Melbourne Law School - Theses
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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.
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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.
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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.
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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.
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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.
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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.
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ItemThe challenge procedure under the World Trade Organisation agreement on government procurement : a model for Australia( 1998)The Commonwealth government is considering acceding to the World Trade Organisation Agreement on Government Procurement (AGP). The purpose of the AGP is to liberalise government procurement amongst member countries. Pursuant to Art. XX of the AGP, it is a requirement for a member country to have a procedure whereby suppliers can challenge government procurement decisions. A review of the existing mechanisms under Australian law for challenging procurement can be challenged. I believe that none of the existing measures are sufficient to meet the requirements of Art. XX. Accordingly, I suggest adopting a new challenge procedure, with any challenge to be heard by a new administrative body. This challenge procedure can cover either only AGP related procurement, or all Commonwealth government procurement. Further, whereas the challenge procedure can be limited to only the requirements of Art. XX, I recommend including other procedural points to make for a better procedure. Accordingly, recommendations are made for both a challenge procedure that meets the minimum requirement of the AGP and a preferred procedure.
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ItemThe place of Barnes v Addy in modern Australian commercial law( 2004)Outline of Argument: This thesis describes two equitable causes of action: 1. the action for culpable* receipt of property applied in breach of fiduciary duty; and 2. the action for culpable assistance in breach of fiduciary duty. The paper is particularly concerned with the role of those two actions in Australian commercial law. The objective of the work is positive, not normative. It aims to describe the existence and operation of each of the actions, and the remedies available when a plaintiff successfully proves them. It adds to our understanding of the Australian law by identifying and explaining the relevant and binding authorities, mapping a path through the thicket of conflicting cases which presently plague practitioners. Part one of the paper introduces the argument. Part two briefly describes the legal wrongs to which the actions can respond. Part three sets out the causes of action at length. First, it describes the relationship between the actions and the wider realm of legal responses to wrongs involving fiduciary duties, particularly those in property and unjust enrichment. It then goes on to examine the constituent elements of each cause of action, and analyse their recent evolution. Part four of the paper sents out the remedies which a plainriff can seek. As the actions and the remedies which respond to them are equitable, the courts have a wide-ranging discretion in deciding whether, and how to apply the available remedies. The final section of part four examines the existence of that discretion and ezplains some of the factors relevant to its exercise. The thesis concludes that the two causes of action are powerful, flexible equitable actions which remain extremely relevant to modern Australian commercial law.
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ItemA changing of the guard: a critique of the federal enforcement agency since work choices( 2009)“In the past year, we moved from being a traditional time and wages inspectorate, and repositioned Workplace Inspectors as fearless, independent, effective protectors of workplace rights, not afraid to use the full range of powers available to them, including using the courts for penalties or deterrence.”1 Soon after the Howard Government announced its industrial relations policy in 2005, concerns were raised that the ‘deregulation’2 of workplace relations brought about by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices)3 would lead to exploitation of employees.4 In an attempt to silence the unions and reassure the public in respect of the new laws, the federal government raised the profile of the federal enforcement agency. Amongst other things, it changed the agency’s institutional structure, boosted its funding and strengthened its prosecution policy. The then Minister for Employment and Workplace Relations commented at the time that the revitalized inspectorate establishers ‘the most significant industrial compliance and enforcement regime ever introduced by an Australian government’.5 In addition to the changed emphasis on enforcement, as a result of Work Choices, State regulatory enforcement bodies were sidelined, and the powers of the Australian Industrial Relations commission (AIRC) significantly curbed.6 There was also a further fall in unionization.7 Together, this has meant that, in practice, the federal inspectorate is now the main enforcement body for a significant majority of employers and employees in all States and Territories. While State enforcement agencies are still in operation and the State industrial tribunals continue to largely have the same powers to conciliate and arbitrate, at least 75% of the workforce now fall within the federal system of regulation.8 At the same time, the range of investigation and prosecution responsibilities significantly broadened under Work Choices. The inspectorate was no longer solely concerned with the enforcement of minimum labour standards. Rather, it was charged with the responsibility of ensuring that the burgeoning regime of civil remedy provisions under the Workplace Relations Act 1996 (Cth) (WR Act), the Workplace Relations Regulations 2006 (Cth) (WR Regulations) and the Independent Contractors Act 2006 (Cth), were complied with and enforced. While the Pre-Reform Act had some civil penalty provisions, their number substantially increased under Work Choices, in no small part due to the prescriptive and complex amendments brought about by Work Choices. The increased funding and subsequent rise in prosecutions, combined with the heated debate surrounding Work Choices, a wave of advertising, 9 and the controversial ‘use of the federal enforcement agency to “fire fight” media reports of exploitation’,10 also raised the profile of the federal inspectorate in the post-Work Choices period. In comparison, the ‘traditional time and wages inspectorate’, as it is described by the Workplace Ombudsman in the opening quote to this thesis, was largely perceived as being ineffective and maintained a relatively low profile. In the earlier years of operation, resources were so scarce and penalties so low that investigation and prosecution of miscreant employers was perceived as having little deterrent effect. While legislative deficiencies were slowly rectified and penalties significantly increased, the weak persuasive compliance approach – which dominated enforcement strategies in the pre-Work Choices era – was seen to implicitly condone employer non-compliance.11 It is clear from this summary that the role of the federal enforcement agency has changed since Work Choices. It is not entirely apparent, however, whether inspectors have been positively ‘repositioned’ to the extent suggested by the Workplace Ombudsman in the opening quote – this thesis will explore this question in the context of the shifting legislative and political landscape since Work Choices. (From Introduction)
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ItemThe Mental Health Act 1986: the end of informal detention of young persons within the Victorian psychiatric system?( 1997)This paper reviews the level of legal protection provided to young persons who require psychiatric treatment in Victoria, and considers the treatment, admission and detention options currently available to young persons and their families - voluntary, informal and involuntary - through use of a fictitious patient, Dale, and explores the ethical and legal dilemmas each option presents. The absence of statutory provisions relating to the capacity of young persons to consent to, or refuse medical treatment in Victoria, necessitates a review of the common law and an appraisal of statutory modification of the common law in other Australian jurisdictions, and suggests that there remains some uncertainty as to a young person's ability to refuse treatment, despite a general acceptance that in many situations young persons have capacity to make informed decisions. The paper concludes that the failure of the Mental Health Act 1986 (Vic) to acknowledge that some young persons have the capacity to make informed decisions regarding their mental health needs, has relegated young persons, admitted informally on the consent of a parent, to a position of considerable disadvantage in that they are denied the safeguards of the Mental Health Act, being unentitled to independent review of their detention. Amendment of the Mental Health Act is proposed, the purpose of which is the avoidance of informal status for young persons, ensuring that the only consent which is relevant, when considering involuntary status, is that of the person, and not that of a parent or guardian.