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730-622 FEDERAL LAW AND GOVERNMENT

Dr M. Crommelin, Dr G. J. Evans, Professor C. Howard, Ms C. A. Wells Twelve 2-hours' seminars.

PRE-REQUISITES

It is expected that candidates will have studied Australian federal con- stitutional law at an undergraduate level, and be reasonably conversant, as a result of undergraduate studies or otherwise, with the general operation of the Australian political system.

SYLLABUS

Primarily a series of case studies on currently or recently controversial federal legislation, with emphasis on the political and administrative processes involved in its enactment and the constraints on policy- execution imposed by the Australian Constitution. Attention will be paid, where appropriate, to comparative materials, particularly from the United States and Canada. A number of senior politicians, officials, advisers and other outside experts will be invited to participate in the seminar dis- cussions.

BOOKS

Preliminary reading:

Sawer G Modern Federalism Watts 1969

Sawer G Australian Federalism in the Courts MUP 1967

Crisp L F Australian National Government 3rd ed Longmans 1960 General references:

Howard C Australian Federal Constitutional Law 2nd ed Law Book 1972 Lane P H The Australian Federal System with United States Analogues

Law Book 1972

Matthews R L and Jay W R C Federal Finance Nelson 1972

Sawer G Australian Federal Politics and Law 1901-29 MUP 1956 Sewer G Australian Federal Politics and Law 1929-49 MUP 1963 Sawer G Australian Constitutional Cases 3rd ed & Supps

ASSESSMENT

Two 5,000 word research papers on approved topics, or one 10,000 word research paper.

730-638 INTERNATIONAL TRADE AND INVESTMENT B Professor D. E. Allan (Monash), Miss M. E. Hiscock (Melbourne) Twelve 2-hours' seminars

SYLLABUS

The general principles and some of the problems involved in establishing an Australian manufacturing enterprise in an overseas country. The investment of capital and know-how from. Australia, and the establish- ment overseas of branches and subsidiaries of Australian manufacturing companies, but not portfolio investment.

The law relevant to these problems is primarily the law of the host country, particularly its foreign investment regulations and its economic plan (if any) but also those areas of its general law relevant to the establishment and operation of a business in that country. The course is therefore predominantly a course in foreign commercial law, but will include also those areas, notably tax, where Australian law may interact with the law of the host country to produce particular advantage or deterrents to the investment.

It is intended to concentrate on investment in developing countries.

The country chosen for study as the host country is Indonesia, but not solely because of the direct practical value of studying legal problems of Australian investment in Indonesia at the present time. A study of Indonesian law (being based on Civil (Dutch) Law, native (Adat) Law, and interpersonal law) provides a more valuable and instructive com- parison than a move from one common law jurisdiction to another.

However, comparison at each stage with investment In Singapore and Malaysia (Common Law) and the Philippines (a mixed jurisdiction) will be made.

A study of the legal problems of investment in Indonesia will also reveal an attitude to the role of law and the legal system that is not always the same as in common law countries.

The particular topics that will be studied in the course will include the following (although this is not yet a final programme).

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Planning Permission and Consents; The Form of the Investment; Fund- ing the Enterprise; Profitability of the Enterprise; Tax Considerations;

Availability of Assets; Technology and Know-How; Import' Export Controls; Access to the Legal System; Security of the Enterprise.

The course will also examine the extent to which the problems are resolved and the investment promoted through the establishment of enclaves such as industrial estates and free trade zones.

BOOKS

Recommended for preliminary reading:

Gautama S and Hornick R N An Introduction to Indonesian Law: Unity in Diversity rev ed Alumni 1974

Gautama S Allan D E Hiscock M E and Roebuck D Credit and Security in Indonesia QUP 1973

Unpad Survey of Indonesian Economic Law Bandung 1973-75

Fulda C H and Schwartz W F Regulation of International Trade and Investment Foundation Mineola 1970

Steiner H J and Vagts D F Transnational Legal Problems Foundation Mineola 1968

Surrey W S and Shaw C A Lawyer's Guide to International Business Transactions ALI/ABA Phil 1963

Commission on International Development, Partners in Development Pall Mall 1969

Seventh Waigani Seminar Foreign Investment International Law and National Development Butterworth 1975

Private Investments and International Transactions, Asian and South Pacific Countries 2 vols International and Comparative Law Centre Matthew Bender NY 1973, 1975

Mimeographed material and detailed reading lists will also be dis- tributed.

ASSESSM ENT

Two 5,000-word papers or one 10,000-word paper on an approved topic.

730-626 LANDLORD AND TENANT LAW Dr. A. J. Bradbrook

Twelve 2-hours' seminars.

PREREQUISITES

Basic courses on the law of property and the law of contract.

SYLLABUS

The practical application of the existing law of landlord and tenant in both the private and public rental housing markets. Knowledge of the law of leases as taught in a basic course on the Law of Property will be presumed, and will be expanded in much greater depth by an analysis of judicial and legislative changes employed in other common law jurisdictions. The course fits conveniently into three headings: (i) private uncontrolled tenancies; (ii) private controlled tenancies; (iii) the public rental housing market.

BOOKS

Prescribed textbook:

'Bradbrook A J Poverty and the Residential Landlord-Tenant Relation- ship AGPS 1975

Recommended for reference:

Brooking R and Chemov A Tenancy Law and Practice in Victoria Butterworth 1972

Foa E C The General Law of Landlord and Tenant 8th ed London 1957 Hope R M Mackerras N R M and Freeman A Landlord and Tenant

N.S.W. 7th ed Sydney 1971

Lewis E C and Cassidy D I Tenancy Law New South Wales Sydney 1966

Webdfall W Law of Landlord and Tenant 27th ed by Blundell L A and Wellings V G London 1910

ASSESSMENT

Two research papers or one research paper, totalling 6,000 words and a final assignment to be completed by the candidate over a period of 87 hours.

730-621 LEGAL REASONING AND THE JUDICIAL PROCESS Mr. M. Weinberg.

Twelve 2-hours' seminars.

PREREQUISITES

No formal prerequisites, but it is desirable that candidates have a basic background in jurisprudence.

SYLLABUS

This course examines modern philosophic appraisals of the role of appellate judges in deciding 'hard cases'. It commences with an evalua- tion of the traditional doctrine of stare decisis, with attention focused on the problem of elucidating the ratio of a case. The accusation of formalism, often levelled at modern legal positivists, is considered, with particular emphasis on American "realist" critiques. A significant part of the course is devoted to the contribution of Professor Julius Stone, and in particular to his notion of the role of categories of illusory reference. The course concludes with a brief examination of the newly emerging science of jurimetrics.

BOOKS

Preliminary reading:

Cross R Precedent in English Law 1961 Hart H The Concept of Law 1961

Dworkin R The Model of Rules 35 Chicago U LR14 Prescribed textbook:

Stone J Legal System and Lawyers' Reasoning 1964 Recommended reading:

A detailed reading guide will be issued to candidates at the commence- ment of the course.

ASSESSMENT

Candidates may elect to submit one 10,000 word research paper on an approved topic, or to submit a 5,000 word research paper on an approved topic and sit a three hour examination.

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730-639 NATURAL RESOURCES LAW Professor S. D. Clark, Dr. B. M. L. Crommelin Twelve 2-hours' seminars.

SYLLABUS

The course will examine a number of legal issues arising from govern- ment planning of natural resource development and utilization. Different resources may be chosen for this purpose. In 1977 the course will concentrate upon mineral and energy resources. There will be an examination of federal and state laws and institutions in this field, with particular attention being given to (a) the nature, extent and enforce- ability of private rights acquired pursuant to resource legislation; (b) legal issues and drafting problems encountered in private exploration and development contracts, and in agreements concluded with govern- ments; (c) the legal basis of institutional regulation of resource development; (d) the operation of federal and state environmental control legislation; (e) taxation of resource development projects; and (f) comparison of different legal systems of resource management.

BOOKS

Preliminary reading:

The Law of Mining in Australia Law Dept Syd 1969

Report from the Senate Select Committee on Off-Shore Petroleum Resources AGPO 1971

Recommended for reference:

Lang A Manual of the Law of Mining and Exploration in Australia Butterworth 1971

Hodgson D H and Hamilton S P Mining Laws of Australia Butterworth looseleaf

Ballem J B The Oil and Gas Lease in Canada TUP 1972

Lewis D E and Thompson A R Canadian Oil and Gas Butterworth looseleaf

Pearse P ed The Mackenzie Pipeline Arctic Gas and Canadian Energy Policy McClelland & Stewart 1974

Gaffney Mason ed Extractive Resources and Taxation Wisc UP 1967 Anderson F R NEPA in the Courts Johns Hopkins 1973

Dales John H Pollution, Property and Prices TUP 1968

Fitzgerald T M The Contribution of the Mineral Industry to Australian Welfare AGPS 1974

Petroleum (Submerged Lands) Act 1967 Commonwealth as amended The Petroleum Acts 1923 Queensland as amended

Petroleum Act 1940 South Australia as amended Petroleum Act 1936 Western Australia as amended The Mining Act 1968 Queensland as amended Mining Act 1904 Western Australia as amended Mining Act 1973 New South Wales as amended Mining Act 1958 Victoria as amended

Mining Act 1971 South Australia as amended

Mining Ordinance 1939 Northern Territory as amended

Environment Protection (Impact of Proposals) Act 1974 Commonwealth Environment Protection Act 1970 Victoria as amended

The Income Tax Assessment Act Commonwealth as amended Mimeographed material will be distributed.

ASSESSMENT

Candidates will be required to submit either two 5,000 words research papers on approved topics, or one 10,000 words research paper on an approved topic.

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