Melbourne Law School - Theses
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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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ItemProprietary Fixed Trusts and Administrative Discretionary Trusts: A Pluralist Account( 2020)Express trusts are not all the same. They are found in different contexts, have different purposes and the rules of trust law do not apply uniformly to them all. Nevertheless, the cases and scholarship retain a strong commitment to a central unity in trust law. This commitment is the idea that trust law is unified by the unique legal form of a duty to hold assets for the benefit of others. However, the integrity of this unique form is challenged by the unrelenting rise in discretionary trusts. Discretionary trusts contain doctrinal differences that challenge the archetypal legal form and the conceptual monism at the heart of trust law. This challenge requires us to ask what it means for trustees to hold assets for the benefit of others and how that meaning has changed. The object of this thesis is to answer these questions using an interpretive analysis of the legal materials. This thesis argues that there are two distinct answers to what it means for trustees to hold assets for the benefit of others. It presents two distinct models of the legal form of the trust. Fixed trusts are explained by the traditional proprietary model of trusts, which is defined by beneficiaries’ distributive entitlements. Fixed beneficiaries are entitled to be distributed specific benefits from the trust assets and those entitlements are immune from divestment at the volitional choice of another person. In contrast, discretionary trusts fit an administrative model of trusts, which is defined by beneficiaries’ procedural entitlements. Discretionary beneficiaries are not entitled to distributions but are entitled to have trustees follow procedures in making decisions about distributions. The thesis argues that the distinction between these two trust models is well established in the case law. Moreover, the administrative discretionary trust model accounts for trustees with mere powers of appointment as well as trustees with imperative trust powers. However, the thesis argues that development of the administrative model remains incomplete because the law on discretionary beneficiaries’ procedural entitlements is inconsistent and uncertain. That is, the internal core of the administrative model — the rights and duties that regulate trustees’ distributive discretions — is incoherent and beset by numerous areas of uncertainty. This has produced a spectrum of different types of discretionary trust that range from low-accountability trusts, where the discretionary beneficiaries have weak procedural entitlements, to high-accountability trusts, where they have much stronger procedural entitlements. The lack of internal coherence in the administrative trust model can be traced back to deep disagreement about the meaning and purpose of discretionary trusts. This thesis argues that the future development of discretionary trusts may be usefully inspired by public administrative law. Public law can inform a purposive theory for the regulation of discretionary trusts that produces a more coherent administrative model than that promoted by the currently dominant contractarian theory.