Law & Justice

Publication Search Results

Now showing 1 - 6 of 6
  • (2012) Dias-Abeygunawardena, Manoj
    Thesis
    Part 2-8 of the Fair Work Act 2009 (Cth) Fair Work Act contains a number of provisions that regulate the employment implications of an organisational restructure, for example, requiring that employees’ terms and conditions of employment continue to apply even after they are transferred to a new employer as a result of a transaction that can be characterised as a transfer of business. This thesis seeks to answer the following question: Does Australia's transfer of business regime strike an appropriate balance between providing employees with protection and allowing businesses to restructure their operations in order to maximise productivity, making some comparisons with the German situation? Drawing on the insights provided by the theories of organisational justice and workplace partnership, I intend to develop a model for the regulation of organisational restructuring which is capable of striking an appropriate balance; a model that ensures both the protection of employees as well as allowing businesses to make productivity improvements. I then proceed to compare the law in Australia to that which operates in Germany to determine whether there are any deficiencies in the Australian rules.

  • (2017) Lewis, Ilan
    Thesis
    In relation to the case law dealing with the scope of s 51(xxxi) of the Australian Constitution (‘the Proviso’) it has been suggested that no coherent line of principle emerges, that one meets undisclosed processes of reasoning and that, as a consequence, the Proviso’s operation is unpredictable. This dissertation gives an account and critique of the increasing incoherence of s 51(xxxi) jurisprudence and the High Court’s failure to articulate the constitutional values the Proviso serves to protect. A comprehensive account is given of the Proviso’s inherent interpretive challenges and the various approaches the High Court has adopted to tackle them. The thesis considers in detail the Proviso’s complex interrelationships with other constitutional powers and limitations. It is argued that understanding these interrelationships is a necessary pre-requisite to understanding the problems the Proviso throws up and the formulation of possible solutions. In this context, it considers whether the Proviso’s protective scope can be coherently described as a function of whether or not a given acquisition operates arbitrarily or breaches various tenets of the rule of law. Are decisions dealing with the Proviso’s scope explicable on the basis that the Proviso operates to proscribe legislation which offends such principles as non-retrospectivity, generality and the separation of powers - at least in the property domain? Four cases dealing with the application of the Proviso to what might be called ‘retrospective interests,’ that is, interests arising by way of the retrospective operation of judicial decisions are analysed in detail. It is argued that by excising these types of cases from the mainstream of s 51(xxxi) jurisprudence an opportunity to clarify other areas of doctrine and reconcile other decisions opens up. Finally, various accounts of the Proviso’s purpose or function are evaluated. The thesis concludes that, while various rule of law principles provide a useful guide to understanding the High Court’s decisions in many instances, there exist a number of hard limits on reconciling existing case law and that it is easy to overstate the degree of coherence to be found within it.

  • (2013) Thorpe, David Edward
    Thesis
    Towards the last quarter of the 20th century the revenue stream of major sporting organisations increasingly moved away from gate receipts towards sponsor endorsement. The shift was due to developments in the communications industries, in particular colour television and then two decades later the digital revolution, both of which placed the images of sport and the products it endorsed before audiences at times numbering into the millions. Psychological studies reveal that the more a consumer ‘identifies’ with a sport the more likely he or she is to purchase sponsors products associated with that sport. The association between product and sport is the basis of the lucrative ‘endorsement market’. The sporting organisation and the athlete are competitors in endorsement marketing. To combat this competition sporting organisations, as the dominant party, incorporated terms into player contracts restraining their athletes from engaging in endorsement marketing. This thesis argues that such restrictions are unreasonable under the common law restraint of trade doctrine. This thesis also considers the unique relationship between athletes and their sporting organisation and how changes in technology prompted courts to accept sport as an industry amenable to the restraint of trade doctrine. The application of the restraint of trade doctrine is a matter of policy. It is argued that an historical freedom of trade and the response of courts to changing technological paradigms are pertinent guides as the world enters the uncertain commerce of the digital age. A ‘21st century’ policy response under the restraint of trade doctrine is argued as necessary. It is argued that certain endorsement concessions granted by sporting bodies to athletes that give the appearance of a ‘partial restraint of trade’ are in fact so impractical that the overall unreasonableness of endorsement restraints cannot be offset. It is proposed that the athlete's persona, a trait that makes endorsement marketing so effective, is in fact an extension of the athlete's subjective property’ and cannot be claimed by the organisation. This thesis considers in some detail the sporting organisations contractual claim to what is referred to as the ‘cyber-markets’. These ‘new’ market structures require a modern policy reappraisal argued to favour the athlete. The thesis closes by examining what are referred to a ‘multiple restraints of trade in sport’ suggesting that any review of the reasonableness of endorsement restraints can only accurately be appraised by considering the accumulated impact of multiple restraints on individual athletes.

  • (2011) Carter, David
    Thesis
    Recently, the HIV sector in New South Wales has developed a strong interest in HIV-related criminal offences which have been vigorously contested in policy and public health literature. This research attempts to move beyond specific issues of public policy or doctrinal development and situates the imposition of HIV-related criminal offences as a part of a broader question of the nature of law itself, its place in contemporary approaches to regulation and understandings of power and importantly its relationship with other techniques of governance such as the disciplines of public health and health promotion in particular. The central argument of this research is that law is mischaracterised in current debates about the governance of HIV. In characterising the nature of law itself and the interplay between legal-juridical power on the one hand and bio- and disciplinary power on the other, an anaemic characterisation of the law has led to a kind of knee-jerk antinomianism which risks embedding or simply re-creating the problems which the entire law reform and public health project sets out to solve. I undertake the review of HIV-related criminal law through the work of Foucault. I use Foucault in an exegetical mode rather than the more traditional methodological application of Foucault s various methods. By reading Foucault s substantive statements on law we see that rather than Foucault "refus[ing] to accord any major role to legal regulation in creating the distinctive features of modernity, a revised characterisation of the governance of HIV requires that we cease portraying HIV-related law and public health approaches as mutually exclusive. We must reorient our understanding towards one where law and public health are understood to exist in a relationship of mutual co-constitution through processes of strategic withdrawal and conflict. This position provides a new contribution to a literature which has generally underplayed the dynamic interrelation of HIV-related law and public health, which has tended to call for decriminalisation and other discrete modes of law reform, reflective of a view which sees law and its disciplinary other as separately constituted domains and a law which prohibits rather than adapts to resistance and transgression.

  • (2011) Lu, Wenwen
    Thesis
    In order to prevent terrorist attacks, in 2005 Australia introduced a new division into the Criminal Code 1995 (Cth). This allows preventative detention of terrorism suspects who have not been charged with any offence and of even non-suspects, for up to 48 hours under federal law, with the possibility of extending the detention up to 14 days under complementary State and Territory legislation. In contrast, since September 11, both Malaysia and Singapore have adopted only minor changes to their existing anti-terrorism laws. The two states have long dealt with terrorism suspects by relying primarily on the detention without charge measures provided for under the Internal Security Act 1960 (Malaysia) and the Internal Security Act 1965 (Singapore). The two Acts give the executive sweeping powers, including the power to indefinitely detain persons without charge for the purpose of national security. This thesis examines and compares the preventative detention measures adopted by these three states from an international human rights perspective. Security-based preventative detention is a permissible deprivation of liberty under the International Covenant on Civil and Political Rights as long as it is lawful and proportionate, but any detention without charge must conform to the procedural constraints. Despite the fact that Australia's detention regime includes some safeguards, its provisions are highly problematic. In Malaysia and Singapore, both schemes have been consistently used to suppress political dissidents rather than to protect the state from threats of terrorist acts. Although Australia's new detention regime has a different maximum period of detention and grounds of detention, it has in common with its Malaysian and Singaporean counterparts a lack of sufficient and effective procedural safeguards. These include the absence of a detainee's rights to a substantive merits review of the detention grounds, to have regular contact with the outside world, and to have confidential lawyer-client communications. The thesis concludes that the normalisation of extraordinary emergency rules in Malaysia and Singapore is already against international human rights law, and there is a real danger that Australia’s preventative detention regime might damage the established rule of law and the criminal justice system.

  • (2011) Sunga, Ricardo III Ancheta
    Thesis
    This thesis asks the question: What is the nature of the violation that a denial of the truth about disappeared and missing persons constitutes and how has international law responded to it? The thesis describes this nature in psychological and sociological terms and critically examines the extent to which international treaty law and case law captures it. Though existing treaty provisions embody elements of the right to know the truth, they fail to detail the nature and scope of this right, clarify its different dimensions and provide for measures of protection to address the harms that the families of the disappeared and missing have experienced. Furthermore, while jurisprudence gives effect to the right to know the truth in spite of the absence of an explicit guarantee, the less than full recognition of this right has led to a lack of uniformity in the case law and has given an exceedingly wide discretion to the courts and tribunals to give effect to the right, or not to do so. The limitations in international law explain the need for the explicit guarantee of the right to know the truth in the International Convention for the Protection of All Persons from Enforced Disappearance. Despite the advance in international human rights law that this Convention represents and the potential role of the Committee on Enforced Disappearance in the promotion of the right to know the truth through its monitoring procedures, it is imperative for the law to continue to capture more fully the experiences of the families of the disappeared and missing.