Melbourne Law School - Theses

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Now showing 1 - 6 of 6
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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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    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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    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.