Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 2 of 2
-
ItemLegal professional privilege: its rationale and exceptions( 1984)The object of this thesis is to critically examine the rationale of legal professional privilege and its common law and statutory exceptions. It is contended that the effect of the privilege in excluding relevant and otherwise admissible evidence is justifiable so long as the privilege is applied consistently with its underlying rationale and is closely confined by its exceptions. The traditiona1 rationale of the privilege and the 'lawyer's brief' theory are discussed. The approach of the High Court of Australia to the privilege is analysed in light of recent decisions. It is noted that the privilege is no longer a mere rule of evidence but a general and substantive principle. An important aim in examining the common law and statutory exceptions to the privilege is to consider the extent to which the exceptions can be reconciled with the policy of the privilege. Some common law exceptions have yet to be recognized in Australia. The third party exception, however, which appears to be accepted in this country, conflicts with the rationale of the privilege and should be abolished. With regard to the statutory exceptions, provisions expressly abrogating the privilege are rare. There is also legislation which may arguably override the privilege by necessary implication. The principles applied by courts in construing such legislation are discussed. The increasing regulation of society coupled with the vesting of wide investigative powers on administrative officers have posed a major challenge to the continued existence of the privi1ege. It is necessary that the privilege be preserved. The functioning of our legal system depends on protecting the freedom of communication between legal advisers and their clients.
-
ItemThe criminal liability of corporations( 1993)This study is an examination of the various aspects of the criminal liability of corporations, including the existing law and its potential reform. The study begins with an examination of the theory and concept of corporate criminal liability, as it exists in Australian law. Particular reference is given to the persuasive influence of English law on the Australian conceptual framework, and the consequential restrictiveness of common law in relation to corporate criminal liability. This has prompted the use of various legislative techniques in Australia to broaden the application of what are, in practice, personal offences to corporations. The use of legislation has had limited success. The difficulty with much Australian legislation is that it has broadened a narrow doctrine, rather than reassessing some of the fundamental concepts. Other countries are now beginning to re-examine their existing approach to the criminality of corporations, and this study makes particular reference to American involvement in dealing with offending companies and their management. A study of corporate behaviour, indeed in the growth and change of status of the company in our society, raises many issues concerning corporate criminality, the types of crimes that can occur and the reasons why corporations may offend. An examination of corporate offences, and the potential harm that flows from breaches of the law, forms the basis for a re-assessment of existing law, and even the corporation itself as its exists in our society. Indeed the proposed Australian Model Criminal Code, with its recognition of corporate blameworthiness, is one enormous conceptual leap in changing the approach of law in dealing with corporations. However, a re-evaluation still needs to be made of existing criminal legislation, executive procedure, judicial procedure and potential sanctions. Furthermore, there must be a consideration of the end object that is sought by making a company criminally liable. The objective of any reform should be to achieve a law abiding corporation, where legal compliance is reflected in its structures and ethos, not the letter of the law. Sanctions to achieve such an ideal outcome may be found in other ways than merely through traditional punishment, such as fines, the alternatives being examined in this thesis.