Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 6 of 6
-
ItemCrypto-Financial Assets in a DLT-Based Market Infrastructure: Legal Principles of Ownership and Obligation( 2019)Decentralised ledger technology (‘DLT’) first emerged in late 2008 and has its origins in the ‘blockchain’ technology designed to prevent ‘double spending’ within the Bitcoin cryptocurrency network. Whilst cryptocurrencies, in themselves, remain controversial, there has been a general recognition amongst the major commercial banks, central banks, and policymakers, that DLT and smart contracts may well improve efficiency in financial accounting, settlement, and other post-trade services. Although DLT is still in its infancy, with many authorities unwilling to stifle innovation by premature regulatory interference, some stakeholders have recognised that regulatory ‘sandboxes’ would, nonetheless, be a useful tool to overcome any identified issues, and help keep regulations and legislation up to date with change. This thesis analyses the private law implications and consequences, predominantly in the English laws of property and obligations, of adopting DLT at three levels of the financial markets infrastructure by reference to live case studies: (i) by the issuer, thereby creating a direct link between issuers and investors (the LuxDeco and Overstock securities); (ii) by a top-tier intermediary, such as a settlement system or central securities depository (the Australian Stock Exchange); (iii) by lower-tier securities custodians inter se (Deutsche Börse). The legal analysis is informed by a technical understanding and explication of the code underpinning the Bitcoin and Ethereum networks, the current state of the markets in native cryptoassets, and developments in the UK's FCA regulatory sandbox.
-
ItemWhistleblower Laws: the other employment law( 2018)While there has been a considerable amount of research and writing on enhancing whistleblower laws to encourage whistleblowing and protect whistleblowers, little has been written on these laws’ impact on employers’ ability to manage employees. This paper, first, outlines how whistleblower laws impose restrictions and duties on employers dealing with employees’ alleged misconduct. Second, it critically evaluates these restrictions and duties, and advocates for changes. It argues for reforms to some public sector whistleblower laws to enable employers to discipline employees for making deliberately false and misleading disclosures. More importantly, however, it argues that requirements on employers in public sector whistleblower laws to investigate employee disclosures inappropriately interfere with employers’ ability to respond to allegations of employee misconduct. These requirements force employers to go through an ‘investigation’ process where other forms of management action are preferable; may discourage employees reporting wrongdoing; and impose substantial administrative costs. Alternatives models are considered.
-
ItemShould physical features discrimination be prohibited?( 2019)This paper commences by outlining a framework for determining when the moral underpinnings of discrimination laws on ‘traditional grounds’ (such as race, sex, disability and age) can be applied to justify further prohibited grounds of discrimination. Applying this framework, and drawing on the psychological literature and experience in the only Australian jurisdictions with physical features discrimination laws (Victoria and the Australian Capital Territory), it considers whether physical features discrimination should be prohibited. It argues, first, for prohibiting discrimination on the ground of physical features that are ‘immutable’, in the sense they are not chosen and are difficult to change. Second, it argues against prohibiting discrimination on the ground of chosen physical features generally. Third, it argues for also prohibiting discrimination on the ground of physical features that represent attributes already protected by discrimination laws.
-
ItemA Soldier By Any Other Name: a reappraisal of the "Citizen in Uniform' in light Part IIIAAA of the Defence Act 1903 (Cth)( 2019)Use of the military domestically, whilst aiding the civil authority, has been subject to sporadic commentary due to its limited use in Australia. With the statutory reforms in 2019, it is likely that the Australian Defence Force will increasingly be used. This thesis canvasses the citizen in uniform doctrine, and asks whether it is still appropriate in light of the powers and circumstances surrounding Part IIIAAA of the Defence Act 1903. Finding that it is no longer appropriate, and that an extra-legal status should exist, the thesis then addresses the question of jurisdiction for prosecutions.
-
ItemNo Preview AvailableLiability for profits in breach of contract( 2015)Accounting for a profit in breach of contract is directed to the purpose of contractual damages. The purpose of contractual damages is to obtain performance of the parties’ obligations and is reflected in the awards that the courts make. This means that remedies for breach of contract are broader than mere compensation. Yet in many cases the courts strain logic by attempting to equate a gain with a loss under the rubric of compensation. A fresh approach that is attracting judicial support is to recognise that the performance interest forms the essence of contractual damages. Once this is recognised, there should be an open acceptance of compensation for loss and accounting for gain. The reach of accounting for profit is comprehensively defined by the performance interest and only operates once compensatory damages are inadequate. This standard can form part of the law of Australia as it can in England.
-
ItemThe use and misuse of foreign materials by the Indonesian Constitutional Court: a study of constitutional court decisions 2003-2008( 2010)This thesis examines the Indonesian Constitutional Court's (MK) use of foreign and international sources of law in constitutional adjudication. Specifically, I seek to address three questions, each of which represent the main criticisms of the practice. First, is the MK's use of foreign materials in constitutional adjudication legitimate? Or is it undemocratic and an excessive exercise of the Court's judicial authority? Second, does the MK demonstrate a sufficient level of understanding of the contextual background from which the transnational principle derives, needed to evaluate whether the transplanted principle is suitable to the Indonesian context? Third, does the MK selectively use foreign materials only when the adopted principle supports an already identified position and ignores the sources that oppose the outcome sought by the Court? On the first question, the MK derives legitimacy from its adoption of a `universalist' interpretive theory. Under this approach, all courts are assumed to be identifying and interpreting the same set of constitutional norms thus providing the theoretical basis to use foreign materials to interpret those norms. However, the adoption of principles from transnational sources of law by the MK are generally not accompanied with clear reasons that justify why the principles it selects are relevant to the Indonesian context and why those it ignores are irrelevant. As a result, the Court does not demonstrate whether it has sufficient knowledge of the context from which the transplanted law derives. A lack of contextual knowledge gives rise to the risk that the court applying the laws may do so inappropriately or even incorrectly. The lack of transparency on the manner in which the foreign materials are selected; and quantitative evidence showing that the overwhelming majority of citations, in fact, did support the MK's decisions; exposes the Court to the third criticism, that it `cheery picks' foreign materials only when a supporting principle can be found to lend legitimacy to a preferred policy position or result.