Melbourne Law School - Theses
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ItemThe old bridge of Mostar and increasing respect for cultural property in armed conflict( 2008)This thesis concerns international legal protection of immovable cultural property in armed conflict. Drawing on the relevant rules of international humanitarian law (IHL) and jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), the thesis analyses the incident of the deliberate targeting and destruction of the Old Bridge of Mostar, Bosnia and Herzegovina, first from a normative point of view and then it examines enforcement efforts to identify issues relating to international legal protection of cultural property in armed conflict arising from this incident. The objective of the thesis is to evaluate the adequacy of the IHL, regime relating to the targeting and destruction of cultural property in armed conflict and the adequacy of international enforcement regime based on the study of the Old Bridge of Mostar. Although it is precious to all humanity, including future generations, cultural property is targeted wilfully during armed conflict The deliberate destruction of the Old Bridge is emblematic of tragedies wrought on priceless cultural objects internationally. The Old Bridge was a monument of exceptional historical and architectural. significance. It formed part of the cultural heritage of all humankind. The Old Bridge was a protected object within the meaning of IHL. At the time of its destruction it was devoid of military significance and did not constitute a legitimate military target. Its destruction was in violation of the relevant rules of IHL protecting cultural property in armed conflict. The wilful destruction of cultural property amounts to a war crime and incurs individual criminal responsibility. In the litany of Balkan war crimes the wilful destruction of cultural property has been pushed from centre stage. Cultural property-related crimes have not been as `visible' as they should have been. Although some important steps have been made towards ending impunity for cultural property-related crimes, there are still problems at both the normative and enforcement levels. Despite numerous legal prohibitions on the destruction of cultural property in armed conflict, these norms require further clarity and implementation. Until this happens and blatant attacks on cultural property are paid closer attention it will be difficult to ensure respect for cultural property in armed conflict.
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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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ItemFirst world convention and third world corruption : the OECD convention on bribery in international commercial transactions and foreign subsidiary corporations in the Philippines( 2007)This thesis examines the application of the OECD Convention on Bribery in International Commercial Transactions (the Convention) to corrupt practices facilitated by foreign subsidiary corporations with particular focus on commercial contracts in the Philippines. The dynamics of bribe payments in two Philippine infrastructure contracts are studied in light of specific provisions of the Convention. The two case studies show that the corruption of Filipino government officials need not be directly carried out by foreign nationals nor by foreign international corporations. This is because the bribery may be facilitated by resident representatives of resident subsidiaries, or by resident representatives of domestic corporations. Also, a labyrinth of personal connections allows bribe proceeds to reach the intended Filipino public officials without the foreign corporation's officers necessarily having to meet officers of the parent corporation. The thesis finds that while the Convention's approach to addressing the problem of corruption internationally is unprecedented, its practical effectiveness is challenged by its ambivalent provisions on jurisdiction and elements of the offence. Further, unless local commitment to enforce and implement the Convention is strong,, currently entrenched business practices will be difficult to reform. The liberality accorded member countries to implement the provisions of the OECD Convention within the existing principles of their respective legal systems has resulted in diverse and variant implementing statutes such that the particular commission of the crime of bribery of a foreign public official may result in some liability in one jurisdiction, but not in another. The OECD Convention is the first of its kind in the international regime. It could have made a difference in curbing transnational corruption. But it did not and does not. END
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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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ItemFantasies of 'female genital mutilation' : flesh, law and freedom through psychoanalysis( 2007)In 1996 the Crimes (Female Genital Mutilation) Act was passed in Victoria, Australia. The consultation with migrant communities, affected by the practices, was almost non-existent. The methods of the consultation, the implementation of the legislation and the use of the term "female genital mutilation" were objected to by the migrant communities. This objection and implementation mirrored similar legislative initiatives and similar methods of implementation in the United States, Canada, Scotland, England and Egypt. This thesis is an analysis of the speech on, and against, female genital mutilation. The analysis explores the texture of this speech, understood as a particular and invested arrangement of fantasy. This fantasy concerns the relation between the liberal subject and the sovereign. The relation is parsed in terms of the economic, the psychoanalytic and the political. These are the three idioms through which fantasies, of female genital mutilation emerge in contemporary times as a fantasy of flesh cut and the possibility of free speech. The thesis has four parts. In the first part it explores fantasies of subjectivity understood as the constitution of a mutilated woman against a fantasy of a non-mutilated liberal subject (as a postcolonial concern). The context for the exploration is firstly the emergence of the above mentioned Crimes (Female Genital Mutilation) Act 1996, and secondly its relations to the formation of the modern liberal subject (Rousseau, Hobbes, Schmitt and Freud). In Part B the thesis explores economies of flesh. First and foremost the economy is staged as a relation between the subject and the sovereign. This relation is figured as a tension between a fantasy of circumcision and a fantasy of mutilation. The psychoanalytic theories of Lacan and the political theories of Agamben are called to aid this exploration. In Part C the thesis discusses the politics of freedom articulated in sovereign democratic politics. Here the thesis moves from its focus on female genital mutilation legislation and places it in the contemporary politics of the `war on terror', evocations of national community and the problematics of a cultural pluralism. These are understood in terms of the differential orientations to loss (of freedom and speech)'; known as melancholia, psychosis and mourning. Mourning is the concern of Part D. In doing so the thesis returns to the speech on and against female genital mutilation and their invocations of human rights. The limits is figured in this part by reference to the protest of an African woman who says `I am not mutilated.' The figure of this woman returns us to the dialectic of flesh and speech that this thesis has argued embodies western fantasies of female genital mutilation. What is lost, but returns to haunt the liberal subject, imagining itself sovereign, is the possibility of freedom and an authorised loss of speech, in a democratic politics worthy of the name.
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ItemA model law for anti-doping in sport( 2006)The objective of this thesis is to show that the development of a model law for adoption by nation states is an essential step in legal efforts to combat doping in sport, and to make recommendations on the content of this legislation. Drugs in sport are an issue of significant public and media interest. In a society where athletes are also role models, the use of performance-enhancing and recreational drugs by sportsmen and women is widely condemned. In recent years enormous efforts have been made by both sporting organisations and governments to put a structure in place to support sports' anti-doping rules. This has resulted in the creation of the World Anti-Doping Agency (WADA) and the development of the World Anti-Doping Code. However, these rules remain private in nature and therefore are inadequate to address all the problems presented by doping. To this end, the UNESCO International Convention Against Doping in Sport was also adopted in 2005. This thesis examines what further legal measures are required to combat doping, and focuses on the development of a model law that can be adopted by governments to implement the Convention and tackle doping issues. A model law is recommended as the best way to harmonise the legal approach to doping across nations, and to provide a tool to the numerous nations currently lacking the capacity to devise an appropriate legal response to the issue. It would be appropriate for the model law to be situated as a model of best practice within the World Anti-Doping Program housed by WADA, after appropriate development in conjunction with UNESCO. In devising the argument for a model law and recommendations as to its content, the current domestic anti-doping laws of four countries have been examined, along with the special issue of human rights as they apply to anti-doping.
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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?