Melbourne Law School - Theses
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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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ItemPublic interest in the exemption provisions of the Freedom of Information Act 1982 (cth)( 1991)There are arguably at least four situations where public interest considerations have a role in the exemption provisions in the Freedom of Information Act 1982 (Cth). Firstly, there is an argument that public interest considerations provide the basis for the presence of each of the exemption provisions in the Act as an essential public interest. Secondly, it may also be argued that some of the exemption provisions also require consideration of the public interest as a separate element in deciding whether a document ought to be exempt from disclosure. This arises from the reference in sections 33, 33A, 36, 39, 40 and 44 to `public interest'. Thirdly, assuming that public interest can be a separate element for consideration in one or more of these provisions, it can be argued that in such circumstances it looks in general terms to ensuring the well-being of the Australian community through balancing public interests which are relevant to a resolution of the tension between openness and confidentiality. However, questions arise as to the more specific function/s which public interest performs in particular exemption provisions. Fourthly, there may also be an argument that public interest considerations are reflected in the operation of exemption provisions even where the concept is not explicitly referred to.
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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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ItemMaking the polluter pay( 1991)This thesis considers the implementation of the polluter pays principle to the prosecution of offenders under the Environment Protection Act 1970 (Vic.). The history of the legislation and the mechanisms it establishes are examined. Alternative mechanisms of implementing the polluter pays principle are considered. The study is limited in the conclusions it reaches by concentrating upon prosecution, which is only one of a range of strategies available to implement the principle. Further research is needed to reach a final conclusion. However, the study reveals that a rational implementation of the principle is not possible unless the Environment Protection Authority takes an integrated approach to the available strategies, and guidelines are introduced for the imposition of penalties. It is recognized that the long-term significance of the polluter pays principle may be limited if pollution prevention approaches are successful. While pollution continues, implementation of the polluter pays principle should be sought as a fair allocation of the social costs caused by pollution.
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ItemDetention of people with AIDS( 1991)AN ANALYSIS OF QUARANTINE, ISOLATION AND OTHER MODES OF DETENTION IN AUSTRALIA FOR PEOPLE WITH THE HUMAN IMMUNE DEFICIENCY VIRUS AND THE ACQUIRED IMMUNE DEFICIENCY SYNDROME. AIDS touches us all. It has many faces and a penetrating human interface. The virus that gives us AIDS does not discriminate between its hosts. It does not divide us according to continents, race, profession, faith; by drugs or sexual expression. AIDS is our foe and ignorance its ally. Few in this country will escape its touch entirely.
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ItemForum non conveniens : issues of precedent and policy( 1991)Until 1988 the Australian cases on the doctrine of forum non conveniens had followed the English case. In particular, Australian superior courts had adopted the liberalisation of that doctrine which had taken place in England since 1974. In 1988 the High Court rejected the English liberalisation in the rather unsatisfactory decision of Oceanic Sun. However, in 1990 the High Court rectified many of the problems present in Oceanic Sun in Voth, and, although it reaffirmed the principle in Oceanic Sun, in practical terms it substantially liberalised the Australian doctrine, although not going as far as the English developments. There is now a distinctive Australian principle of forum non conveniens, which despite the inadequate reasoning leading to its adoption, has some significant practical strengths.
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ItemA feminist analysis of prostitution regulation in Victoria( 1991)The thesis provides a feminist critique of prostitution regulation in Victoria. It commences with an overview of the various theoretical approaches which may be used when addressing the problem of prostitution and identifies the system adopted in Victoria as being predominantly regulatory. The approach taken in Victoria may be identified as being based upon the morally neutral public/private distinction. However it is alleged that this distinction has several shortcomings and is an inappropriate theory from which to address the problem of prostitution. It operates in a manner which protects the rights of males and discriminates against women and prostitutes. The regulatory approach, as implemented under the Prostitution Regulation Act 1986,is then examined in some depth and its various defects are exposed. Particularly evident is that there is implicit morality in the way in which the system operates and this operates to the disadvantage of the prostitute. Claims that the system has achieved some measure of equality are examined in Chapter 4. However what is revealed is that the laws which have been enacted in terms which are gender neutral have achieved formal, rather than real, equality. And, freedom for women in sexual matters have meant that women, including prostitutes are more accessible to men. It is concluded that the regulatory approach operates in a manner which allows for the perpetuation of assumptions about prostitutes and about women. These assumptions relate to the inevitability of prostitution , the male right to sex, the double standard,the role of women and prostitutes in society, and to the whole area of prostitution in general. These assumptions combine to protect male hegemony and ensure the continuance of male dominance. When examined from a feminist perspective it is demonstrated that these assumptions are open to challenge. Once questioned it is possible to construct an approach which will pave the way for the eradication of prostitution.
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ItemThe suitability rule : a critical analysis of section 851 of the Corporations Law( 1991)A securities adviser must tailor his investment recommendations to the investment objectives, financial situation and particular needs of his client. In the United States, this has become known as the 'Suitability Rule', imposed by the National Association of Securities Dealers (NASD), the New York Stock Exchange (NYSE) and, until recently, the Securities and Exchange Commission (SEC). In Australia, we have gone further than , developing mere suitability rules. We have developed a statutory obligation under the guise of section 851 of the Corporations Law (CL), which imposes a suitability obligation on securities advisers who make recommendations to investors. However, the 'Suitability Rule' remains, in Australia at least, an amorphous concept. There have been no recorded cases to determine what are the securities adviser's duties under our suitability provision. The Suitability Sules adopted by the NASD, the SEC and the NYSE themselves differ significantly. Can the Australian Courts draw on the American experience as a guide in Australia's embryonic development of a securities advisers independent duty under our legislation? Chapter 1 of this paper will consider the relationship between the securities adviser and the investor. Chapter 2 will trace the development of the Suitability Rule in Australia and the United States. Chapter 3 will examine the rationale behind the Suitability Rule. Chapter 4 will discuss the application of the Suitability Rule and what control it has over securities advisers who make recommendations. Finally, this paper will consider whether the Suitability Rule should be redefined to further enhance investor protection.
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ItemCopyright in electronic music( 1991)Although the availability and suitability of copyright protection for computer software has been much discussed recently, there has been very little discussion of the impact of new technology on copyright protection for other subject matter. The present thesis demonstrates that, in the area of copyright in musical works, there is a need for a review of the objectives and principles of copyright protection. Electronic equipment now permits the instantaneous performance of a written musical score, or the instantaneous production of a written musical score from a performance. The information contained in a musical score can be stored as digital data in a computer, and doubts arise as to the status of such data in terms of copyright protection. The theme of the thesis is the tension between the philosophy which would confine copyright protection for musical works to reproduction of particular written or recorded representations of those works, and the philosophy which would afford copyright protection to musical works as abstract groupings of sound so that any form of exploitation of a musical work is covered by copyright. The thesis begins with a technical introduction, then proceeds to discuss the history of musical copyright, the definition of a musical work, the acts involved in reproducing a musical work, and copyright protection for musical digital information.