Melbourne Law School - Theses
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ItemThe Prohibitions in sections 51(ii) and 99 of the Commonwealth constitution against discriminating between or giving preference to States in laws of taxation,trade,commerce and revenue( 2004)The subject matter of this thesis is the prohibitions in ss51(i1) and 99 of the Commonwealth Constitution. Section 51(ii) prohibits the Commonwealth from passing laws of taxation which discriminate between States or parts of States. Section 99 prohibits Commonwealth laws or regulations of trade, commerce, or revenue which give preference to one State or any part thereof over another State or any part thereof. In this thesis, it is concluded that, despite suggestions to the contrary, these provisions should be retained in the Constitution in their current forms. They have important historical purposes central to federation, including free inter- State trade and national unity. They should not be amended to allow the Inter- State Commission or another body to permit discriminations or preferences in contravention of ss51(ii) and 99 for worthy purposes such as a perceived need for special assistance in particular regions. The incidental test is proposed and tested in this thesis as a satisfactory solution for interpreting the notoriously difficult prohibitions in ss51(ii) and 99. The test is consistent with the High Court's current trend of substantive interpretation which emphasises the effect of laws, not merely their form or wording. it permits laws that select States in a manner proportionate and incidental ( that is, appropriate and adapted) to the law's legitimate object, in the sense of selecting incidentally whilst being focussed on circumstances existing within States. In determining whether laws select incidentally as opposed to directly, a range of factors may be considered, some substantive, some formalistic. It is argued that the incidental test satisfactorily balances important considerations such as the prohibitions' wording, their purposes and historical expectations (Australian and US) for interpretation, their unique role within a group of comparable constitutional provisions, existing judicial interpretation and the High Court's function of constitutional interpretation. Most importantly, the incidental test is proposed as a workable and realistic solution for the Court to apply, in the sense of knowing what the test means and using it to achieve correct outcomes in a range of factual scenarios.
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ItemThe Civil jury system : an empirical study( 2004)The Australian civil jury system was subjected to enormous criticism in the 20th century. The criticism has, in most Australian states, lead to a severe reduction and, in some cases, the abolition of the civil jury system. Victoria is the main exception to the Australia-wide reduction in the occurrence of civil juries. Should the Victorian Government follow most other Australian and overseas jurisdictions and abolish the chill jury? My thesis tests the proposition in two ways; first, by conducting empirical research into the manner in which jurors, judges and court staff view the operation of the civil jury system, and second, by assessing the current debate about the civil jury system in the light of the empirical evidence. It is intended that this research will contribute to realist jurisprudence by finding out how the law works in operation as compared to the written law. This study provides insight into the human experience of those most intimately involved in the civil jury trial process: jurors, judges and court staff. The results of the research will have relevance for both critics and defenders of the jury system, and will provide fresh material for the ongoing jury debate. It is not, the intention of this thesis to provide a complete guide to the workings of the civil jury system. My contribution is limited to the thorough exploration of three themes that I have identified as being some of the most persuasive arguments made in the debate. This research will not end the debate, but will direct the debate to focus on better-informed arguments. The three main themes for analysis are: 1. Perceptions of the judges, jurors and court staff of the civil jury trial system; 2. Perceptions of the jurors and judges as to whether contemporary civil jury trials are too complex for the average layperson to understand; and 3. Whether the demographic make-up of the Victorian community is adequately represented in the civil jury. Each of these three themes has been located in an historical context. The conclusions I made are compared to previous relevant empirical work. Finally, policy issues and arguments regarding both the abolition and retention of civil juries have been evaluated in light of my empirical data. The thesis concludes that the civil jury system in Victoria should not be abolished. Recommendations for improvement of the civil jury system are made.
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ItemImplementing international environmental law in domestic environmental management: wetlands of international importance in Australia and the People's Republic of China( 2004)This research utilises interdisciplinary methods to explore ways to improve the practical implementation of international environmental agreements at the local level. International environmental law is widely criticised as being general, aspirational and at worst, unenforceable. This thesis explores, through a specific case study approach why this is so, and what potential means can be employed to improve the implementation of international environmental agreements. Through a detailed exposition of international agreements which Australia and the People's Republic of China (PRC) are parties to, particularly those relating to wetlands of international importance, such as the Ramsar Convention and the China- Australia Migratory Bird Agreement (CAMBA), this research challenges accepted boundaries of traditional legal scholarship, seeking to incorporate a wider range of issues such as political structures, culture and economic realities in-depth. Incorporating top-down and bottom-up approaches, this thesis also showcases two specific case studies of internationally significant wetlands in both Australia and the PRC. This has been done to impart a specific approach to the largely general rhetoric that presently exists in international environmental agreements. In conclusion, it is asserted that a greater specificity of approach and flexibility is required if the implementation of international environmental agreements is to be improved at the national and local levels in both Australia and the PRC.
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ItemAdat and land law in a plural system : a study of forestry regulations and Indonesian 'legal development'( 2004)At independence in 1945, Indonesia inherited a plural legal system consisting of adat (traditional customary) law, Islamic law and Dutch law. The development of a unified national legal system was intended to solve legal problems arising from this plurality. However, after decades, the national legal system still does not function satisfactorily. This thesis asks what is wrong with legal development in Indonesia? Adat law, forestry law and land law are used as primary vehicle of analysis, because adat law is the oldest form of law existing in Indonesia and is still widely followed especially among the rural population, still the majority of people in Indonesia. Statutes regarding forestry and land are the formal laws which have the most profound effect on adat law communities. The thesis finds, first, that formal law enforcement in Indonesia is disappointing and this has led to a popular mistrust of the formal legal system. Second, it finds most of the population are still unfamiliar with formal legal norms. This is the result of a clash between, on the one hand, the conceptual notions relied upon by Indonesian government in establishing the law (based on assumption that `the people will follow the law'), and, on the other, those norms central to adat law (`the law will follow people's customs'). This fundamental conflict in grundnorm inevitably leads to disputes in connection with land, particularly in forest areas. These are made worse because rights are not properly enforced and dispute settlement procedures are ineffective. As a result the Indonesian land and forestry law regime is dysfunctional. This has adverse impacts on rural populations, especially adat law communities, in the sense that their land-related rights are weak, ignored or ineffective. The thesis recommends that the formal law-making process should be reformed to better adopt a key element of adat law-making process, that is, public acceptance, through improved consultation and public education. More specifically in relation to land and forestry law, the thesis recommends that formal law expressly acknowledge and protect adat communities and their adat land rights, especially, communal interests in land (ulayat rights). This should be done by new provisions that would: have binding force; allow formal registration of such interests; exclude adat forestland from the definition of state forestland; and acknowledge adat communities as legal persons.
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ItemThe legal field of policing in China : administrative detention and legal reform( 2004)This thesis examines the impact of the post 1978 reforms in the Chinese legal system on the powers of the public security organs. Specifically, it examines the impact of legal reform on three detention powers imposed administratively by public security organs; detention for education of prostitutes and clients of prostitutes, coercive drug rehabilitation and re-education through labour. These powers are imposed in respect of unlawful behaviour which is viewed as not being sufficiently serious to warrant a criminal sanction. The development and use of administrative detention powers since 1978 has been inextricably linked to the Party-state's social order policy and the institutional structures that implement it. In particular, administrative detention has been influenced by continuing reliance on campaign-style policing: the `Hard Strike' against crime. Viewed in the context of legal reform, administrative detention powers are still poorly defined and almost unconstrained by law. Controversy surrounding these powers is growing, as they are severely abused. Lack of detailed legal regulation has made them increasingly at odds with the more general trend towards legalisation and regularisation of state power. An analysis of reform of administrative detention leads to a pessimistic conclusion about the extent to which law influences the power of the public security organs. Analysis of the processes of legal change, undertaken in this study, reveals a more complex picture. Pierre Bourdieu's concept of the `legal field' is used as a theoretical framework to examine the processes of change affecting administrative detention. The pragmatic policies in the reform era of rule according to law and the Comprehensive Management of Public Order, adopted by the Chinese Party-state to underpin the success of the economic reform program, have facilitated a pluralisation of views about the proper interpretation of these policies and of legal reform of police administrative powers. The emergence of a space in which interested actors compete to determine the law relating to administrative detention is indicative of the emergence of a legal field. While the law produced as an outcome of the contests between these legal actors is not pre-determined, the contests themselves strengthen the reach and authority of law and provide further pressure and logic for reform.
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ItemThe tension between the right of states to control FDI and the commitment to liberalise FDI under international investment instruments( 2004)This study explores the tension between the right of States to control foreign direct investment on one hand and the commitment to provide more favourable treatments to foreign investors on the other, under the circumstances of globalisation of free trade. It argues that the operation of this right has been immensely restricted by treaty and non-treaty based rules as found, in bilateral and multilateral investment instruments. In particular, the World Trade Organisation Agreement on Trade-Related Investment Measures has seriously restricted the right of (developing) States to control foreign direct investment and the behaviour of foreign firms. On the other hand, the existing bilateral and multilateral investment instruments require States to liberalise their foreign direct investment policies and these instruments also offer greater protection to foreign investors than did the customary international rule of States' responsibility for injuries to aliens. Given this fact, from the developing countries' perspective, a new multilateral investment treaty under the auspices of the World Trade Organisation undesirable. Nonetheless, if the pressure from economic globalisation is irresistible and the alternative to a new multilateral treaty is a push toward bilateral arrangements, then the idea of establishing such a treaty is in fact preferable. In this context, a prospective treaty would have to strike a balance between the right of States to control foreign direct investment and the commitment to liberalise foreign direct investment policies. To this effect, a new treaty would have to adopt development provisions, which give (developing) countries the flexibility to undertake obligations and commitments commensurate with their individual needs.
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ItemGovernment promotion of job creation in Australia : regulatory objectives, instruments, and law( 2004)Direct job creation programs were a key element of the Australian Commonwealth Government's response to the policy challenge of persistent, high unemployment between 1974 and the year 2000. The emergence of job creation programs coincided with an evolving debate over the extent and legitimacy of the state's role in economic regulation, especially in relation to the labour market. Notwithstanding this coincidence, there has been no systematic effort to explore the purposes and nature of job creation programs from a regulatory perspective. Using three case studies of job creation programs implemented in Australia, this thesis tests propositions that are generated from regulatory theory, a field of scholarship broadly concerned with the relationship between the state, law and society. First, it was expected that job creation programs would serve a multiplicity of state objectives, including the immediate job creation goals of each program, as well as a number of broader labour market purposes. Second, it was anticipated that job creation programs would be implemented through a diverse range of economic and other non-legal regulatory strategies or instruments. Third, notwithstanding the broader regulatory character of job creation programs, it was expected that the programs would be expressed and constrained by various legal measures performing important regulatory functions. Finally, it was expected that the case studies would reveal interaction or responsiveness between policy objectives and the different legal and non-legal elements of each program. It is found that these propositions are largely borne out in the context of job creation programs. The immediate job creation objectives of each program were to assist people who were unemployed and considered to be disadvantaged in the labour market to obtain at least temporary employment positions. It is demonstrated that these immediate objectives reflected broader goals, such as the desire of the Commonwealth to redistribute employment opportunities to those people otherwise excluded from labour market participation. The Commonwealth Government relied upon a diverse range of regulatory instruments to achieve these goals, including financial subsidies or incentives to non-government employers, and contracting out of certain services, each supported by public sector management and oversight. Notwithstanding that these regulatory strategies were largely non-legal in nature, it is revealed that legal measures such as policy guidelines and contracts were used to ensure that regulated actors were accountable to the goals of each program. It is concluded that there was a significant degree of interaction between legal and non-legal forms of regulation in the context of these job creation programs. The findings in this thesis are significant for a number of reasons. Most importantly, this thesis establishes that job creation programs were significant state regulatory initiatives. This contradicts any notion of the state playing a lesser or somehow insubstantial role in labour market formation and regulation during the period studied. These findings have important implications for future studies of the job creation function of the-state, and point to new and potentially more insightful ways of theorising the relationship between the state and the labour market in Australia.
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ItemThe 1858 trial of the Mughal Emperor Bahadur Shah II Zafar for crimes against the state( 2004-12)In 1857, hostilities broke out against the ‘rule’ of the East India Company (EIC) in northern India.Measures to suppress the hostilities, known as the 'Mutiny', 'Rebellion' or 'War' of 1857', included legislation enacted by the EIC's Government of India criminalising 'rebellion' and 'waging war' and establishing temporary civil and military commissions. From 1857 to 1859, the Government of India tried soldiers and civilians, including the last Mughal Emperor, the King of Delhi Bahadur Shah II, for their conduct during the hostilities. The law and trials have not previously been the subject of study. his thesis assesses the validity, according to the international law of the time, of the trial by military commission of the King of Delhi in 1858. The research and writing of this study is original for no review of the trial according to international law has previously been attempted. This thesis assesses the validity, according to the international law of the time, of the trial by military commission of the King of Delhi in 1858. The research and writing of this study is original for no review of the trial according to international law has previously been attempted. The central hypothesis is that the trial was in breach of the international law of the time. The thesis demonstrates that the King of Delhi was a Sovereign recognised by Britain and under its protection until he was deposed three months before the trial. The thesis contends that his status as a recognised Sovereign, which according to the long-established rule of sovereign immunity precluded prosecution in the courts of another State, should have been considered sufficient to entitle him to immunity from prosecution. The criminal trial of a recognised Sovereign was without precedent. The thesis also contends that the apparent basis for the assertion of jurisdiction over the King or Delhi, that he became a British national through the extension of protection to the Kingdom or Delhi in 1803, was untenable in law. According to State practice of the time, protection of one State by another neither deprived the protected State of sovereignty nor effected a change in nationality. The thesis suggests that sovereign immunity was deliberately overridden on the grounds of his status as a protected king, the gravity of his crimes or on both grounds. Unprecedented in 1858, these grounds formed the basis for later challenges to the doctrine of sovereign immunity by plaintiffs in Britain. While neither ground found support in the law of the time, they signalled a new appetite to pierce the shield of sovereign immunity. The thesis concludes that the trial of the deposed and protected King of Delhi, Bahadur Shah, by a British court-martial in 1858, was both invalid according to the international law of the time and heralded an emerging international trend in favour of Head of State accountability.