Melbourne Law School - Theses
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ItemSterilisation decision making and the Family Court: the far bridge or the fields?( [1997])This thesis is about the "sterilisation" jurisprudence of the Family Court of Australia. It is also about the nature of "judging" and the stories that have been told about young women with intellectual disabilities in sterilisation cases. The focus of the thesis is on the ways in which particular stories selected by judges have come to tell the "truth" about those young women, even though there are other versions that could lead to different conclusions. In recent years critical legal scholars have become attentive to the role that "storytelling" plays in the law, and especially in the judicial context. The justification for such an approach in this thesis is a belief that the consequences of judicial decision making are not just legal, but include the possibility of "particularly grave" material effects for the particular women in sterilisation cases, and for all young women described as "intellectually disabled". At the time of writing there have been 7 reported sterilisation decisions of the Family Court. In none of the judgments is the "voice" of the young woman heard. What is known about her has been told by others. Some of the stories are told by people who know her well, some are told by "expert witnesses" who have never met her. The people whose views have been privileged by the Court are doctors and parents. Ironically, the need for court based sterilisation decision making arose out of a desire to ensure that the views of doctors and parents did not displace the interests of children with disabilities. (From introduction)
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ItemThe status of clergy of the Anglican Church of Australia: employees or office holders?( 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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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)