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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ItemSecurity and liberty : Australia's counter-terrorism laws and freedom of expression( 2008)The legal subject areas covered by this thesis are international human rights law, Australian constitutional law and Australian federal criminal law. The thesis examines four selected provisions of the Commonwealth Criminal Code against the standards set by art 19 of the International Covenant on Civil and Political Rights (`ICCPR') to determine whether they breach Australia's international obligations to protect the right to freedom of expression. The four provisions are selected on the basis that they are identified as counter-terrorism laws that clearly affect the right to freedom of expression as defined in international law, and were controversial when they were enacted. The provisions are analysed carefully to identify their impact on freedom of expression. Article 19 is selected as the standard for the measurement of the effects on freedom of expression by the provisions because the ICCPR is the most prominent human rights covenant that Australia is a party to. The ICCPR has not, however, been fully implemented at federal level in Australia as yet. In particular, art 19 has not been expressly implemented at all. The result is that that Australia's compliance with art 19 is haphazard and dependent upon Australia's domestic laws (the Constitution and statutory mechanisms)confining the restriction of the right to freedom of expression within the boundary permitted by art 19(3), which sets out a limited basis for the governmental restriction of the freedom. Accordingly, the protection's for human rights established by Australian domestic law, particularly the implied constitutional freedom of expression on political and governmental matters, are examined to see whether they restrain the provisions from infringing article 19. The thesis concludes that all of the four provisions do breach article 19, notwithstanding the operation of these domestic legal protections, for identified reasons. The thesis suggests amendments to the provisions to avoid this effect, as well as general law reform measures that would strengthen the protection of all human rights in Australia, including freedom of expression.
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ItemCompensation for compulsory acquisition in Victoria( 1974)This thesis explores in some detail the law of compensation for compulsory acquisition in the State of Victoria. An historical survey Is undertaken in Chapter One of Victorian legislation to give the background to and an understanding of the current legislative provisions. These provisions are analysed. Chapter two discusses the relevant case law while chapter three shows the actual practice of a sampling of acquiring authorities in the State of Victoria. Chapter four branches out and takes a quick survey of the legislation in several other jurisdictions. Chapter five pinpoints the major areas of concern and makes some recommendations for improvements in the law.
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ItemThe Commonwealth Industrial Court, 1956-1973( 1974)The issue of separation of powers in the Australian Federation has been one that bas occupied the High Court since its inception. Despite this it was not until 1956 that the Court squarely faced the question of whether or not it was constitutionally permissible to combine in the Commonwealth Court of Conciliation and Arbitration both judicial end non judicial power. In deciding the question in the negative the High Court made necessary the establishment of the Commonwealth Industrial Court.
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ItemAustralian interstate rivers : legal rights and administration( 1971)This thesis analyses the legal and administrative problems which arise in regulating Australian rivers that flaw along or across State boundaries. It commences by describing some practical difficulties that have occurred in recent years. It then ascertains the legal rights of the Commonwealth, the various States and private individuals to the use, flow or control of interstate rivers. In the light of the existing law, it points to weaknesses in the present administrative arrangements for reconciling. inter-government conflicts in water resources management and suggests an entirely new system that might be implemented.
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ItemThe recovery of mistaken payments( 1970)The aim of this dissertation is to provide a survey and analysis of the occasions upon which payments made by mistake may be recovered. The dissertation is divided into four parts : Part I deals with the historical foundations and the philosophical implications of the action, money had and received, which is commonly employed to recover mistaken payments. The "gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." This then is the broad theme or general criterion that I have tried to bear in mind and introduce throughout this dissertation : is the defendant, in the circumstances, obliged by the ties of natural justice and equity to make restitution? Part II deals with the recovery of money paid under mistake of fact. More specific criteria need to be formulated than that already given in order to ascertain when recovery will be allowed. A test based upon fundamentality of error is posited. Part III deals with the recovery of payments made under mistake of law, after discussing briefly the distinction between mistakes of law and of fact. Since payments made voluntarily under mistake of law cannot, as a rule, be recovered, it is necessary to investigate when a payment may be termed "voluntary". Exceptions to the general rule both at law and in equity are considered. Part IV sets out limitations, qualifications, and defences to actions for the recovery of mistaken payments. Throughout this dissertation I have referred in the main to English and Australian decisions; but I have also drawn on those of other Commonwealth countries. Occasional reference has been made to American law which, as revealed in the pages of the American Law Institute's Restatement of the Law of Restitution, provides an interesting contrast with our local experience and perhaps predicts its destiny. The law is stated as on 31st May, 1970.
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ItemThe law of theft in Victoria( 1967)My theme in this thesis is the contention that the substantive law of theft in Victoria is in an unsatisfactory condition and urgently in need of fundamental and comprehensive reform; and that this is so principally for the following two reasons. Firstly, concepts and rules framed in the early English common law for a relatively primitive society and inadequate for the complex framework and activities of the modern occupationally diversified economy still form the basis of much of the present law of theft. Rigid and circumscribed or artificial and fictional uses, in the law of larceny, of the concept of possession,-when reference should be to modern concepts of ownership of property interests-and of the requirement of trespass, -when reference should be to modern concepts of misappropriation- are examples of this. A legal theory framed only for tangibles has proved incapable of facile and useful adaptation to intangibles. Secondly, the history of the law of theft has been marked by piecemeal, ad hoc improvisation, whether by judiciary or legislature, in the successive creation of new offences, or attempted gap-filling in or between old offences, as each new exigency of theory arose. This has led to a confusing multiplicity of authoritatively distinct, though sometimes overlapping, offences-all within the general sphere of theft. It resembles the planting of fruit trees too close together, as in a thicket where none thrived, though one healthy tree, if planted alone, would have done. In such an atmosphere the law has often lost touch with the realities of everyday life. In certain important respects the position is substantially the same in Victoria today. In the pages which follow I shall endeavour to substantiate my contention by a critical examination of the law and its history, with particular reference to certain fundamental problems, and shall finally discuss, in the light of that examination, the sort of reform which seems to be indicated.
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ItemAustralian contemporary art and the blindness of copyright law : a neo-romantic view( 2003)This paper explores the blindness of copyright to Australian contemporary art. Firstly, by reviewing the historical development of the term `artistic work' found in the Copyright Act 1968 (Cth) and its meaning in contemporary case law. Then, by examining what a definition of art might be through empirical research with artists and a review of current artistic practices in Australia. It concludes with a model for reform of the definition of `artistic work' that is based on a neo-romantic authorship approach to copyright. Historically, `art copyright' was a true artist's right advocated by artists, unlike literary copyright, which was advocated by publishers. During the 19th century, art copyright accommodated artistic practices, particularly when it moved from, a law about facsimile, mechanical reproduction technologies to a law about works of art. It took an expansive, authorship approach to a broad range of artistic expression. However, legislative reform through the 20th century confined the definition of `artistic work' to 19th century art techniques and objects by using exhaustive terminology in copyright law. This undermined the legal value of the intellectual processes undertaken by artists in the creation of artistic material. The review of the case law shows judicial determinations, among different categories of `artistic work', are inconsistent. There are some indications that judicial applications of aesthetic judgements continue to cloud the legal concept of art, notwithstanding a policy that asserted that aesthetic determinations were to be avoided. Together, this means that copyright law now operates to exclude much contemporary art. The research with artists suggests a more fluid, open, inclusive model of art copyright that both returns the focus of copyright back to the author, and avoids aesthetic judgements. The artists outlined at least four objectives that could be achieved by reform to the category of `artistic work' and associated terms `material form' and `originality'. Artists seek recognition and status through copyright law. Artists require some control over copying their work particularly where the copying is for commercial purposes. Artists seek the right to be acknowledged as authors of a work of art, and to control the integrity of the work. Thus, a broader view of art than that currently adopted in Australian copyright law is required to accommodate contemporary art practices. Consequently, a unique model is proposed that retains the concept of `artistic work' on historical grounds but also because it preserves status for artists. It provides an open, technology-neutral system for the assessment of art, devoid of aesthetic assessments through the use of guidelines, which are based on the research with artists to assist with determinations of what is `artistic'. The following revised legislative definition of `artistic work' is proposed: artistic work includes a painting, sculpture, drawing, print, photograph, work of architecture, work of craftsmanship or other work of art but does not include a circuit layout within the meaning of the Circuits Layouts Act 1989.