Melbourne Law School - Theses
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ItemOccupation, resistance & the law: Was armed resistance to the occupation of Iraq justified under international Law?( 2009)The 2003 invasion and occupation of Iraq triggered a plethora of legal questions. This study focuses upon two: Was Iraqi resistance to the invasion and occupation justified under the laws of war? If so, by whom and for how long? ('The research questions') These are questions that the UN Security Council deliberately avoided when it responded to the intervention. Given that most States and commentators regarded the intervention as a violation of the UN Charter, the legality of armed resistance to the invasion and occupation warrants analysis. The present study examines, inter alia, whether Iraq was justified in using force against Coalition forces in the exercise of rights under the jus ad hellum. It considers whether self-defence and self determination provided a juridical foundation for armed resistance to the invasion and subsequent occupation of Iraq. Attention is also paid to the jus in hello. Issues addressed include: the nature of the conflict(s) during the occupation; whether members of various resistance forces qualified as combatants; and the issue of compliance with the jus in hello during resistance operations. In order to address these matters with precision, the occupation of Iraq is considered in several stages: 1. The immediate aftermath of the ouster of the Ba'ath regime (April-May 2003); 2. Post-UNSCR 1483; 3. Post-UNSCR 1511; and 4. Post-UNSCR 1546 (and pre-28 June 2004). The fourth stage highlights a matter of fundamental importance to this study the end point of the occupation. The position adopted here is that the occupation was terminated, with UNSC approval, upon the transfer of power to an Iraqi government on 28 June 2004. Thereafter, armed resistance could not have been justified under the right of national self-defence, as this right is exercisable by governments, not insurgent forces. While it may be argued that military occupation continued, as a matter of fact, beyond the transfer of power, this writer's view is that, as a matter of law, the occupation was terminated on 28 June 2004, in accordance with UNSCR 1546. Discussion of 'the legality of resistance to occupation' is thus confined to the period between the collapse of the Ba'ath regime in April 2003 and the transfer of power on 28 June 2004. In addressing the research questions, a range of contemporary legal issues are highlighted. They include: 1. Unresolved tensions within the laws of war over the precise parameters of 'lawful resistance' to foreign occupation; 2. Overlap and convergence of the jus in hello and the }us ad hellum in the context of armed resistance to occupation. (The clearest example is the right of peoples to fight for self determination against alien occupation which falls within both branches of the laws of war); 3. Whether the right of self-defence may be overridden by the UNSC; 4. Whether UNSC resolutions depend for their validity upon their conformity with jus cogens norms; and 5. Whether armed resistance to UN-authorized forces is, by its nature, a breach of the UN Charter and therefore an unlawful use of force.
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ItemThe interrelationship of private international law principles and international corporate insolvency( 2002)The search for the appropriate manner to conduct cross border insolvency administrations has continued for many years and taken many forms. Clearly these administrations involve assets, rights and creditors dispersed among jurisdictions with nations having no unilateral authority to administer aspects of the insolvency not located in their jurisdiction. My thesis initially outlines and reviews this search for the manner in which these administrations should be conducted explaining the theoretical approaches proposed as to the manner in which these administrations should be conducted and isolates the theory reflected in these current proposals. The conclusion drawn from this review is that generally a universalist approach is preferred, being a stance of co-operation with foreign administrations. This thesis tests this 'co-operative approach' by way of the international instruments proposed, the characterisation process presently utilised in determining the law governing rights/assets involved in these administrations and the trends evident in the most recent developments in this area i.e. the writings of the theorists, recent domestic legislative enactments and international solutions proposed. The Australian approach is accorded particular focus in this examination to both ascertain the approach it adopts and the solution it would be disposed to in any international solution. This examination reveals that despite all the work undertaken in this search for the appropriate manner in which to conduct these administrations, in reality despite an ostensibly universalist stance predominance is accorded to the protection of domestic and other commercial interests over any real co-operation being achieved. This thesis argues once insolvency intervenes it is appropriate for all rights to be determined in an insolvency context and details the factors making such characterisation appropriate. The final chapter of this thesis discusses how the present situation can move on to a more international solution. Building on the commonalities evident in the international instruments proposed, this thesis proposes the appropriate manner to conduct these administrations. This thesis then determines the manner in which this international solution should be implemented and discusses why in Australia's case the CA is not the appropriate vehicle to utilise for same.
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ItemReforming Australia's anti-discrimination legislation: individual complaints, the equality commission and tackling discrimination( 2009)Australian courts hear very few discrimination complaints each year. Most complaints are resolved prior to hearing, in the privacy of conciliation. The hypothesis of this thesis is that the law is not operating as intended and there is a shortage of decisions because complainants are disinclined to use the formal legal system to resolve their complaint. Commentators have identified problems with both the substantive law and its interpretation, the problems related to proving discrimination and the lack of support available to complainants. This thesis considers the extent to which these problems are a factor in the high rate of settlement of complaints based on interviews of staff at the Victorian Equal 0pPoliunity and Human Rights Commission, lawyers and non-legal advocates practicing in discrimination law in Victoria, and a survey of complainants and respondents who have participated in conciliation. This is supported by an analysis of court decisions and complaint statistics. This research revealed that most complainants settle to avoid the time and energy required to pursue the complaint, the cost of litigating or the risk that if they are successful and awarded compensation, it may not cover their legal fees. It also identified problems with the resolution process, particularly the facilitative nature of conciliation and that there is little publicly available information about settlement outcomes. Furthermore, the research revealed that although complainants may initially seek wider remedies, most complaints are resolved with compensation and an analysis of substantive decisions showed that the tribunal most often orders compensation in Victoria. Drawing on mechanisms used overseas, this thesis proposes a strengthened model of individual enforcement. Under this model, complainants have direct access to a specialist 'equality' tribunal and can choose 'rights-based' conciliation or adjudication using less formal and less adversarial hearing procedures. In addition to remedying the complainant's experience, the tribunal is required to make an order targeting discrimination more broadly. The second part of this proposal is to introduce a statutory 'questionnaire procedure' to assist complainants with obtaining information relevant to their complaint and, for those who proceed to litigation, shifting the burden of proof to the respondent once the complainant has established prima facie discrimination. As a result of the proposed changes to the individual enforcement process, the equality commission would not be responsible for resolving complaints. The thesis proposes to add another enforcement 'tier' - enabling the equality commission to assist complainants with resolving the complaint. The thesis argues that the equality commission should use its assistance function strategically to develop the law and to obtain outcomes which benefit a group. Finally, the thesis argues that addressing discrimination with an individual complaints based process is limited because it is reactive and passive. The thesis concludes by presenting an overview of positive duties in the United Kingdom and shows how they attempt to overcome the limits of the individual complaints based approach in tackling discrimination.
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ItemLiability of the university in negligence( 2001)The liability of a university for the negligent instruction of students has traditionally been limited by the reluctance of the courts to intervene in internal matters, and particularly in purely academic matters, and the availability of other mechanisms for dispute resolution, notably the jurisdiction of the visitor. This thesis considers these traditional constraints and argues that the changing environment in which the university functions requires a change in approach to the analysis of the liability of universities for negligent instruction. It considers the university systems in Australia and the United Kingdom and, to a lesser extent, the United States, and argues that increasing governmental involvement in the university system could give the university the status of a quasi-governmental organisation. The level of governmental control invites a negligence analysis appropriate to a public body, but that analysis is not likely to lead to significant differences in the outcome. This thesis details the approaches in Australia and the United Kingdom in the analysis of liability of governmental organisations. It then undertakes an analysis of potential liability in negligence. Considerations peculiar to the university context arise at each stage of a negligence analysis, and this thesis analyses the effect of these matters. However, the number of alternative dispute resolution procedures available to the student are likely to divert actions in negligence to other types of proceeding. There is a significant impact on the negligence analysis through administrative remedies, the jurisdiction of the visitor, and statutory protections afforded to the consumer.
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ItemFrom committee to commission?: the evolution of the Mekong River Agreements with reference to the Murray-Darling Basin Agreements( 1997)The Murray-Darling Basin Agreements had their genesis in disputes between upstream States (Victoria and New South Wales) and a downstream State (South Australia) over the use of basin waters. While originally the disputes concerned navigation, for most of the twentieth century, the rivers' use for irrigation has been of more importance. The 1914 Murray Waters Agreement, between the Commonwealth government and those of the three basin States, was essentially a compact defining allocation of water to the parties concerned. Agreements on the Murray-Darling basin have evolved from this narrowly-based concept to one in which the natural resources of the basin are to be managed as a whole. At the same time, an institutional structure for the operation of water control works has developed which is able to make policy for resource management in the basin. The present Agreement covers water, land and environmental resources, and contains provisions for strategies intended to enable the integrated and sustainable development of the basin in the future. The Mekong Agreements, rather than representing a consistent evolution towards a legal framework for comprehensive basin management, have instead reflected the political evolution of the region. The 1957 Statute was a limited compact establishing the Mekong Committee for the Co-ordination of Investigation. It made no provision for basin management, nor for the equitable use or sharing of basin water. It was established to a large extent as an expression of the influence of the United States in the region. Its successor, the Joint Declaration of 1975, was a more comprehensive document, and used the Helsinki Rules of 1966 as a model. While it included principles of cooperation between riparian States, which could be used to ensure equitable use of water, it did not provide an adequate institutional structure for the management of basin resources. The 1975 Declaration was drafted during a hiatus in the conflict in South East Asia; and because one of the signatory States - the Republic of Vietnam (South Vietnam) - ceased to exist with the fall of Saigon, it was never applied. Interim arrangements were in place until 1995 during the absence of Cambodia from the international body politic. The drafting of new arrangements was then precipitated by Thailand's expulsion of the head of the Mekong Secretariat, effectively bringing the status quo to an end. The Mekong Agreement of 1995 establishes a new Commission, and states its purpose to be the sustainable development of basin resources. It relies on a co-operative approach, rather than establishing comprehensive criteria for water use, with the exception of the Mekong mainstream in the dry season. In addition, there is no provision for projects on tributaries to be submitted to the Commission for an evaluation of their effect downstream. In contrast to the arrangement under the Murray-Darling Basin Agreement, it confers no powers on the Commission to control basin waters, or to manage the regime in an effective manner, and to ensure equity between basin States. If development in a rational and equitable manner is assured, legal and institutional arrangements should be able to endure the ebb and flow of international relations. The need for an appropriate instrument to accommodate changing circumstances in the Mekong basin is made the more important by the prospect of the two upper basin States (China and Myanmar) joining the Agreement in the future. The Murray-Darling Basin Agreement, while it is a less than ideal model for legislation in this field, nevertheless offers guidance on how the new Mekong Agreement may be developed. This applies both to the management of basin resources, and to the preparation of strategies directed towards the objectives of the Agreement. The 1995 Mekong Agreement will be examined in the perspective that legislation should be stable and not static. While the Agreement has been duly praised for its intention of developing the basin through co-operation between States, this thesis looks at ways in which it may be improved. Significant issues effecting the choice of institutional and legal arrangements in both basins are identified and discussed. Findings from this comparison suggest a context for the further evolution of the institutional and legal framework to support the rational management and sustainable development of the Mekong basin.
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ItemThe court and the factory the legal construction of occupational health and safety offences in Victoria( 1994)This thesis reports on an empirically based study of the manner in which Victorian Magistrates Courts constructed occupational health and safety (OHS) issues when hearing prosecutions for offences under the Industrial Safety, Health and Welfare Act 1981 (the ISHWA) and the Occupational Health and Safety Act 1985 (OHSA) from 1983 to 1991. These statutes established OHS standards for employers and other relevant parties. The State government enforced these standards through an OHS inspectorate which had a range of enforcement powers, including prosecution. After outlining the historical development of Victoria’s OHS legislation, the magistracy’s historical role in its enforcement, and the development of an enforcement culture in which inspectors viewed prosecution as a last resort, the study shows how the key provisions of the ISHWA and OHSA required occupiers of workplaces and employers to provide and maintain safe systems of work, including the guarding of dangerous machinery. Using a wide range of empirical research methods and legal materials, it shows how the enforcement policies, procedures and practices of the inspectorate heavily slanted inspectors workplace investigations and hence prosecutions towards a restricted and often superficial, analysis of incidents (or “events”) most of which involved injuries on machinery. There was evidence, however, that after the establishment of the Central Investigation Unit in 1989 cases were more thoroughly investigated and prosecuted. From 1990 the majority of prosecutions were taken under the employer’s general duty provisions, and by 1991 there was evidence that prosecutions were focusing on matters other than machinery guarding.
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ItemAustralian water law: an historical and analytical background( 1971)The thesis traces the history of governmental intervention in Australian water management. At the State level, it examines traditional common law doctrines, their inadequacies to meet Australian demands, and the tensions between private rights and public control inherent in the Australian system of administrative rights to water. It argues for clearer recognition of the role of private law actions in such a system. At the national level it documents the history of the conflicts which have shaped the administration of inter-State rivers as a background to the integrated enquiries of other research students.
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ItemDefamation and the internet( 1999)The Internet is a unique and revolutionary medium of communication. The objective of this dissertation is to identify whether there are areas in which reform of the rules of Australian civil defamation law needs to be undertaken to meet the challenges posed by this new medium and, if so, to advocate desirable reforms. The methodology by which the dissertation sets out to achieve its objective is a systematic analysis of how the defamation cause of action, defences and remedies, as well as relevant jurisdiction and choice of law rules, apply, or are likely to apply, to material published via the Internet. It is possible to distil five features of communication via the Internet which are of relevance to the operation of the rules of civil defamation law: - Internet communications do not respect geographical boundaries: they involve the transfer of signals from computers in indeterminate locations, to other computers in indeterminate locations, via routes which are indeterminate; - intermediaries, in the form of Internet service providers and network operators, play a central role in all Internet communications; - material published via the Internet can be republished to a wide and geographically diverse audience more easily than material published via other means; - material on the Internet is organised through the use of hyperlinks which blur the distinction between where one publication ends and the next begins; - the Internet can be used in a wide variety of ways, to resemble almost any other medium, including the telephone, the postal service, radio, television, newspapers or libraries. Once the way in which the Internet works and is used is understood, it is possible to predict how most of the rules of defamation law would apply to material published via the Internet. The outcome of the research undertaken in this dissertation is that most of those rules are capable of being applied without the need for reform. In other areas, however, the existing rules give rise to uncertainty, or undesirable outcomes, when applied to Internet publications. In those areas, reform is desirable. Ultimately, four areas of reform of the existing rules of defamation law are identified, and desirable reforms suggested: 1 Reform to clarify whether different types of Internet publication are libel or slander. 2 Reform to ensure that intermediaries of Internet publications are only liable for civil defamation where their conduct is sufficiently culpable to warrant the attribution of liability. 3 Expansion of the remedies available in civil defamation law to provide successful plaintiffs with more effective means of vindicating their reputations where they have been damaged by defamatory Internet publications. 4 Reform of the choice of law rules applicable to intra-Australian publications, by adoption of a rule that substantive rights and liabilities are determined by applying solely the law of the place (or places) of publication, regardless of the place in which proceedings are brought and determined.