Melbourne Law School - Theses
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ItemSecurity and liberty : Australia's counter-terrorism laws and freedom of expression( 2008)The legal subject areas covered by this thesis are international human rights law, Australian constitutional law and Australian federal criminal law. The thesis examines four selected provisions of the Commonwealth Criminal Code against the standards set by art 19 of the International Covenant on Civil and Political Rights (`ICCPR') to determine whether they breach Australia's international obligations to protect the right to freedom of expression. The four provisions are selected on the basis that they are identified as counter-terrorism laws that clearly affect the right to freedom of expression as defined in international law, and were controversial when they were enacted. The provisions are analysed carefully to identify their impact on freedom of expression. Article 19 is selected as the standard for the measurement of the effects on freedom of expression by the provisions because the ICCPR is the most prominent human rights covenant that Australia is a party to. The ICCPR has not, however, been fully implemented at federal level in Australia as yet. In particular, art 19 has not been expressly implemented at all. The result is that that Australia's compliance with art 19 is haphazard and dependent upon Australia's domestic laws (the Constitution and statutory mechanisms)confining the restriction of the right to freedom of expression within the boundary permitted by art 19(3), which sets out a limited basis for the governmental restriction of the freedom. Accordingly, the protection's for human rights established by Australian domestic law, particularly the implied constitutional freedom of expression on political and governmental matters, are examined to see whether they restrain the provisions from infringing article 19. The thesis concludes that all of the four provisions do breach article 19, notwithstanding the operation of these domestic legal protections, for identified reasons. The thesis suggests amendments to the provisions to avoid this effect, as well as general law reform measures that would strengthen the protection of all human rights in Australia, including freedom of expression.
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ItemAustralian contemporary art and the blindness of copyright law : a neo-romantic view( 2003)This paper explores the blindness of copyright to Australian contemporary art. Firstly, by reviewing the historical development of the term `artistic work' found in the Copyright Act 1968 (Cth) and its meaning in contemporary case law. Then, by examining what a definition of art might be through empirical research with artists and a review of current artistic practices in Australia. It concludes with a model for reform of the definition of `artistic work' that is based on a neo-romantic authorship approach to copyright. Historically, `art copyright' was a true artist's right advocated by artists, unlike literary copyright, which was advocated by publishers. During the 19th century, art copyright accommodated artistic practices, particularly when it moved from, a law about facsimile, mechanical reproduction technologies to a law about works of art. It took an expansive, authorship approach to a broad range of artistic expression. However, legislative reform through the 20th century confined the definition of `artistic work' to 19th century art techniques and objects by using exhaustive terminology in copyright law. This undermined the legal value of the intellectual processes undertaken by artists in the creation of artistic material. The review of the case law shows judicial determinations, among different categories of `artistic work', are inconsistent. There are some indications that judicial applications of aesthetic judgements continue to cloud the legal concept of art, notwithstanding a policy that asserted that aesthetic determinations were to be avoided. Together, this means that copyright law now operates to exclude much contemporary art. The research with artists suggests a more fluid, open, inclusive model of art copyright that both returns the focus of copyright back to the author, and avoids aesthetic judgements. The artists outlined at least four objectives that could be achieved by reform to the category of `artistic work' and associated terms `material form' and `originality'. Artists seek recognition and status through copyright law. Artists require some control over copying their work particularly where the copying is for commercial purposes. Artists seek the right to be acknowledged as authors of a work of art, and to control the integrity of the work. Thus, a broader view of art than that currently adopted in Australian copyright law is required to accommodate contemporary art practices. Consequently, a unique model is proposed that retains the concept of `artistic work' on historical grounds but also because it preserves status for artists. It provides an open, technology-neutral system for the assessment of art, devoid of aesthetic assessments through the use of guidelines, which are based on the research with artists to assist with determinations of what is `artistic'. The following revised legislative definition of `artistic work' is proposed: artistic work includes a painting, sculpture, drawing, print, photograph, work of architecture, work of craftsmanship or other work of art but does not include a circuit layout within the meaning of the Circuits Layouts Act 1989.
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ItemMediation in environmental disputes : a cross cultural analysis( 1993)Environmental disputes are developing as one of the most important areas of conflict in Australia. The ability to manage them through effective processes is crucial to Australia's continued economic, social and political stability. Environmental mediation is a process of environmental conflict management which has received and continues to receive increasing interest. This . study will describe and analyse its use in Australia, Japan and the United States of America. The possible implications or "lessons" this may have for Australia will then be discussed. These "lessons" concern the importance of preserving conflict in the public domain, the need to avoid making environmental disputes a purely administrative issue, the need to maintain or enhance the role of the courts, and the problematic nature of the process of institutionalisation of environmental mediation services. The future development and implementation of environmental mediation will depend upon the characteristics that such disputes take on within Australian institutional frameworks.
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ItemThe Australian model of alternative dispute resolution for family disputes : could it work in Germany? : a comparative study with particular reference to the German constitution( 1992)The aim of this thesis is to examine whether alternative dispute resolution methods can be introduced into German family law. The thesis compares the Australian model of the application of alternative dispute resolution methods to family conflicts with the existing German situation. Particular attention is paid to those fundamental rights and principles contained in the German Constitution which may have an impact on the introduction of alternative dispute resolution methods. The conclusion is drawn that the position of the individual, marriage and the family in the German Constitution as well as the individual's right to effective legal protection not only allow but actually demand the introduction of alternative dispute resolution. methods. The comparison of the German and Australian situations also serves to throw new light on the Australian model of alternative dispute resolution methods for family disputes. The examination of fundamental legal principles such as the rule of law, the separation of powers and the autonomy of the individual, which are effective in both states, lends further support to the strengths of alternative dispute resolution methods as established in Australian family law. The examination also identifies a number of areas where, in contrast, the efficacy of alternative dispute resolution methods in Australia could be further improved.
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ItemSub judice contempt regarding publications : an evaluation and proposals for reform with particular attention to Australia's international law obligations( 1992)The current Australian law of sub judice contempt as it relates to publications attempts to strike a balance between two competing public interests: the public interest in freedom of speech and the public interest in the proper administration of justice. In Chapter I the adequacy of this approach to the values underlying the sub judice rules is examined. In that Chapter it is submitted that such an approach to the values underlying the sub judice rules should not be endorsed. Rather than couching the values underlying the sub judice rules in terms of competing public interests, it is suggested that those values should be recast in terms of a conflict between individual rights. It is submitted that, if the values underlying the sub judice rules are correctly characterised as individual rights, those rights are the right to freedom of speech and the right to a fair trial. The social-scientific literature concerning the free press-fair trial debate is evaluated to determine whether those rights are competing, or complementary. On the basis of that literature, it is concluded that pre-trial media comment can have a significant detrimental effect upon the capacity of the judicial system to provide a fair trial; and that no remedial or other preventative measure, whether alone or in conjunction with other measures, can counter the adverse effects of prejudicial media comment. In Chapter I it will also be argued that, as a matter of policy, the right to freedom of speech should yield to the right to a fair trial to the extent necessary to resolve any conflict which might arise between those rights. It is submitted that a publisher who publishes material which denies to another person his or her right to a fair trial should be punished for publishing the material and that liability for prejudicing another person's right to a fair trial should be imposed irrespective of the publisher's intention. It is suggested, however, that liability should not be imposed upon a publisher which has taken all reasonable steps to avoid the risk of harm from arising. In Chapter II, Australia's international obligations as they relate to the law of sub judice contempt regarding publications are identified. In that Chapter it is argued that the right to a fair trial, provided by article 14 of the International Covenant on Civil and Political Rights (ICCPR), encompasses the right to have a trial free of prejudicial media or other comment. It is suggested that, unlike the right to a fair trial provided by article 14 of ICCPR which is an absolute right, the right to freedom of speech provided by article 19 of ICCPR is a qualified right. Thus a State could legitimately restrict freedom of speech on the ground that the restriction is necessary for the protection of the right to a fair trial. On that basis, it is submitted that Australia would not be in breach of its international obligations if it places a limitation upon one individual's right to freedom of speech to protect another individual's right to fair trial. Further, if Australia does not place a limitation upon the right to freedom of speech and as a result of that failure an individual's right to a fair trial is prejudiced, Australia will be in breach of its international obligations. In Chapter III, the current Australian law relating to sub judice contempt by publication and the various proposals suggested for its reform are evaluated in light of the considerations of policy examined in Chapter I and Australia's international obligations as identified in Chapter II. A number of suggestions are made for reforming the law so that it achieves the resolution of the values underlying the sub judice rules which the considerations of policy examined in Chapter I and Australia's international obligations discussed in Chapter II require.
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ItemWomen workers and the processes of the conciliation and arbitration system( 1984)The thesis studies the relationship between women workers and the Conciliation and Arbitration System. Its aim is twofold: to explain why particular policies were adopted by the Court/Commission and to assess the extent to which those policies disadvantaged women workers. Previous research has explained women's disadvantaged position by emphasising the role of judicial prejudice and sexist ideologies. The thesis rejects such simple explanations and tries to show that particular policies resulted from the interraction between the Conciliation and Arbitration System and its economic, political and ideological environment. The thesis emphasises the complexity of the processes which determined the law and, in particular, it stresses the role of economic and political forces in shaping legal policy. It also demonstrates that the issue of whether women were in fact disadvantaged by any particular policy can only be resolved through an examination of both the policy and its effects. The first five chapters examine Court/Commission policy on wages, skill, classifications, the sex-typing of work, redundancy protection and maternity leave. The final chapter considers the implications of the arguments adopted in the thesis for other studies of women and the law.
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ItemThe place of freedom of information legislation in civil litigation : new discoveries - old ways( 1990)In completing one discovery we never fail to get an imperfect knowledge of others of which we had no idea before, so that we cannot solve one doubt without creating several new ones'. Discoveries can be of many kinds; the word is one full of portent. It will be the aim of this paper to review the development and current status of documentary discovery in civil litigation and the impact, both actual and potential, of the introduction of freedom of information legislation on the discovery process as we know it and on the adversary system which is the foundation of the litigative process itself and of which discovery is, in conventional understanding, merely an adjunct. The emphasis will be on civil proceedings, although issues arising from criminal procedures may become relevant. The term discovery will be used in this work to refer to the discovery of documents in civil litigation and not, unless specifically stated, to other discovery devices such as interrogatories or oral examination. The much vaunted and rapidly developing information revolution experienced this century, in conjunction with the increasing complexity of our society and its social and commercial relationships, has,in a manner which lawyers of earlier centuries would never have contemplated, immeasurably increased our reliance on documentary evidence in all forms of civil litigation. We cannot even point to the development of the so called "paperless" office as an indication that our reliance on documentary material will diminish. The expanded definition of "document" to be found in legislation such as the Acts Interpretation Act 1901 (Cth), Interpretation of Legislation Act 1984 (Vic) and in freedom of information legislation indicates that. Yet discovery as we know it is only a recent development when viewed in terms of the history of our legal system, based as it is on English law and procedure. Before examining the more recent developments in discovery and the impact of the freedom of information acts, it is useful to briefly examine the origins and development of the discovery process.