Melbourne Law School - Theses
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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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ItemRecent developments in the law of consumer guarantees and indemnities( 1985)A brief examination of the history of the guarantee reveals that equity treated the guarantor as a favoured debtor, given the absence of real benefit to the guarantor. However, these protections have largely been removed by standard form guarantee contracts used by, credit providers, and the law is also otherwise deficient in protecting consumer guarantors. As the expansion of the use of credit in recent years has meant that guarantees are now sometimes given carelessly and thoughtlessly, by persons without adequate education and resources to protect their interests, regulation is required (Chapter 1). The statutory regulation of guarantees before the passing of the Credit Act was inadequate. After examining the scope and nature of the Credit Act, the effect of the Credit Act on the regulation of guarantees is examined (Chapter 2). The extent to which the common law and statute law regulate pre-contractual information given to guarantors is then examined. It is concluded that room for improvement exists (Chapter 3). The extent to which the common law and statute law regulate the exercise of undue influence, unfair pressure and the making of unconscionable bargains is then examined and it is concluded that developments will occur rapidly in this area (Chapter 4). Common law and statutory provisions which discharge the guarantor from liability are then examined in the light of the operation of the Credit Act and it is concluded that some flaws exist both in principle and in the operation of the law (Chapter 5). The extent to which the guarantor is entitled to control the appropriation of payments made by the debtor, and the extent to which the guarantor's liability is coextensive with that of the debtor is then examined and some changes suggested (Chapter 6). The guarantor's rights to have action taken first against the debtor and the debtor's assets, the guarantor's rights to notice before action, and the right of indemnification after action, are then examined (Chapter 7). The possible reasons for the non-regulation of guarantees are examined and dismissed; past suggestions for reform and possible future reforms are examined (Chapter 8). Standard form contracts of guarantee are discussed and the text of a draft fair, simple English, standard form guarantee is suggested (Chapter 9). The law is as stated at 30 November, 1985.
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ItemThe legal nature and taxation implications of friendly society savings and investment assurances( 1986)The heyday of the friendly society movement in Australia, which spanned from the early days of colonisation until the mid-1930's, saw friendly societies as the main provider of social welfare benefits for a large proportion of the population. Since the advent of the modern 'welfare state', the movement drifted steadily into a state of decline. The 1980's, however, have heralded a remarkable rejuuination of the movement, based upon traditional friendly society ideals of providence and thrift. Instigating this revival are Victoria's friendly societies which now market an array of endowment type life assurance policies, designed to promote savings and investment returns for the movement's now diverse and rapidly growing membership. All Commonwealth insurance legislation specifically excludes insurances effected by friendly societies, and from a casual reading of the Victorian Friendly Societies Act 1958, the legislative power for societies to effect life assurances is y no means immediately apparent. Indeed, a closer reading of nineteenth this Act highlights that its / century English based provisions are inadequate, and often unintelligible so far as regulating and providing a satisfactory framework for the operation of modern friendly society life assurance activities. This paper provides a practical description of friendly society endowment assurances, and examines their legal nature and operation by tracing the legislative evolution of the enabling provision. The regulation and operation of these assurances within the scope of the Friendly Societies Act, is discussed at length, and where appropriate, critically analysed. Throughout the paper comparisons between Commonwealth life insurance legislation, which regulates similar assurances, is made with a view to further highlight the inadequacies of the present friendly society legislation. By design, Part 1 is very much descriptive in its content. This is due not only to the fact that modern friendly society life assurances have received little, or no legal comment, but also because a basic understanding of the nature and operation of these assurances is a prerequisite to the discussion of their taxation implications in Part 2. In Part 2, the paper essentially focuses on the taxation consequences of ownership of a friendly society life assurance policy. It does this by looking at the long standing traditional tax concessions applicable to these policies. These take the form of 'tax-free' reversionary bonuses attaching to life assurance policies generally, and until recently, a rebate for contributions. The discussion analyses in detail, recent legislative changes, which coincidental with the dramatic increase in friendly society assurance activities, have been introduced to prevent exploitation of these traditional taxation concessions. Brief attention is also given to the taxation status of the friendly societies themselves.
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ItemMoratorium legislation in the Canadian and Australian rural sector : its history and present utility( 1989)A. The Analysis and Problem 1. At Common Law the rights of creditors were virtually absolute. 2. Over time, the law has whittled away the unimpeded rights of unsecured creditors through bankruptcy and insolvency legislation. 3. Secured Creditors have also had rights, throughout legal history, which were, virtually, inviolate. 4. In Canada and in Australia, bankruptcy legislation has had very little effect on the rights of secured creditors. 5. However, in times of crisis, even the rights of secured creditors have been restricted in the interest of the common good. 6. The pendulum continues to swing in favour of creating more rights in favour of debtors and restricting secured creditors' rights in Australia and Canada. 7. There is a strong lobby urging the restriction of secured creditors' rights as they relate to farm debtors due to the extreme economic hardship faced by those persons during the 1980's. B. The Issues 8. Whether it is appropriate to further expand the rights of debtors and to restrict the remedies of secured parties in any circumstances through moratorium legislation. 9. Whether farm debtors fit within the principles justifying interference with secured creditors' rights. 10. What safeguards should be inserted in such legislation to ensure that there is proper balance for the legitimate concerns of both debtors and creditors. C. Conclusions 11. Present legislation in Canada is deficient and does not properly assist either debtors or creditors involved in the present farm difficulties. 12. Australian legislation is superior because it has addressed all of the issues facing agriculture and has recognised that there must be adjustment in agriculture. 13. There is a place for moratorium legislation as a means to an end, namely, in promoting alterations in the agricultural sector to promote future efficiency and, potentially, to assist in the transition of nonviable farm enterprises out of the agricultural sector. 14. However, steps must be taken to preserve and protect the fundamental and historical freedoms of creditors.
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ItemThe Role of the National Companies and Securities Commission in regulating takeovers( 1982)When the Commonwealth and State Ministers met in Maroochydore in May 1978 to settle on the form of co-operative legislation relating to companies and securities, a number of options were open to them. One alternative put forward in relation to takeovers, was the establishment of a takeovers panel or committee, with a broad power to determine guidelines and to deal with takeovers on a case by case basis. The other alternative was to continue with a system of legal prescription. Although such a system had been tried in Australia for a number of years with little success, it was felt that such an approach had great advantages of certainty. It was also felt that defects which had become apparent under the takeover provisions of the Uniform Companies Act 1961, could be overcome. It was proposed to overcome those defects by drawing the basic prohibition more widely, to cover acquisitions rather than offers and invitations for shares. It was also proposed to confer on the administering body wide powers and discretions to enable a more flexible approach in the administration of the legislation. The purpose of this thesis is to examine the role of the National Companies and Securities Commission (the NCSC) in the regulation of takeover activity. Under the Commonwealth and State co-operative agreement, the NCSC has an important role to play in the regulation of the securities industry and company law generally. Accordingly, powers have been conferred on the NCSC by the SlA and the CA. This thesis - -deals with those powers only in so far - as they relate to takeover activity. Regulation of takeovers involves a conflict between law and economics. The law is concerned with principles of equity whereas economics Is concerned with allocational efficiency. The NCSC must have regard to both factors. In Chapter 1 it is proposed to consider the reasons why takeovers occur, what interests might be affected by takeover activity and to consider the aims of takeover regulation. Chapter 2 examines the systems of regulation takeover activity which operate in the United Kingdom and the United States. The United Kingdom adheres to a system of self regulation of takeovers and mergers, while the United States had adopted a legislative approach. Although the Australian approach has been to relate a legislative framework, many matters of detail have been borrowed from both models. The development of the co-operative scheme Is examined in Chapter 3. This chapter traces the history of the agreement between the Commonwealth and the States on companies and securities. Some consideration is also given to the form of the co-operative agreement. Essentially this involves the following techniques: (1) all parties to the agreement adopt uniform legislation; and (2) uniform administration is achieved by the investment of a single body with powers by both the Commonwealth and the States. However, the role of the State administrations is preserved under the agreement by the requirement that the NCSC delegate, to the maximum extent practicable, to State administrations. Chapter 4 considers that aspect of the co-operative legislation which deals with takeovers, primarily the Companies (Acquisition of Shares) Act. Although this thesis does not purport to deal exhaustively with the legislative provisions, some consideration of the legislation Is essential, as it constitutes the framework within which the NCSC must operate. In Chapter 5, the various powers conferred on the NCSC, relating to the regulation of takeovers, are considered. The nature and scope of these powers vary greatly. The NCSC has many powers relating to the manner and form of takeovers. It also has powers of enforcement, and powers which confer great flexibility in administration of the legislation. Although many of these powers appear to be extremely wide, there are a number of limitations. Chapter 6 deals with the possibility, of controls which can be exercised to restrict the Commission's powers. The most serious limitation involves the likelihood of judicial review. Control can also be exercised by nonjudicial means, such as by the Ministerial Council which comprises the relevant Minister from each jurisdiction which is a party to the Agreement. The conclusion looks at the problems facing the Commission in the exercise of its powers, and considers the arguments for and against an increase in those powers.
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ItemThe concept of dishonesty in the law of theft in Victoria and England( 1983)This paper is en empirical examination of the concept of dishonesty in England and Victoria from its inception as a result of the recommendations of the Criminal Law Revision Committee in England to the present state of the authorities in England and Victoria. The paper follows the authorities in chronological order first in England and then in Victoria. Each authority is examined and analysed in order to see how the Courts have come to terms with the new concept in defining it, how the concept has developed and changed and the connection of the new concept with the old concepts of larceny and related offences. General criticisms are offered where it is believed that the Courts have strayed from the concept or where the Courts appear confused about defining the concept or where the reasoning appears erroneous. The adequacy or otherwise of the concept as it presently stands is assessed and what advantages and disadvantages exist in the two jurisdictions. Finally, a proposal for reform is suggested having regard to the present state of the authorities.
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ItemThe selling of allotments on plans of subdivision prior to registration : an analysis of the existing legislative controls and suggestions for reform( 1983)The thesis will examine the development of legislation in Victoria controlling the practice of pre-selling real estate. Attention will be paid to the problems associated with uncontrolled pre-selling which became evident in the period 1960 - 1962. The effectiveness of the Sale of Land Act 1962 in dealing with pre-selling will be considered. Controls on pre-selling as are now contained in the Sale of Land Act 1962, the Strata Titles Act 1967, the Cluster Titles Act 1974 and which may be contained in the Companies (Victoria) Code 1981 will be analysed. The general contention of this thesis is that properly regulated pre-selling can play an important role in ensuring a more orderly and efficient property development industry. The present legislative controls are unduly restrictive and have only led property developers to seek artificial means of avoiding the controls and the present means of avoiding legislative restrictions will be considered at length. The thesis will conclude with a call for reform of legislation relating to the pre-selling of real estate and make suggestions of some considerations which should be taken into account when implementing legislative reform.
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ItemTax administration -- the assessment( 1981)One area of procedure encompassed by the topic, Tax Administration, is the statutory assessment. It is that area of Tax Administration to which this thesis is directed. The making of an income tax assessment is probably to be regarded as the primary function of the Commissioner of Taxation under the Income Tax Assessment Act 1936. Almost every action and procedure undertaken by the Commissioner has some relationship to his duty to make assessments. The assessment-making procedure, which is fundamental (in the scheme of the Act) to the creation of an enforceable obligation to pay income tax, includes a process of applying the provisions of the Act to a state of facts with a view to determining the liability of the taxpayer concerned. The nature of the assessment is discussed by reference to the statutory provisions which authorise the making of and objection to an assessment. The thesis proceeds by way of examination of the following topics: the assessment, the notice of assessment, validity in procedure and "assessment", authority to make an assessment, amended assessment, right to challenge an assessment. (The final chapter considers the assessment in the context of the review procedure of Part V of the Income Tax Assessment Act) . A theme of the thesis is that the Income Tax Assessment Act is concerned only with a valid assessment, that is, one made intra vires, and further, that not every assessment-like calculation or determination is the assessment contemplated by the Act. Thus, if the requirements of "assessment" are not satisfied then there is no "assessment" even though there is jurisdiction to assess in the particular circumstances. Where there is jurisdiction to assess then any assessment made will be a valid assessment, and this notwithstanding any identifiable mala fides or impropriety on the part of the Commissioner of Taxation or his delegate which is associated with the making of that assessment.
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