Melbourne Law School - Theses

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    The Confucian misgivings : Liang Shu-Ming's narrative about law
    Xu, Zhang-run ( 1999)
    This thesis is about Liang Shu-ming (ikx, 1893-1988), a figure of deep spiritual meaning in the realm of Chinese legal thinking. It aims to explore his thinking concerning law, in particular, his reworking of the traditional Chinese legal ideas in terms of the New-Confucianism. The major intellectual interest throughout this thesis is to offer a study on China's legal legacy, through Liang Shu-ming's eyes. I follow the formula of the parallel between Life and Mind (ll c) , Physis and limos. I will compare Liang Shu-ming's narrative with his own practical orientation and with the theories of other interlocutors. I will put Liang Shu-ming into the social context of modern Chinese history, in particular, the context of the unprecedented crisis of meaning in the legal realm and the collapse of a transcendental source for Chinese cultural identity in the light of modernity. The evaluation provided by my thesis could be helpful in clarifying the deep structures and significance of the present Chinese legal system through historically exploring Liang Shu-ming's misgivings. This thesis consists of three parts. Part I will present Liang Shuming's theoretical concerns about the concept of law, the source and meaning of law in Chinese socio-cultural contextualisations, the interaction between humanity and law, and in particular, limos and the underlying presumptions about the ideal human life and human order. This examination will support the thesis that the necessity of rethinking our legal tradition is derived from the urgency of getting an undistorted understanding about our own way of life itself. Part II will present an analysis of his understandings about constitutionalism, in particular, his critical articulations on the predicaments China has had to face in modifying and transplanting Western models. In order to explain my subject's various characteristics, a comparative analysis of Liang Shu-ming and his contemporaries, in both China and the West, will then be used to clarify the nature of constitutionalism, as a foreign body, in a place like China. In Part III, Liang Shu-ming's comparative insight about the Western legal tradition and spirit, and his attitude to and rationale for the conceptual and institutional transplantation of Western law in China, will be articulated. Here Liang Shu-ming unveiled a paradox beneath the process of so-called modernization by drawing inspiration from the West in modernizing China. That is to say, China has been facing a dilemma: either the refusal to imitate or the merely horizontal transplantation. He argued neither of them would be healthy for China. While refusal would result in something definitely worse, a simple horizontal transplantation would also be harmful. The intrinsic tension underlying this dilemma has consequently perplexed the legal shaping process in modern China. In the Conclusion, the creative tension between life and mind, limos and Physis as symbolism and substance will again be reflected in China's quest for the "new law". If a conclusion could suggest itself, however, it would be, "A Code is not at once a history and a system", but, "Our history is our code."
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    The Ghanaian petroleum sector and the environment
    Akyeampong, Justina ( 1998)
    Ghana spends a substantial portion of her foreign exchange earnings on the importation of crude oil. It is therefore important to the government that the country's petroleum potential be explored and if any finds are made, that such finds be produced speedily to save the country invaluable foreign exchange that goes into the importation of crude oil. There is also the hope that where such finds exceed local requirements, the excess would be exported to earn foreign exchange for development. The Ghanaian government is also aware that petroleum exploration and production have the potential to cause adverse environmental effects if the operations of the companies are not properly regulated and controlled. It is therefore necessary to appraise existing laws on pollution control to determine whether they are adequate to regulate pollution in the conduct of petroleum activities. Where the laws are inadequate, as this work has found to be the case in Ghana, the government need not wait until the legal regime is updated. Apart from the promulgation and enforcement of legislation, there are other legal techniques that may be employed to control environmental pollution in petroleum exploration and production areas. These are the criminal sanction technique, the regulatory or licensing technique, the negotiations and agreement technique and the property rights technique. This work reviews these techniques and the conditions needed for their successful operation, and assesses what each technique can contribute towards environmental protection in Ghana. The experiences of some countries which have employed these techniques are also reviewed. Based on this evaluation, the negotiations and agreement technique is recommended as the preferred option for Ghana. The form in which this technique should be adopted for implementation in Ghana is also recommended.
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    The development of Australian law to protect undisclosed business information
    Jackson, Margaret Anne ( 1998)
    Traditionally, information has not generally been regarded by the common law as being property and able to be legally protected in the same way as land, money or goods. Australian courts have demonstrated great reluctance to change this approach, even though information is increasingly considered to be a valuable asset, particularly by the business community. However, a change in the way information is regarded has taken place over the last four to five decades, resulting primarily from the increased use of computer technology. In Australian law, organisations or individuals who wish to restrict access to their business information and keep it confidential currently have limited legal means to achieve their aim. The breach of confidence action, contract law, copyright law and criminal law may all be used to protect information from unauthorised access or use but only to a certain extent. In most instances these traditional legal approaches require that there is a confidential or contractual relationship between the parties, that the information be in an original form, or that the unauthorised access be made using computer technology. There are particular deficiencies in the legal protection available when undisclosed business information is accessed by a party outside a contractual or confidential relationship, often through improper means. Ways in which these deficiencies, particularly in respect to the breach of confidence action, could be overcome have been proposed by a number of law reform bodies, in Australia and overseas. However, no legislative amendments adopting these proposals have been introduced in Australia and judicial decisions indicate that the courts are likely to continue a conservative approach to the protection of information to avoid creation of barriers to the free flow of information. Different legal approaches to the protection of business information have developed in continental Europe and America. However a review shows that deficiencies in the protection offered have not been fully overcome in these jurisdictions. More recently, a number of international developments have taken place which are of significance to the protection of business information. The developments take different forms, either as binding international agreements, or non-binding agreements. Examples are the Trade Related Aspects of Intellectual Property Agreement (TRIPS); the OECD Guidelines of Security for Information Systems and for Cryptography Policy; and the WIPO Model Provisions for Unfair Competition. These agreements establish new international standards relating to the protection of business information. The way in which these international agreements may become part of Australian domestic law and policy can be predicted and explained by analysing the nature and form of the relevant international agreements and the process by which they may become part of domestic law; by having regard to recent developments in this field in other countries; by analysing Australia's response to similar developments in the past, for example, the OECD Guidelines on the Protection of Privacy and Transborder flows of Personal Data; and by reviewing Australia's response so far to the latest developments relating to the protection of confidential business information.
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    The comprehensibility of legal language : is plain English the solution ?
    Tanner, Edwin Jan ( 1997)
    This thesis seeks to establish whether plain English offers a complete, a partial, or no solution to the drafting of legal documents which are more comprehensible, particularly to lay persons. Built on limited prior research this thesis further identifies the characteristics of traditional legal English and establishes that they are constant across all types of traditional legal writing. Many of these characteristics have been shown by psycholinguists, cognitive psychologists and other researchers, to cause comprehension problems particularly in lay persons. Some flow directly from the search for certainty. Others result from a firm but mistaken belief held by lawyers that the semantic links within a sentence are stronger than those between sentences. Consequently a legal rule is incorporated within a single sentence structure often of extreme syntactic complexity. Further evidence is here presented to show that this is a major cause of comprehension problems in lay persons. Two types of discourse analysis have been used to establish that the single legal rule/single sentence structure lacks linguistic justification. Two characteristics of traditional legal English were found to be necessary properties of legal writing. The expression of the mandatory and discretionary form of the speech act is essential in legislation. The markers of the performative utterances, 'shall' and 'may', may cause comprehension problems for lay persons. These problems are compounded by the unthinking use of these markers to express commissive acts. Technical terms and terms of art were also found to be essential to the precise communication of legal concepts. Eighteen sets of plain English guidelines were evaluated, first on the basis of published research and then on information gained from the testing carried out for this thesis. A model of the process of drafting plain English documents was created and used to generate an improved set of plain English guidelines. These guidelines were used to redraft a so called 'plain English' document. This yielded further improvements in comprehension. The value of plain English in the drafting of legal documents was assessed. Plain English was found to offer a partial solution
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    The law of money
    Stern, Steven ( 1998)
    Money occupies a central position in both the disciplines of law and economics. From the legal point of view, money constitutes a vital part of the legal system. Ever since the advance from a barter economy, money has become a central instrumentality of legal transactions. Seeking a legal definition of the phenomenon of money is, therefore, an invaluable exercise for the discipline of law. However, as money is an economic phenomenon, seeking to ascertain the meaning of money for legal purposes cannot be comprehensively pursued without due regard to economics. This thesis sets out to show the importance of monetary and other economic factors in analysing and applying the law of money. In particular, this thesis sets out to identify the principal functions performed by money from the viewpoint of their relevance in comprehensively defining the phenomenon for legal purposes. It examines the legal meaning of money in the context of such developments as the use of advancing technology to transmit by electronic means rights to money at ever increasing speeds and amounts across the globe, floating exchange rate markets, the changing role of gold from its once unique position as the quintessential international monetary reserve, the development of "electronic cash", and the tracing of money through a series of paperless transactions. When examining these developments, there is a focus on how legal analysis might be assisted by identifying the role performed by money in specific sets of circumstances. While attention is given to international monetary units, such as the Special Drawing Right and the European Currency Unit where relevant throughout the thesis, the development of the Euro as the currency of the European Union in the twenty-first century is not specifically addressed. This is an on-going and developing process, raising specific issues such as natural currency areas within the European Union necessarily outside the ambit of this thesis, which focuses on the law of money proceeding from an Australian viewpoint to more general materials especially in the English-speaking world. However, this thesis does draw from the non-English-speaking world for materials and examples that may well be of universal significance, and have unique ramifications, in the process of determining the meaning of money for legal purposes. While focussing on the future, the thesis carefully considers the past from the point of view of determining the extent to which the existing law is able to deal with what appear as entirely new phenomena, associated with technological advancement and apparent rapid globalisation.
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    War crimes against women and international war crimes tribunals
    Askin, Kelly Dawn ( 1996)
    This thesis reviews the treatment of women in practice and theory in regards to laws of war and gender prosecution in international war crimes tribunals. Dating back two thousand years, rape and sexual abuse of women has been commonplace during periods of armed conflict, and punishment of these crimes has been a low, or nonexistent, priority. From the evolution of the customs of war in the Middle Ages, to the first codification of the laws of war, to the initiation of international instruments regulating war, to international tribunals to punish war criminals of World War P, gender based violence against women during wartime has been shamefully neglected in both domestic and international laws (human rights and humanitarian). As such, the thesis combines the historical survey of the treatment of women in past war crimes tribunals, with practical steps to prosecute gender crimes in present war crimes tribunals, and with propositions to amend the laws to provide future protections. This thesis reviewed the history and establishment of the Nuremberg and Tokyo War Crimes Tribunals. In reviewing these tribunals, and subsequently the trials, special emphasis was placed on the crimes within the jurisdiction of the tribunals, and the Allied power's eagerness to invoke innovative crimes regarding persecution on religious or political grounds, particularly regarding the massacre of the Jews, but their reluctance to afford the most minimum of efforts to prosecute gender related offenses. In order to reconcile the international communities neglect of women's issues, the status of women in domestic and international law and practice was reviewed, both in the past and in the present, and scenarios presented as to how certain issues have contributed to the failure of the legal community to address women's issues, and suggestions made as to how some of these problems can be rectified. With the past history as a cornerstone of proof of the urgent need to afford adequate protection to women during wartime, and the desperate need to support this protection with enforcement, the Balkan conflict will be reviewed, and the International Criminal Tribunal for the former Yugoslavia will be analysed. Reports of gender specific violence will include rape, forced prostitution, genocide, torture, sexual mutilation, forced impregnation, forced sterilization, and forced maternity. Particular emphasis will be placed upon instances of organized, systematic rape and cases of single, isolated rape, and the prosecution of these offenses under the terms of the Yugoslav Statute. The central argument throughout the thesis will be that all gender based violence against women committed as a direct result of the armed conflict should be explicitly defined and rigorously punished as serious violations of international humanitarian law. An extensive analysis will be presented on ways in which the Yugoslav Tribunal, and subsequently the Rwandan and future tribunals, can prosecute gender related violence, and why they must do so. Throughout the thesis, reviewing women's subordination from 500 B.C. to the present, it will be consistently argued that the abuses against women in wartime are subjugated in part because women have not been afforded sufficient recognition and protection domestically. Domestically, women continue to be discriminated against when the international community ignores the abuses committed against them, or labels wartime abuses as belonging in the domestic sphere. Violence against women in wartime continues to be regarded as a natural occurrence of war, typically rejected for investigation or prosecution by both the domestic and international communities. As the poor treatment of women domestically marginalizes the attention given to victims of wartime violence, lack of attention to wartime violence against women marginalizes all women. The continuous circle of ignoring gender specific abuse against women continues, with neither domestic nor international laws affording adequate attention, protection, or redress. However, it appears that the cycle of complacency about gender issues in the international community has come to a halt, with several indictments in the Yugoslav Tribunal charging defendants with sexual assault offenses. Successful prosecution of gender related crimes in the Yugoslav and Rwandan Tribunals will not only provide current victims with a remedy, but will also extend protections to women in ongoing and future armed conflicts, by terminating the impunity with which sex crimes have previously been afforded.
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    Interaction between commercial & legal aspects of project finance in Australasia
    Scheinkestel, Nora L ( 1997)
    The project finance technique emerged as a result of legal principles evolving to meet commercial needs. Its value - enabling companies to fund projects on other than their own credit standing and to diversify risks associated with projects - has been proved by a remarkable string of major developments which were unlikely to have been undertaken without such a financing method. Over the years, the technique has been adapted to a range of applications and industries. One of its most recent uses has been in private sector development of public infrastructure projects. It is in this climate of continued need for project financing that this thesis seeks to examine its development to date, its strengths and its weaknesses, and to consider what changes, if any, are needed to ensure its continued usefulness in the future. The growing body of work known as 'economic analysis of law' is used as a key to understanding these issues and to suggest possible ways forward. Risk is identified as being central to the project financing process. Its identification, allocation and mitigation are the building blocks of the technique. Parties trade risks and contractual arrangements are put in place to give effect to these compacts. These contracts have often been creative, responding to the commercial requirements of the particular development and the parties involved. Novel processes have been devised to deal with cases of project or operator failure, providing self governing and self executing regimes for the developments. These self contained mechanisms are a response to the fact that court adjudication of disputes in these transactions is often inappropriate. The sophistication of these arrangements, however, has also resulted in significant transaction costs. Lengthy and complex documentation is characteristic in these financings. The costs begin at the outset of the transaction in the time and money involved in negotiating documentation and, on an on-going basis, arise through the significant reporting burden usually imposed on borrowers and the restrictive provisions which require continual lender involvement in project decision making. The lengthy, detailed documentation provides the project management regime as it usually stipulates in great detail how the project is to be operated and what the borrower can and cannot do. However, the very long terms of these financings (at times 17 or 18 years), mean that parties are unlikely to succeed in anticipating and dealing comprehensively with every imaginable contingency. The use of such lengthy, detailed documentation will, therefore, be reviewed and a theoretical analysis presented of why project participants have adopted this strategy. This thesis also recommends alternative strategies for structuring the project finance relationship. The optimal solution for any project should still be determined on the specific circumstances on the case and is likely to combine elements of the current approach with some of the proposals suggested.
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    Insurable interest, indemnity and third party rights under general contracts of insurance and the Insurance Contracts Act 1984 : a comparative study
    De Koning, John P. M ( 1997)
    On 1 January 1986 a new era dawned for the development of insurance law in Australia, for on that day the provisions of the Insurance Contracts Act 1984 (Cth) (hereafter referred to as 'the Act') came into operation. Section 3 of the Act repeals for Australia certain Imperial Acts including the Life Assurance Act 1774, the Fires Prevention (Metropolis) Act 1774 and the Marine Insurance Act 1788. In so far as contracts of general insurance) can be governed by the laws of the Commonwealth of Australia, this repeal brought to an end a period of development of insurance law relating to:- a.. the concept of insurable interest; b. the principle of indemnity; and c. the rights of, and the classes of, persons entitled to make claims under contracts of general insurance. That development had commenced prior to the passage of the repealed Imperial Acts, but had been accelerated by, and as a result of, their passage. In Part III the Act lays down new rules with respect to the concept of insurable interest. Moreover, by sections 44, 45, 48, 49 and 76 certain material alterations are made to the law relating to: - a. the principle of indemnity; and b. the rights of, and the classes of, persons entitled to make claims under contracts of general insurance. In this thesis I propose to investigate and describe the law relating to:- a. insurable interest; b. the principle of indemnity; and c. the right of, and the classes of, persons entitled to make claims under contracts of general insurance, 1. as it had developed prior to the passage of the now repealed Imperial Acts, and their precursors; 2. as it developed after the passage of the now repealed Imperial Acts until the date of their repeal; 3. as it has been affected by the repeal and the new regime provided by the Act; and 4. as it is likely to develop in the future. Furthermore I propose to draw a comparison with the laws operating in the Netherlands, France and Germany at the relevant times to ascertain whether, and to what extent, such laws influenced the English law or were influenced by it. Finally the laws presently operating in those countries will also be examined by me to consider whether any, and if so which, recent continental developments might be useful, as indicating a solution to problems likely to face Australian Courts in the immediate future.
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    The impact of Australia's refugee status determination system on its implementation of its refugee convention obligation on non-refoulement
    Taylor, Savitri P ( 1994)
    Under article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention), Australia has a non-refoulement obligation in respect of `refugees'. This thesis examines whether Australia is violating article 33 of the Refugee Convention by failing to identify the `refugees' amongst its on-shore refugee status claimants. In the absence of a safe third country prepared to receive them, Australia has no choice but to allow persons identified as `refugees' to remain in its territory. The problem is that the Australian Government has goals for the nation it serves and the political party it represents which it believes will be jeopardised to the extent that it is unable to choose which aliens get to reside in Australia and which do not. In consequence, the Australian Government bas a negative attitude towards on-shore refugee status clat. Inimants. This negative attitude has transmitted itself to the officers of the Department of Immigration and Ethnic Affairs (DIEA) who are responsible for making refugee status determinations at the primary stage. DIEA decision makers tend to be overly restrictive in their interpretation and application of key elements of the Refugee Convention definition of `refugee'. On the other hand, the courts and the Refugee Review Tribunal (R.R.T.) - institutions which do not have the political agenda of the Australian Government - have come close to interpreting and applying the Refugee Convention definition of `refugee' in line with international standards. The problem is that not all refugee status claimants can afford to pursue R.R.T. and/or judicial review. This leaves open the possibility that Australia is risking breach of article 33 of the Refugee Convention by repatriating persons who are refugees but have not been identified as such. In order for Australia to avoid breaching article 33, its domestic legal and administrative regime considered as a whole must attain a standard of reasonable efficacy in the implementation of that article. In order for Australia to be assured of attaining a standard of reasonable efficacy, Australia's on-shore refugee status determination process must be designed to meet certain minimum procedural standards. These minimum procedural standards are: the use of an inquisitorial determination system; the maintenance of an independent documentation and research centre; the elimination of factors which could lead to incorrect adverse credibility assessments; the provision to claimants of all information available to the decision-maker; the use of independent, impartial, specialised, full-time, career decision-makers who are carefully selected and adequately trained; adequate access to legal assistance by claimants; the provision of an opportunity to be heard in person and by the decision-maker; the processing of claims without undue delay and adequate rights of review. Australia's refugee status determination system falls short of meeting these minimum procedural standards in some significant respects. It is conceivable that a State's other humanitarian protection measures may sufficiently compensate for an inadequate refugee status determination process by serving as a safety net for Refugee Convention refugees who are not identified by the refugee status determination process. Australia's humanitarian protection mechanisms, however, are not an adequate safety net for such persons.
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    Non-combatant immunity as a norm of international humanitarian law
    Gardam, Judith Gail ( 1990)
    This thesis examines the current status and content of non-combatant immunity, a fundamental principle of the international humanitarian law of armed conflict. It analyses both the customary and conventional status of the rule in international and non-international armed conflicts. The thesis first describes the evolution and jurisprudential basis of the principle of non-combatant immunity from the time of the development of the modern nation State through to its establishment as part of the emerging independent ius in bello. The thesis then examines a number of interrelated factors which in the period since the Second World War have combined to threaten the viability of the norm of non-combatant immunity. These factors include the development of the right to self-determination of peoples, the rise of guerilla warfare linked with but by no means confined to such conflicts, and most significantly, the allegations that wars of self-determination are "just" wars. Such wars are alleged to affect the independence of the lus in bello from the ius ad bellum. The impact of the use of force in such struggles is examined to see if there is any legal foundation for such a theory. In this context, the new developments in the law of armed conflict, in particular Article 1(4) of the 1977 Additional Protocol I to the Geneva Conventions of 1949, are assessed. The thesis argues that the independence of the ius in bello from the lus ad bellum, a fundamental premise of humanitarian law, has survived these new developments. Moreover, the principle of non-combatant immunity is not only a conventional rule but has acquired the status of a norm of customary international law equally applicable to all parties in traditional international armed conflicts. The thesis also examines the distinction that has traditionally been drawn by the law of armed conflict between international and non-international armed conflicts. The thesis argues that this rigid division is slowly being eroded and that non-combatant immunity is a customary rule in some large-scale non-international armed conflicts.