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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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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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.
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ItemA (Functional-Purposive) Comparative Analysis of the Protection of Workers Involved in Triangular Work Arrangements through Labour Providers in Australia and Italy. How can the Australian labour hire regulatory approach benefit from the Italian agency work regulatory experience?( 2020)This thesis draws on the international debate around the role of labour law in protecting workers involved in triangular arrangements such as agency work, also referred to as ‘labour hire’ and broadly referred to in this thesis as ‘triangular work arrangements through labour providers’ (TWAs through labour providers). It does so with the aim of understanding the rationale of the seemingly divergent regulatory patterns that have emerged in Australia and in Italy, despite the similar challenges posed in many jurisdictions by this non-standard form of work. While in the former country there is a current call for regulation to provide a stronger protection for labour hire workers, the latter has gradually relaxed a series of strict provisions to ensure a higher level of flexibility for businesses that resort to agency work. Against this background, this thesis investigates why, despite the similarities of certain problems such as protecting workers involved in non-standard forms of work, legal solutions develop differently in different countries and what can be drawn from it. To this end, the thesis addresses the following questions: 1) what is the protection offered to workers involved in TWAs through labour providers in Australia and in Italy? 2) how can we explain and make sense of the differences and similarities that have emerged? 3) what can Australia learn from the Italian regulatory approach to TWAs through labour providers for the purpose of implementing protective measures for labour hire workers? In answering these questions, the present study distances itself from legalistic mainstream comparativism. It departs from previous attempts to assess the Australian relative lack of protection of this category of workers using system-specific concepts that belong to the European and/or other legal cultures. In contrast, this thesis takes a functional comparative approach to assess whether, behind the divergent paths taken in Australia and Italy to protect the workers under analysis, the results are functionally similar. To this end, the comparative analysis of the respective measures is structured around a system-independent normative benchmark: the function of the laws regulating TWAs through labour providers following a purposive approach to labour law. The differences and similarities of the regulatory solutions are discussed in light of their historical development, within the respective legal and socio-economic context. Lessons are drawn from the Italian regulatory experience, which despite its ostensibly superior purposive alignment, presents a series of shortcomings especially in relation to labour intensive and low skilled workers in sectors equally problematic in Australia. In light of these findings, relevant policy recommendations are made for the Australian regulatory approach. Final reflections on the method and on the ‘purposive approach’ theory underpinning the functional comparison are drawn and future research directions are highlighted.
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ItemAddressing the Vilification of Women: A Functional Theory of Harm and Implications for Law( 2020)Certain categories of vilification, including, in particular, vilification on the basis of race, are expressly recognised as legal wrongs under Australian, international, and foreign domestic laws. Notwithstanding its prevalence, vilifying speech directed at and about women on the basis of their female sex remains unregulated in most jurisdictions. Nor has the issue of sex-based vilification received much scholarly or policy attention. This thesis examines the need for anti-vilification laws to address sex-based vilification. It relies on critical and speech act theories to arrive at a functional theory of sex-based vilification with reference to its harms, as relevant to law, as discriminatory treatment of women that constitutes and causes the systemic subordination and silencing of women on the basis of their sex. It applies that functional theory of harm to sex-based vilification as it manifests as part of the cyber harassment of women to arrive at some commonly occurring categories of sex-based vilification, namely: threats and violent invective; sexualised invective; non-consensual pornography; other objectifying speech; and other contemptuous speech. It argues that speech constituting one or more of those categories of sex-based vilification systemically subordinates and silences women on the basis of their sex, in ranking women as inferior or for use on the basis of their sex and (re)enacting permissibility facts in and of patriarchal oppression that legitimate the treatment of women accordingly. This thesis then considers some implications of that functional theory of harm for law. In order to consider the utility of potential sex-based vilification laws, this thesis considers what the sex-based gap in anti-vilification laws, policies, and policy conversations plausibly presently does, as well as what sex-based vilification laws plausibly may do if enacted. It argues that the gap in the law accommodates and authorises sex-based vilification’s systemic subordination and silencing of women on the basis of their sex. It argues that, conversely, the enactment of sex-based vilification laws would constitute a counter-speech act of the state’s that plausibly may quash or mitigate some of the systemic subordination and silencing harms to women of sex-based vilification. It also considers the strength of the free speech interests to which sex-based vilification gives rise and that, accordingly, its regulation by law would potentially burden. It argues that speech constituting sex-based vilification ought to receive a relatively low degree of protection pursuant to a liberal free speech principle, unless it has communicative functions with relatively strong connections to the values, interests, or purposes that underly or motivate such a principle.
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ItemCriminal Sentencing in Indonesia: Disparity, Disproportionality and Biases( 2020)This thesis assesses 1,100 Indonesian criminal justice decisions on theft and embezzlement-related offences as well as corruption in four first instance courts (2011-2015, but excluding 2013) to better understand sentencing practices in that country. Using a socio-legal methodology, it investigates the consistency and proportionality, as well as fairness (unbiased) of the sentencing practice, particular between offenders of different socio-economic backgrounds as well as the legal and extra-legal factors that contribute to sentencing outcomes. This thesis finds unwarranted disparity and disproportionality in sentencing practices in Indonesia, particularly in cases involving medium and large losses. Further, while offenders charged with corruption received overall relatively longer imprisonment sentences than offenders charged with theft and embezzlement-related offences in the same categories of loss, when the differences in the offences’ minimum and maximum penalties – as the expression of an offence’s seriousness – are put into the equation, corruptors are indeed punished disproportionally more lenient compared to thieves and fraudsters. This is because the minimum and maximum imprisonment sentences for corruption are much longer then for theft and embezzlement-related offences. I also find that many law enforcers and judges have suffer from class-bias or are involved in corruption, which leads them to be lenient in charging and sentencing corruption offenders from middle and upper socio-economic backgrounds. They did so, including, by deliberately misinterpreted provisions in the Anti-corruption Law and Supreme Court guidance. Judges’ perspective of different offences seriousness between theft-related offences and corruption (with the first-mentioned offences are generally seen as more concerning to the public as the later one) also influence the disproportionality of sentences between the two types of offences. This thesis also shows that while judges do consider legal factors in sentencing, particularly the type of offence committed and the amount of loss caused, they tend to be overly influenced by a desire to avoid appeal by prosecutors (which would increase their workload and prolong the time that offenders have to spend behind bars due to the practice common of pretrial detention and, to a lesser extent, the long appeal process). This often leads judges to follow the prosecutor’s sentencing recommendations, particularly in theft and embezzlement related offences. Worse, to avoid appeal, judges imposed more severe sentence than what is permissible on minor theft and embezzlement offenders simply because the prosecutor mischarged them by non-minor offences provisions (that demand longer prison terms). In other words, how the case is processed by the investigator and prosecutors significantly shapes sentencing outcomes. The Supreme Court’s failure to provide sufficient sentencing guidelines and, more importantly, consistent decisions, including enforcing the existing guidelines, also contributes to these problems. In summary, this thesis empirically confirms the public perception of class-bias and corruption in the Indonesian criminal justice and, further, illustrates how poor law enforcement, case management and weaknesses in the Supreme Court distort sentencing.