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.
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ItemPublic and private enforcement of securities laws in Australia: an examination of the continuous disclosure regime( 2019)Continuous disclosure is an approach to securities regulation that mandates relevant regulated entities promptly disclose material information to the securities market on a continuing basis. The aim of continuous disclosure is to enhance the integrity and efficiency of capital markets by ensuring that the market is fully informed, and to promote investor protection. Australia has traditionally relied on a public regulator, the Australian Securities and Investments Commission (ASIC), to enforce its securities laws, and since 1994, the enforcement of its continuous disclosure regime. However, shareholder class actions whereby private litigants pursue claims for contravention of the continuous disclosure regime, have become a growing phenomenon in the Australian legal landscape. The advent of the shareholder class action has given rise to overlapping enforcement of the continuous disclosure laws by the public regulator and private citizens. The above developments have motivated two main questions for examination in this thesis. The first question is to inquire as to the effectiveness of ASIC enforcement and the shareholder class action, vis-à-vis each other, in achieving deterrence and compensation in relation to the continuous disclosure regime. The focus on deterrence and compensation is chosen because these are the areas where ASIC and the class action overlap. As the thesis is interested in the co-existence of ASIC enforcement and the shareholder class action, the approach to effectiveness is comparative rather than absolute. The second question asks what the ramifications are of ASIC enforcement and shareholder class actions co-existing in relation to the continuous disclosure regime from the perspective of regulatory process and the values of a ‘good’ regulatory process. The values identified are: (1) legislative authority, (2) the public interest, (3) accountability, and (4) efficiency. The consideration of the regulatory process is necessary to determine if desirable regulatory values are complied with or promoted by ASIC enforcement and the class action. Moreover, consideration is given to how action by ASIC and the class action may impact each other, that is, whether they help or hinder each other. In summary, the first question focuses on outcomes, namely deterrence and compensation. The second question focuses on process and process values. The answers to these questions are pursued through the development of an analytical framework and the use of case studies. The development of an analytical framework and the empirical work done to compile the case studies are the original contributions to knowledge made by this thesis. The thesis presents a multi-dimensional understanding of deterrence, compensation and regulatory process; these are explored through the detail and nuance of the in-depth case studies, including interviews with participants. The thesis does not seek to give a single answer to each of the research questions, but rather to produce a sophisticated account of the various factors that interact and mediate both outcomes and processes, so as to demonstrate that any answer is complex and contingent on a number of influences and circumstances.
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ItemCorporate peacebuilding and the law: regulating the private sector for conflict transformation( 2017)Corporations have social responsibilities and legal obligations in conflict zones. Moreover, many large transnational corporations (TNCs) have the capabilities and capacities to positively contribute to the prevention and resolution of armed conflicts around the globe. However, the potential of “corporate peacebuilding” has yet to be fully realised in theory or in practice. This thesis argues that unlocking this potential requires legal and regulatory innovation. It examines the relationship between peace, corporations and the law, and suggests that the private sector has a largely untapped peacebuilding potential in large part, due to weak governance at the global and national levels. Focusing on the governance of Australian-based TNCs, the thesis argues to realise this potential requires legal and regulatory innovation. Building upon the theory of responsive regulation, a novel regulatory framework is developed for this purpose, embodied in the regulatory diamond heuristic. It encompasses three key components: minimum standards, compliance regulation and aspirational regulation. The thesis then applies this framework to the problem at hand, and in particular explores the law’s roles in each of the constituent elements of a regulatory diamond framework that may help realise the promise of corporate peacebuilding. The thesis argues that international criminal law norms of behaviour are the most legitimate source of minimum legal standards for TNC conduct in conflict-affected areas. It is argued that these norms are applicable to corporations as borne out by the jurisprudence of the Nuremberg-era and later international trials. It is crucial that effective pathways exist to legally enforce such standards. Despite a dearth of viable international enforcement options, it is argued that there exist several promising, but underexploited, domestic avenues for legal accountability when TNCs breach those standards. Finally, despite traditional conceptions of the law’s role being focused on norm-setting and norm-enforcement, it is suggested that well-designed laws may also facilitate and encourage TNCs to go above and beyond mere compliance with minimum standards, to become partners, alongside governments and civil society, in peacebuilding efforts around the globe.
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ItemFood security as social provisioning: insights from the international approach and the Indonesian( 2013)The thesis argues that the international community’s struggle to effectively deal with and take responsibility for food crises is rooted in both the structure of international law and the economic thinking that was wired into the early UN organisations. It presents a heterodox conception of economics — institutionalism — as an alternative way of thinking about problems of food and hunger. Building on the institutionalist emphasis on social provisioning, the thesis locates the legal dimension of institutionalist thought within a public law framework that emphasises authority and duty. This approach links economics and jurisprudence and conceptualises economic policy as a duty to provide.