Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 10 of 10
-
ItemUnconditional life : the time and technics of international law(University of Melbourne, 2012)
-
ItemGenes, biotechnologies and legal imaginings : A feminist analysis of intellectual property law(University of Melbourne, 2012)My thesis is concerned with narratives of invention and reproduction at the intersection of law and technoscience. The concept of invention is examined in a broad sense, not just as a positivist legal doctrine or as a process of technological development, but rather as a legal concept that is tightly bound to Western humanist philosophy. I argue that contemporary understandings of invention are tied to specific gendered and racial concepts. My research focuses on the ethical and political critiques of the legal treatment of technoscientific practices. I focus on genetics and reproductive technologies and consider the different ways in which the separation of ethics, discrimination and identity on the one hand, and property rights on the other, is a product of legal interpretation. In my thesis I focus on the places where these two realms are co-implicated, contradictory, or just confused. In particular, reproductive technologies are one area where the ethico-political stakes are apparent. I argue that patent law's claim to be concerned with the purely technical and economic aspects of invention is, in fact, a political and ethical stance first and foremost. My research problem began from a consideration of two major Australian law reform inquiries that purport to deal with the legal regulation of genetic technologies, the first related to discrimination and privacy issues and the second focussed on gene patenting. My argument, stated at the most basic level, is simply that the disjunction between the issues of discrimination (privacy and ethics) and property is problematic due to the underlying assumptions that form the rationale for such a disjunction. Further, these assumptions then limit the types of questions and arguments that can be asked (and exclude others altogether). Anti-discrimination law is, of course, a relatively new legal category (not unlike the patentable subject matter that I discuss). Anti-discrimination laws, like the new `bioethical' paradigm, have a common heritage in the form of human rights. The promise of such novel legislative regimes was the hope for some measure of social justice - and even more idealistically perhaps - that new forms of social relations would eventually come into being. The promise (as is always possible) was not fulfilled. Whereas patent law seems to be ever responsive to accommodate new claims of inventiveness, claims that seek a measure of social justice in the so-called private sphere of family, sexuality and reproduction are met with determinant appeals to tradition and nature. My argument is not that this is inconsistent or a paradox, but rather that they are two sides of the same coin. An analysis of the juridico-technical assertion of intellectual property rights in the form of patents, particularly in relation to genes and organisms (human and non-human), is developed in light of these theoretical approaches. I argue that patent law's claim to be technologically neutral forgets the point that law is always already implicated in what counts as invention. I call this law's ignorance about genetics.
-
ItemTowards a fairer system in awarding maintenance for children after divorce: a study of the assessment process in the Syariah courts in Malaysia( 2012)This thesis proposes a fairer system for the award by Malaysian Syariah courts of post-divorce maintenance for children. It investigates current practice child maintenance cases in these courts by analysing a set of reported and unreported cases decided between 2002 and 2010. From these, it concludes that post-divorce child maintenance awards granted by Syariah courts in Malaysia are often inconsistent and insufficient for the basic needs of children. It finds that this is a result of a lack of detail in the relevant legislation and the absence of guidelines for judges. Instead, determination of the needs of the child and the father’s financial capacity is left almost entirely to judicial discretion, which varies greatly from case to case. To identify appropriate reforms to create a more just and predictable system, this thesis looked at practice in the civil courts of Malaysia and their equivalents in three developed countries (Australia, United Kingdom and Canada), finding a wide gap between the practices of the Syariah courts and those of these civil courts. The thesis concludes that adopting the Canadian model of judicially binding guidelines for child maintenance awards would deliver a fairer and more predictable system in Malaysia, with minimum cost and institutional change. It also demonstrates that such reform would be in conformity with Islamic principles of social justice, which require that the welfare of children be properly protected after divorce.
-
ItemPower in transformation: Christmas Island, border security, governance( 2012)In 2012, Christmas Island is best known as a place of immigration detention, a component of Australia’s expanding border security apparatus. In the 124 years since it was annexed by the British, Christmas Island has continued to take on changing political forms. In exploring these changes empirically and theoretically, this thesis gives an account of the mutation of political sovereignty, the emergence of globalisation, the installation of governance, and their current co-operation through the practice of border security and immigration detention, as seen from the Island. It considers the way shifts in thinking and ways of imagining problems – as political, as urgent – have provoked and continue to prompt the construction of certain kinds of structures: mines, casinos, and now the immigration detention centre. The centre is a high-tech, medium security prison situated in the middle of a tropical rainforest that includes back-to-base surveillance technology, wheelchair access, and specially designed concrete tunnels constructed to facilitate the orderly migration of red crabs across the Island. The core argument stems from the recognition that all governing is a matter of problem solving, but that, every time, problems are solved within the enabling constraints characterising each problem space. Governing moves from imagination to application to a materiality that turns out to be perennially unruly: nothing works as intended; yesterday’s best laid plans are today’s follies; things fall apart. The picture of power’s transformations depicted points not only to the transience of all things human, but that what is characteristic of power’s shape in our time is that it holds without the centre. And yet, Christmas Island’s story is also full of ironies and impasses. The attempted passage of authority through governance and the restless, anxious search for accumulative mobility characteristic of today’s capitalism also, paradoxically, produces specific sites of friction and immobility, certain kinds of paralysis, and a curious desire to project messages into a region and future that border security can only recognise and secure as a threat-filled theatre of interdiction. Christmas Island is strange, but the ways in which it is tell a striking and disquieting story about how power came to be what it is, while suggesting what we might be becoming. In accounting for transformations of power on Christmas Island, this thesis also offers an account of the conceptual and intellectual resources necessary to make sense of the power relations to which we are subject: here, now and in the future.
-
ItemLocal space, global life: the everyday operation of international law and development( 2012)This thesis engages with the expansive and ground-level operation of international law and the development project by discussing the current international attention to local jurisdictions. In the last three decades, local jurisdictions have become the preferred spaces to promote global ideals of human, economic and environmental development. Through an ethnographic study of Bogotá’s recent development experience, in particular the city’s changing relation to its illegal neighbourhoods, this thesis interrogates the rationale and exposes some of the contradictions involved in the emergence of localities in development discussions and the international normative scene. The thesis pays particular attention to how the current attention to local jurisdictions – a process that has been largely articulated through the idea of decentralization – has involved a global re-accommodation of the exercise of authority over territory and population once assigned primarily to national administrations. However, the process of decentralization has not involved the abandonment of the nation-state but instead a multiplication of levels of governance upon local jurisdictions, a move that has made local administrations more concerned about calibrating their territories and populations in terms of their development aspirations, their fiscal capacities and their internal and external frontiers. This situation has particularly affected the relation between local administrations and their most peripheral subjects. In its evaluation of the multiple ways in which international law and development are shaping local realities, the thesis argues for closer critical attention to how these intimately related projects are constantly operationalized through the actions of national and local administrations, and through a multiplicity of laws, administrative technologies and artefacts of governance, that are rarely considered part of the economy of international law or the development project.
-
ItemA minor jurisprudence of movement( 2012)Different offices carry different responsibilities. This thesis addresses the office of jurist and their responsibilities in relation to common law, including the creation and conduct of lawful relations. In Australia, where the dominant form of law continues to be Anglo-Australian common law, it is for the jurist to attend to common law and its practices. By taking seriously the question of office, this thesis shows the jurist how to account for and take responsibility for some of the forms of common law practice as a matter of office. As a way of taking responsibility for this colonial form of law, this thesis creates a minor jurisprudence of movement that accounts for technical and material forms of common law practice. Paying attention to the material dynamic of movement and its relation to the practice of the care of the dead, this thesis reveals how common law moves with a tendency to slide by, unnoticed, through technologies of jurisdiction. Noticing these movements, especially movements in relation to the dead, this thesis carefully engages with two sets of materials, one historical and one contemporary: the historical is a burial party that walked in colonial New South Wales and the contemporary is the struggle to bury the dead in Antarctica. Engaging with these materials with a jurisprudential method of slowness, this thesis narrates and redescribes two vignettes as a way of accounting for the place of movement in the technical and material forms of common law practice. Through the creation of a minor jurisprudence of movement, this thesis offers a better understanding of the place of movement in the technical and material forms of common law practice. In doing so, this thesis challenges the jurist to move well; to attend to the responsibilities of office. While taking responsibility for the practice of a colonial form of law is not an easy task, it is part of what it means for the jurist to take up and hold office. Moving carefully, this thesis offers a way this might be done.
-
ItemEnemies of mankind: the doctrine of international law enforcement in Vattel's Droit des gens( 2012)This thesis investigates the ‘enemy of mankind’ concept in early-modern international law. It argues that the concept played a pivotal role in the collective security theory of Swiss jurist Emer de Vattel. This historical analysis also throws light on current debates concerning the legal status of terrorists, pirates and irregular combatants.
-
ItemSexual exploitation and abuse by UN military contingents: moving beyond the current status quo and responsibility under international law( 2012)Sexual Exploitation and Abuse (SEA) continues to be a problem on UN peacekeeping operations, despite relatively expansive efforts that have been taken to tackle it at UN level. Such conduct is particularly grave given that these peacekeepers have been sent to protect the civilian populations of host states. Sexual crimes by UN troops breach the relationship of trust between these personnel and the host population. Such conduct undermines the credibility of UN missions and international peace and security. Moreover, SEA also may have insidious effects on victims, in particular children. There are several categories of UN peacekeeping personnel, each with a different legal status. This thesis is solely concerned with the largest component of UN operations, namely UN military contingent (UMC) personnel. These personnel are rarely held to account for even serious incidents of SEA, given that they are granted immunity from criminal prosecution in the host State by a plethora of legal instruments, in addition to the reluctance of some troop contributing countries (TCCs) to prosecute, which lends to a culture of impunity. The thesis aims to identify current legal, conceptual and practical impediments to tackling SEA by UMC personnel, through an appraisal of the responsibility framework as it currently stands and UN reforms and initiatives aimed at tackling it to date. In concluding that the current system for holding UMC personnel alleged to have perpetrated SEA to account remains inadequate, the thesis questions what might be the alternatives to current practice. SEA it is argued may give rise to the responsibility of individuals, TCCs and/or the UN. The thesis considers whether such conduct can be considered a violation of international humanitarian law, human rights law and/or international criminal law, and what this might mean in terms of state, UN and/or individual responsibility. It explores some of the difficulties with applying these legal regimes in the context of SEA by UMC personnel. The thesis considers whether international or internationalized courts might play a role in holding UMC personnel to account for serious incidents of SEA, or whether some other mechanism might be more effective. In doing it reflects on the possible value of internationalized prosecutions of UMC personnel perpetrating such offences. This thesis, however, takes the position that states or TCCs are as much a part of the problem in addressing SEA by UMC personnel as the individuals themselves. All too often they have proven reluctant to effectively investigate criminal offences perpetrated by their soldiers on UN operations, despite obligations to do so. Moreover, states remain a barrier to putting a more effective system in place and are likely to oppose any external interference with their exclusive criminal jurisdiction over their military personnel. Therefore, this thesis argues that there may be a need to look beyond individual criminal responsibility, to the possible responsibility of TCCs, and perhaps to a lesser extent the UN, for acts or omissions in relation to SEA by UMC personnel. It considers the possible scope of TCC and/or UN international obligations towards victims of SEA, in particular where there is a failure to take reasonable measures to prevent SEA by UMC personnel and to hold perpetrators to account. The possibility of TCCs been held responsible for the extraterritorial conduct of soldiers deployed on UN peacekeeping operations may put increased pressure on states to take their obligations to prevent and respond to SEA by UMC personnel more seriously, and possibly open some avenues for victims to claim some form of redress.
-
ItemCompensation technologies: critical analyses of contemporary Australian personal injury law( 2012)Personal injury compensation systems are common features of the legal landscape in Australia. These systems reflect important social, political and legal choices about the categories of injury that are regarded as worthy of compensation. To do their work, compensation systems use a range of legal tools and techniques. Though they are critical to the functioning of compensation systems, the operation of these tools and techniques has received limited attention from legal scholars. This thesis provides a typology of the tools and techniques of contemporary compensation practice, defining them as Compensation Technologies (CTs). Through a series of studies of CTs, the thesis demonstrates that they make an important contribution to the understanding of health and injury in compensation settings. The first study focuses on medical expert witnesses. In compensation settings, expert witnesses act as injury brokers, the brokers of legally-recognised and compensated injury. The study provides a quantitative analysis of the profile and involvement of injury brokers in transport accident litigation in Victoria, Australia. The second study investigates damages thresholds, a frequently-used CT designed to limit eligibility for damages in compensation systems. The study uses qualitative content analysis to investigate judicial evaluations of the quality of life impacts of injury at a damages threshold of ‘serious injury’. It provides a range of insights into judicial assessments of the effect of injury on claimants’ lives, including the material and expressive impact of the threshold on the construction of health in the decisions. The third and final study looks at the compensation claims process as a CT. It engages in a critical analysis of epidemiological evidence of the adverse health impacts of compensation processes. In recent years there has been significant growth in research investigating the relationship between compensation processes and claimants’ health outcomes. The study identifies a range of methodological shortcomings in this literature, which are a product of an insufficiently interdisciplinary approach to research on health in compensation systems. Through these studies, the thesis shows that rather than operating as mere technical devices, CTs play a constitutive role in shaping health and injury in compensation settings. The thesis explores the ways this occurs. It illustrates the utility of empirical and socio-legal methods for research on health in compensation settings. Additionally, it identifies the challenges of the interdisciplinary research setting for developing high-quality research. It concludes that greater scrutiny of CTs and their effects should inform the evaluation, development and reform of compensation systems.
-
ItemTriggering institutional change in an environment of endemic corruption: the Indonesian Corruption Eradication Commission( 2012)KKN, an Indonesian acronym denoting corruption, collusion and nepotism (korupsi, kolusi, nepotisme), encapsulated popular resentment against the authoritarian Soeharto regime during the financial and political crisis of 1998. Public demands to control widespread corruption were transformed into a set of legislation enacted between 1998 and 2002. Because corruption was endemic in existing law enforcement agencies, the centrepiece of the new legislation was the establishment of a new and independent agency to enforce them. Since 2004, this new entity, the Corruption Eradication Commission (KPK), equipped with a broad mandate in both prevention and enforcement, has spearheaded the government’s efforts against corruption. It has done so more effectively than any previous attempts in Indonesia and more successfully than comparative studies of specialized agencies in other developing countries would predict. This thesis examines the factors contributing to the KPK’s initial success. My research applies a theoretical framework derived from new institutional economics with reference to the growing body of literature on anti-corruption agencies. The analysis is based on a detailed review of legislation and associated policy documents. Application of the new laws by the KPK and its impact on formal and informal institutions is examined by drawing on semi-structured interviews during 2009 with more than sixty decision-makers and observers including academics, NGOs and donor agency representatives. These data are supported by content analysis of selected Indonesian media. This study finds that effective anti-corruption reform can be achieved in a highly corrupt environment if the third-party enforcement agencies maintain their political independence and integrity and in turn retain public support, so that the incentives that lead to corruption can be changed through consistent preventive measures and law enforcement. In Indonesia, the economic crisis, regime change and popular pressure led to a political consensus on the establishment of new formal anti-corruption institutions including new third-party agencies. The design of these anti-corruption institutions was influenced but not predetermined by international precedents and donor intervention. Precautions were put in place to maintain the integrity and political independence of the KPK, most notably the sequential selection recruitment of its leadership, thereby diluting loyalties of the nominees to particular groups. The KPK’s human resource management system has avoided the weaknesses of the Indonesian civil service system through higher, more transparent remuneration that aligns individual performance with organisational objectives. The KPK has increased the risks of engaging in corruption but, impeded by its organisational design, has as yet failed to reduce the opportunities and systemic weaknesses that lead to endemic corruption. The KPK’s law enforcement has generated public support but also resistance from vested interests. Resistance to the KPK has mostly taken legal form, allowing for examination by the courts and public pressure that have in turn consolidated the KPK and the Anti-Corruption Court. The long-term sustainability of the KPK and other formal anti-corruption institutions is dependent on consistent law enforcement, more preventive measures at national level and on maintaining public trust in their integrity.