Thesis (doctoral)--Universität Kiel.

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This thesis clarifies the rationale for the protection of the rights of broadcasting organisations and attempts to provide a theoretical basis for reforming the current regime. This research explores the formation and contents of legislation for protecting the rights of broadcasting organisations and analyses the current issues by means of a comparative study of Australian and Japanese law. The thesis starts with an introduction setting out the parameters of the argument, examination of previous research in relation to the topic, explanation of two approaches to the protection of broadcasters’ rights, the hypothesis, the scope, the material covered and the structure of the thesis. It then provides a detailed explanation of the key concepts (broadcasting, broadcasting organisation and the rights of broadcasting organisations). The research analyses the legal context in which those concepts operate in order to establish the scope of the legal inquiry into the rights of broadcasting organisations. The thesis then examines the international conventions and transnational legislation regarding protection of the rights of broadcasting organisations in order to provide a complete picture of the current situation at the international level. Following analysis of the present situation, the thesis examines the new communication technologies and critically reviews the ongoing discussions for the reform of the current international protection of the rights of broadcasting organisations by the Standing Committee on Copyright and Related Rights in the World Intellectual Property Organisation. The thesis argues that the problems that broadcasting organisations are currently facing stem from the unsatisfactory understanding of the rationale for the protection of broadcasters’ rights. The thesis further argues from the analysis of the Australian Copyright Act 1968 (Cth) as representative of the common law or copyright approach that the rationale for the protection of broadcasters’ rights are in transition. This view is further advanced by the findings obtained as a result of analysis of the Japanese Copyright Law as representative of the civil law approach. The research reveals that the rationale for protection under Japanese law has long been misconceived. The research concludes that the current difficulties in considering the effective reform of the protection of the rights of broadcasting organisations both at the international and national level arose out of the lack of understanding of the rationale for protection.

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‘…more citizens… receive their justice from agencies than the courts’ (Chitra: 3). The last 30 years of administrative law practice in Australia have been characterised by the proliferation of tribunals and other bodies engaged in quasi-judicial work. These organisations have developed on a largely ad hoc basis, particularly at the state and territory level. Despite this rapid growth – or perhaps as a result of it - a clear articulation of the underlying practice principles pertinent to tribunals has yet to occur in any coherent fashion. This thesis canvasses the current mechanisms used to assist tribunal members in their work, including legislative and ethical parameters. The argument is then mounted that more guidance is needed in relation to the normative excellences of the tribunal member’s role. An analysis of the systemic and cultural challenges faced by the sector is presented, highlighting the lack of sector definition, disparate practices, resource limitations and institutional isolation that characterise Australian tribunal work. Canadian and United Kingdom experiences provide a useful context for Australian impediments and developments. A state-based merits review body is used as a case study throughout the thesis to illustrate these issues. It is posited that greater emphasis upon the philosophical underpinnings of tribunal practice will assist in improving cohesion among sector members, leading to enhanced delivery of administrative justice. A stance from virtue ethics is adopted as a starting point for this endeavour, on the basis that improved decision-making commences with close analysis of the excellences defining the tribunal member’s role. This aretaic approach highlights the importance of ‘practical wisdom’ or phronesis in tribunal work. Methods for implementing and enhancing discussion of relevant tribunal practice principles are then examined, with various innovative legal training tools being nominated as particularly useful in the tribunal context. The tribunal sector is generally seen to have operated adequately to date. A more normative approach to decisionmaking excellence within the tribunal field is required, however, with this thesis forming the staring point of such analysis.

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Thesis (Ph. D.)--Faculty of Law, University of Sydney, 2006. / Includes bibliography. Also available in print form.

This study of systems for dealing with young offenders takes as its starting point the contrast between recent developments in the United States and Britain. These developments have occurred as a result of questions which have been raised, on both sides of the Atlantic, about the role of the juvenile court in combating delinquency. In the United States the resulting re-appraisal of the court’s function has been characterised by an emphasis on the fact that the court is part of the criminal justice system, and that it therefore cannot ignore the need to protect society against harmful conduct and to observe the requirements of due process. In England and Scotland, on the other hand, the movement has been towards the creation of tribunals which pay less attention to the child’s offence and which exercise a jurisdiction which tends to blur the distinction between offenders and non-offenders. From an analysis of this contrast the thesis moves to an examination of a significant similarity between the emerging Anglo- American systems. Although different solutions have been adopted to the problem of re-defining the role of the Juvenile court, the reforms in each of the countries studies have been accompanied by a desire to narrow the jurisdiction of the court. The conclusion which emerges from an examination of British and American experience is that, instead of seeing the juvenile court as an all-purpose delinquency-control agency, it should be viewed as an agency whose inherent limitations must be recognised if best use is to be made of its distinctive capabilities. This conclusion raises four related problems which the thesis considers in detail. First, attention is given to the task of attempting to define the court’s role, and an effort is made to determine which functions it can effectively and appropriately perform. Second, on the basis of this analysis, consideration is given to the formulation of criteria which indicate with precision the types of case which should be referred to court. Third, the design of an effective sieving device is discussed: machinery must be created which will ensure that the court receives only those cases which are appropriate to its re-defined role. Fourth, reference is made to the types of informal services which are required to deal with the cases diverted from the court. Against this comparative and theoretical background aspects of New Zealand’s system for dealing with young offenders are considered. This part of the study takes the form of an historical analysis of its development and a description of the system in operation. Because of the conclusion reached regarding the importance of limiting court intake particular attention is focused on the procedures and criteria employed in making the decision as to whether or not a child should be prosecuted. Hence the fieldwork on which much of the New Zealand material is based concentrates on the Youth Aid/Social Welfare conference. An attempt is made to describe and analyse the day-to-day working of this type of sieving device. The findings are discussed, and certain features of the conference system are criticised. The thesis concludes with comments on some of the difficulties which must be taken into account in implementing a policy which emphasises the informal handling of young offenders.

Whole document restricted, see Access Instructions file below for details of how to access the print copy. / The matrix of this thesis is that the determining of liability according to the occurrence of the actual harm which results from the actor's course-of-conduct permits chance to determine criminal liability. The criminal law is posited on the notion that proof of two elements constitutes an offence: a mental element, mens rea and a physical element, the actus reus. Neither element is defined. An analysis of the offences comprising the four categories of offence identified in Part One indicates that - - the mens rea necessary of proof in the majority of these offences is translated loosely to mean intention; - intention is future-oriented and result-focussed; - the determining of liability according to proof both of actual harm and of intention (or, to a lesser degree, recklessness) takes no account of the hiatus which exists in time and in space between the actor's mental element and the actual harm which results; - circumstances beyond the actor's knowledge and control can determine liability and punishment. The object of Part Two is the formulation, within the context of existential philosophy, of a scheme whereby the ability of chance to influence liability and punishment is virtually eliminated. The scheme proposed modifies the doctrine of attempt liability. The analysis of that doctrine in the Second Part indicates that the word "intention", used in its pre-meditative, result-focussed and future-oriented sense, refers to the offence the actor has in mind. Liability is incurred when the actor makes sufficient progress in pursuit of that intention to be dangerously close to completion. The modified theory of attempt liability in Part Two reduces the ability of chance to determine liability in these ways: - the actor's intention to commit an offence is evidenced in her progress in her course-of-conduct to a stage dangerously proximate to completion whereby the fear of the imminent occurrence of actual harm is engendered in the hypothetical, objective bystander; - the actor's liability is dependent upon proof of her knowledge (or belief) and control of the circumstances immediately surrounding the initiation and execution of that course-of-conduct. Intention is evidenced in a course-of-conduct dangerously close to completion whereby the fear of the imminent occurrence of actual harm is engendered in the hypothetical, objective bystander. Existentially irrelevant, intention resumes its former, presumptive role. Liability is established on proof of mental elements both existentially relevant and contemporaneous with that course-of-conduct. The ability of chance to determine liability and punishment is virtually eliminated.