Melbourne Law School - Theses
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ItemReforming the Education of Islamic Judges in Indonesia( 2022)The Religious Courts of Indonesia, the country's Islamic courts, have been criticised for their inability to deliver justice to vulnerable groups, such as women and children. One of the causes of this is major shortcomings in the pre-and post-appointment education of the judges who preside in these courts. However, judicial education in Indonesia is an understudied area. This study seeks to respond to this by investigating the challenges faced by the current education system for Religious Court judges in Indonesia, identifying its weaknesses and the factors causing them, and proposing reforms. The research was conducted in three institutions that provide tertiary-level Islamic legal education, the Faculties of Shari'a and Law of the Jakarta State Islamic University, the Aceh State Islamic University, and the Mataram State Islamic University, in Lombok. The research was also conducted in the Supreme Court's Centre for Judicial Training and Religious Court Agency. Data were obtained from documents and regulations, and interviews with Religious Court judges, faculty members, lecturers, and trainers. This thesis argues that the systems of education for Indonesian Religious Court judges offered by both universities and the Supreme Court are insufficient to ensure they have the necessary judicial competencies. This is the result of multiple causes, including poor teacher selection, curriculum content, teaching and learning methods, and a lack of resources, all stemming from the past neglect of these courts by the state. This thesis finds that the main weakness of the legal education provided by the shari'a and Law Faculties is an inability to balance a doctrinal and theoretical approach with a more practical and professionally-oriented approach. The judicial training provided by the Supreme Court-affiliated institutions attempts to respond to the gaps left by the legal education system by offering more practically-oriented education. This has been made possible by the post-Soeharto Reformasi (Reformation) movement that delivered broader judicial reform. Nevertheless, the current educational system still needs much improvement. The organisers of training and education for Religious Court judges need to consider areas beyond the procedural aspects of judicial work, particularly issues relating to social equity, such as gender equality.
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ItemReconciling the responsibilities of parents and the state: Is the best interests principle still the appropriate test for making decisions about the provision of life sustaining treatment to young children?( 2022)High profile court cases in England and Wales, such as those involving Charlie Gard and Alfie Evans, highlighted the challenges of determining that life sustaining medical treatment is not in a young child's best interests. These cases led to calls for law reform, which reflect broader criticisms of the best interests principle that is applied under current laws. The criticisms suggest that the application of the best interests principle is too indeterminate to guide decisions and that the principle requires an impractically narrow focus on the child. This thesis considers whether the best interests principle should be retained to guide decisions about whether a young child receives life sustaining treatment. The thesis explores the theoretical foundations of the best interests principle and alternatives offered in the academic literature. The frameworks for decision-making identified in the academic literature are used to examine the application of the best interests principle in practice in England and Wales, Australia, and New Zealand through a review of the case law and qualitative research with specialist paediatric doctors. The exploration of theory and current practice demonstrates that although there are difficult cases, in which there is reasonable disagreement, there is actually substantial agreement about the circumstances in which a child should be provided life sustaining treatments. It is argued that it is necessary to retain the best interests principle in order to ensure that children's interests are not marginalised. However, a more comprehensive explanation of the situation is required and this may be provided through a rights-based approach. A rights-based approach provides a transparent process for determining what is in a child's best interests and when the child's best interests should be prioritised over the interests of others.
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ItemReaching Out From the Ocean: Women's Experiences Navigating the Anti-Domestic Violence Law in Aceh, Indonesia( 2021)This thesis investigates the barriers to access to justice faced by domestic violence victims when seeking to exercise their rights under the Indonesian Anti-Domestic Violence Law (the Law). Applying a qualitative socio-legal methodology, I analyse how the intersections between religion, gender, and law affect the implementation of the Law in Aceh – a 98 percent Muslim-majority province in Indonesia. My thesis navigates the different avenues that a hypothetical victim could take when seeking help or attempting to assert her rights under the Law. Victims generally seek help first at the community level via adat (customary) mediation, before filing for divorce at the Mahkamah Syariah (Islamic Court) and/or reporting violence to the police, which may be followed by prosecution of the perpetrator at the Pengadilan Negeri (State Court). By analysing these avenues, I identified three key sites of contestation relating to access to justice. First, the intersection between religion and gender. Community understandings of domestic violence are informed by gender norms which, in Aceh, are constructed based on local religious interpretations. Hegemonic norms that embody patriarchal ideas about gender and marriage operate as a barrier to access to justice for women, particularly at the community level. Second, the intersection between gender and law. The implementation of the Law is affected, at every stage, by the operation of religiously informed gender norms. In addition to analysing the Mahkamah Syariah approach toward domestic violence and divorce, I examine 70 domestic violence cases decided by the Pengadilan Negeri between 2013-2017. Based on this analysis, I argue that judges are influenced by gender bias in exercising their discretion when deciding and sentencing domestic violence cases, and this leads to a failure to protect women’s rights and a culture of impunity for perpetrators. Third, the intersection between religion and law. The competition between moral-religious law (prevalent in the community) and positive-State law (applied by the State) is a barrier to victims seeking a divorce to escape domestic violence at the Mahkamah Syariah. The dominance of moral religious law at the community level, to an extent, undermines the implementation of the law and protection of women’s rights. This thesis also draws out theoretical implications from the data relating to women’s agency and the role of the State in protecting women’s rights.
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ItemCause lawyering in a fragile democracy: the Indonesian Foundation of Legal Aid Institutes (YLBHI)( 2022)This study explores how democratic change affects lawyers and the strategies they use to promote social change, through a case study of Indonesia and the Indonesian Foundation of Legal Aid Institutes (Yayasan Lembaga Bantuan Hukum Indonesia, YLBHI) and its regional offices, known as LBH. I examine YLBHI-LBH by drawing on literature on cause lawyering and legal mobilisation. Under the authoritarian New Order, YLBHI was Indonesia’s most prominent cause lawyering organisation and an influential hub of resistance to the Soeharto regime. The far-reaching democratisation process that began after Soeharto fell in 1998 established many conditions supportive of cause lawyering. Yet the impact of democratic transition on the practice of cause lawyering in Indonesia is yet to be examined in the literature. This project seeks to address this gap, and, as its title suggests, it also addresses the democratic regression that has become a feature of Indonesia over the past decade. This thesis argues that there is a clear relationship between the quality of democracy and the form of cause lawyering practiced. In contrast to expectations, YLBHI-LBH did not thrive after democratic transition. It has returned to prominence as Indonesian democracy has begun to unravel. Democratic regression has led to a deep scepticism among YLBHI-LBH staff about the ability of legal reforms to lead to social change. This has prompted YLBHI-LBH to again prioritise the more confrontational style of cause lawyering it developed under Soeharto, in which it maintains a distance from the state and collaborates with grassroots social movements. The thesis provides new insights into how Indonesian cause lawyers respond to democratic change, how they view their roles as lawyers, and the strategies they use to promote social reforms. It shows how YLBHI-LBH is performing a vital role defending Indonesia’s democratic gains at a time when Indonesia’s democracy is increasingly fragile.
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ItemProcedurally Fair? – the efficacy and use of the principles of natural justice in the (disciplinary) tribunals of sporting organisations( 2021)While elite athletes have access to skilled representation and international arbitral tribunals in seeking to overcome disputes with their sporting organisations, the relevance of similar rules and processes to recreational participants is not clear. Moreover, appeal to a supra-national forum is generally beyond the reach of the lay athlete placing a heavy emphasis on first instance disciplinary tribunals. Where tribunal determinations proved unsatisfactory, the final recourse will in practice, be the regular courts. This emergence of legal effects on sporting endeavour has been described as a process of juridification characterised by the ‘legalisation’ of a social sphere (demonstrated by the development of sporting rule books and codes); its ‘bureaucratisation’ (visible in the establishment of internal tribunal mechanisms); and the ‘judicialisation’ of sport (as those mechanisms amend their practices in order to conform with accrued decisions and other judicial norms). Notwithstanding the historical reluctance of the regular courts to intervene in the operations of private tribunals, one area where contemporary courts will provide clear oversight is in ensuring compliance with the principles of natural justice. This research has sought then to discover whether sporting bodies are cognisant of those principles and whether (or not) they comply with them in their disciplinary tribunals. Initially, the provenance and substance of natural justice principles and how they have been reflected and defined by the courts both generally and with regard to the specific sporting context have been canvassed. Subsequently, through an analysis of the relevant sporting rule books and through empirical observation of disciplinary tribunals in action, the research investigated whether or not those tribunals were adhering to the norms of procedural fairness. The conclusion drawn is that the observed sporting organisations do include procedural fairness principles in their relevant rules and are largely compliant with those principles in their operations. However, the impact of issues emerging in areas of arbitral neutrality, tribunal independence and human rights factors will doubtless provide greater challenges.
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ItemMaking-good-again? Law, Aesthetics and Responsibility( 2021)Over the last 75 years since the end of WWII, the state-based gestures of taking responsibility for Wiedergutmachung (restitution) in the aftermath in Germany have been the most visible. But in this thesis, I argue for a new understanding of restitution, encapsulated by the literal translation of Wiedergutmachung in English which is ‘making-good-again.’ I examine the work of selected jurists, authors and artists who all engage with the NS regime and the Holocaust and contend they also offer accounts of restitution; they take responsibility for restitution through the ‘making’ of texts and objects. Parallel to this, I highlight the jurisprudential commentary within their accounts, focusing on questions of form and technique. This thesis therefore tells a different story about restitution which expands across genres, sites and temporalities; it re-writes the jurisprudence of restitution within the context of law and humanities scholarship. There are four main areas of focus. I begin by analysing a form of writing called the ‘gloss’ as published by a German-Jewish lawyer, Dr Walter Schwarz. Dr Schwarz returned to Berlin in the 1950s and practiced as a restitution lawyer, setting up a legal journal, where he also (pseudonymously) published ‘glosses’ which offer an account of the legislative restitution process. The first chapter sets up the way giving an account of restitution can be an ethos – of writing, but also of conduct, of practice. Chapter two is on the theme of writers, audience and responsibility, taking as a starting point the exhortation by W. G. Sebald regarding the role of literature to undertake restitution, and analysing literary works by Alexander Kluge and Heimrad Baecker. Chapter three focuses on visual art and its display, examining art works by Anselm Kiefer and Gerhard Richter. Finally, chapter four is a walking tour of Berlin’s memorial art, following the way making-good-again in the streets of Berlin becomes a question of legal place and movement. The practices of making-good-again examined in this thesis are dynamic, iterative and incomplete: they are practices of failure. Nevertheless, the question of how to conduct restitution emerges as a material question of responsibility asked through the making of texts and objects in different genres, including law. Responsibility in this context is shown to be shaped by practices, personae and places. The resulting thesis is an expansion and re-conceptualisation of the practices of jurisprudence, restitution and responsibility in the context of the aftermath in Germany.
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ItemImagining new modes of cultural co-existence for ethnocultural groups in Australia: An interdisciplinary study( 2021)This thesis utilises a variety of disciplines such as politics, philosophy, history and law and systems and structures in other jurisdictions and at different historical times to argue that modern democratic nation states need to be better attuned to cultural, religious and legal diversity and to the issues faced by members of ethnocultural communities. The main areas of focus are faith-based dispute resolution and religious divorce.
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ItemRights, Risks and Rules: The Rise of Human Rights Due Diligence and Implications for Transnational Labour Governance( 2021)Over the last decade, the concept of human rights due diligence (‘HRDD’) has emerged as a dominant means through which to conceptualise and operationalise corporate responsibility for working conditions in transnational supply chains. This thesis applies a transnational labour law lens to HRDD. Proceeding from the observation that HRDD as originally articulated in the UN Guiding Principles on Business and Human Rights is open to multiple interpretations, this thesis examines contests that have taken place globally over the role and status of the concept as it relates to workers’ rights. It also considers the implications of HRDD’s ascension for transnational labour law, as a distinct field of law, scholarship and activism. Using conceptual and empirical analysis, this thesis argues that HRDD is not being institutionalised at either global or national level in a way that renders it a transformative or even robust mechanism of transnational labour law. This is despite the fact that the concept’s legalisation is being welcomed – indeed in part driven by – actors that believe it will broaden and deepen respect for workers’ rights in internal corporate processes and legal frameworks. This thesis further contends that the rise of HRDD is leading to subtle shifts in configurations of actors and institutions in transnational labour governance. Through its reframing of labour rights issues as matters for risk management, HRDD has facilitated the expansion within the field of for-profit actors such as management consultancies, risk advisory services and law firms. The proliferation of HRDD-related legislation at the national level is positioning courts to play a greater role in determining the nature and scope of corporate responsibility for workers’ rights in transnational supply chains. In addition, the rise of HRDD has enabled the Organisation for Economic Cooperation and Development (OECD) to consolidate its position as the leading global authority in the area of corporate accountability and labour rights. The OECD has successfully capitalised on the resonance of the HRDD frame with its apolitical working methods, and its technical expertise and formidable research capacity, to engage in an ambitious work programme on HRDD. In contrast, the International Labour Organisation (ILO) has struggled to establish itself as an authority on HRDD or to generate broad-based support for related standard-setting activities. This thesis makes an original contribution to transnational labour law by examining an increasingly influential concept that has yet to receive sustained examination from scholars in the discipline. It also makes a novel contribution through its empirical investigation of a stage in the regulatory process that tends to be overlooked in transnational labour law scholarship: how an international labour norm, subsequent to its adoption, is shaped, translated and contested, by whom and with what implications.
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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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ItemUnderstanding the exploitation of temporary migrant workers in Australia: examining temporary labour migration from preFederation until 2020( 2021)This thesis concerns the treatment of temporary migrant workers in Australia. Within the last 20 years, migration programs have swung from facilitating and encouraging permanent settlement in Australia to embracing large-scale temporary labour migration. Certain sectors of employment have become reliant on temporary migrant workers — such as agriculture, hospitality, aged care, cleaning, security, and construction. This trend towards an embrace of temporary labour migration has been accompanied by growing concerns about the mistreatment of temporary migrant workers in Australia. Numerous reports, inquiries, and investigations have revealed widespread patterns of their abuse and mistreatment. The term ‘exploitation’ is routinely used to describe the abuse and mistreatment of temporary migrant workers in Australia, yet there has been little theoretical engagement with the concept of ‘exploitation’. It is rarely defined and is most often used to describe conduct that is already unlawful. I argue that there is a need to use the term with greater precision. I introduce the concepts of ‘transactional’ and ‘structural’ exploitation to examine the exploitation of temporary migrant workers in Australia, and to evaluate recent legal reforms. Additionally, the treatment of temporary migrant workers is seen as a very contemporary issue. It is seen as a departure from the norm of Australia as a nation of permanent settlers. Yet, there are important historical antecedents of contemporary temporary labour migration in Australia — the significance of which have been overlooked. I argue that Australia’s labour migration history foretells much about the nature of temporary labour migration today, especially concerning the role of the State in relation to the treatment of temporary migrant workers. Fundamentally, temporary migrant workers participate in the Australian labour market on an unequal basis. This is the case irrespective of whether their employers comply with existing workplace and other laws, or not. Temporary migrant workers are denied — to varying degrees, depending on the temporary labour migration program — access to social and economic rights which, I argue, are associated with social membership in the Australian community. This is not a contemporary phenomenon. As my thesis examines, temporary migrant workers have been subjected to various forms of exclusion from membership since before Federation. These are matters that pertain to the structure of temporary labour migration programs in Australia and concern the role of the State in relation to the treatment of temporary migrant workers, which I suggest have been underemphasised in recent literature on this subject. Accordingly, this thesis reveals the role of the State in relation to the exploitation of temporary migrant workers. I argue that the State enacts rights restrictions and exclusions based on their temporary migrant status that place temporary migrant workers under the threat of domination by their employers and other actors. This enables and facilitates exploitative transactions within the workplace. Further, the State enacts regulations that deprive temporary migrant workers from being able to develop and exercise their capacities as human beings, by treating temporary migrant workers as labour market inputs. This has occurred through the imposition of rights restrictions and exclusions, and prioritising the interests of employers and industry by favouring so-called ‘labour market’ imperatives. This thesis details the various ways that this has occurred, depending on the specific temporary labour migration program involved. Finally, this thesis explores Sarah Song’s ‘principle of reciprocity’ and suggests how this principle may be used to reorient discussions on how to address the exploitation of temporary migrant workers in Australia. This principle focuses on the relationship between the State and temporary migrant workers and concerns the question of how to ensure that temporary labour migration provides an authentic and sufficient benefit to the workers themselves.