Melbourne Law School - Theses
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ItemFrom committee to commission?: the evolution of the Mekong River Agreements with reference to the Murray-Darling Basin Agreements( 1997)The Murray-Darling Basin Agreements had their genesis in disputes between upstream States (Victoria and New South Wales) and a downstream State (South Australia) over the use of basin waters. While originally the disputes concerned navigation, for most of the twentieth century, the rivers' use for irrigation has been of more importance. The 1914 Murray Waters Agreement, between the Commonwealth government and those of the three basin States, was essentially a compact defining allocation of water to the parties concerned. Agreements on the Murray-Darling basin have evolved from this narrowly-based concept to one in which the natural resources of the basin are to be managed as a whole. At the same time, an institutional structure for the operation of water control works has developed which is able to make policy for resource management in the basin. The present Agreement covers water, land and environmental resources, and contains provisions for strategies intended to enable the integrated and sustainable development of the basin in the future. The Mekong Agreements, rather than representing a consistent evolution towards a legal framework for comprehensive basin management, have instead reflected the political evolution of the region. The 1957 Statute was a limited compact establishing the Mekong Committee for the Co-ordination of Investigation. It made no provision for basin management, nor for the equitable use or sharing of basin water. It was established to a large extent as an expression of the influence of the United States in the region. Its successor, the Joint Declaration of 1975, was a more comprehensive document, and used the Helsinki Rules of 1966 as a model. While it included principles of cooperation between riparian States, which could be used to ensure equitable use of water, it did not provide an adequate institutional structure for the management of basin resources. The 1975 Declaration was drafted during a hiatus in the conflict in South East Asia; and because one of the signatory States - the Republic of Vietnam (South Vietnam) - ceased to exist with the fall of Saigon, it was never applied. Interim arrangements were in place until 1995 during the absence of Cambodia from the international body politic. The drafting of new arrangements was then precipitated by Thailand's expulsion of the head of the Mekong Secretariat, effectively bringing the status quo to an end. The Mekong Agreement of 1995 establishes a new Commission, and states its purpose to be the sustainable development of basin resources. It relies on a co-operative approach, rather than establishing comprehensive criteria for water use, with the exception of the Mekong mainstream in the dry season. In addition, there is no provision for projects on tributaries to be submitted to the Commission for an evaluation of their effect downstream. In contrast to the arrangement under the Murray-Darling Basin Agreement, it confers no powers on the Commission to control basin waters, or to manage the regime in an effective manner, and to ensure equity between basin States. If development in a rational and equitable manner is assured, legal and institutional arrangements should be able to endure the ebb and flow of international relations. The need for an appropriate instrument to accommodate changing circumstances in the Mekong basin is made the more important by the prospect of the two upper basin States (China and Myanmar) joining the Agreement in the future. The Murray-Darling Basin Agreement, while it is a less than ideal model for legislation in this field, nevertheless offers guidance on how the new Mekong Agreement may be developed. This applies both to the management of basin resources, and to the preparation of strategies directed towards the objectives of the Agreement. The 1995 Mekong Agreement will be examined in the perspective that legislation should be stable and not static. While the Agreement has been duly praised for its intention of developing the basin through co-operation between States, this thesis looks at ways in which it may be improved. Significant issues effecting the choice of institutional and legal arrangements in both basins are identified and discussed. Findings from this comparison suggest a context for the further evolution of the institutional and legal framework to support the rational management and sustainable development of the Mekong basin.
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ItemThe court and the factory the legal construction of occupational health and safety offences in Victoria( 1994)This thesis reports on an empirically based study of the manner in which Victorian Magistrates Courts constructed occupational health and safety (OHS) issues when hearing prosecutions for offences under the Industrial Safety, Health and Welfare Act 1981 (the ISHWA) and the Occupational Health and Safety Act 1985 (OHSA) from 1983 to 1991. These statutes established OHS standards for employers and other relevant parties. The State government enforced these standards through an OHS inspectorate which had a range of enforcement powers, including prosecution. After outlining the historical development of Victoria’s OHS legislation, the magistracy’s historical role in its enforcement, and the development of an enforcement culture in which inspectors viewed prosecution as a last resort, the study shows how the key provisions of the ISHWA and OHSA required occupiers of workplaces and employers to provide and maintain safe systems of work, including the guarding of dangerous machinery. Using a wide range of empirical research methods and legal materials, it shows how the enforcement policies, procedures and practices of the inspectorate heavily slanted inspectors workplace investigations and hence prosecutions towards a restricted and often superficial, analysis of incidents (or “events”) most of which involved injuries on machinery. There was evidence, however, that after the establishment of the Central Investigation Unit in 1989 cases were more thoroughly investigated and prosecuted. From 1990 the majority of prosecutions were taken under the employer’s general duty provisions, and by 1991 there was evidence that prosecutions were focusing on matters other than machinery guarding.
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ItemDefamation and the internet( 1999)The Internet is a unique and revolutionary medium of communication. The objective of this dissertation is to identify whether there are areas in which reform of the rules of Australian civil defamation law needs to be undertaken to meet the challenges posed by this new medium and, if so, to advocate desirable reforms. The methodology by which the dissertation sets out to achieve its objective is a systematic analysis of how the defamation cause of action, defences and remedies, as well as relevant jurisdiction and choice of law rules, apply, or are likely to apply, to material published via the Internet. It is possible to distil five features of communication via the Internet which are of relevance to the operation of the rules of civil defamation law: - Internet communications do not respect geographical boundaries: they involve the transfer of signals from computers in indeterminate locations, to other computers in indeterminate locations, via routes which are indeterminate; - intermediaries, in the form of Internet service providers and network operators, play a central role in all Internet communications; - material published via the Internet can be republished to a wide and geographically diverse audience more easily than material published via other means; - material on the Internet is organised through the use of hyperlinks which blur the distinction between where one publication ends and the next begins; - the Internet can be used in a wide variety of ways, to resemble almost any other medium, including the telephone, the postal service, radio, television, newspapers or libraries. Once the way in which the Internet works and is used is understood, it is possible to predict how most of the rules of defamation law would apply to material published via the Internet. The outcome of the research undertaken in this dissertation is that most of those rules are capable of being applied without the need for reform. In other areas, however, the existing rules give rise to uncertainty, or undesirable outcomes, when applied to Internet publications. In those areas, reform is desirable. Ultimately, four areas of reform of the existing rules of defamation law are identified, and desirable reforms suggested: 1 Reform to clarify whether different types of Internet publication are libel or slander. 2 Reform to ensure that intermediaries of Internet publications are only liable for civil defamation where their conduct is sufficiently culpable to warrant the attribution of liability. 3 Expansion of the remedies available in civil defamation law to provide successful plaintiffs with more effective means of vindicating their reputations where they have been damaged by defamatory Internet publications. 4 Reform of the choice of law rules applicable to intra-Australian publications, by adoption of a rule that substantive rights and liabilities are determined by applying solely the law of the place (or places) of publication, regardless of the place in which proceedings are brought and determined.