rachel Jane) (University of Melbourne, 2005)
    Overfishing threatens the viability of high seas living resources. Furthermore, controls to prevent overfishing are inadequate. Illegal, Unreported and Unregulated (IUU) fishing is a product of overfishing and affects all marine fisheries. Southern Ocean fisheries have been particularly targeted by IUU fishing. No scholar has fully examined the efforts of CCAMLR and Australia to adopt measures to deter IUU fishing in the Southern Ocean. The original contribution of this work lays in the author's analysis of action taken by the CCAMLR Commission and Australia. The research in Chapters 4 and 5 is original work in that no other scholar has approached the issue of IUU fishing in the Southern Ocean in this manner or to the depth demonstrated. Chapter 5 in particular stands alone as original work on Australia's efforts to deter IUU fishing. There is a paucity of published work in this area and reliance upon court decisions, governmental publications and NGO material has been necessary. My conclusions are that in the absence of flag State control, alternative measures and strategies have proved to be effective in influencing the behaviour of IUU fishing vessels. By improving coastal State surveillance, enhancing regional co-operation, imposing port and market State controls, establishing IUU vessel databases and vigorously prosecuting offenders, RFMOs and coastal States can jointly increase the risk of conducting IUU fishing activities. At the same time financial returns can be diminished so that engaging in IUU fishing becomes economically unattractive.
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    Zones of cooperation : the emergence of a cooperative and functional Australian approach to the resolution of disputes over maritime jurisdiction and sovereign rights
    Bialek, Dean Marc. (University of Melbourne, 2003)
    This thesis attempts to demonstrate the emergence of a cooperative and functional Australian approach to the resolution of overlapping claims to maritime jurisdiction and sovereign rights. Maritime boundary arrangements agreed by Australia and its northern neighbours - Papua New Guinea, Indonesia and now, East Timor � reveal a strong Australian resolve to overcome difficult and complex geographical, geomorphological, historical and political obstacles to agreement through a thorough and patient process of negotiation. With Indonesia and Papua New Guinea respectively, Australia has adopted the unique approach of agreeing to separate boundaries delimiting overlapping claims to sovereign rights in respect of the seabed on the one hand, and the water column on the other. The adoption of distinct lines for these distinct categories of maritime sovereign rights gives rise to a number of practical difficulties, the most acute being the exercise of jurisdiction in areas where Australian seabed jurisdiction underlies the water column rights of its northern neighbours. Common to the finely balanced regimes agreed under the 1978 Torres Strait Treaty and the 1997 Australia-Indonesia Maritime Delimitation Treaty is the prescription that the state intending to conduct marine activities pursuant to one set of sovereign rights must variously cooperate, inform, consult or seek agreement so as to avoid the unannounced infringement of the treaty partner's rights or interests. In the Timor Gap, maritime boundaries have proven elusive, necessitating the pursuit of more creative approaches to the resolution of overlapping maritime claims. Guided by the wording of article 83(3) of the 1982 United Nations Convention on the Law of the Sea, Australia has concluded with Indonesia (the 1989 Timor Gap Treaty) and subsequently with East Timor (the 2002 Timor Sea Treaty) 'provisional arrangements of a practical nature' that have underpinned ongoing petroleum activities in the Timor Gap whilst at the same time preserving the disputant states' maritime claims and negotiating positions in respect of permanent maritime boundaries. Similarly, the International Unitisation Agreement fir Greater Sunrise provides a secure and 'sovereignty-neutral' legal and fiscal framework for the development of a major gas resource that straddles two distinct jurisdictional regimes. None of these agreements involved the intervention of a third party, nor reference of the overlapping claims to a process of arbitration, and appear, at least in part, to be motivated by the clear and unambiguous Australian preference for a press of bilateral negotiations to discuss, consider and eventually resolve its overlapping maritime claims. There is no stronger expression of this preference than the Australian Government's decision in 2002 to withdraw maritime boundary disputes from the scope of its consent to the compulsory jurisdictions of the International Court of Justice and the International Tribunal on the Law of the Sea. The Australian approach is based on a belief that parties to a negotiation are in a better position than third parties to achieve stable and desirable outcomes that are conducive to cooperation in the management of marine resources. Whatever the motivations for this distinctive approach, Australia has emerged as a global leader in the negotiation, design and conclusion of creative and cooperative maritime arrangements aimed at overcoming otherwise intractable maritime sovereignty disputes. The raft of arrangements agreed between Australia and her northern neighbours is an exemplar to other disputant states of the utility of creative international legal regimes to underpin access to the marine and seabed resources between them.
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    The regulation of essential service insolvencies and the public interest : case studies of Australia's electricity industry and Melbourne's public transport industry
    Wardrop, E. Ann ( 2007)
    This thesis critically explores the regulation of the insolvency of essential services and the public interest through an examination of the common law and legislative responses in Australia, the United Kingdom and the United States. Drawing on understandings of the public interest gained from its analysis the thesis proposes a model of the public interest that may be used to justify representation of non-creditor interests within insolvency proceedings of essential services. The model also identifies non-creditor public interest considerations that extend beyond continuity of supply. The thesis then undertakes case studies of the regulation of insolvency within the Australian electricity industry and Melbourne's public transport industry to examine how effectively public interest issues have been addressed and how these are balanced against the interests of the firm and its creditors. The thesis argues that a fundamental problem of the regulation of insolvent essential services is balancing the general public's interest in the fate of the insolvent firm with the interests of others stakeholders, particularly creditors. The thesis demonstrates there is a great deal of inconsistency of response to this issue both within and between the jurisdictions under consideration. Focussing on the public interest in the continuity of supply, the United Kingdom has enacted ad hoc insolvency procedures which are initiated by the state and oust creditor control mainly in relation to the monopoly sector of various essential services. A different approach in the United States has meant public interest considerations are built into its insolvency law through a combination of legislative prescription, judicial interpretation of the Bankruptcy Code and a limited willingness to grant non-creditor representation rights in insolvency proceedings of essential services. The thesis argues that the integration model of the United States allows an appropriate balance to be struck between the interests of the firm and its creditors and the broader public interest when regulating the insolvency of essential services. In contrast Australia has not enacted ad hoc insolvency procedures or expressly integrated the public interest within its insolvency law. The case study of the Australian electricity industry shows, however, that the public interest in the continuity of supply is managed by allowing creditors' rights to be affected radically by utilities regulation such a state step-in rights and retailer of last regulation. The thesis demonstrates the fragmented and inconsistent nature of these provisions. The case study of Melbourne's train and tram industry and the examination of South Australia's privatisation of its electricity assets by way of lease show the ways in which private contracting rather than utilities regulation can manage public interest issues. The thesis concludes that while the public's interest in the continuity of supply of essential services in Australia is generally satisfactorily dealt with under current arrangements, what is less clear is whether public interest issues beyond continuity of supply will be given sufficient weight in insolvency proceedings, particularly in the context of a reorganising firm. The thesis argues it is within this area that there is space for integrating public interest considerations within Australia's insolvency law by expressly requiring the court to consider the public interest in such proceedings. Incorporating public interest considerations that recognise non-creditor stakeholder interests into Australian insolvency law requires theoretical justification. The thesis argues there are sound theoretical arguments for expanding insolvency's law role to accommodate broader stakeholder interests in the context of the insolvency of essential services and that the model of the public interest proposed by the thesis may be used as a basis for a court to grant representation rights to non-creditor interests within insolvency proceedings of essential services in Australia.
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    The integration of complementary and alternative medicine into health care : regulating for consumer choice, autonomy and responsibility
    Brophy, Catherine Elizabeth ( 2007)
    This thesis explicates the role that the law, and particularly regulation, can play in the integration of evidence-based complementary and alternative medicine (CAM) into the Australian health care system. It outlines a regulatory framework to move Australia beyond an ad hoc approach to integration to a national, co-ordinated and systematic one, informed by the guiding principles of choice, autonomy and responsibility. Integration is necessary to ensure that all Australians have the option of safe and effective CAM. A holistic approach - a metaphor, the `regulatory space of health care', and a broad definition of regulation, legal orderings (statutes and common law) and non-legal orderings (guidelines and norms) - is adopted to analyse the current level-of integration of CAM in Australia. This integrative map provides the necessary background to consider key elements of the regulatory framework necessary for integration. A national policy, a national body, a model of integration and regulatory strategies are proposed and discussed. A partnership model of integration is recommended as both biomedicine and CAM have a singular contribution to health care in the future. The model of integration must preserve the integrity of each health care paradigm. It must provide scope for the continued development and exploration of health solutions arising out of the philosophy and methodology of biomedicine and CAM. A holistic relational model, referral, multidisciplinary, and other linking mechanisms, are proposed to unify the two health care paradigms into one health care system. To spearhead, steer and co-ordinate the regulatory change process, a national body - an Australian National Centre for Integrative Healthcare (ANCIH) is recommended. As integration will involve a re-negotiation of the regulatory space of health care, to make room for evidence-based CAM to share in health infrastructure, this national body will require the authority to work with all the stake-holders to effect change.
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    First world convention and third world corruption : the OECD convention on bribery in international commercial transactions and foreign subsidiary corporations in the Philippines
    Alcordo, Eloisa Palazo ( 2007)
    This thesis examines the application of the OECD Convention on Bribery in International Commercial Transactions (the Convention) to corrupt practices facilitated by foreign subsidiary corporations with particular focus on commercial contracts in the Philippines. The dynamics of bribe payments in two Philippine infrastructure contracts are studied in light of specific provisions of the Convention. The two case studies show that the corruption of Filipino government officials need not be directly carried out by foreign nationals nor by foreign international corporations. This is because the bribery may be facilitated by resident representatives of resident subsidiaries, or by resident representatives of domestic corporations. Also, a labyrinth of personal connections allows bribe proceeds to reach the intended Filipino public officials without the foreign corporation's officers necessarily having to meet officers of the parent corporation. The thesis finds that while the Convention's approach to addressing the problem of corruption internationally is unprecedented, its practical effectiveness is challenged by its ambivalent provisions on jurisdiction and elements of the offence. Further, unless local commitment to enforce and implement the Convention is strong,, currently entrenched business practices will be difficult to reform. The liberality accorded member countries to implement the provisions of the OECD Convention within the existing principles of their respective legal systems has resulted in diverse and variant implementing statutes such that the particular commission of the crime of bribery of a foreign public official may result in some liability in one jurisdiction, but not in another. The OECD Convention is the first of its kind in the international regime. It could have made a difference in curbing transnational corruption. But it did not and does not. END
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    Effective public participation in major projects
    Murphy, Ann Elaine ( 2006)
    The thesis explores ways to make public participation processes for major projects more effective. Reviews and analysis of public participation theories and practices are provided, with particular attention to legislative requirements and judicial findings in Victoria, Australia. The questionnaire and interview findings from participants in the two Victorian case studies - the Advisory Committee for the Melbourne 2006 Commonwealth Games Village and Coode Island Community Consultative Committee -- provide first hand accounts of participants' experiences with these processes. Their responses are studied in composite to further understand `the public' as well as the participant groups making up the public to understand their views. The analysis suggests that public participation processes in Victoria need to be improved. While some guidance on conducting public participation is provided by the Victorian government and other levels of government, much of this does not directly address issues of power imbalances, politics and other practical considerations. The research findings reveal a groundswell of dissatisfaction with public participation in major projects. While case study participants strongly supported the principles of public participation they were disappointed with its reality. Significant differences between participant groups related to their evaluations of the effectiveness of these processes, their awareness of public participation legal requirements, their preference for strengthening these requirements and the appropriate levels and methods for engaging the public. Participant groups with higher levels of influence provided more positive evaluations of these processes and were less interested in strengthening their legislative requirements and appeal rights than those with the least influence. This dissertation makes several valuable contributions to town planning and legal research. The research provides valuable information on how laws work in their social and economic contexts. It provides a rich and comprehensive understanding of where public participation in major projects is failing and how it can be improved in a manner that meets the needs and abilities of a diverse public. This dissertation springs from empirical research which, though widely used in social science research, is not widely utilised in legal research. Such cross-evaluation can be especially useful for international legal research given that differences in legal systems limit the extent to which findings can he compared. This study's research methods and data can be used by subsequent researchers to test their validity and reliability. The research critically examines the applicability of an international convention to public participation in major projects. It is suggested that the three pillars of the Aarhus Convention should be viewed as progressive layers creating a pyramid of participation. The Effective Major Project Public Participation Model advocates providing basic legal requirements that focus on providing good information, followed by appropriate participation and access to independent review, while recognising the need for participant goodwill and voluntary guidelines. This model is supported by a framework, detailing key participation steps and considerations along with a matrix of preferable participation options for major projects.