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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ItemElements of accessorial modes of liability : article 25(3)(b) & (c) of the Rome Statute of the International Criminal Court(University of Melbourne, 2011)The collective nature of participation in international crimes has made accessorial modes of liability fundamental to the effort to prosecute individuals for such crimes. The Rome Statute of the International Criminal Court recognises three accessorial modes of liability: ordering (in Article 25(3)(b)), soliciting/inducing (in Article 25(3)(b)) and aiding and abetting (in Article 25(3)(c)). The purpose of this thesis is to assist the Court in interpreting these provisions by developing proposed material and mental elements for the three accessorial modes of liability. The development of proposed elements for accessorial modes of liability is necessary because while detailed elements for the substantive crimes within the jurisdiction of the Court have been identified in the 'Elements of Crimes' adopted by the Assembly of States Parties to the Rome Statute, no such elements have been elaborated for the modes of liability in those crimes. This is despite the fact that the elements of modes of liability are just as complex, if not more so, than the elements of the substantive crimes. There is therefore considerable potential for' inaccuracy and inconsistency between the various Chambers of the Court in their elaboration of the elements of modes of liability. Furthermore, the potential impact of such inaccuracy or inconsistency on the liability of an accused tried before the Court is significant. The proposal for ordering includes a conduct element, two circumstance elements and a consequence element (each with an accompanying mental element). The conduct element describes a prohibited act. The first circumstance element qualifies the conduct element by describing the requisite features of that act. The second circumstance element qualifies the conduct element by describing the requisite features of the accused. Together, the conduct element and circumstance elements represent what is referred to throughout the thesis as the 'accessorial act'. The consequence element describes a result (that is, the commission or attempted commission of a crime by the principal perpetrator). This is referred to throughout the thesis as the 'accessorial object'. Finally, the proposal includes a causation requirement, which connects the conduct element and the consequence element. The proposal for soliciting/inducing largely replicates the proposal for ordering, except that there is no circumstance element to qualify the conduct element by describing the requisite features of the accused. The conduct element and remaining circumstance element therefore constitute the accessorial act, and the consequence element constitutes the accessorial object. Like the proposal for ordering, the proposal for soliciting/inducing includes a causation requirement. The proposal for aiding and abetting includes a conduct element and a consequence element (each with an accompanying mental element). The conduct element constitutes the accessorial act, and the consequence element constitutes the accessorial object. Like the proposal for ordering, the proposal for aiding and abetting includes a causation requirement. In addition, the wording of Article 25(3)(c) requires proof of an additional (or special) mental element. It is hoped that this thesis will provide guidance to the Court when it seeks to apply the provisions regarding accessorial modes of liability to the first cases which come before it for trial.
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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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ItemThe legal precariousness of temporary migrant agricultural work: case studies of the Canadian Seasonal Agricultural Worker Program and the Australian Seasonal Worker Programme( 2018)This thesis examined the relationship between migration law and labour law in regulating the level of wages and employment security of temporary migrant agricultural workers in Canada and Australia. The findings have enriched the understanding of legally precarious work and provided recommendations for legal reforms to address this labour market problem.
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ItemBetween rhetoric and reality: the people’s procuracy as a human rights protector in the Vietnamese criminal process( 2018)The Vietnamese people’s procuracy (viện kiểm sát nhân dân) is a transplanted Soviet institution, which concurrently prosecutes and supervises judicial activities, including criminal investigation and trial. The 2013 Constitution, for the first time, explicitly recognises human rights and entrusts the procuracy with a responsibility to protect them. This thesis critically examines to what extent the procuracy can deliver on its new constitutional human rights protection responsibility. The thesis focuses on the protection of human rights in the criminal process, specifically the right to a fair trial for criminal suspects and defendants. My hypothesis is that the realisation of the human rights protection aspirations in the 2013 Constitution through the work of the procuracy depends not only on how the legislative changes introduced following the passage of the 2013 Constitution match the rhetoric of human rights protection objectives, but also on the performance of the procuracy in practice, both of which are contingent on the priorities and conditions of the environment in which the changes take place - the criminal justice system. To structure my analysis, I drawn on Pitman B. Potter’s institutional capacity framework but adapt it to examine the contextual, legal and institutional factors that shape the procuracy’s performance of its human rights protection responsibility. This thesis argues that, despite the recent human rights and procuracy-focused legislative reforms, there remain fundamental challenges to the procuracy’s protection of human rights, due to the resilience of the socialist essence within the procuracy and the criminal justice system in general. The key cause of the problem is the ambition of the Communist Party to maintain its authority and control, which prevents meaningful reforms from being carried out. Consequently, the underlying conceptions, motivations and structural arrangements of the criminal justice system remain untouched. Being drafted in this context, the law introduces certain changes to advance human rights protection but at the same time falls short of the human rights objectives, with many ambiguities, gaps, and loopholes. The contextual factors, which remain intact, also continue to shape the institutional factors, and thus undermine the protection of human rights. In terms of institutional purpose, there is a strong focus on crime control. Regarding orientation, there is a lack of desire to protect human rights, due to the procuracy’s collaborative relationship with the court and the investigating agency, the bias against suspected persons and defendants, and the disrespect of lawyers. Democratic centralism, and other mechanisms claimed to ensure cohesion within the procuracy, in fact undermine its performance of the rights protection responsibility. Factors of location - different goals, conditions, technical capacity and leadership in the procuracy at different levels and in different geographic areas - lead to uneven practices. Added to these factors are the lack of staff, technical skills and resources.
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ItemThe use of foreign judges on courts of constitutional jurisdiction in Pacific island states( 2018)The global norm is that, by law or by practice, the judges on courts of constitutional jurisdiction will be citizens of the state they serve. However, in the nine independent states of Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu, as in other parts of the world, foreign judges regularly sit on the highest domestic courts. This thesis examines the implications of the use of foreign judges for constitutional adjudication, judicial independence, and the role of judges and judiciaries in Pacific constitutional systems. The thesis presents the findings of an original empirical study of the numbers of foreign judges serving in the Pacific, their nationality and professional background, the processes by which they are recruited, and the terms and conditions of their service. It reveals a transnational movement of judges from common law jurisdictions to Pacific states, to engage in judicial service that is affected by the legal frameworks and practices of the Pacific states that use foreign judges and the policies of the external states and organisations that provide foreign judges. The thesis assesses the implications of the use of foreign judges for the way in which courts approach constitutional adjudication, judicial independence, and the representative qualities of judges and judiciaries in Pacific constitutional systems. First, I argue that foreign judges bring two dimensions of knowledge to the task of constitutional adjudication: knowledge reach that extends beyond the local; and a knowledge gap in relation to local context. I show that predominant features of constitutional adjudication across Pacific jurisdictions are, at least in part, explicable in light of the kinds of knowledge that foreign judges bring. Secondly, I explain how the presumption of distance implied by foreignness feeds into a perception that foreign judges are more impartial than local judges. I argue that this perception is overstated, while the risks to judicial independence resulting from the insecure tenure of foreign judges are not properly addressed. Thirdly, attention to the nationality of judges highlights the significance placed on judges’ allegiance to the state, responsibility to the people, and the expressive functions of the judiciary. I argue that the circumstances of foreign judging limit the extent to which foreign judges are understood to be authorised by, accountable to, speak for, or reflect the people or the state. Instead, greater emphasis is placed on the idea of foreign judges as members of a profession, with expertise, impartiality and a transnational commitment to law. This analysis of the practice of foreign judging and its implications provides the basis to assess the rationales for the use of foreign judges, to identify challenges that the practice poses to the legitimacy of Pacific judiciaries, and to propose good practice initiatives that might inform the laws and policies that regulate the use of foreign judges.
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ItemTraditional forms of land tenure in rural China and models for reform( 2018)The plight of farmers in rural China is an issue of fundamental importance in China today, both in terms of improving their living conditions from the perspective of individual farming households and in terms of maintaining social stability and achieving economic prosperity from the perspective of the nation as a whole. Since 1979, when the Household Responsibility System was first trialled, China has made significant advances in terms of increasing agricultural production and lifting its rural population out of poverty. As the liberalisation of the rural economy has gathered pace, however, problems have arisen in relation to rural land use and management. These include inefficiencies in the use of land as a result of small-scale farming; under-utilisation of land as a result of the migration of rural labour to the cities; abusive and coercive practices on the part of local governments and authorities; and irregular and unlawful land dealings. The above problems have implicated law and the legal system and have revealed deficiencies in the legal framework and rules governing rural property rights. To a significant extent, these deficiencies are attributable to enforcement challenges and weaknesses in the courts and other institutions. However, the deficiencies have also been attributed to fundamental structural weaknesses in the design of the land tenure system in rural China. The nature and extent of the deficiencies have been thrown into sharp relief by a series of government policies over the past few years. These policies aim to give farmers stronger property rights and reduce or remove restrictions on the assignment of property rights to encourage the development of a market for the sale and purchase of rural property rights. This thesis evaluates the relevance and suitability of traditional forms of land tenure to reform of rural land rights in China today. The criteria for the evaluation are the official policy objectives of the State, including giving farmers stronger property rights and increasing the scope of rights that famers may exercise. This thesis argues that the traditional forms of land tenure should be considered in the mix of reform options and considers conceptual models for this purpose.