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(2007)ThesisThe High Court decision in Mabo v Queensland (No 2) was interpreted by some as bringing to an end a history of discrimination and dispossession of indigenous peoples' lands. In this respect it was located within the new history movement in Australia - a movement which has raised awareness of the impact that colonisation has had on indigenous peoples in Australia. ln this thesis the extent to which Mabo was in fact a product of the new history movement in Australia is examined. An analysis of the results in the more recent High Court cases on native title such as Western Australia v Ward and Members of the Members of the Yorta Yorta Aboriginal Community v Victoria reveals that the promises that came with native title recognition in Mabo have not been fulfilled. ln Ward the native title claim was partially accepted; in Yorta Yorta lhe claim was completely rejected. But as the analysis further reveals the shortcomings of the native title regime as demonstrated by these cases can be partly located in the Mabo decision itself. One of the contributions that some new historians have made to the writing of Australian history has been to reveal how the perceived differences between indigenous peoples and the colonists resulted in the perception of indigenous peoples as inferior beings. In turn, such perceptions worked to legitimise their dispossession in the native title context, indigenous peoples are no longer to be perceived as inferior (the rejection of the terra nullius doctrine in Mabo was an acknowledgement that indigenous peoples did have their own laws and social organisation) However the perception that they are different remains in the way that laws for them are constructed: native title may be recognised by the common law, but it is not part of the common law. As it is argued in this thesis the perceived differences in the origins of native title and the Australian common law has resulted in the inferior r treatment of native title. Potential solutions are canvassed in the thesis. Included among them is the need to give recognition to Aboriginal sovereignty However, it is concluded that if any change is to take place it must involve changing perceptions of indigenous peoples so that the protection of their interests may be more broadly construed as being in the interests of Australia.
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(2008)ThesisAt common law, liability in negligence is based generally on an objective standard of reasonable care. As a consequence of this idea those who possess reduced capacities, as compared to the ordinary reasonable person, may be held to standards which they are incapable of reaching. Yet there are exceptions to this general rule. Children are not required to behave the way reasonable adults behave. Rather, when the defendant is a child, courts take into account the capabilities which are a concomitant of the defendant’s age. A defendant’s mental illness, on the other hand, is not considered by courts in Australia (or elsewhere) to be relevant when determining liability in negligence. It has been argued that in this regard the common law is incoherent and unfair. This thesis considers whether these claims of incoherence and unfairness can be substantiated. In so doing, it considers the philosophical underpinnings of tort law in order to explore possible bases for the current law. It also examines a number of more specific accounts which attempt to justify the present law as it relates to mental illness. It is argued that none of these discussions provide a convincing basis for the different treatment in law between child defendants and defendants with a mental illness. The discussion extends beyond the confines of tort law to criminal law for explanations for the apparent incoherence. It notes the suggestion that the criminal law’s response to defendants with a mental illness has been fuelled to some extent by a misunderstanding of mental illness and a fear of those suffering from such illnesses. The thesis examines whether this negative attitude towards mental illness, which some scholars have referred to as ‘sanism’, is at work in the few Australian decisions which have considered the common law position in relation to mentally ill defendants. Possible changes to this area of law are then outlined and considered.
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(2005)ThesisPatients who have undergone treatment that has included the surgical implantation of a prosthetic device can become dissatisfied for many reasons. One cause for dissatisfaction is any adverse event where there is a demonstrable causal nexus with the failure of a device that is defective or at risk of being so. The magnitude of therapeutic product failure is considerable and therapeutic goods such as Vioxx, Thalidomide, silicon-gel-filled breast implants, contaminated blood products, cardiac pacemakers and valves, and orthopaedic devices are testimony to this. Many of these events have exposed a greyish area of Australian law that balances medical negligence with consumer protection and contract law. Australian product liability legislation that regulates the use of therapeutic goods is a complex amalgam of law that has at its foundations the Trade Practices Act 1974 (Cth) and the Therapeutic Goods Act 1989 (Cth). When a surgical device fails there can be exposure to liability. This thesis explores those important issues that can impact on individuals or on organisations and it is evident that where issues of product liability concern implanted surgical devices the current regulations for consumer protection may not always be the most appropriate. It is evident that there is a culture of under-reporting of adverse events to a Therapeutic Good Administration that does not have the resources to investigate the cause for failure of a surgical device. Furthermore, there is a potential for bias and conflict of interest in an environment where the regulator depends on the regulated for the funding of its existence. Other issues include the complex and often undesirable consequences of those partnerships that can evolve with the development of an implantable device and with the undertaking of clinical trials, the role of the learned intermediary, that interface between manufacturer and consumer, and the role of the expert witness, that interface between justice and injustice. These and other matters that can significantly influence any debate of implantable surgical device product liability are explored and recommendations are made that might form the basis of a Therapeutic Goods (Safe Medical Devices) Amendment Act.
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(2008)ThesisAbstract is not included.