Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 10 of 12
-
Item
-
Item
-
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.
-
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.
-
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.
-
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.
-
ItemIn the public interest? The application of section 41(1)(d) of the Conciliation and Arbitration Act (Cth) in the SEQEB dispute( 1991)In late 1984, the Queensland branch of the Electrical Trades Union (ETU) embarked on a major campaign of industrial action in opposition to attempts by the South East Queensland Electricity Board (SEQEB) to introduce contract labour. The campaign was to have far-reaching consequences for the individual members of the ETU and for the regulation of industrial relations in the Queensland electricity industry. On February 11, 1985 approximately 900 members of the ETU who were on strike were summarily dismissed by SEQEB. Soon after, the Queensland Industrial Conciliation and Arbitration Commission was stripped of its jurisdiction to deal with industrial disputes in the electricity industry. The Queensland government established a specialist tribunal to deal with industrial affairs in the electricity industry, and enacted legislation which conferred sweeping powers on employers in the electricity industry to deal with employees engaging in industrial action. The ETU responded to these events by seeking an award of the Federal Conciliation and Arbitration Commission, which would override the system of regulation set in place by the Queensland government. The Queensland government and electricity authorities vigorously opposed the granting of the award sough by the ETU. This thesis examines the successful application pursued by the Queensland electricity authorities before the Conciliation and Arbitration Commission, whereby the Commission refrained from proceeding to make the award sought by the ETU on the ground that to do so would not be in the public interest. By analysing the flaws in the Commission's exercise of the public interest discretion, the thesis attempts to enunciate principles governing the proper exercise of the Commission's power to refrain from granting an award on public interest grounds.
-
ItemPublic interest in the exemption provisions of the Freedom of Information Act 1982 (cth)( 1991)There are arguably at least four situations where public interest considerations have a role in the exemption provisions in the Freedom of Information Act 1982 (Cth). Firstly, there is an argument that public interest considerations provide the basis for the presence of each of the exemption provisions in the Act as an essential public interest. Secondly, it may also be argued that some of the exemption provisions also require consideration of the public interest as a separate element in deciding whether a document ought to be exempt from disclosure. This arises from the reference in sections 33, 33A, 36, 39, 40 and 44 to `public interest'. Thirdly, assuming that public interest can be a separate element for consideration in one or more of these provisions, it can be argued that in such circumstances it looks in general terms to ensuring the well-being of the Australian community through balancing public interests which are relevant to a resolution of the tension between openness and confidentiality. However, questions arise as to the more specific function/s which public interest performs in particular exemption provisions. Fourthly, there may also be an argument that public interest considerations are reflected in the operation of exemption provisions even where the concept is not explicitly referred to.
-
ItemThe role and function of the ASX and its listing rules( 1992)In a joint submission to the Australian Stock Exchange Limited ("ASX") dated December 1989 (the "Joint Submission") the Law Institute of Victoria and the Law Council of Australia expressed the view that: "The ASX should be contained to its role of ensuring that the market is informed, efficient and fair, and not be allowed to effectively legislate on substantive issues of law outside this role."1 It was suggested in the Joint Submission that the ASX, through its listing rules, had over-extended its role so as to encroach on substantive company law matters which were more properly within the province of Parliament. 2 These criticisms have resulted in a considerable degree of public debate on the proper role of the ASX and the scope of its listing rules.3 In response to the Joint Submission and the public debate, a discussion paper was released by the ASX in October 1990 (the "Discussion Paper")4 in which the ASX expressed its views on these issues and invited submissions from interested members of the public. In its Discussion Paper, the ASX largely defended its perception of its current role in the business community and argued that the listing rules did not exceed their proper scope (although this view has since been refined). It was conceded by the ASX, however, that some of the concerns expressed in the Joint Submission relating to the drafting and adoption of listing rules had some validity".5 It was also conceded that some listing rules would be better contained in legislation. Both the Joint Submission and the Discussion Paper of the ASX will be examined in detail in this paper. Central to the argument concerning the proper scope of the ASX listing rules are sections 777 and 1114 of the Corporations Law (formerly sections 42 and 14 respectively of the Securities Industry Act 1980) which grant "statutory recognition" to the listing rules. On the view put forward in the Joint Submission, the listing rules do not have the clarity expected of legislation, which gives rise to uncertainty of their application in practice.6 Such uncertainty is increased, so it is said,7 by the fact that in the foreword to the listing rules, the ASX states that it looks to listed companies to comply with the "spirit' as well as the letter" of the listing rules. According to the Joint Submission, this gives rise to the undesirable possibility of action under the Corporations Law (formerly under Securities Industry Act 1980) to enforce the spirit of the listing rules.8
-
ItemForum non conveniens : issues of precedent and policy( 1991)Until 1988 the Australian cases on the doctrine of forum non conveniens had followed the English case. In particular, Australian superior courts had adopted the liberalisation of that doctrine which had taken place in England since 1974. In 1988 the High Court rejected the English liberalisation in the rather unsatisfactory decision of Oceanic Sun. However, in 1990 the High Court rectified many of the problems present in Oceanic Sun in Voth, and, although it reaffirmed the principle in Oceanic Sun, in practical terms it substantially liberalised the Australian doctrine, although not going as far as the English developments. There is now a distinctive Australian principle of forum non conveniens, which despite the inadequate reasoning leading to its adoption, has some significant practical strengths.