Melbourne Law School - Theses
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ItemNo Preview AvailableBail and legal aid in Victorian magistrates courts(University of Melbourne, 1986)
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ItemReinventing Indonesian foreign investment law : a rationale for reform(University of Melbourne, 1996)
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ItemNo Preview AvailableProtest, public order and police power : a perspective of Queensland events 1977-1979(University of Melbourne, 1980)1. Public protest was prevalent in England prior to the extension of the franchise to citizens without property or position. Such protest helped to shape the English system of constitutional government. It was not contained by an adequate public order machinery but by the implementation of the criminal law relating to treason and unlawful assembly. 2. The Australian colonies inherited the English public order machinery and criminal law. The convict environs necessitated a military-style machinery and repressive criminal laws. Public protest was tolerated but much Irish activity was seen to be seditious. 3. With the advent of the motor car, police became traffic controllers as well as keepers of the peace. Thus, in regulating public protest, police had to have regard for the smooth flow of motor traffic and the preservation of the peace. Since 1966, public protest has been an integral and effective part of the Australian political process. The Vietnam war, the Springbok Rugby tour and the export of uranium have evoked public protest which has affected the formulation of government policy. Most jurisdictions have accorded citizens the right or general privilege to demonstrate; Queensland has not. 4. In Queensland, police retained the function of issuing or refusing permits for processions, meetings and other political activities on roads and footpaths. The government rejected submissions for tighter judicial supervision of this function from 1966 to 1969. Since then, police officers appear to have been influenced by government policy while exercising that function. The abolition of an applicant's right of appeal to a magistrate from a police officer who refused a permit led to a convergence of government and police policy relating to the refusal of permits for political activities in 1977; it may have contributed to government interference with the administration of the police force. 5. Conflict between the police and citizenry ensued; in the years 1977 to 1979, 1,972 arrests were made at demonstrations. In determining charges, the Magistrates' Courts applied law which was uncertain to facts which were inevitably disputed. Recourse to the superior courts was too tardy to assist the Magistrates' Courts in the application of law. When there was recourse, no clear, indisputable resolution of questions of law was forthcoming. Such a resolution would have spared the Magistrates' Courts prolonged involvement in cases of a political nature. 6. Legislative reforms providing the right to demonstrate, the proper exercise of police discretions and the vigilance of courts are required if "law and order" is to be a reality rather than a slogan in Queensland.
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ItemAudio-visual works co-produced in Australia and Canada : conflict of policy and of copyright theory(University of Melbourne, 1992)
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ItemRepresentation and reasoning in law: legal theory in the artificial intelligence and law movement( 1996)Over the past few decades there has emerged a group of researchers who , have used computerised techniques to investigate the nature of legal reasoning. These researchers have formed what is called the 'artificial intelligence and law movement.' Members of the movement have built computer systems which automate legal reasoning, and in so doing have assumed that certain models of legal reasoning are correct. This dissertation argues that in many instances the models relied on by artificial intelligence research are no longer commonly accepted as valid by legal theoreticians. It further argues that until the artificial intelligence and law movement begins to recognise alternative legal theoretical models of reasoning, it is - unlikely to produce accurate, reliable and useful automated legal reasoning systems. The dissertation examines the four main reasoning paradigms in the artificial intelligence and law movement: deductive reasoning, analogical reasoning, inductive reasoning and sub-symbolic (neural network) reasoning. In each of these reasoning paradigms it shows that there is an extensive legal theoretical literature which is largely ignored by artificial intelligence research. It reviews the different models presented by legal theorists in each of these paradigms, in, order to show the limitations of artificial intelligence assumptions about the paradigm. The dissertation reviews a representative sample of artificial intelligence and law implementations in each of the reasoning paradigms, and assesses the type of legal theory implicitly adopted in each It argues that, generally, the models of legal reasoning adopted in each paradigm by artificial intelligence research has been formalistic, static, and mechanical. As a consequence, the implementations have been computationally tractable, but unconvincing in legal theoretical terms. The dissertation shows how alternative legal theoretical models of reasoning may be incorporated into existing artificial intelligence approaches. The dissertation concludes with an indication of how in future artificial intelligence and law research might provide useful models of legal reasoning, and how it might inform legal theory.
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ItemUnadjudicated claims to equitable interests under a constructive trust: their assessment as property under the pension assets test( 1995-07)The Social Security Act 1991 incorporates the general legal meaning of property in its definition of an asset, for the purpose of the pension means test. This creates the opportunity for pension applicants to argue that assessable assets held by them should be reduced by the amount of any equitable proprietry rights held by others in the assets. The Federal Court has held in Kintominas v Secretary, DSS and in Kidner v Secretary, DSS that equitable proprietry claims under remedial doctrines, such as under the constructive trust doctrine discussed in Baumgartner v Baumgartner are to be regarded as property even though there has been no judicial declaration of their existence, no dispute between the legal owner and the person claiming an equitabe interest, an no unconscionable abuse of title rights by the legal owner. This thesis argues that the Federal Court’s approach is not the preferable one, for three main reasons. The first relates to the changing nature of the constructive trust to a necessary element. The second is that, at a time when the constructive trust in Australia is in transition from the traditional institutional conception to a remedial paradigm along North American lines, the beneficial interest should no longer be viewed as existing independently of a judicial decree. The third argument is that, even if an equitable interest under a remedial constructive trust is accepted as existing independently of a curial declaration, it cannot be valued for the purposes of the assets test.
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ItemProbability and paternity: the utility of probability theory in the legal determination of facts in issue with particular reference to the resolution of paternity disputes( 1986-05)In this thesis it is proposed to examine the forensic application of probability to judicial or curial decision making, both in general and with particular reference to the determination of parentage such as is required in a paternity suit.
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ItemInsolvent trading under the corporations law: the amending insolvent trading legislation introduced by the Corporate Law Reform Act 1992 addresses the major inadequacies of its predecessor, but also leaves a number of issues unresolved( 1996)The Corporate Law Reform Act (1992) (Cwth) (the Act) received Royal Assent on 24 December 1992. The provisions of the Act became operative in two stages: Parts 2, 3, 6 and 7 commenced on 1 February 1993 and Parts 4 and 5 commenced on 23 June 1993. The Act introduced a new insolvent trading regime into the Corporations Law replacing s 592 and related provisions. The new regime introduced significant changes to the Corporations Law (Law). Some of the main features are; imposing on directors a duty to prevent the company from engaging in insolvent trading, implementation of new statutory defences, introduction of provisions that relate to holding companies, decriminalisation of the insolvent trading provision and civil penalty orders for contravention of 588G in the absence of dishonest intent, new criminal proceedings for contravening 588G in circumstances of dishonesty, liquidators standing to take proceedings and power given to the court to make compensation orders for liquidators and creditors. (from introduction)
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Item‘Industrial disputes’ and the jurisdiction of the federal industrial tribunal( 1993)What constitutes an 'industrial dispute' for the purposes of s. 51 (xxxv) of the Commonwealth Constitution and s. 4 of the Australian Industrial Relations Act 1988 (Cth) is crucial for the determination of union-employer relations. Ultimately the ambit of the phrase 'industrial dispute' determines those matters that may legitimately be raised by a federally registered union with an employer before the Australian Industrial Relations Commission (hereafter the federal tribunal). The central thesis advanced here is that since 1904 the High Court has employed alternating approaches to identifying an 'industrial dispute'. One approach is that an 'industrial dispute' means no more than the traditionally perceived notion of an individual employer-employee dispute. The other approach is a much broader view, in that such a dispute relates to collective employment relations. Put at its most basic level, I submit in this thesis that the jurisdiction of the federal tribunal has been shaped less by the particular words 'industrial dispute' than by the perception of the kind of employment relationship with which these words are concerned. (From introduction)