Melbourne Law School - Theses

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    Overcoming legal impediments to a comprehensive legislative basis for war crimes trials in Australia
    Nastevski, Vasko. (University of Melbourne, 2010)
    There are persistent allegations of war criminals from various conflicts that have occurred since the end of the Second World War residing in Australia. This raises difficult moral, legal and political questions for Australian authorities about how to deal with such allegations. War crimes, crimes against humanity and genocide are deemed to be the most serious crimes of concern to the international community and are now reflected in established international criminal law designed to bring individual perpetrators of such crimes to justice. However, Australia's record of domestically enforcing crimes found under international law is mostly non-existent. The practice of successive Australian Governments in dealing with war crimes reflects a piecemeal approach, whereby legislation has been enacted to give effect to various international treaties dealing with different types of war crimes. But, this legislation has either proven inadequate or has remained unused. Where war crimes trials have been initiated, they have ultimately proved to be ineffective. The thesis will challenge the existing state of affairs in Australia by firstly presenting a philosophical basis justifying the prosecution of individuals accused of committing international crimes in domestic Australian criminal courts and secondly, establishing that it is possible to overcome potential legal impediments to a comprehensive legislative basis for war crimes trials in Australia. The thesis proceeds on the basis that there is no justification for excusing war criminals from prosecution. The strong moral impact on society that the perpetration of war crimes has should ultimately be reflected in domestic legislation that provides for the prosecution and punishment of those committing such crimes in Australian courts. Indeed, there is a moral imperative that justice is done on behalf of victims and Australian society; and that the perpetrators are held accountable for their actions. The thesis employs an empirical analysis of existing Australian war crimes legislation and jurisprudence and then extends and relates that discussion to the possible conduct of future war crimes trials. A comparative analysis of domestic and international law is undertaken throughout the thesis that will demonstrate the legal capacity for establishing a systematic framework to facilitate prosecutions in Australia. This includes adopting a proper jurisdictional basis for war crimes trials; the enactment and operation of retrospective war crimes legislation; and challenges to the conduct of war crimes trials in Australian domestic criminal courts, such as appropriate judicial methodology in hearing and deciding such cases and whether a fair war crimes trial is possible. In demonstrating how the various perceived legal impediments and challenges can be overcome, the thesis also provides a broad blueprint for designing future Australian war crimes legislation. Ultimately, the contribution of the thesis will be to provide a validation for a comprehensive legislative basis for war crimes trials in Australia, particularly for the period between the end of the Second World War and the beginning of legislation giving effect to the provisions of the Rome Statute of the International Criminal Court. At the same time, the thesis will recognise that political reality in Australia suggests that enacting such legislation is far from inevitable. The political unwillingness and reluctance by successive Australian Governments to investigate and prosecute alleged war criminals living in Australia is instructive. But as the thesis will argue, there is strong moral and legal justification for enacting new war crimes legislation in order to conduct war crimes trials and in doing so, it will announce that there is no safe haven for war criminals in Australia.
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    Australia's new cartel laws : time for a fresh look at compliance
    Sweeney, Siobhan Caitlin. (University of Melbourne, 2010)
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    International extradition between Indonesia and Australia
    Dewi, Apsari ( 2018)
    Indonesia and Australia have not found extradition easy, despite the bilateral extradition treaty in force between them since 1992. This thesis is concerned with international crime cooperation in the extradition of fugitive offenders between Indonesia and Australia, but it also intended to augment the body of research on international cooperation in the enforcement and suppression of transnational and domestic crimes. It aims to find the answer to why there are still problems in extradition cooperation between Indonesia and Australia despite the presence of a legal framework for cooperation, and to identify ways in which these problems might be resolved. I argue that the problems in legal cooperation in extradition between Indonesia and Australia are the result of a complex mixture of factors that include social, political and legal aspects. The solution cannot be simply instrumental. Focusing solely on legislative change will not suffice unless it is also supported by other non-regulatory schemes, including, among other: developing a bilateral consultation framework between Indonesia and Australia with a view to creating a platform to address the differences peculiar to each legal system; and assigning a Liaison Officer for International Crime Cooperation at the Embassy of each country.  
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    Civil penalties under the Corporations Act 2001 (CTH) and the enforcement role of the Australian Securities and Investments Commission
    Welsh, Michelle Anne ( 2008)
    The civil penalty regime was introduced in 1993 to ensure ASIC would have at its disposal criminal penalties for conduct that is genuinely criminal in nature and civil penalties for breaches of the directors' duties where no criminality is involved. The regime was designed to comply with strategic regulation theory. This thesis examines ASIC's use of the civil penalty regime for the purpose of determining whether or not ASIC has utilized it for the reasons for which it was introduced. One of the research questions examined in this thesis is whether or not the civil penalty regime has provided ASIC with an effective enforcement mechanism for non-criminal contraventions of the civil penalty provisions. In order to answer that question this thesis examines the factors which inform ASIC's choice of the civil penalty regime. Various factors inform ASIC's choice, however in situations where ASIC has the choice of the civil penalty or the criminal regime, the overriding factor is ASIC's and the DPP's stated policy to pursue a criminal prosecution in all cases where there is sufficient evidence to support one. A consequence of the implementation of this policy is that very few civil penalty applications have been issued when compared with other enforcement activity instigated by ASIC. The civil penalty regime has been utilised almost exclusively in situations where a criminal prosecution was not available, or the DPP was satisfied there was insufficient evidence to sustain one. This factor, coupled with the fact that ASIC has achieved a high level of success with the civil penalty applications it has issued means that the civil penalty regime has provided ASIC with an effective enforcement mechanism for contraventions of the civil penalty provisions in situations where a criminal prosecution could not have been sustained or was not available. Another research question examined in this thesis is whether the civil penalty regime has been utilised in a manner envisaged by strategic regulation theory. A consequence of the adoption of a policy of issuing criminal prosecutions in all cases where one is available is that the civil penalty regime does not map on to the enforcement pyramid in a manner envisaged by strategic regulation theory.
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    Law, medical practice and policy development
    Skene, Loane (1947-) ( 2008)
    This application is based on a range of achievements Which establish, as required by Regulation 3.16 of the university's statutes, that 'I have made `a substantial and original contribution to legal scholarship' (see Part A); and that my work `is of such standard as to give [me] authoritative standing in the field of [my] study [Health and Medical Law]' (see Part B). My achievements include scholarly critique and analysis and cross-disciplinary publications in leading international journals (see Part C).
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    Security and liberty : Australia's counter-terrorism laws and freedom of expression
    Irving, James N ( 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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    The regulation of essential service insolvencies and the public interest : case studies of Australia's electricity industry and Melbourne's public transport industry
    Wardrop, E. Ann ( 2007)
    This thesis critically explores the regulation of the insolvency of essential services and the public interest through an examination of the common law and legislative responses in Australia, the United Kingdom and the United States. Drawing on understandings of the public interest gained from its analysis the thesis proposes a model of the public interest that may be used to justify representation of non-creditor interests within insolvency proceedings of essential services. The model also identifies non-creditor public interest considerations that extend beyond continuity of supply. The thesis then undertakes case studies of the regulation of insolvency within the Australian electricity industry and Melbourne's public transport industry to examine how effectively public interest issues have been addressed and how these are balanced against the interests of the firm and its creditors. The thesis argues that a fundamental problem of the regulation of insolvent essential services is balancing the general public's interest in the fate of the insolvent firm with the interests of others stakeholders, particularly creditors. The thesis demonstrates there is a great deal of inconsistency of response to this issue both within and between the jurisdictions under consideration. Focussing on the public interest in the continuity of supply, the United Kingdom has enacted ad hoc insolvency procedures which are initiated by the state and oust creditor control mainly in relation to the monopoly sector of various essential services. A different approach in the United States has meant public interest considerations are built into its insolvency law through a combination of legislative prescription, judicial interpretation of the Bankruptcy Code and a limited willingness to grant non-creditor representation rights in insolvency proceedings of essential services. The thesis argues that the integration model of the United States allows an appropriate balance to be struck between the interests of the firm and its creditors and the broader public interest when regulating the insolvency of essential services. In contrast Australia has not enacted ad hoc insolvency procedures or expressly integrated the public interest within its insolvency law. The case study of the Australian electricity industry shows, however, that the public interest in the continuity of supply is managed by allowing creditors' rights to be affected radically by utilities regulation such a state step-in rights and retailer of last regulation. The thesis demonstrates the fragmented and inconsistent nature of these provisions. The case study of Melbourne's train and tram industry and the examination of South Australia's privatisation of its electricity assets by way of lease show the ways in which private contracting rather than utilities regulation can manage public interest issues. The thesis concludes that while the public's interest in the continuity of supply of essential services in Australia is generally satisfactorily dealt with under current arrangements, what is less clear is whether public interest issues beyond continuity of supply will be given sufficient weight in insolvency proceedings, particularly in the context of a reorganising firm. The thesis argues it is within this area that there is space for integrating public interest considerations within Australia's insolvency law by expressly requiring the court to consider the public interest in such proceedings. Incorporating public interest considerations that recognise non-creditor stakeholder interests into Australian insolvency law requires theoretical justification. The thesis argues there are sound theoretical arguments for expanding insolvency's law role to accommodate broader stakeholder interests in the context of the insolvency of essential services and that the model of the public interest proposed by the thesis may be used as a basis for a court to grant representation rights to non-creditor interests within insolvency proceedings of essential services in Australia.
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    The integration of complementary and alternative medicine into health care : regulating for consumer choice, autonomy and responsibility
    Brophy, Catherine Elizabeth ( 2007)
    This thesis explicates the role that the law, and particularly regulation, can play in the integration of evidence-based complementary and alternative medicine (CAM) into the Australian health care system. It outlines a regulatory framework to move Australia beyond an ad hoc approach to integration to a national, co-ordinated and systematic one, informed by the guiding principles of choice, autonomy and responsibility. Integration is necessary to ensure that all Australians have the option of safe and effective CAM. A holistic approach - a metaphor, the `regulatory space of health care', and a broad definition of regulation, legal orderings (statutes and common law) and non-legal orderings (guidelines and norms) - is adopted to analyse the current level-of integration of CAM in Australia. This integrative map provides the necessary background to consider key elements of the regulatory framework necessary for integration. A national policy, a national body, a model of integration and regulatory strategies are proposed and discussed. A partnership model of integration is recommended as both biomedicine and CAM have a singular contribution to health care in the future. The model of integration must preserve the integrity of each health care paradigm. It must provide scope for the continued development and exploration of health solutions arising out of the philosophy and methodology of biomedicine and CAM. A holistic relational model, referral, multidisciplinary, and other linking mechanisms, are proposed to unify the two health care paradigms into one health care system. To spearhead, steer and co-ordinate the regulatory change process, a national body - an Australian National Centre for Integrative Healthcare (ANCIH) is recommended. As integration will involve a re-negotiation of the regulatory space of health care, to make room for evidence-based CAM to share in health infrastructure, this national body will require the authority to work with all the stake-holders to effect change.