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  • About
  • The Global ETD Search service is a free service for researchers to find electronic theses and dissertations. This service is provided by the Networked Digital Library of Theses and Dissertations.
    Our metadata is collected from universities around the world. If you manage a university/consortium/country archive and want to be added, details can be found on the NDLTD website.
341

A cyclical perspective of the common law

Cadenhead, John. January 1997 (has links)
This thesis is an attempt to use synthesis and analysis in respect of certain models of tort obligation to show that the common law has evolved and been shaped by recurring cycles. It was not possible to analyse the entirety of the wide sweep of tort obligation, so the models of trespass, trespass on the case, deceit and special relationship negligence were synthesised and then historically compared. From these models distinct recurring cycles of the common law became apparent, which alternated between expansionary and conservative stages. At one time the common law seeks a vehicle for new flexible remedies and obligations, and at another, it seeks the certainty of fixed rules. The cycle is incessant as for every swing in one direction, at a certain point on the pendulum, there will be a reaction. This thesis explores the pathology of those cycles through such selected models, including the symptoms exhibited by the initial ad hoc characteristics of the birth of a remedy or obligation, the maturing phase of a remedy or obligation created by the emergence of categories of liability, the abstraction from such categories of a general principle, and either the over-extension of such general principle, or the narrowing of such general principle leading to the obligation's ultimate demise as a flexible vehicle of liability. In the event of the death of an obligation or remedy, as a flexible vehicle of liability, the common law will seek to find or create another avenue of flexible remedy. The thesis does not seek to investigate the reasons or causes of such cycles, but is content to examine the symptoms exhibited by the various phases of such cycles. The initial two chapters summarise the general theory of such cyclic perspective and briefly outline the template of such cycles created by the early origins of the common law. The cycles of 'trespass' and 'deceit' show the rise and fall of those respective obligations from flexible remedies to narrow moribund obligations. The concepts upon which they were based of contra pacem and honesty were to prove excessively narrow and restrictive to survive the inevitable attrition caused through the natural accumulation of rules. A study of the cycle of these two obligations is rewarding as they both show a complete lifespan of an obligation through the various phases of a cycle up to the point of its death as an instrument of flexibility. The protean action on the case and the modern pragmatic case-by-case negligence formula, based on the open-ended elements of ‘foresight', 'proximity' and 'just and reasonableness', illustrate the problems caused by a remedy or obligation whose conceptualisation is vague and uncertain. The common law itself until 1875, apart from equity, had the ability through the action on the case to provide the common law with flexibility when needed. The closest that the common law in modern times has come to emulating the action on the case has been the remedial use of the negligence mechanism. While the action on the case did not survive the procedural reforms of the 19th century, it had developed general rules that limited the scope of such open-ended action. These general over-arching rules are important to a study of modern negligence liability. This thesis will endeavour to show that the modern open-ended negligence formula should be limited by comparable general rules to resist the inevitable pressure upon it to define its fault component or duty mechanism too narrowly. Synthesis by use of the tool of comparative legal history shows the constant tension in the common law between the quest for certainty through rules, on the one hand, and the ability to administer individual justice, despite the presence of a general rule, on the other. A comparison of the life cycles of the models selected shows a certain symmetry concerning the reasons and justifications advanced in constructing liability in either an expansionary or conservative phase of the common law. A cyclic perspective of the common law treats it as a dynamic constantly moving instrument that reflects the policy moods of contemporary society. Such a view of the law is not one-dimensional and may provide answers as to the past and present evolution of the common law and may give clues as to its future direction. The law is stated as at the 1st day of April 1997.
342

Drug offences: substantive and procedural criminal law relating to the Misuse of Drugs Act 1975

Mathias, Don. January 1980 (has links)
This study of the law relating to drug offending, now covered by the Misuse of Drugs Act 1975 as amended, begins with a historical survey of corresponding legislation. The combined pressures of endemic social needs and international demands for tighter drug control measures inevitably raise questions as to whether certain criminogenic effects were produced by this legislative activity. They include: Did premature restrictions cause amplification of the range of substances that became the subjects of abuse? Do the restraints that are now imposed have a scope and severity disproportionate to the social harm threatened by the proscribed conduct? These questions cannot be conclusively answered in a study of this nature, but the historical approach illustrates the complex relationship, both on a domestic and an international scale, between legislative action and conduct which is deemed criminal. An attempt is made to evaluate the assistance available to New Zealand courts from overseas judicial interpretations of legislation enacted within the same context of international obligation. As is then demonstrated, the major drug offences provide fertile ground for nurturing the technical requirements of proof of guilt. Already in New Zealand, in response to the demands and resources of accused persons faced with high penalties upon conviction, the concept of possession has been judicially analysed in great depth and detail. A comparative study is made of the requirements of the corresponding possessory offences in some other jurisdictions; each of the major offences against the Act is then analysed by analogy with the elements of possession. The statutory defences are also examined in relation to this analysis. Although an appraisal of the morality of current legislative policy is not seen as being within the scope of this study, an attempt is made to gauge the effect of Parliament's extension of police powers of search and seizure, and of the power to use listening devices, on the ways by which the courts have weighed socially important contending interests in the most delicate of balances. The courts' evident acceptance of the need for 'undercover' police detective operations in relation to drug offences is documented, as are the judicial restraints applied to the use of evidence so obtained. Sentencing policy in this context is a subject of increasing public interest and concern. An analysis is made of the principles of sentencing as they emerge from New Zealand Court of Appeal judgments over the period 1970-1979. It will be shown that aspects of that policy received recognition in the 1975 Act. However, because of the apparent emphasis on deterrence, many problems continue to tax the sentencing tribunal. This study does not purport to be exhaustive. It excludes detailed consideration of the administrative provisions in the Act and eschews analysis of offences against sections 11, 15 and 16 (concerning theft, etc., of controlled drugs, false statements, and obstruction of officers). The discussions of liability for secondary participation, and the inchoate offences, are confined to such points as are seen to be directly related to the context of drug offences. With some exceptions where subsequent information has come to hand, the law is stated on the basis of the materials available to the writer on 1 May 1980. / Whole document restricted, but available by request, use the feedback form to request access.
343

The Constitution of Fiji

Sahu Khan, Muhammad Shamsud-Dean January 1975 (has links)
The Constitution of Fiji though similar to many others adopted within the Commonwealth since the end of the Second World War departs in many respects from the Constitution of the United Kingdom and that of New Zealand. The Constitution of the United Kingdom is wholly unwritten and that of New Zealand is only partly written as contained in the Constitution Act of 1852. Fiji not only has a written Constitution; the Constitution also incorporates the rules or principles which are accepted as constitutional conventions in the United Kingdom and New Zealand. In this thesis attention has been given to the position of the Governor-General as the representative of the Queen and the powers conferred upon him. The fact that he is a local appointee makes his position even more delicate. The problem is accentuated in that the exercise of some of his powers are made nonjusticiable by the Constitution. It is also suggested in this work that the fact that the Constitution of Fiji has an entirely different basis from that of the United Kingdom or New Zealand renders many of the principles adopted in those countries inapplicable. The notion of parliamentary sovereignty propounded by Dicey and others does not apply. The Constitution, not Parliament, is supreme. Judicial review of legislation is inevitable and the courts are intended as guardians of the Constitution. There are other important differences many of which are the result of the political decisions made on behalf of the three main races in Fiji before the Constitution was drafted. The separate Fijian administration and the powers of the Council of Chiefs are illustrations of these provisions. The fact the indigenous Fijians enjoy a privileged position through the separate Fijian Administration and the Council of Chiefs is discussed. The system of representation in the House of Representatives with a combination of the communal and multiracial electorates provides an unusual, perhaps questionable, experiment towards a solution of the tensions and problems associated with a heterogeneous society. Likewise the fundamental rights provisions have special significance in a multi-racial society like that of Fiji. As a background to the above matters a comprehensive survey of the constitutional history of the country is attempted. The role of the judiciary has been given significant emphasis throughout the thesis as it is felt that the judiciary is linchpin of the Constitution of Fiji. Concluding observations have been offered on ways of making the spirit of the Constitution, as enshrined in the preamble to the Constitution, a reality; and to engender a national outlook amongst the people of all ethnic groups.
344

Basic equality and its applications

Smith, Nicholas Mark January 2006 (has links)
Equality is a prominent value in modern moral, legal and political philosophy. There is, however, much controversy over the meaning of the concept and its moral implications. In this thesis I argue that the recent scepticism expressed by some writers about the prospects of reaching any agreement about what equality means is not well founded. The idea is not an empty one. The difficulty in pinning down its exact meaning and implications for our social ethics is caused by its abstractness, not its vacuity. The moral significance of equality can be expressed in the idea of basic equality – the requirement that persons are to be treated as equals and accorded equal concern and respect. That idea is morally justifiable and plays an important role in modern moral theory. If we accept that human beings are equal in important respects and that a commitment to basic equality as a moral ideal makes sense because of our shared human condition, then it follows that respect for that value is implicit in each instance of our moral decision making. The abstractness of basic equality means that it cannot serve as a straightforward rule which can be easily applied to disputes about who should or should not receive equal treatment. There is no list of prohibited grounds of differentiation that applies in all circumstances. Thoughtful moral judgments about the denial of basic equality typically demand sophisticated assessments of whether the interests of all affected parties have been taken into account and different sorts of denial of basic equality will require consideration of different factors. Attempts have been made in recent equality law jurisprudence to find a less abstract concept of equality that can inform the interpretation of the law. These are unsuccessful because basic equality cannot be reduced to some simpler, rule like, standard. These understandable attempts to make this area of law more manageable are not good explanations of what is morally important about the idea of equality. Clarity about the meaning and purpose of contemporary discrimination law is not likely to be achieved by further attempts to say what this law is really about. The law is difficult to apply because it is in the same broad terms as the idea of basic equality. The central moral quandaries of recent jurisprudential thought about basic equality concern the appropriateness of different treatment on grounds which can be used to discriminate against people. The difficulties that courts have with these issues are not remarkable because the moral issues are intractable. Issues such as indirect discrimination or the fairness of affirmative action policies require in depth consideration of the interests and concerns of all affected parties and will not be resolved by the application of any simple algorithm based on a less abstract definition of equality. These issues are difficult to resolve, not because we do not know what equality is but because weighing the competing concerns of affected parties while paying attention to other important values is a complex and often difficult task.
345

Contempt of court in New Zealand

Maxton, Julie January 1990 (has links)
This thesis examines four aspects of the contempt power in New Zealand. It does not, therefore, purport to be an exhaustive study of the law of contempt in all its protean forms. Rather, its aims are to assess what the law is, and why, and to consider whether it aptly describes the values of the society it purports to protect. The law of contempt has suffered from an excess of dichotomies and classifications which nowhere guarantee its clarity. The most enduring classification is that which distinguishes between criminal and civil contempts, largely on the basis of whether the sanctions which follow are punitive or coercive. Three types of criminal contempt are discussed. Contempt in the face of the court concerns the jurisdiction to punish summarily contumelious behaviour in court. It is argued that, since the summary procedure permits the imposition of sanctions without the usual trial safeguards, the contempt power ought to be limited to the removal of the contemnor from the court. Any more extensive contempt power arguably infringes the freedoms protected by the New Zealand Bill of Rights Act 1990. The law of sub judice contempt seeks to strike a balance between the competing values of freedom of expression and the right to a fair trial. Judicial insistence on the existence of a real risk as a matter of practical reality before the actus reus of this form of contempt is met has effectively restrained criticisms of the rule. Nevertheless, since it can penalise non-negligent practices, it is suggested that sub judice contempt should be treated as a crime of strict liability. The third form of criminal contempt, scandalising a court or judge, is said to be necessary to ensure confidence in the administration of justice. However, there is little evidence that the public perception of the judiciary would suffer through debate over the abilities of its judges. This arm of contempt ought not to be perceived as a form of judicial protectionism. For that reason, and because it arguably infringes the Bill of Rights Act 1990, it is urged that contempt through scandalising a court or judge should be abolished. The law of civil contempt is dealt with through a discussion of breaches of injunctions and undertakings. Since the sanctions which follow may serve both punitive and coercive ends the distinction between this category and the other three is regarded as incomplete. It is contended, however, that there are many similarities between criminal and civil contempts which merit their treatment as a genus. Whenever punitive sanctions are imposed (whether for a criminal or civil contempt) normal trial safeguards ought to exist. On the other hand, if enforcement of a court order is sought, such protection is inappropriate. A procedural approach to the different types of sanctions ought to rid contempt law of perplexing categorisations which fail to address the essential characteristics of the contempt power.
346

The assertion of Tasmanian Aboriginality From the 1967 Referendum to Mabo

Daniels, DW January 1995 (has links) (PDF)
This paper takes as its starting point a period before the 1967 Referendum which gave full citizenship rights to Australian Aborigines and the Federal Government a mandate over Aboriginal Affairs. During the 40's and 50's the Aboriginal people of Tasmania, represented by the people of Cape Barren Island, stubbornly resisted the assimilation policies of the day. In briefly examining the thesis of resistance as proposed by Lyndall Ryan in her 1981 edition of The Aboriginal Tasmanians, and the proposition that the Government sought to abandon the Island, the paper draws upon new material. Despite the referendum the State government like the wider community saw little relevance to Tasmania, denying the existence of Aborigines as such, but joining in the CommonwealWState Conferences of Aboriginal Affairs to safeguard State interests, obtain funds to prop up services to the Island, particularly health, and to secure housing finance. Support for the Aboriginal cause, however, was not lacking. The Aboriginal Advancement League based in Devonport, the Communist Party of Tasmania and Abschol, which was to become the Australian Union of Students action group for Aboriginal rights, were to play a role in sensitising the Tasmanian community to Aboriginal issues and in seeking justice for Tasmanian Aborigines. It was Abschol, however, which was to become the dominant non- Aboriginal organisation in the pursuit of Aboriginal rights. In the early '70's the Tasmanian Aboriginal people decided to take over their own destiny. This assertion was led by Rosalynd Langford, a Victorian Aborigine of Tasmanian descent. In 1972 the Aboriginal Information Centre (later the Tasmanian Aboriginal Centre) was established. This paper looks at the history of TAC over the next 20 years. It was to become one of the most forceful and successful black political organisations in Australia and we examine the reason for that success. Whilst the figure of Michael, Mansell emerges on the local, national and eventually the international scene, the record would not be complete if it neglected reference to other contributors to the struggle. Neither would the story be complete without reference to the genealogical work of Mollison et al, the whole question of Aboriginality, the reworking of Aboriginal history from the people's perspective, cultural renewal and Aboriginal spirituality. Central to this issue of history and identity is the world wide quest for the skeletal remains of the Van Diemen's Land people and theirreturn to Tasmania, which the paper identifies as a brilliant strategy of unification and consciousness raising, but one full of emotional and spiritual overtones. This paper concludes with an examination .of the struggle for Land Rights in Tasmania. At this point in time some form of Land Rights legislation seems inevitable, although as the story tells, Aboriginal people have had their previous hopes dashed on a number of occasions.* There is, however, a further matter on the Aboriginal agenda; self govenunent. To underestimate these later aspirations is to fail to recognise the power and commitment of the Tasmanian Aboriginal people. * Note: In November 1995 an Aboriginal Lands Bill passed throug-h the Tasmanian Parliament (proclaimed 6 December, 1995), 'transferring certain lands to the Aboriginal people and establishing an Aboriginal Lands trust.
347

The treatment of women who kill their violent male partners within the Australian criminal justice system

Bradfield, RJ Unknown Date (has links) (PDF)
My thesis examines the treatment of women who kill their violent male partners within the Australian criminal justice system. The primary aim of my study is to examine the circumstances in which women kill their violent partners and to explore the ability of the criminal law to have proper regard to these circumstances. The interaction between the criminal law and battered women who kill their violent partners is a topical issue that has generated substantial interest and debate in many western countries. My thesis provides an empirical study detailing the legal outcome and circumstances of the killing in the 76 cases identified where women have killed their male partner. In the context of these findings, I examine reliance on the various defences to murder (diminished responsibility, provocation, lack of the requisite intent for murder, self-defence, insanity and automatism). The argument advanced is that the current approach of the Australian criminal justice system to battered women who kill reveals sympathy for their situation, but a failure to adequately consider whether these circumstances provide the basis for self-defence. I examine the procedural rules that interact with the substantive law of self-defence to constrain a battered woman's ability to convey the reality of her experience of violence to the fact-finder. In facilitating reliance on self-defence, I propose a shift in the current evidentiary approach to battered women who kill from the 'battered woman syndrome' framework to the reception of social framework evidence in its own right. My thesis also includes a consideration of the judicial approach in sentencing women who kill their violent partners. My analysis suggests that there is sympathy for the woman's situation, however there is not an adequate recognition of the mitigatory impact of a history of violence. The dominant judicial approach to mitigation appears to be premised according to principles of 'mercy' and 'sympathy' for women who can position themselves as the 'appropriate victim'. Although focusing on the Australian criminal justice system, my thesis has potential application beyond this context.
348

Restraint of trade at common law

Dempster, Hamish Leslie January 1997 (has links)
This is a collection of essays about the restraint of trade doctrine as laid down in the courts of the United Kingdom and the British Commonwealth. Generally, I will not give an account of the restraint of trade doctrine in the United States of America, for even although each individual state (apart from the civil jurisdictions California and Louisiana) and the federation itself, has a common law system, for reasons peculiar to those jurisdictions, the restraint of trade case law there has become so vast and so confused as to be unsuitable for my purposes. More importantly, however, the common law restraint of trade doctrine in the United Kingdom and the British Commonwealth has been laid down by courts without any significant consideration of the state of the law in the United States. Davies v Davies (1887) 36 Ch D 359, 370 by contrast, the period during which the Privy Council operated as a supra national court of final appeal has resulted in considerable harmony in the doctrine within the British Commonwealth. Even now the House of Lords is influential in Australia and Canada and the influence is increasingly reciprocal. By way of an exception I will discuss the purposes of the anti-trust legislation in the United States. This is necessary because I intend to show that the common law restraint of trade doctrine was not able to be, and was never intended to be, a means of regulating the economy in contradistinction to the United States anti-trust legislation and related legislation in the British Commonwealth. This account is not merely a description of the law relating to the restraint of trade doctrine although I do purport to describe the law. There are other accounts of the restraint of trade doctrine which do that well. Accounts of the restraint of trade doctrine include: Matthews & Adler, The Law Relating to Covenants in Restraints of Trade (London, 2nd ed 1907); Sanderson, Restraint of Trade in English law (London, 1926); Heydon, The Restraint of Trade Doctrine (London, 1971); Trebilcock, The Common Law of Restraint of Trade; A Legal and Economic Analysis (Toronto, 1986); Dean, The Law of Trade Secrets (Sydney, 1990); Mehigan & Griffiths, Restraint of Trade and Business Secrets: Law & Practice (London, 2nd ed 1991); Holdsworth, History of English Law IV (3rd ed, 1945) 343-54, 373-9; VIII (2nd ed, 1937) 56-42. There are other, less detailed accounts in contract law textbooks. The purpose of this dissertation is to describe aspects of the doctrine as it developed between the medieval period and the twentieth century and then to use that account as a basis for an analysis of how the law has taken a number of paths during the twentieth century which cannot be justified by the rules and their justifications which existed in the law prior to that time. Such a development has had important consequences for the restraint of trade doctrine and even the law in general, most of which have been detrimental. I do not intend to give a continuous historical narrative covering the whole of the doctrine. The history has been described before. For example, I do not intend to give a discrete account of the process by which the absolute rule against general restraints of trade gave way to the rule of reason, although I do mention this process where relevant for other purposes. The history, so far as it is relevant, is integrated into each chapter. I will argue that historically the restraint of trade doctrine was a rule or complex of rules, of a certain form and content. The form and content of the rule are important because they bear on the meaning of the class term "restraint of trade" which is an element of the rule. The meaning of that term began to change around the year 1890. Beginning first with certain classes of trade combination, courts began to classify as restraints of trade covenants which did not in fact restrain trade. Then the courts similarly treated the exclusive dealing contract and certain forms of property transaction. Another trend in the law which added to the confusion about the meaning of restraint of trade was the failure by the courts to make definitive findings one way or another as to whether a particular covenant was in restraint of trade. The courts were then faced with a dilemma. The law required a court to refuse to enforce a covenant in restraint of trade unless the covenantee could justify the restraint by presenting evidence to the court from which the courts could assess whether or not that particular restraint was within the reason for the restraint of trade doctrine or not. Such considerations were entirely inapt in the case of covenants which, in accordance with the traditional view, did not restrain trade. Yet if the courts did not validate these contracts, catastrophic consequences would have followed for the parties to such contracts and, indeed, to contract as an institution. To solve the dilemma the courts began to interpret the famous statement of the restraint of trade doctrine by Lord Macnaghten in Nordenfelt v Maxim Nordenfelt Guns & Ammunition Co [1894] AC 535, 565 (HL) literally, rather than contextually. Ultimately this has resulted in the obscuring of the rule underlying the restraint of trade doctrine itself. There were many minor confusions along the way. It is important that the doctrine is coherent and its use consistent with its justifications because it is still a fruitful cause of legal change. In the last year the force of the rule has caused a radical restructuring of Association Football in Europe Bosman’s case. The rule has even penetrated the collective consciousness of the community at large. The broad thrust of the development and the detail will be outlined in the next thirteen chapters.
349

Trade unions and the common law in New Zealand

Harrison, Rodney January 1973 (has links)
The purpose of this thesis is to examine and evaluate the present common law relating to trade unions in New Zealand. It is proposed that this examination and evaluation should not be limited to the “black-letter” law, but should take place in the wider social context of how trade union affairs, and industrial relations, are in fact conducted in this country. Where the common law is weighed in this balance and found wanting, it is intended that the possibility of statutory reform be considered.
350

Traditionalizing sustainable development: the law, policy and practice in Papua New Guinea

Kwa, Eric L. (Eric Lokai) January 2006 (has links)
In 1987, the World Commission on Environment and Development published its long awaited report: "Our Common Future". The report contained a detailed discussion of global environment and development problems and a set of recommendations which the Commission suggested could alleviate many of those problems. At the core of the Commission's recommendation was the 'sustainable development' concept which the Commission strongly suggested countries should adopt as the principal vehicle for overcoming many of the global environmental and social ills. But, what is sustainable development? What are its core values? How can sustainable development be utilized to arrest and resolve global societal problems? Does sustainable development have a universal application? Under what conditions can sustainable development be successfully implemented? These are some of the key issues that are addressed in this research paper. In this paper I look at the origin and definition of the sustainable development concept and identify the relevant principles of the concept. I also identify the tools that are necessary for the implementation of the concept. The underpinning of my argument is that sustainable development can be successfully implemented by countries particularly developing countries because the concept has strong roots in traditional cultures which are dominant in developing countries. I explore this position and the various issues that have been identified above by adopting Papua New Guinea (PNG) a developing country as a case study.

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