Melbourne Law School - Theses
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ItemCivil penalties under the Corporations Act 2001 (CTH) and the enforcement role of the Australian Securities and Investments Commission( 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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ItemLaw, medical practice and policy development( 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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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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ItemThe regulation of essential service insolvencies and the public interest : case studies of Australia's electricity industry and Melbourne's public transport industry( 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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ItemThe integration of complementary and alternative medicine into health care : regulating for consumer choice, autonomy and responsibility( 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.
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ItemEffective public participation in major projects( 2006)The thesis explores ways to make public participation processes for major projects more effective. Reviews and analysis of public participation theories and practices are provided, with particular attention to legislative requirements and judicial findings in Victoria, Australia. The questionnaire and interview findings from participants in the two Victorian case studies - the Advisory Committee for the Melbourne 2006 Commonwealth Games Village and Coode Island Community Consultative Committee -- provide first hand accounts of participants' experiences with these processes. Their responses are studied in composite to further understand `the public' as well as the participant groups making up the public to understand their views. The analysis suggests that public participation processes in Victoria need to be improved. While some guidance on conducting public participation is provided by the Victorian government and other levels of government, much of this does not directly address issues of power imbalances, politics and other practical considerations. The research findings reveal a groundswell of dissatisfaction with public participation in major projects. While case study participants strongly supported the principles of public participation they were disappointed with its reality. Significant differences between participant groups related to their evaluations of the effectiveness of these processes, their awareness of public participation legal requirements, their preference for strengthening these requirements and the appropriate levels and methods for engaging the public. Participant groups with higher levels of influence provided more positive evaluations of these processes and were less interested in strengthening their legislative requirements and appeal rights than those with the least influence. This dissertation makes several valuable contributions to town planning and legal research. The research provides valuable information on how laws work in their social and economic contexts. It provides a rich and comprehensive understanding of where public participation in major projects is failing and how it can be improved in a manner that meets the needs and abilities of a diverse public. This dissertation springs from empirical research which, though widely used in social science research, is not widely utilised in legal research. Such cross-evaluation can be especially useful for international legal research given that differences in legal systems limit the extent to which findings can he compared. This study's research methods and data can be used by subsequent researchers to test their validity and reliability. The research critically examines the applicability of an international convention to public participation in major projects. It is suggested that the three pillars of the Aarhus Convention should be viewed as progressive layers creating a pyramid of participation. The Effective Major Project Public Participation Model advocates providing basic legal requirements that focus on providing good information, followed by appropriate participation and access to independent review, while recognising the need for participant goodwill and voluntary guidelines. This model is supported by a framework, detailing key participation steps and considerations along with a matrix of preferable participation options for major projects.
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ItemThe introduction of the consolidation regime into the income tax assessment act 1997 (CTH) : an analysis of the effect on the subsidiary disposal decision for a corporate group( 2007)In 1998, the Australian Government appointed John Ralph to conduct a review of Australian business taxation. Under its terms of reference, the Review of Business Taxation (`the Review') was required to make recommendations regarding the design of the business tax system, ongoing policy-making, drafting of legislation and the administration of business taxation. As a preliminary step, the Review released a number of discussion papers. In the first of these, A Strong Foundation, the Review set out what it considered to be an appropriate design framework for business taxation, and identified three national taxation objectives that should provide `high level guidance for the design and operation of the business tax system'. One of these objectives was optimising economic growth. In particular, the Review indicated that: An internationally competitive economy will require, and be sustained by, efficient economic use of its resources. To that end, a vital precondition for international competitiveness 'vill be to ensure that the business tax system does not influence business decisions unnecessarily. The culmination of the work of the Review was the release of the report, A Tax System Redesigned: More Certain, Equitable and Durable (`the Ralph Report'), which set out the Review's final recommendations for business tax reform. The cornerstone of the new business tax system recommended in the Ralph Report was the so-called `consolidation regime', which would permit certain corporate groups to be treated as a single entity for tax purposes. This recommendation was accepted by the Government and enacted, and, as a result, since 1 July 2002 certain corporate groups have been able to choose to be treated as a single entity for tax purposes. To what extent does this consolidation regime comply with the original design framework put forward by the Review in A Strong Foundation? In particular, does it satisfy the `vital precondition' that it `does not influence business decisions unnecessarily'? In this thesis, I consider this issue by focusing on one particular business decision that could be affected by the consolidation regime; namely, the decision by a corporate group to dispose of a subsidiary (`the subsidiary disposal decision'). I examine the ways in which the consolidation regime might influence this decision, and assess the extent to which this renders the consolidation regime liable to the charge of influencing the subsidiary disposal decision unnecessarily. I focus on four examples of where the consolidation regime could affect the subsidiary disposal decision: the payment of a pre-sale dividend by the subsidiary (or `target'); a presale debt reconstruction in relation to the target; some particular cost base issues; and the liability, as between group members, to pay tax under the consolidation regime. I conclude that the consolidation regime influences the subsidiary disposal decision. I then suggest that, because that influence is difficult to justify having regard to the national tax objectives set in A Strong Foundation, the consolidation regime influences the subsidiary disposal decision `unnecessarily'.
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ItemThe legal precariousness of casual employment : an examination of the legal regulation of the Australian labour market pre-2006( 2006)Are casual jobs inferior jobs? This issue is usually framed in the labour law literature by asking whether casual employees are legally precarious in the sense of enjoying fewer rights and benefits compared to those conferred upon permanent employees. The answer, according to most labour law scholars, is `yes'. The characterisation of casual employees as legally precarious is, however, problematic because of its underlying legal understandings. Foremost perhaps, many scholars erroneously ascribe a uniform contractual character to casual employment. Moreover, they wrongly presume that the contractual arrangements under which a casual worker is employed necessarily determines his or her access to protection and benefits. Further, there has been insufficient appreciation of the complex interaction between various definitions of casual employment. It is these difficulties that give rise to the principal question for this thesis: To what extent are casual employees legally precarious in the sense of enjoying fewer rights and benefits compared with those conferred upon permanent' employees? . This question can be broken down into two subsidiary questions: 1) What are the rights and benefits enjoyed by casual employees? 2) How do such rights and benefits compare with those afforded to `permanent employees? This thesis addresses these questions in three key areas of labour protection: protection against dismissal; income security and access to standard leave entitlements. In addressing the first sub-question, the thesis finds that, as the law stood. on 1 December 2005, casual employees enjoy varying levels of protection in all three areas. Much the same applies to permanent employees (as defined by this thesis). These varying grades of protection largely result from the fact that the availability of labour protection depends on a multiplicity of factors of which permanent/casual status is merely one consideration. When the rights and benefits of casual and permanent employees were compared, the conclusion was reached that casual employees, as a class, are not necessarily legally precarious in these three areas of protection. Neither can it be said that casual employees, as a class, are necessarily legally precarious in each of these areas. There is, however, a group of casual employees that are legally precarious in all three areas. It can be tentatively concluded that these legally precarious casuals form a significant proportion of workers considered by the Australian Bureau of Statistics to be casual employees. Conversely, some casual employees are not legally precarious in all three areas. Again it can be tentatively suggested that these protected casuals form a meaningful proportion of ABS casual employees. The thesis concludes by proposing a preferable approach to conceiving the question of legal precariousness. What appears to underlie the problematic answer given by labour law scholars to the question of legal precariousness is a binary model that equates permanent employment with protection, and casual employment with inferior protection or a lack of protection. A preferable approach to the legal precariousness of casual employees is to see the protection afforded to casual and permanent employees through a continuum model. This model, not only recognises the varying grades of protection enjoyed by casual and permanent employees but it also reformulates the question of legal precariousness. Instead of asking whether casual employees enjoy fewer rights and benefits compared to those conferred upon permanent employees, the question becomes: Is a worker or a particular group of workers legally precarious in the sense of not enjoying standard rights and benefits?
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ItemOfficers' accountability in managed investment schemes( 2005)The thesis examines the ways in which the directors and other officers of a company that operates a managed investment scheme can be held legally accountable for maladministration of the scheme's affairs. It demonstrates that the officers' legal accountability for maladministration arises under a combination of corporations law principles, equitable principles that apply to the officer as a consequence of the fiduciary relationship between the operator and the investors, and (where they apply) the regulatory regimes governing the provision of financial services and the operation of registered schemes. The thesis identifies the types of conduct on the part of an officer that can result in personal liability under these principles, and examines remedies and sanctions that are available to the operator, the investors, scheme creditors, and the State.
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ItemRejecting the feudal doctrine of tenure within a pluralist land culture : toward an allodial land model( 2005)This thesis argues that the feudal doctrine of tenure, as it exists in the Commonwealth jurisdictions of Australia, Canada and New Zealand, should be abolished in favour of an allodial land system. The feudal doctrine of tenure is a derivation of English history which had no relevance to colonial cultures where indigenous existence was an actuality. The tendency of colonial jurists to ignore the existence of indigenous inhabitants resulted in the application of a land system which was wholly inappropriate for the regulation of indigenous and non-indigenous land interests. As the courts increasingly recognise the validity of indigenous title, some of the fundamental problems with feudal tenure have become more apparent. The fact that feudal tenure has been largely utilised as a device for assuming absolute Crown sovereignty over all land, thereby denying the validity of indigenous title, has meant that it has never had a bi-cultural focus. It is argued that an allodial system, based broadly on the tenets of the model introduced during the republican revolution within the United States, but with significant legislative regulation, would provide a much more responsive and culturally neutral system. The removal of the sovereignty discourse from the land framework would allow land interests to develop according to their individual cultural origins. This would create an equitable and balanced land system better equipped to embrace the developments of contemporary common law jurisprudence.