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 general anti-avoidance rule in Australian tax law(University of Melbourne, 2013)
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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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ItemWhen Choice of Forum clauses in international commercial contracts are challenged: key lessons from Asian jurisdictions( 2019)While Asia leads the world in cross-border trade and investments, no comparative study exists on the approaches of Asian courts to Choice-of-Forum clauses in international commercial contracts. This thesis fills this important gap by seeking to explore, identify, compare and explain the approaches of courts in Singapore, Hong Kong, Malaysia and the Philippines when Choice-of-Forum clauses in international commercial contracts are challenged. Employing a comparative law method, this thesis argues that the manner courts characterise Choice-of-Forum clauses, party autonomy, procedure, factors considered during enforcement, choice of law process, state and international interests are the factors which determine how courts decide cases and issues. The key lessons gathered in this thesis highlight the need for parties to consider the direct and indirect effects in drafting their Choice-of-Forum clauses, the need for courts to be predicable, reliable and coherent in their analysis, the importance of maintaining court discretion, the need for procedural and legislative reforms, and the existence of a conducive environment in Asia for strengthening laws on party autonomy and for the accession of Asian countries to the Choice-of-Court Convention.
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ItemTwo Worlds, One Forum: Investor-State Arbitration and Indigenous Rights( 2020)Investment treaties and investor-state dispute settlement (‘ISDS’) have been seen to have a significant effect on the rights of indigenous peoples, which has led to development in regards to both the substantive rights of investors in investments treaties (such as the inclusions of ‘carve out clauses’ which are intended to preserve the rights of indigenous from foreign investors) and how arbitral tribunals deal with the rights of indigenous peoples when adjudicating investor-state disputes. Accordingly this paper seeks to further examine developments in this niche jurisprudence and discuss the implications of these developments. This paper will firstly consider the various rights of indigenous peoples that are seen to be at play in an international law context, and various legal instruments in which some of those rights are reflected in and derived from. Secondly, this paper will examine a selection of relevant investment treaties which have provisions affecting the right of indigenous peoples that have been considered by tribunals. More recent investment treaties that have more developed provisions which affect the rights of indigenous peoples are also considered. Thirdly, this paper will examine how the rights of indigenous peoples have been applied by tribunals in investor-state arbitrations. Fourthly, this paper will explore how the rights of indigenous peoples may be further applied in investor-state arbitrations and consider the practical application thereof. Finally, this paper will briefly explore how ISDS reform may affect the rights of indigenous peoples being applied in investor-state arbitrations. In doing so, this paper argues that the development of ISDS jurisprudence in cases concerning the rights of indigenous peoples, indicate an openness to considering, incorporating, and applying the rights of indigenous peoples in investor-state arbitrations.
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ItemCrafting Legal and Institutional Frameworks for Groundwater Resources of Bangladesh: From Overexploitation to Sustainable Abstraction( 2020)Economic activities in Bangladesh are heavily dependent on groundwater resources, which contribute to approximately 79% of total annual water withdrawal. Indeed, Bangladesh has achieved near self-sufficiency in food through irrigated agriculture, and thriving on groundwater, it has become the world’s second-largest garments exporter. This achievement, however, continues to cause significant damage to its invaluable groundwater resources. In short, a growing population, ever-increasing agricultural, industrial, and domestic water demands, and the impact of climate change are all exerting unprecedented stress on Bangladesh’s groundwater systems and supplies. These combined effects result in the depletion of the water table to an extent where it cannot be naturally replenished. Declining water tables, therefore, continue to challenge groundwater sustainability in Bangladesh. Instead of groundwater governance and management, the country has focused on resource development for a considerable period of time. Against this backdrop, drawing on in-depth interviews conducted with the responsible government officials, judges, scholars, and groundwater users, this thesis examines the viability of the existing legal and institutional frameworks in tackling the mounting challenges stemming from groundwater over-extraction. The thesis finds that the existing legal framework is ineffective and inefficient in controlling unsustainable groundwater extraction. Though requiring a permit for the installation of a well, for instance, is a substantial legislative improvement, without an associated water metering obligation, it fails to control indiscriminate groundwater pumping. Additionally, the sustainability of this resource is threatened by the lack of a legislative requirement for capping extractions to prevent unrestrained groundwater withdrawal in the industrial sector. Moreover, conflicts and overlaps between water laws; an absence of community and expert involvement in the lawmaking process; and persistent legislative ambiguities in relation to the delineation of appropriate responsibilities among water institutions undermine the noble vision of groundwater sustainability. Beyond these fatal gaps in groundwater laws themselves, compliance and enforcement remain a perennial problem in Bangladesh. A lack of knowledge of groundwater laws among the regulators and the regulatees, and a historic lack of groundwater regulation, among other things, stand in the way of achieving sustainable extraction of groundwater resources in Bangladesh. The thesis further finds that water institutions that are responsible for governing groundwater withdrawal are poorly designed, resulting in their consistent failure to arrest the declining water table. The presence of an excessive and unnecessary number of water institutions creates substantial uncertainty in establishing robust coordination among these institutions, which is further exacerbated by resource and data shortages. This, in turn, significantly limits their capacity to undertake a sustained collective response to overcome the daunting challenges posed by growing groundwater depletion. In the face of these overwhelming institutional limitations, however, the thesis demonstrates the promise of the Barind Multipurpose Development Authority, which has significantly reduced groundwater pumping for irrigation in the Barind Tract through the introduction of a prepaid smart metering system. Beyond the legal and institutional frameworks, the thesis also considers whether the judicial intervention could offer some respite to this rampant crisis. The thesis finds that there remains considerable scope for the Court to facilitate groundwater sustainability through its balanced and targeted judicial action. Finally, the thesis identifies lessons for both policymakers and the literature on how these challenges may be overcome.