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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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.
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ItemGood corporate governance in Indonesia- where to from here?( 2001)Poor corporate practices (despite Law number 1 of 1995 concerning Limited Liability Companies), capital market and stock exchange rules, and a dismal record of law enforcement are cited by many quarters of the society as the main culprits for Indonesia's corporate ills. The issue raised by this paper is reform to Indonesia's corporations statutes; regulatory body and judicial system to establish a strong foundation for good corporate governance. This reform is only possible if one has a clear understanding of what the term `corporate governance' means; the elements of good corporate governance; the parties that play a role in creating and maintaining a good standard of corporate governance; and, most importantly, the benefits a country and its people may reap by adopting and adhering to the principles of good corporate governance. All these issued will be addressed in part II of this paper. Part III will deal with real cases arising from poor corporate practices; weak and, to a certain extent, incompetent regulatory bodies; a corporate and security registration system which fails its purpose; and judiciary which is yet to gain the respect of people it serves for its competence and independence. Part IV will be a look at the most common form of corporations currently in existence in Indonesia; their governing regulations; regulatory bodies; and how they actually operate in practice. A proposal for reform of those regulations and other related regulations; regulatory bodies; and the judicial system will be outlined in part V of this paper with part VI deals with conclusion.