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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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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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.