Melbourne Law School - Theses

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    Sex work as work : labour regulation in the legal sex industry in Victoria
    Murray, Kristen ( 2001-02)
    Prostitution occupies a significant place in academic research. It has been analysed from a range of disciplines including sociology and anthropology, women’s studies, criminology and law, and medicine and health services. Much of the recent scholarship in Australia concerning prostitution has focussed on the relationship between sex work and sexually transmissable diseases, and on the decriminalisation of prostitution. Despite the considerable number of studies into prostitution, there has been only limited consideration in Australia of prostitution as a form of waged labour. Some feminist theorists, writing from an historical perspective, have examined the concepts of sex and work and the way in which these are reproduced within the practice of prostitution.
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    Time and the dimensions of substantiality: analysis of temporal market definition issues and the substantial lessening of competition standard
    Leuner, Tom ( 2007)
    There is a lack of guidance on the underlying requirements of the substantial lessening of competition legal standard. This paper seeks to develop the analytical basis for such guidance. It works from the premise that such guidance would lead to more consistent decision-making and provide a clear framework for many aspects of market definition and competition analysis. The timeframe for assessing substitution possibilities is one area that is particularly vague. It is argued that existing approaches to timeframes are flawed, as they fail to focus on the fundamental requirements of the substantial lessening of competition standard. The paper advocates a new approach derived from an analysis of the duration requirement of substantiality - the requirement that competition effects have a certain duration. The paper then analyses factors other than duration that may also affect the analysis of substantiality. It is argued that there are only three dimensions of substantiality in the substantial lessening of competition standard: duration, size of the effect and probability. Other possible dimensions, such as the size of the industry, appear to be irrelevant. Finally, the paper examines how the thresholds for the three dimensions interact and vary, arguing that there must be some capacity for trade-off between the thresholds.
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    Automating the internet: the law of electronic commerce, contracts and autonomous software agents: regulation of Agent-mediated online contracting: enforceability, liability and risk allocation
    Connors, Grania ( 2002)
    This thesis enquires into the regulation of online contracts formed by autonomous, artificially intelligent software programs, called 'Agents'. It provides an overview of the current state of the law as applied to Agents that negotiate and transact online. Agent transactions are fundamentally different from other computerised transactions, as Agent actions are autonomous, proactive and informed by their ‘intelligence’ and ‘experience’. This paper focuses on three specific areas: (a) the extent to which Agent-generated contracts are, and should be, enforceable; (b) the liability of parties involved in Agent transactions; and (c) the manner in which risk is, and should be, allocated in respect of errors involved in the use of contracting Agents. In exploring these key areas, this thesis considers whether or not the current law adequately deals with Agent-mediated contracts. Areas in which the law fails to satisfactorily resolve issues of enforceability, liability and risk allocation are highlighted, and modifications and reform necessary to achieve such resolution are suggested. This thesis commences with a review of the technical aspects of Agent software, and identifies characteristics that differentiate Agents from other software. We then examine legal doctrine that may be invoked, in current or modified form, to govern Agent contracting activity. Principles of contract law, agency law, and legislative schemes are analysed to ascertain the extent to which they apply to Agent-mediated contracts. In evaluating the operation of contract law, principal-agent law and legislative initiatives, the benchmark against which proposed methods of regulating Agents are measured is the extent to which a particular approach facilitates electronic comerce by providing a strong legal infrastructure. In summary, this thesis: (a) defines and characterises software Agents and discusses e-commerce scenarios in which Agents are, and could be, utilised; (b) reviews principles of contract and agency law, as well as e-commerce legislation, analysing their application to online Agent contracting activity; (c) identifies areas where the law fails to adequately govern Agent-mediated contracts; and (d) suggests ways in which the law may more effectively regulate this new sphere of contracting activity.
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    A review of the federal investigatory powers of the Federal Commissioner of Taxation under sections 263 and 264 of the Income Tax Assessment Act 1936: a critical evaluation of the balance struck by the courts between the Commissioner's access powers and the rights of the individual
    Sles, Lisa ( 2001)
    Section 264 of the Income Tax Assessment Act 1936 provides the Commissioner of Taxation with the power to seek information and documents. Section 263 provides the Commissioner with power to access premises. The present Commissioner has demonstrated a willingness to once again test the limits of section 264 before the Courts. The purpose of this paper is to examine where the balance of judicial authority has placed the boundaries on section 263 and more particularly 264 and whether any movements in those boundaries can be justified given the policies underlying section 264 and individual rights (such as the common law right of a client to legal professional privilege) or whether the decisions in respect of sections 264 and 263 are inconsistent with the approach of the Courts to investigatory powers in other contexts. In this context the paper examines a number of specific issues in respect of sections 264 and 263 including in particular the interaction between sections 263 and 264 and legal professional privilege. Until recently it had been judicially accepted that section 264 does not abrogate legal professional privilege. However in recent times the Commissioner has sought to challenge the scope of legal professional privilege in the context of section 264. The paper will evaluate recent decisions which suggest that section 264 abrogates legal professional privilege.
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    Employment protection of casual employees
    THAM, JOO-CHEONG ( 2003)
    Summary of Argument: This paper aims to make a contribution to the literature by examining the employment protection of workers characterised by the Australian Bureau of Statistics as casual employees (' ABS casual employees'). In undertaking this examination, this paper seeks to compare the employment protection of ABS casual employees with that available to other employees. The examination commences by discussing the key approaches that courts and industrial tribunals have taken in determining whether a worker is a casual employee under a particular industrial instrument. It then analyses the employment protection of ABS casual employees in the following areas: • protection against unfair dismissal; • entitlement to notice at common law and statute; and • protection in the event of redundancies. It concludes that the employment protection of ABS casual employees is generally inferior to that available to other employees with a sub-group of such employees, namely, those engaged pursuant to a series of distinct contracts enjoying even more slender employment protection.
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    Towards a binding international human rights regime for transnational corporations
    Martin, Shanta ( 2003)
    Since its elaboration in the aftermath of the Second World War, international human rights law has remained primarily concerned with the relationship between the State and the individual; in particular, the obligations that the State owes to individuals (and peoples) and the legal rights that each individual may claim ‘by virtue of being a human being’. Under international human rights law, the State is primarily responsible for upholding and implementing the full diversity of human rights. At the national level, the State is required, as part of its international duties, to ensure that private entities within its jurisdiction do not violate the rights that the State is obligated to protect. Where private entities do violate those human rights, the State has a duty to make available means of redress for victims who have had their rights transgressed. Individuals are therefore entitled to make claims at the national level against those private entities that violate their rights. Where the State fails to protect human rights, including by failing to provide means of redress for private entity violation, it is said to be in breach of its international duties. The rights and duties just outlined constitute the ‘classical approach’ to international human rights law, whereby only the State is obligated to respect, ensure and protect the human rights of individuals. This approach to international human rights law contemplates that the State has international duties that require it to impose obligations on private entities not to violate human rights. Thus the obligations of private entities are derived from international law, but are not imposed directly by international law. (From Introduction)
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    Drafting enforceable limitations of liability in construction contracts for major projects
    Cole, John C. ( 2002)
    Engineering and construction contractors working on large industrial plants (each a "Contractor" or, collectively, "Contractors") employ various strategies to define, limit and manage risks associated with their business activities. The cornerstone of any successful risk management philosophy must be excellence in the performance of the Contractor's work on each construction project (each a "Project"). When a Contractor meets or exceeds its customers' expectations, there will usually be minimal risk associated with the work. Given the inherent risk in any Project, Contractors also rely heavily on legal risk management strategies. Many Contractors manage risk through corporate architecture, using different operating companies to conduct their various business activities with the aim of limiting their liability to the assets of the corresponding operating company in the event of a catastrophic loss. This device requires great care in implementation, which is beyond the scope of this paper. The primary legal strategy for the managem.ent of risk utilised by Contractors, and the substance of this paper, is the formation of contracts with customers and major subcontractors and suppliers, including the interplay between such contractual provisions and corresponding insurance protection. This paper focuses on a Contractor's most significant exposures to financial liability in the context of contract formation and considers how a Contractor can minimise such exposures through carefully drafted provisions on limitations of liability, insurance and indemnities. In discussing the reasoning behind such provisions, the paper examines how many of the standard form construction contracts fail to meet the commercial objectives of a Contractor seeking to actively manage its risk. The paper also considers the enforceability of such provisions in the light of recent case law. It does not address other important issues such as regulatory risks and payment risks. This paper is written from the perspective of a Contractor managing risks through contract formation and insurance. (From Introduction)
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    Superannuation: a public trust
    McAlister, Pamela ( 2002)
    Superannuation funds in Australia were originally established in an occupational environment and administered as private trusts. Superannuation funds are also collective investment schemes and, as such, can have commercial overtones. This thesis demonstrates how the judiciary and the government have both strained and extended private trust law in order to accommodate the distinctive features of the superannuation trust. Chapter 2 examines some of the tensions with traditional trust law by undertaking a survey of case law dealing with disability benefits. A detailed analysis of the statutory scheme contained in the superannuation legislation is undertaken in chapter 3. Chapter 4 will examine the impact of imposing 'merits review' - an administrative law mechanism - on private trustees. These developments suggest that superannuation trustees perform a public function. Yet the private form and source of superannuation benefits indicate that it is inappropriate to simply replace trust law standards with administrative law standards, unless it can be said that superannuation trustees now operate in the public domain. This question is explored in chapter 5 and analogies are drawn with the more public charitable trust. It is concluded that both the charitable trust and the superannuation trust operate within a hybrid 'public service' sector. A unique public model must therefore be formulated. Chapters 6 and 7 propose the specific features of the hybrid public model for superannuation trusts. Modifications to the current legal regime are identified in order to bolster the tentative trend in this direction. It is submitted that this public model offers a solution to the dilemmas currently encountered in conceiving a juristic framework for the modern superannuation trust in Australia.
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    Protecting compilations: copyright is not the right regime
    Owen, Jennifer Anne ( 2000)
    The thesis submits that copyright law is not the right regime to protect all compilations, particularly compilations that are collections of facts or non-copyright protected materials (‘factual compilations’) and especially those that are comprehensive and commonplace in their arrangement. It looks at what a compilation is and how the term 'compilation' has expanded over time. It looks at the justifications for protecting all compilations, especially factual compilations. It looks at the copyright protection of compilations and then discusses the problems with such copyright protection. It examines the inconsistency in the judicial decisions in Australia, the uncertainty of whether or not Australia will follow Feist Publications, Inc v Rural Telephone Service Co Inc and why copyright is not the right regime to protect all compilations. It briefly looks at the alternative means of protection available in Australia and the restrictions in their use. It then examines the proposals and solutions other countries have, in respect of protecting compilations, as well as proposals Australia has raised for protecting compilations. Finally, it suggests a solution in the form of a new regime. Currently copyright law leaves some compilation owners, particularly owners of factual compilations, uncertain whether the time, effort and expense in making their compilations will be adequately protected, or even protected at all, against unauthorised copying. This thesis suggests that protection of all compilations is justified and requires both the layout and the contents, so far as another should be required to go out and collect the contents themselves, of compilations to be protected. Compilations are collections of materials. Compilations can be distinguished from other types of literary works. The contents of many compilations do not originate from the author of the compilation whereas the contents of other literary works do originate from the author of the work. Unlike other literary works, much of the time and effort involved in making a compilation is in the research, collection and verification of the materials encompassed within the compilation rather than in the transcription or expression of the compilation. Copyright is meant to protect the expression rather than the facts behind the expression. In the ninety or so years that compilations have formed a part of the definition of a literary work the size and value of compilations have materially increased. Electronic compilations have highlighted the problems with copyright law. As a result of the inconsistent case law, doubt arises as to whether or not copyright protection is available for factual compilations. An examination of Anglo-Australian cases demonstrates the inconsistencies. There is uncertainty whether Australian law will be influenced by Feist which held that only the selection and arrangement of directories, and other fact-based works, that possessed some creativity could be protected by copyright. If Australia were to be influenced by that decision then many factual compilations would not be adequately protected, or even protected at all, by copyright. Contract law and the law of confidential information do provide protection for compilations but only when there is a contractual or fiduciary like relationship between the owner and the other party. The problem of finding the appropriate protection for all compilations is not confined to Australia. Other countries have introduced, or are trying to introduce, new regimes to provide protection for compilations. The present uncertainty and the current distortion of copyright should be removed and this thesis proposes a new regime which protects the investment of owners of compilations from others who, without permission, appropriate for their own commercial benefit the results of that investment. Such a new regime would protect the contents of compilations to the extent that others, for commercial purposes, would need to go to the original sources of information or seek a licence from the owner.
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    Implications of canon law for church organisations operating in Australia
    Date, John E. ( 2008)
    In addition to the civil laws which are relevant to the operation of Catholic schools and hospitals in Australia, the laws of the Church itself, known as canon law, must also be taken into account. Canon law is derived from a formal code promulgated in 1983, and from canonical jurisprudence which has evolved over many years. The thesis examines that part of the code which deals with the need to safeguard and protect Church property, sometimes referred to as ecclesiastical goods. Church property comprises such tangible assets as are owned by public juridic persons. 'Public juridic persons' are recognised canonical statutory bodies within the Church and they include all dioceses throughout the world, all parishes, all religious institutes and the administrative body of the Church itself, known as the Holy See. Book V of the code sets out several important requirements for the administration of Church property, one of which is that ownership of Church property should be 'protected by civilly valid methods'. This has been interpreted to mean that trading entities such as schools and hospitals should be incorporated as civil legal entities, separate from the canonical public juridic person that sponsored them. Incorporation also happens to be a useful corporate structure in the civil sense because it helps to protect the parent from liability for the torts and contractual obligations of the subsidiary. The code defers to civil law in most respects, but only to the extent that the civil laws are not contrary to canon law. It is in the area of the civil incorporation of a Catholic school or hospital that the two legal systems overlap. The canon lawyers believe that an incorporated subsidiary is still part of the totality of the public juridic person, and that consequently the assets of the subsidiary are owned in canon law as Church property, by the public juridic person. As a result, the canonists suggest that if a school or hospital does become separately incorporated, the parent should reserve sufficient powers to itself to be able to fulfil its canonical obligations to safeguard and protect such Church property as may be involved. The thesis points out that incorporation per se does not necessarily guarantee that the Church property is properly protected. In some circumstances a civil court may ignore the separate entity doctrine and pierce the corporate veil. Therefolre the corporate charter of the operating entity must be drafted in such a way as to afford the parent a sufficient degree of control to fulfil its canonical obligations, while at the same time endeavouring to ensure that there can be no interference from the civil courts.