Melbourne Law School - Theses
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ItemLockean foundations of private property rights(University of Melbourne, 2013)
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ItemGetting it right for the future : Aboriginal law, Australian law and native title corporations(University of Melbourne, 2013)When native title is recognised by Australian common law, by statute the court must determine a corporation to manage it, giving the native title group legal personality under Australian law. As a group, they can now make contracts, bold interests in land, and better engage with the broader economy. If these native title corporations are to manage native title effectively and achieve other benefits for the group, they must operate in both the Australian and the Aboriginal legal systems. However, use of corporations imposes the assumptions and theoretical underpinnings of the corporate form, developed in Western law over centuries, on relationships between Aboriginal people, their country and their law that have existed for thousands of years. The thesis considers several theoretical approaches for native title groups and their corporations engaging with two laws, including the Harvard Project's cultural match idea, legal pluralism and postcolonial theory. Specifically, Pearson's argument that native title recognition occurs in a 'recognition space' is applied to native title corporations and expanded by reference to Bhabha's conception of new political entities arising in a third space between the colonised and the coloniser. This thesis considers particular engagements between Aboriginal and Australian law in the third space, and contends that its boundaries should be semi-permeable to allow native title corporations shaped and influenced by both laws to operate across them in a manner controlled by the native title group. In its consideration of these issues, the thesis examines the nature of the corporate form, which is found to be contingent, having developed in response to particular circumstances and needs. It follows that the native title corporation can be adapted to meet Aboriginal needs. An examination of Aboriginal use of corporations shows that this has not occurred; rather they engage with Aboriginal law outside the formal structures of their corporations. Based on a multisite case study of two native title corporations that are engaging with Aboriginal and Australian laws, the thesis concludes that native title corporations are more likely to achieve the aspirations of native title groups if they are conceived as operating in a third space between both laws. In that space, better recognition of Aboriginal law governing the native title group's organisation and decision-making in corporate structures and operations, and its relationships with the group, governments and other parties would give these groups greater control of their engagement with the Australian society and economy through their corporations. Such corporations would become more Aboriginal and less corporate, reducing the impact of inappropriate corporate law norms. In this way, it is likely that they will become new political entities, neither wholly creatures of Aboriginal law nor of Australian law, but something in-between, which can engage effectively with both. They would thus become significant vehicles for Aboriginal people to achieve long-term economic, social and cultural aspirations: 'getting it right for the future'.
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ItemUnconditional life : the time and technics of international law(University of Melbourne, 2012)
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ItemThe Court of Arbitration for Sport : law-making and thequestion of independence(University of Melbourne, 2013)The Court of Arbitration for Sport ('CAS') was established by the International Olympic Committee ('IOC') in 1983 for the purpose of resolving international sports disputes. In its relatively short history, CAS has become the world's foremost sports arbitration tribunal. Notably, CAS's jurisdiction is recognised under the World Anti-Doping Code ('WADC) and under the statutes of all Olympic sports federations. A number of commentators claim that CAS's jurisprudence, described as a 'lex sportiva\ constitutes an autonomous body of law. If correct, such a development represents a significant contribution to world legal order. Legal theorists have identified a number of factors which are the hallmarks of a law-maker. One of these is independence. Independence is recognised as a law-making requirement in two different contexts, both of which are relevant to CAS. First, according to some scholars, a court must he perceived to he independent and impartial for it to he regarded as a law-maker. Although CAS is not a court, its compliance with recognised judicial standards of independence and impartiality may enhance its prospects of being regarded as a law-maker. Second, in the case of a non-state normative order, its independence from state law is considered necessary for it to he a law-maker. Unless a non-state order has independence from state law, it does not have final authority over its affairs and therefore cannot he considered a law-maker. The thesis examines the role of independence in determining a body's law-making status and assesses CAS's independence. In particular, the thesis assesses CAS's independence from the Olympic Movement, on the one hand, and from state law, onthe other. First, the thesis shows that CAS falls short of judicial standards of independence and impartiality and that this detracts from CAS being a law-maker. The thesis makes a number of recommendations the purpose of which is to enhance CAS's prospects of being a law maker. These encompass both changes of an institutional nature to ensure CAS's independence from the Olympic Movement governing bodies and also changes to the terms of appointment of CAS arbitrators to ensure their individual independence. Second, the thesis examines CAS's independence from state law and whether it exercises final authority in its decision-making. This is done with reference to Swiss law, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (commonly known as the New York Convention {'NYC))^ (with particular attention paid to its role in United States' and Australian law) and European Union ('EU') law. The thesis shows that, although CAS has a large measure of independence in determining disputes, its independence is not unlimited. State public policy and EU competition and freedom of movement laws are key areas limiting CAS's independence and hence its final authority.
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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.
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ItemHannah Arendt and the turn to life in international law( 2013)My dissertation investigates the idea of natality in Hannah Arendt’s writing for the purpose of rereading the biopolitical currents of contemporary international law. By referring to biopolitics, I mean the normalising or regularising techniques by which liberal governmentalities manage the physical conditions of life; and the critical perspective that observes, diagnoses and sometimes resists these techniques. International human rights law is a prominent expression of biopolitics in the first sense and provides a key context in which to observe the patterns and hazards of normalising power. More and more frequently, the liberal politics of life draws strength from different modalities (such as institutional activity and civil society movements) that expand what is recognisable as law or which influence its articulation, directs international agendas that affect the physical security and health of populations, makes clear the service of law to politics (particularly state politics), and significantly, leaves human remainders. My interest in biopolitics encompasses each of these effects but focusses upon the last. The humanitarian call of biopolitics sometimes, if not frequently, belies its real political function. Humanitarian practice also points to historical formations of biopolitics in which life mattered according to an assumed scale of human-ness, leaving some persons superfluous to the idea of life itself, and in due course, vulnerable to radical strategies of exclusion, including disenfranchisement, deportation and genocide. For theorists of biopolitics and international law, the ‘aporias of humanitarianism’ are not new even where exclusion takes less exaggerated forms. Regulatory initiatives relating to communicable disease, sex trafficking and enforced disappearance are present-day examples of the more subtle consequences of delineating or framing certain lives for protection, including the production or re-production of the state. The dilemma produced by biopolitics also relates to the limitations of normative critique. Here, biopolitics is a diagnostic tool that reveals the uneven effects of normalising power globally but fails to imagine normative pathways beyond them. The wager of the dissertation is that a refashioned account of natality offers an alternative resource for rereading the negative patterns of biopolitics in international law today. Like many theorists of biopolitics, Arendt was alert to the dangers of normalising power through her contact with its extreme expression in mid-twentieth century German politics. Nazism presented the fatal flaw of organising power around physical life. Arendt’s concept of natality takes its cue from themes familiar to biopolitics but re-envisages biological processes as a metaphor for politics. Natality literally describes physical birth or human reproduction as a counterpoint for the idea’s further meaning, as a reference for the birth or appearance of each human being as a political subject, and the birth of the body politic as a space for democratic action. In each sense, the metaphor notes an innovation, a beginning, an arrival, a rupture, a founding, a revolution, a re-configuration, a spontaneous and surprising event, an initiative, an origin, a configuration, a coming together, the moment of empowerment, and a reminder that life must be the answer for the delicts of biopolitics. Arendt’s imaginative offering supports a new form of normative critique that observes the implications and possibilities of the body’s unrelenting presence in the regulatory practices of contemporary international law. Her vision beyond biopolitics arguably fulfils, for different ends, the ambition of normalising power to make life (and not death) the subject of global governance.
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ItemFood security as social provisioning: insights from the international approach and the Indonesian( 2013)The thesis argues that the international community’s struggle to effectively deal with and take responsibility for food crises is rooted in both the structure of international law and the economic thinking that was wired into the early UN organisations. It presents a heterodox conception of economics — institutionalism — as an alternative way of thinking about problems of food and hunger. Building on the institutionalist emphasis on social provisioning, the thesis locates the legal dimension of institutionalist thought within a public law framework that emphasises authority and duty. This approach links economics and jurisprudence and conceptualises economic policy as a duty to provide.
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ItemPrivacy and the pictures: the photographed and filmed (women) who forged a right to privacy in the United States (1880-1950)( 2013)This thesis presents interdisciplinary research into the ways in which the 19th century technologies of photography and cinema gave birth to a ‘right to privacy’ in the United States and an investigation into how and why this happened. Such an investigation necessitates a gendered analysis, as my research suggests that during the period from 1880 to 1950, cases claiming ‘a right to privacy’ involving film (still and moving) were, more often than not, brought by women. The proliferation of images that occurred in the late 19th and early 20th centuries as a result of developments in photography and cinema caused new potential harms to individuals (particularly women), which existing laws (such as copyright, defamation and breach of confidence) were inadequate to address. Drawing upon extensive original research in film and legal archives across the United States, this thesis demonstrates that it was women who forged a ‘right to privacy’ in the United States by claiming control and ownership over images (still and moving) of their faces and bodies. At a time when they still lacked a range of civil and political rights, women asserted the right to control the circulation and publication of their images, first, to prevent themselves from being reduced to nameless, ‘pretty’, objects; second, to protest the transformation of their bodies into spectacles of ‘monstrosity’; third, to limit their exposure on the big screen to the mass ‘gaze’ of audiences; fourth, to control the development of their careers as models, dancers and actors; and fifth, to reclaim their life stories from exploitation by film studios. My interdisciplinary thesis introduces these important contestations in a new account of film history in the United States and also offers an alternative explanation of ‘a right to privacy’ within the law, one informed by a consideration of women’s (and some men’s) historical, cultural and embodied experience.
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ItemTransnational transmission of renewable energies: a study on international legal mechanisms to further cross-border interconnections of power transmission facilities( 2013)Clean energy and energy supply have become a concern worldwide, for energy itself is deemed a strategic trading commodity. This inquiry explores whether the consideration of cross-border interconnection of transmission grids at a large-scale along with unrestrained legally-secured power transit might play a significant role in solving such a concern whilst contributing to achieve sustainable development. Despite potential benefits of such a configuration, power grid interconnection is far from being the standard at international level. Although legal doctrines and rules have been developed for protecting international energy-related investments, power-trading and power transit remains inadequately regulated and subjected to political whims and calculations. By using a thematic approach to three selected case-studies, the research delves into the Brazilian scheme to set up an energy mix based mostly on renewable sources and its relationship with transmission grid expansion processes. Despite failing to create a single power market, the European Union is worth analysing as the most advanced regulatory model for transnational power transit. Lastly, a non-integrated developing area: South America is considered as a suitable regional context in which testing the research’s argument. This research explores, therefore, from a legal perspective, the paradoxical phenomenon of power grid isolation and looks for an explanation about why it still prevails internationally. Specifically, it addresses the question of what international legal mechanisms could be employed to remove barriers – whether internal or external - hindering cross-border grid interconnections, thus facilitating power-trade and transit as well as to take advantage of opportunities for energy efficiency capable to secure ‘green’ energy supply, reduce atmospheric emissions and, ultimately, targeting sustainable development, at least, in regional contexts. The thesis advances the proposition that cross-border power grid interconnection coupled with an international legal framework realigned to harmonise energy mixes may solve the concerns on clean energy and energy security by contributing to the integration of renewable energy technologies at a large-scale and promoting unrestrained power flow and trade across-borders. As a practical outcome the thesis develops legal recommendations and models of an international declaration and a transnational agreement on grid interconnection and power transit in which the findings of the inquiry are embodied in the form of a set of international legal propositions.
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ItemProtecting the public? An analysis of complaints and disciplinary proceedings against doctors in Australia and New Zealand( 2013)The professional regulation of doctors is commonly justified as necessary for the protection of the public. However, the degree to which regulatory decision-making is actually consistent with public protection considerations is unclear. The impact of other influences, such as the wider public interest in ensuring an adequate supply of doctors in the workforce, is also unknown. This thesis uses empirical analyses of the complaints and disciplinary mechanisms of the Australian and New Zealand medical regulatory frameworks to explore these questions. The first empirical study is an analysis of the 485 determinations made by medical tribunals between 2000 and 2009 in the four most populous states of Australia and in New Zealand. The characteristics of the doctors involved are described, together with the characteristics of the cases. The nature of the misconduct at issue is analysed according to a new typology that is more refined than previous typologies and, for the first time, considers misconduct according to both its type and the underlying reason for that misconduct. Disciplinary sanctions imposed by the tribunals are explored in some detail, with removal from practice given special attention due to the unique role of that sanction in protecting the public. The results lead the author to question whether the potential for rehabilitation is being weighted too heavily by the tribunals, and whether this may indicate that other considerations (such as doctor supply and the doctor’s own interests) are being allowed to obscure the primary goal of public protection. The second empirical study investigates 5,323 complaints made to medical boards in Victoria and Western Australia between 2001 and 2008. Again, the characteristics of the doctors concerned are analysed, with particular attention paid to how those characteristics appear at different stages of the complaints and disciplinary process. A focus of the second study is doctor country of training, which is considered in a more nuanced way than ever before. Due to the regulatory response to doctor shortage in Australia, this doctor characteristic is of contemporary significance, including in relation to what it reveals of the tension between public protection and the wider public interest. The increased risk of complaints and disciplinary proceedings among international medical graduates suggests that more may need to be done in ensuring that the approach to the registration, support and supervision of such doctors does not expose the public to risk. The apparent association between elevated complaints risk and doctors from specific countries of training is highlighted as deserving of further study and analysis. As well as being instructive as to the priorities and operation of the complaints and disciplinary system, the knowledge gained through the empirical studies may be useful to medical boards in furthering their public protection agendas. In summary, the results indicate that the risk of being subject to complaints and/or disciplinary action is particularly elevated for doctors who: are male; specialise in obstetrics/gynaecology; psychiatry or general practice; obtained their primary medical qualification outside of Australia or New Zealand; hold general registration; and have previously come to the negative attention of the regulator. In terms of case characteristics, the first study shows that sexual misconduct, illegal or unethical prescribing, and inappropriate or inadequate treatment are the most common issues leading to disciplinary action. This increased knowledge may move regulators one step closer to being able to proactively identify of ‘at risk’ doctors and behaviours, thus allowing them to target training, support and interventions towards such doctors and concerns.