Melbourne Law School - Theses
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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)
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ItemEmployment protection of casual employees( 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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ItemTowards a binding international human rights regime for transnational corporations( 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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ItemThe law and transsexuals( 1982)The development of our Common Law as well as the law of most other societies has been based on certain fundamental assumptions about sex. Only two sexes exist, male and female. Everyone is classified as belonging to one or the other by anatomical sex at birth. A person's social and legal status may depend on his or her sex, which until recently was regarded as immutable. Transsexual surgery became a modern reality in 1952 when the much publicized case of Christine Jorgensen was brought to world attention. Since that time transsexuality has become both a dilemma and controversy in medicine, psychiatry and the law. There is no clear legal theory for determining how to accommodate the transsexual into our legal system. with the development in modern surgery the essential criteria for determining sex are being re examined. Although the dilemma of sex determination may initially seem far removed from the real concerns of lawyers, recent cases such as Corbett v Corbett , M.T. v J.T. and C and D3 make clear the need to re-evaluate accepted legal classification. (From Introduction)
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ItemCapital gains tax and the resources industry( 1988)In one of the most significant events in the history of government funding since the introduction of uniform taxation, the Federal Labor Treasurer, Paul Keating, announced the introduction of a Capital Gains Tax for Australia on 19 September 1985. This paper assesses the application of this new form of impost to one of the largest and most capital intensive industry sectors in Australia, the resources industry. Such an analysis must necessarily be considered in the context of the peculiar Federal and State regulatory frameworks governing the exploration and exploitation of minerals and petroleum. In particular, the following discussion will focus on the precise scope and operation of the terms 'asset' and 'property' - which together operate as the fulcrum of the capital gains tax provisions. It is the object of this paper to show that non-proprietary 'assets' are not adequately included within the ambit of the capital gains tax provisions. On the premise that property law concepts necessarily underpin the capital gains tax provisions, an examination will be conducted of the 'proprietary' nature of various mining rights, including permits, leases, licences, royalty interests and information. The potential application of capital gains tax in the resources industry turns heavily on the resolution of this 'threshold' issue. It will be seen that the capital gains tax provisions incorporated into the Income Tax Assessment Act 1936 (Cth) (the Assessment Act) do not, apart from three separate sections, address themselves specifically to the resources industry. It is this decision to deny the resources industry special consideration that has created the most widespread uncertainty and enduring resentment, particularly in view of the industry's historically preferred tax treatment. It will be submitted that specific attention must be given in the capital gains tax provisions to the wide variety of traditional mining and petroleum 'interests', rather than attempting to mould them into a definitional context with a clear cornmon law proprietary bias.
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ItemElectronic commerce on the Internet: legal issues of contracts on the World Wide Web( 1996)In the early nineties, despite the widespread knowledge of the potential uses of the Internet, many businesses and information technologists scoffed at using it as a medium for business. It was thought that the technology, capacity and critical mass would not make the Internet a suitable medium for electronic commerce. However, by the last quarter of 1994 there were over 10,000 companies offering information and services for sale over the Internet. This figure is now expected to grow to over one million businesses by the year 2000 despite the lack of clear laws governing commercial activity on the Internet. This paper is intended to investigate the issues of electronic commerce and the difficulties contracting parties face on the Internet which would not normally arise in conventional transactions. In addition, as one of the primary interest in the Internet comes from the easy and quick access to overseas markets, the paper will also consider the international aspects of Internet transactions. It is not the intention for the paper to be a comprehensive or definitive treatise on contract or international law, but rather consider the intriguing issues raised by electronic contracting in the domestic and international context. Chapter 1 is a concise introduction to the technology of the Internet and its workings to provide a background for the discussion that follows. Chapter 2 looks at the unresolved international issues that will arise out of trans-border Internet trade. Chapters 3 and 4 will then review the impact of Internet technology and how it challenged the current practices of proving the existence of contracts and the formation of contract. In chapter 5 we look at how the law deals with the specific issues of software being sold on-line and the attempts by Internet-stores to avoid statutory conditions designed to protect the consumer.
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ItemThe new Philippine mineral regime: an opportunity for investment?( 1994)A ring of fire encircles the Pacific Basin, an unstable region of earthquakes, faulting and intense volcanic activity. It stretches from the tip of South America, up through the Andes, across the Aleutians, down through Japan and the Philippines to the tip of New Zealand. To the countries in the region, this geological volatility is both a misfortune and a blessing. It was a misfortune, indeed, to the local people who lived around the slopes of the Mt. Pinatubo volcano in the Philippines when it erupted in 1991. Their homes and farms were buried under metres of volcanic ash and it will be many years before they can return to the area to live. Yet when viewed from a broader perspective this geological instability has been a real boon to the Philippines, not merely because of the substantial export industry it has generated in souvenirs made out of volcanic ash, but because it is this same instability which has made the region fertile and resource rich. Over millions of years the tremendous pressures from within the earth have forced hot, mineral rich fluids up through faults created by earthquakes and faulting in the sub-surface rock. In that rock the minerals have cooled and concentrated to become mineral deposits, lying hidden underground until erosion reveals their presence to the human eye. Many of the world's major mineral deposits have been discovered in this region, such as the spectacular Hishikari deposit in Southern Japan, Erstberg in Indonesia and Bougainville in Papua New Guinea. The impact that this mineral endowment has had on the economic development of some of the countries in the region has been enormous. In PNG, for example, minerals make up more than 80% of the country's export income and generate revenue of over Aus$350 Million per annum. In Australia, they make up around 40% of export income, generating revenue of around Aus$30 Billion per annum. The significance of such revenue flows, particularly to developing countries, can not be underestimated. However a country's high geological potential will remain just that, unrealised potential, unless the country has access to sufficient funds to explore for new mineral deposits and to develop them when they are found. Few developing countries have sufficient domestic capital available to fund mineral development and for this reason many countries have in recent years been competing to attract foreign investment to assist in the development of their mineral industries. Vietnam, Laos, India, Peru, Argentina, Chile and others have all been taking steps to promote foreign investment by removing impediments to foreign investment, reducing government take and offering investment incentives. At the same time, Australian mining companies have been increasingly looking overseas for investment opportunities. Australian mining companies, in particular, have been seeking to place a greater percentage of their exploration/development budgets offshore in order to minimise their exposure to Australian sovereign risk, engendered by Australian Government decisions such as Coronation Hill, world heritage listings and more recently the Mabo legislation.
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ItemCan Victorian union members be personally liable for the unlawful conduct of their unions?( 1995)Workers join unions for a number of different reasons. It may be that they hold a deep conviction in the class struggle of workers against capital, or else they believe for practical reasons that they will have a more effective voice in the workplace and their interests will be better protected by joining a trade union. Alternatively, it may be that the place of employment operates as a closed shop and thereby only allows union members to work. In those circumstances, the workers have no real choice of whether or not to join the union. Whatever the reason for joining a union, in order to become a member and to maintain membership, each worker is required to pay their membership dues which may for example be payable weekly, monthly, quarterly or annually. If a worker does not pay the amount due, he or she may be fined by the union, have his or her membership cancelled, or even be pursued in the civil courts. In addition to membership dues, which may be used for a number of different purposes (such as administration of the union, support for local, national or international causes, and even affiliation to political parties), a union member may also be required to pay fines imposed or levies which have been struck by the union. There may be a range of different reasons for the imposition of fines or levies. For example, the union may have been successfully sued by a third party or penalised for its involvement in unlawful conduct which may be industrial in nature. Rather than bear the full financial burden of the judgment debt, the union may seek to spread the cost either in whole or in part amongst its members. If the activity was industrial in nature and involved a particular class of members who were seeking to promote their interests as opposed to the interests of the union as a whole, the union may seek to penalise those members with a fine for any costs it has incurred. A union may not be the only person who seeks to impose financial obligations on members beyond their membership dues. Third parties who have been injured or suffered a loss as a result of union activity may be of the opinion that their claim may be more successful if pursued against the individual members involved in the unlawful conduct rather than the union. They may also believe that they have a better chance of being compensated for their losses if the personal assets of the members are greater than those of the particular union. A similar result may be reached by virtue of legislation. Legislative provisions may penalise the individual union members involved in the unlawful conduct rather than the union, even if such persons are promoting the interests of the union and are acting under the instructions of the governing body of the union. If it is possible for third parties to pursue union members directly whether at common law or under legislation for the unlawful conduct of their union, then members are potentially subject to very wide financial obligations. Union members may not have anticipated such obligations when they joined the union. Thus the question for consideration in this thesis is as follows: Can Victorian union members be personally liable for the unlawful conduct of their unions? Associated with this question are further issues. The scope of liability may depend upon the legal status of the union, the common law, the industrial legislation under which the unions operate or other legislation directed at the industrial activities of unions. A further related matter is whether the principles have equal application if the union itself as opposed to an aggrieved third party (injured as a result of the general or industrial unlawful conduct of the union) seeks contribution or reimbursement from its members for its legal liabilities. In attempting to identify the circumstances in which members may be held personally liable for the unlawful conduct of their union it is important to analyse the following preliminary issues: 1. The meaning of the term "union"; 2. The legal status of unions that operate in Victoria; and 3. The scope of legal responsibility of such unions for the conduct of their agents.