Melbourne Law School - Theses
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ItemLegalist Reasoning and its Limits: Legal Professional Culture and Constitutional Development in Australia and Germany( 2023-05)In this thesis I demonstrate the value of ‘legal professional culture’ as a contextual ‘layer’ that can assist in understanding constitutional development and disagreements about constitutional method. I describe legal professional culture as an infrastructure for socialising legal actors in an experience of ‘constraint of choice’: the experience that some forms of reasoning, but not others, are open to a legal decision-maker. I explore legal professional culture as a bundle of institutionalised practices that work to produce that experience of constraint of choice. These institutionalised practices can include legal education and training, scholarship and knowledge production, and the organisation of courts. I argue that culturally embedded beliefs, narratives and values are reproduced through those institutionalised practices and ensure the workability and stability of method when applied at scale. To explore my description of legal professional culture I compare Australian and German constitutional histories. I explore how German and Australian legal professional cultures have influenced practices of constitutional development and disagreements regarding method. Both jurisdictions share a high degree of professional cultural cohesion, despite differences in constitutional text, methodological tradition and court organisation. I explore the relationship between that cohesion and ‘legalist’ approaches to reasoning, which I both employ as a device to explore the significance of legal professional culture and explore as a constitutional problem in its own right. ‘Legalist’ reasoning — an umbrella term that I use to encompass ‘formalist’ and ‘positivist’ reasoning — tends to assume the determinacy of legal materials, deny the role of judicial choice between multiple plausible interpretations, and insist on a hard distinction between legal and extra-legal considerations in constitutional reasoning. I argue that legalist, formalist and positivist styles of reasoning tend to emerge in professional cultures when there is a high degree of stability in cultural beliefs and narratives regarding method. Exploring how legalist arguments first emerge and then lose credibility over time sheds light on the interplay between professional culture and an experience of constraint of choice in legal actors. I rely on analysis of what I describe as ‘stability seeking’ decisions to demonstrate my arguments regarding legal professional culture and legalist reasoning. In case studies drawn from the German Federal Constitutional Court (FCC) and Australian High Court (HCA), I demonstrate how the stability of professional beliefs and narratives, and the emergence of legalist or positivist reasoning, flowed from key decisions made by each court during a period of instability in their early history. During those periods the HCA and FCC attempted to introduce ideas or narratives that could reintroduce an experience of constraint of choice. I demonstrate how ‘stability seeking’ decisions introduced later in each court’s history were less successful at establishing new, or shoring up existing, beliefs and narratives that could be accepted by the professional community and produce an experience of constraint in legal actors. In comparing how ‘stability seeking’ decisions emerged and were received, I demonstrate the relevance of professional cultural conditions to constitutional development and its stability over time.
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ItemConstitutionally guaranteeing information flow( 2023-06)The thesis outlines the potential and limits of the constitutional recognition of a right to information. Relying on doctrinal and comparative methodology, it draws insights from the South African experience. The research suggests that, while there are theoretically solid justifications for recognising the right, constitutional recognition does not necessarily achieve the goals envisaged for it in practice. To achieve its potential, such a right needs continued acknowledgement and active support from all the branches of government of the state as a whole.
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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.