Melbourne Law School - Theses
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ItemThe Judicial System and Demographic Change: Preparing for Australia’s Population Futures( 2019)In the late 1960s, an explosion in global population and the attendant threat of widespread famine spawned a new field of legal scholarship, known as ‘population law’. Its central concern was to use the law as an instrument of public policy in tempering population growth by reducing fertility. However, after a brief flowering—and as global rates of population growth began to slow under the impact of the ‘demographic transition’—academic interest in population law began to wither. This thesis seeks to reinvigorate this field of socio-legal inquiry by reinvestigating the relationship between law and demography. But, in contrast to the pioneering scholarship, this study turns in a novel direction by examining how population change can affect the legal system, rather than the converse. Specifically, the thesis analyses the impact of demographic change on the judicial system, with a geographic focus on Australian courts. Although governments increasingly recognise that demography is a potent force in shaping the political, social, and economic life of nations, legal policy has been slow to respond to the challenges posed by demographic change. Addressing this gap, the central questions of the thesis are: (a) how does demographic change impact on Australia’s judicial system; and (b) how should Australia’s judicial system adapt to embody a greater preparedness for the demographic changes that lie ahead? The first is a positive inquiry that seeks to ascertain verifiable truths about the real world; the second is a normative inquiry based on judgments about what ought to be. Analysis of the research questions proceeds by way of four case studies, which together form a collective case study. They examine the impact of: (i) declining mortality on models of judicial tenure; (ii) population ageing on judicial pensions; (iii) population redistribution on the work of lower courts; and (iv) population composition on judicial diversity. The case studies have been chosen for the way they reveal the impact of different demographic attributes (population growth, components of change, composition, and spatial distribution); and for their relevance to core values of the judicial system (judicial independence, access to justice, quality of justice, public trust, and cost effectiveness). Answering the normative inquiry, the thesis makes recommendations for reform in order to enhance the population preparedness of the judicial system. The reforms include: extending the mandatory retirement age for judicial officers, in conjunction with regular capacity assessment; recalibrating the parameters of the judicial pension schemes to make them more cost effective; allocating judges and magistrates to appropriate geographic locations to meet the changing demand that arises from spatial redistribution of the population; and closing the ‘diversity deficits’ between the composition of the judiciary and the composition of an increasingly heterogeneous population. In advancing the case for a renaissance of ‘population law’, the thesis reinforces the need for pluralism in the modalities of change, and the desirability of accommodating differences across the Australian judicial system. Yet reform is needed if the core values of the judicial system are to be maintained in the face of ineluctable forces of demographic change.
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ItemThe use and misuse of foreign materials by the Indonesian Constitutional Court: a study of constitutional court decisions 2003-2008( 2010)This thesis examines the Indonesian Constitutional Court's (MK) use of foreign and international sources of law in constitutional adjudication. Specifically, I seek to address three questions, each of which represent the main criticisms of the practice. First, is the MK's use of foreign materials in constitutional adjudication legitimate? Or is it undemocratic and an excessive exercise of the Court's judicial authority? Second, does the MK demonstrate a sufficient level of understanding of the contextual background from which the transnational principle derives, needed to evaluate whether the transplanted principle is suitable to the Indonesian context? Third, does the MK selectively use foreign materials only when the adopted principle supports an already identified position and ignores the sources that oppose the outcome sought by the Court? On the first question, the MK derives legitimacy from its adoption of a `universalist' interpretive theory. Under this approach, all courts are assumed to be identifying and interpreting the same set of constitutional norms thus providing the theoretical basis to use foreign materials to interpret those norms. However, the adoption of principles from transnational sources of law by the MK are generally not accompanied with clear reasons that justify why the principles it selects are relevant to the Indonesian context and why those it ignores are irrelevant. As a result, the Court does not demonstrate whether it has sufficient knowledge of the context from which the transplanted law derives. A lack of contextual knowledge gives rise to the risk that the court applying the laws may do so inappropriately or even incorrectly. The lack of transparency on the manner in which the foreign materials are selected; and quantitative evidence showing that the overwhelming majority of citations, in fact, did support the MK's decisions; exposes the Court to the third criticism, that it `cheery picks' foreign materials only when a supporting principle can be found to lend legitimacy to a preferred policy position or result.
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ItemThe assessment and regulation of market power in Australia( 2010)This thesis considers various issues relating to the assessment and regulation of market power in Australia It identifies a number of contentious questions concerning market power and considers how such questions are resolved in Australia. In doing so, it also examines whether Australia's tri-partite institutional structure — comprising the Courts, the Australian Competition Tribunal and the Australian Competition and Consumer Commission — is conducive to the consistent treatment of market power. Recent developments highlight new (or renewed) tensions between these institutions, calling into question their respective roles. To date, there has been extremely limited systematic analysis of competition law issues in Australia Academic research tends to be ad hoc, typically relating to a single decision or issue. The purpose of this thesis, however, is to undertake a detailed longitudinal study of how the key institutions address critical issues in order to understand: first, how such issues are generally resolved in Australia; and second, whether the institutions' approaches are consistent, and — in the event that they are not — to explore the significance of any inconsistencies. Accordingly, it is a comprehensive assessment of the institutions' views on market power from the enactment of the Trade Practices Act 1974 (Cth) until December 31 2008. The analysis is premised upon six focus questions. The first two questions (relating to market power generally) concern the reason(s) for which market power is regulated, and whether a structural or strategic analysis is preferred The next questions (prompted by issues concerning essential services) consider approaches to monopoly pricing and cross-subsidisation, as well as the impact of regulation on assessments of market power. The last questions specifically concern the Australian regime: first, considering the relationship between the structural and behavioural regulation of market power under the TPA and, secondly, reviewing the role of the various institutions in regulating market power. Considering each institution's response to the various questions, it is apparent that there are large areas of consistency but also some significant differences in approach. These differences are partially grounded in the particular roles of each institution and in fact represent a key strength of the Australian regime. It is clear that the institutions work together in a manner which ensures the TPA is applied with considerable flexibility, whilst generally maintaining appropriate consistency. Nonetheless, there are some inconsistencies which appear problematic, as they reflect different economic and legal methodologies which can impact upon parties when they are required to deal with two or more of Australia's competition law institutions.