Melbourne Law School - Theses
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ItemThe regulation of essential service insolvencies and the public interest : case studies of Australia's electricity industry and Melbourne's public transport industry( 2007)This thesis critically explores the regulation of the insolvency of essential services and the public interest through an examination of the common law and legislative responses in Australia, the United Kingdom and the United States. Drawing on understandings of the public interest gained from its analysis the thesis proposes a model of the public interest that may be used to justify representation of non-creditor interests within insolvency proceedings of essential services. The model also identifies non-creditor public interest considerations that extend beyond continuity of supply. The thesis then undertakes case studies of the regulation of insolvency within the Australian electricity industry and Melbourne's public transport industry to examine how effectively public interest issues have been addressed and how these are balanced against the interests of the firm and its creditors. The thesis argues that a fundamental problem of the regulation of insolvent essential services is balancing the general public's interest in the fate of the insolvent firm with the interests of others stakeholders, particularly creditors. The thesis demonstrates there is a great deal of inconsistency of response to this issue both within and between the jurisdictions under consideration. Focussing on the public interest in the continuity of supply, the United Kingdom has enacted ad hoc insolvency procedures which are initiated by the state and oust creditor control mainly in relation to the monopoly sector of various essential services. A different approach in the United States has meant public interest considerations are built into its insolvency law through a combination of legislative prescription, judicial interpretation of the Bankruptcy Code and a limited willingness to grant non-creditor representation rights in insolvency proceedings of essential services. The thesis argues that the integration model of the United States allows an appropriate balance to be struck between the interests of the firm and its creditors and the broader public interest when regulating the insolvency of essential services. In contrast Australia has not enacted ad hoc insolvency procedures or expressly integrated the public interest within its insolvency law. The case study of the Australian electricity industry shows, however, that the public interest in the continuity of supply is managed by allowing creditors' rights to be affected radically by utilities regulation such a state step-in rights and retailer of last regulation. The thesis demonstrates the fragmented and inconsistent nature of these provisions. The case study of Melbourne's train and tram industry and the examination of South Australia's privatisation of its electricity assets by way of lease show the ways in which private contracting rather than utilities regulation can manage public interest issues. The thesis concludes that while the public's interest in the continuity of supply of essential services in Australia is generally satisfactorily dealt with under current arrangements, what is less clear is whether public interest issues beyond continuity of supply will be given sufficient weight in insolvency proceedings, particularly in the context of a reorganising firm. The thesis argues it is within this area that there is space for integrating public interest considerations within Australia's insolvency law by expressly requiring the court to consider the public interest in such proceedings. Incorporating public interest considerations that recognise non-creditor stakeholder interests into Australian insolvency law requires theoretical justification. The thesis argues there are sound theoretical arguments for expanding insolvency's law role to accommodate broader stakeholder interests in the context of the insolvency of essential services and that the model of the public interest proposed by the thesis may be used as a basis for a court to grant representation rights to non-creditor interests within insolvency proceedings of essential services in Australia.
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ItemFantasies of 'female genital mutilation' : flesh, law and freedom through psychoanalysis( 2007)In 1996 the Crimes (Female Genital Mutilation) Act was passed in Victoria, Australia. The consultation with migrant communities, affected by the practices, was almost non-existent. The methods of the consultation, the implementation of the legislation and the use of the term "female genital mutilation" were objected to by the migrant communities. This objection and implementation mirrored similar legislative initiatives and similar methods of implementation in the United States, Canada, Scotland, England and Egypt. This thesis is an analysis of the speech on, and against, female genital mutilation. The analysis explores the texture of this speech, understood as a particular and invested arrangement of fantasy. This fantasy concerns the relation between the liberal subject and the sovereign. The relation is parsed in terms of the economic, the psychoanalytic and the political. These are the three idioms through which fantasies, of female genital mutilation emerge in contemporary times as a fantasy of flesh cut and the possibility of free speech. The thesis has four parts. In the first part it explores fantasies of subjectivity understood as the constitution of a mutilated woman against a fantasy of a non-mutilated liberal subject (as a postcolonial concern). The context for the exploration is firstly the emergence of the above mentioned Crimes (Female Genital Mutilation) Act 1996, and secondly its relations to the formation of the modern liberal subject (Rousseau, Hobbes, Schmitt and Freud). In Part B the thesis explores economies of flesh. First and foremost the economy is staged as a relation between the subject and the sovereign. This relation is figured as a tension between a fantasy of circumcision and a fantasy of mutilation. The psychoanalytic theories of Lacan and the political theories of Agamben are called to aid this exploration. In Part C the thesis discusses the politics of freedom articulated in sovereign democratic politics. Here the thesis moves from its focus on female genital mutilation legislation and places it in the contemporary politics of the `war on terror', evocations of national community and the problematics of a cultural pluralism. These are understood in terms of the differential orientations to loss (of freedom and speech)'; known as melancholia, psychosis and mourning. Mourning is the concern of Part D. In doing so the thesis returns to the speech on and against female genital mutilation and their invocations of human rights. The limits is figured in this part by reference to the protest of an African woman who says `I am not mutilated.' The figure of this woman returns us to the dialectic of flesh and speech that this thesis has argued embodies western fantasies of female genital mutilation. What is lost, but returns to haunt the liberal subject, imagining itself sovereign, is the possibility of freedom and an authorised loss of speech, in a democratic politics worthy of the name.