Melbourne Law School - Theses

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    Representation and reasoning in law: legal theory in the artificial intelligence and law movement
    Hunter, Daniel Ashley Douglas ( 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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    Unadjudicated claims to equitable interests under a constructive trust: their assessment as property under the pension assets test
    O'Connor, Pamela Anne ( 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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    Insolvent 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
    Coburn, Niall F. ( 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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    ‘Industrial disputes’ and the jurisdiction of the federal industrial tribunal
    Stern, Esther ( 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)
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    Fusion development between law and equity
    Hepburn, Samantha ( 1994)
    This thesis attempts to present a structured definition of the concept of fusion in a modern legal environment. It examines the forces and influences which have encouraged and shaped fusion developments and goes on to consider the manifestations of actual and potential fusions occurring in a variety of different legal and equitable doctrines. The recognition and acceptance of fusion does not necessarily signify the automatic destruction of all jurisdictional distinctions between law and equity and it is hoped that a systematic analysis of what fusion refers to and how it is evidenced within our legal infrastructure will allay this fear. Fusion is literally defined as a close union of things. The intimacy of this union is variable; it can range from a complete blending of two separate objects to a close interaction between those objects. When considering fusion in the context of the growing intimacy between the common law and equity jurisdiction, the same principles apply. There are different measures of fusion which are continually occurring between legal and equitable doctrines and not all fusion involves a complete meltdown of jurisdictional distinctions. Some fusion simply encourages a change in attitude or approach to a principle. This sort of fusion is an interactive rather than a merging fusion because it influences related doctrines instead of subsuming them. Some of the main jurisdictional difficulties encountered within a modern Judicature system are increasingly being addressed through fusion developments. Common concerns experienced by the courts include the perpetuation of doctrinal and discretionary inconsistencies between law and equity which are outdated and unnecessary and the artificial imposition of jurisdictional constraints in the application of remedy. Fusion can offer a rationalised, interactive alternative to strict jurisdictional segregation thereby providing a viable method for the resolution of these concerns. The difficulty in implementing fusion stems, however, from a lack of understanding about the nature of consequences of the concept. If fusion is constantly perceived to be an absolute merger rather than a discrete integrating process then inevitably any reference to fusion will be considered radical and unjustified. (From Introduction)
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    The status of clergy of the Anglican Church of Australia: employees or office holders?
    Phillips, Barry ( 1997)
    The acceptance of the traditional view that clergy are the holders of an office has been the subject of challenge over past years and is increasingly being challenged nowadays. In particular, there have been claims by clergy and their dependents for worker's compensation benefits, claims by clergy for wrongful or unfair dismissal and claims by third parties alleging vicarious liability on the part of the Church. Changes in technology, among other matters, have led to an increase in the number of employees who work from a home office. When the remuneration, associated fringe benefits and other entitlements received by clergy are taken into account, it appears that there is little difference between the employee working from a home office and clergy holding parish appointments. This thesis re-considers the status of clergy in the Anglican Church of Australia. There is considered first the administration of the Anglican Church of Australia. This is followed by a consideration of the concept of employment and the concept of an office. Associated with this consideration are two matters which require specific examination. The first of these is the incidence of income tax. Most clergy have income tax deducted at source in accordance with the 'pay as you earn' provisions of the relevant legislation. Yet, these provisions are applicable only to employees. The issue which arises, and which is examined, is whether by participating in this method of payment of income tax clergy are estopped from denying an employment status. It is concluded that both in law and by direction of the Commissioner of Taxation this is merely a matter of convenience and does not constitute evidence of employment status. The second of the associated issues is that of the parson's freehold. The concept of a 'living' is not part of the law or practice of the Anglican Church of Australia. Had it been so, it would have added considerable weight to the argument in favour of the status of office holder. Accordingly, the support for office holder status is weakened. A review of the common law in Australia and elsewhere leads to the conclusion that the status of office holder is still the accepted view. The employment relationship is a contractual relationship made between two parties, an employee and an employer. Therefore, there is examined the issue of who might be the employer of the clergy. The conclusion is that there is no person or body who has sufficient involvement, control or responsibility to be described correctly as an employer. Finally, there is a consideration of the source of the responsibilities and rights of clergy. The conclusion is that the traditional view of clergy as office holders has not been displaced and is still applicable to-day.
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    Negligence by corporate health care providers: vicarious liability or non-delegable duty of care?
    Madden, John F. ( 1996)
    Summary of Argument: Hospitals were formerly protected from legal liability. The Common Law is eroding this immunity. Initially this has been done by expanding the doctrine of vicarious liability, but that doctrine has been unable to cope with modern hospital relationships, which have involved the use of independent contractor doctors, who are not directly salaried by a hospital. A doctrine of non-delegable duty of a hospital has emerged, in part to cope with the liability of independent contractors of a hospital. Extensive comparisons are made by me with the laws of hospital liability in England, United States of America and Canada. A line has been presently drawn by Australian courts to exclude hospital liability where an independent contractor doctor treats a hospital patient as a private patient. I analyse and criticise this approach. I argue that there are strong arguments for the extension of the doctrine of non-delegable duty to cover the situation of all negligence which occurs within the four walls of a hospital, notwithstanding that a negligent doctor may be an independent contractor. My thesis demonstrates that the doctrine of vicarious liability has serious short-comings when applied to modern hospital relationships, and I examine these failings in comparison with the competing doctrine of non-delegable duty. I examine the rationale for the existence and expansion of non-delegable duty. Social explanations have been forthcoming from recent judicial decisions in Australia and elsewhere which justify the expansion of the doctrine, and these are fully considered by me. Independent contractor doctors form part of the community utility of a hospital and are inseparably connected with the activities of employed staff, particularly during surgery or other medical practices involving the effort of a team. There is no proper legal basis for the exclusion of hospital liability for the negligence of independent contractors, who work within a hospital.
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    Enforcement of foreign arbitral awards in Indonesia: a legal and practical analysis
    Huda, Miftahul ( 1996)
    Indonesia has ratified the 1958 New York Convention and promulgated Supreme Court Regulation No 1/1990 as its implementing regulation for the recognition and enforcement of foreign arbitral awards. In addition, Indonesia is also the party to the 1965 ICSID Convention. Therefore, foreign arbitral awards should now be enforceable, in theory at least. Yet, in practice the enforcement of foreign arbitral awards in Indonesia remains uncertain. This thesis examines legal and practical problems related to the enforcement of foreign arbitral awards in Indonesia. They include, first, uncertainty as to the application of the competence-competence principle and non-recognition of the severability principle. Secondly, uncertainty as to the legal status of the colonial laws on arbitration, in particular, the provisions of article 100 of the Reglement op de Burgerlijke Rechtsvordering (Regulation on Civil Procedure for European) which are potentially confusing and lead to ambiguity. Thirdly, and related to the first and second matters, uncertainty remains as to the availability of means of recourse against the arbitral awards and in respect of obtaining leave for enforcement. Finally, there are several unclarified matters in Supreme Court Regulation No 1/1990, in particular, the definition and criteria of "foreign arbitral awards", "commercial law" and “public policy” reservations. In addition, this thesis also analyses the academic drafts for reform of current arbitration law. These drafts deal more comprehensively with the practical implementation of arbitration agreements. They recognise the competence-competence principle, provide for the minimal involvement of court in arbitration proceedings and establish simple procedures for the enforcement of foreign arbitral awards. The drafts do, however, retain Supreme Court Regulation No 1/1990 which requires proof of the existence of a bilateral agreement, commercial matter or law and public policy to enforce foreign awards, thus maintaining long-standing problems in enforcement from a lack of definition in the rules. In addition, the problem of the status of the severability principle is not resolved in the drafts.
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    Legal avenues for protection of the work of Aboriginal artists
    GRAY, STEPHEN ( 1996)
    Summary of Argument: The aim of this paper is to consider the legal avenues by which Aboriginal artists or their communities may seek solutions to the problem of appropriation of their art. It will also consider what legislative or other changes might be introduced in order to resolve any such problems. The paper will suggest that legislative or other changes should be the product of consultation with Aboriginal artists and communities, and be clearly directed to legal problems faced by them. In particular, legal change should be as far as possible consistent with Aboriginal laws and customs existing across Australia, while not compromising basic principles of Australian intellectual property law. The attempt to impose an inflexible legislative scheme may be counter-productive. The paper will outline a proposal for legal change which, it will be submitted, is capable of accommodating a variety of Aboriginal customs and laws. The paper will consider the capacity of the Copyright Act 1968 (Cth), and of equitable doctrines of trust and breach of confidence, to resolve the problems of Aboriginal artists and communities in a manner consistent with Aboriginal law. Through an analysis of the decided cases, and through an examination of statutory and judge-made law, it will be established that the existing law is not capable adequately of meeting Aboriginal needs. In particular, the existing law is not capable of accommodating the communal nature of Aboriginal ownership of intellectual property rights in art, its lack of limitation in time, and the variety of interests which individuals or groups may possess in a work of art, or in a story or design underlying such a work. It will be suggested that it is undesirable to attempt to define the interests of Aboriginal groups or individuals in a work of art in advance. At the same time it is necessary that the law in this area be relatively workable and certain. It is possible, it will be submitted, to accommodate these two goals by adopting in relation to questions of appropriation of Aboriginal art principles similar to those adopted in relation to Aboriginal land in the Mabo decision. Such principles could, it will be submitted, be translated into practical proposals for legislative change which would be consistent with basic principles of intellectual property law, and would in addition be relatively consistent with Aboriginal customs and laws.
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    The parens patriae and wardship jurisdiction of the Family Court of Australia: its history and current status
    Coleiro, Joseph J. ( 1992)
    Before the Family Law Act 1975 (Cth) came into operation, the Supreme Court of each State exercised a complete jurisdiction over a child of a marriage. That jurisdiction included the jurisdiction conferred by the Matrimonial Causes Act 1959 - 1973 (Cth) and the state Supreme Courts' inherent parens patriae jurisdiction and wardship of court jurisdiction. With the passing of the Family Law Act 1975 (Cth), the Commonwealth Parliament did not include in that Act provisions that created a parens patriae jurisdiction and a wardship of court jurisdiction in the Family Court. Consequently, the jurisdiction over children of a marriage became fragmented between the Family Court exercising jurisdiction conferred by the Family Law Act, and the state Supreme Courts exercising their inherent parens patriae jurisdiction and wardship of court jurisdiction. This paper discusses the question whether it is a valid exercise of the Commonwealth's Marriage Power and the Matrimonial Causes Power for the Commonwealth to pass enactments creating a parens patriae jurisdiction and a wardship of court jurisdiction and vesting them in the Family Court of Australia.