Melbourne Law School - Theses
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ItemNauru: international status, imperial form, and the histories of international law( 2017)This thesis is a critical redescription of the changing status of Nauru in international law from 1888 to 1968. As Nauru’s status shifted from protectorate to mandate to trust territory to state, what occurred at the administrative level was an accretion of an imperial form established in the protectorate era.
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ItemThe 1858 trial of the Mughal Emperor Bahadur Shah II Zafar for crimes against the state( 2004-12)In 1857, hostilities broke out against the ‘rule’ of the East India Company (EIC) in northern India.Measures to suppress the hostilities, known as the 'Mutiny', 'Rebellion' or 'War' of 1857', included legislation enacted by the EIC's Government of India criminalising 'rebellion' and 'waging war' and establishing temporary civil and military commissions. From 1857 to 1859, the Government of India tried soldiers and civilians, including the last Mughal Emperor, the King of Delhi Bahadur Shah II, for their conduct during the hostilities. The law and trials have not previously been the subject of study. his thesis assesses the validity, according to the international law of the time, of the trial by military commission of the King of Delhi in 1858. The research and writing of this study is original for no review of the trial according to international law has previously been attempted. This thesis assesses the validity, according to the international law of the time, of the trial by military commission of the King of Delhi in 1858. The research and writing of this study is original for no review of the trial according to international law has previously been attempted. The central hypothesis is that the trial was in breach of the international law of the time. The thesis demonstrates that the King of Delhi was a Sovereign recognised by Britain and under its protection until he was deposed three months before the trial. The thesis contends that his status as a recognised Sovereign, which according to the long-established rule of sovereign immunity precluded prosecution in the courts of another State, should have been considered sufficient to entitle him to immunity from prosecution. The criminal trial of a recognised Sovereign was without precedent. The thesis also contends that the apparent basis for the assertion of jurisdiction over the King or Delhi, that he became a British national through the extension of protection to the Kingdom or Delhi in 1803, was untenable in law. According to State practice of the time, protection of one State by another neither deprived the protected State of sovereignty nor effected a change in nationality. The thesis suggests that sovereign immunity was deliberately overridden on the grounds of his status as a protected king, the gravity of his crimes or on both grounds. Unprecedented in 1858, these grounds formed the basis for later challenges to the doctrine of sovereign immunity by plaintiffs in Britain. While neither ground found support in the law of the time, they signalled a new appetite to pierce the shield of sovereign immunity. The thesis concludes that the trial of the deposed and protected King of Delhi, Bahadur Shah, by a British court-martial in 1858, was both invalid according to the international law of the time and heralded an emerging international trend in favour of Head of State accountability.
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ItemThe history of legal institutions in Victoria( 1942)It has become inveterate in English legal writings to fit all English colonies into a dichotomy – colonies acquired by conquest or cession, and colonies acquired by settlement or occupation. Important constitutional differences attach according to whether a particular colony falls within the one class or the other. To quote the words of Lord Watson in giving the advice of the Privy Council in Copper v Stuart:- “The extent to which English law is introduced into a British Colony and the manner of its introduction must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cessation. In which case there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.” The locus classicus dealing with the position of a colony of the former class, that acquired by conquest or cessation, is to be found in the judgment of Lord Mansfield in Campbell v Hall. Its essential feature lies in the fact that the laws there in force continue until they are altered or abrogated, and until that time British subjects are under their control. This feature is necessarily excluded by the circumstances in which a colony is acquired by settlement. In such a colony from the nature of things there can be no lex loci to which the settlers are amenable, no existing laws to contest the superiority, and no power in the settlers to establish laws independently of the mother country to which they still owe allegiance. In such a colony English law prevails as the birthright of the settlers, and the bond of allegiance between the colonial subjects and their sovereign. (From Introduction)
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ItemAn analysis of the office of Attorney General in Australia and directions for the future( 2007)It is often assumed that the office of Attorney General in Australia carries with it an obligation to act independently of political considerations that does not apply to other ministerial offices. This is the orthodox view. There is, however, another view, the heterodox view, of the office of Attorney General, according to which the ministerial office that bears the title ‘Attorney General’ cannot be distinguished from other ministerial offices in any significant respect. The question which this thesis considers is whether any reliable basis can be found for the orthodox view either in terms of the manner in which the office of Attorney General is constituted in the twenty-first century or at any time since its first establishment in Australia. The thesis identifies possible sources for the existence of an obligation to act independently and tests the accuracy of those sources against the historical and current operation of the office in Australia. Having carried out that analysis the thesis then examines options that could be considered for the future to assist the hopes and aims motivating the orthodox view of the office of Attorney General to be achieved. It is important to assess the legitimacy of the orthodox view because of the faith and trust that it places in the Attorney General in relation to the maintenance of the integrity or Australia's constitutional structures and the manner of the exercise or executive power. If it is unjustified then this belief and trust could result in the inappropriate allocation of important and largely un-reviewable responsibilities to the holder of the office. It may be time to let go of the title "Attorney General and adopt "Minister of Justice" instead. This will raise issues as to the ability of the Parliament to hold the executive to account, the independence of the judiciary both for the adjudication of matters before it and for its administration and how its expenditure of public funds can be authorised and scrutinised by the Parliament. Also raised will be the status and professional responsibilities of lawyers in government in the defence of the integrity of the legal and judicial system.
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ItemA history of trade mark law in Australia: the colonial trade mark regime( 2011)This thesis provides for the first time, a history of trade mark law in Australia. Its focus is on the latter to middle part of the 19th century and early into the 20th century, predating the Commonwealth Trade Marks Act. This is because it was during this period when the legislative framework for trade mark protection was first established under the colonial trade mark regime and the most important, characteristic features of modern trade mark law developed. With a specific focus on this critical period, the legal narrative and this thesis considers the inception of the colonial trade mark regime, contextualising its genesis. It also examines the architecture of the colonial trade mark regime. The final part of the narrative focuses on the operation of the colonial trade mark regime. The key reason for this particular doctrinal focus is twofold. The primary reason relates to the lack of consideration given to the historical development of trade mark law in Australia to date, and in particular, the colonial trade mark regime. The second ancillary reason relates to the potential importance of this thesis to modern debates about trade mark law, which often refer back to and rely upon the assumed traditional principles of trade mark law, without any inquiry or deep understanding as to what those traditional foundations actually are, at least from an Australian perspective. In taking a doctrinal and empirical approach, this thesis draws on the relevant legal archive, containing the limited primary and secondary sources available relating to the colonial trade mark regime. Here, particular attention is paid to the colonial trade mark registers, which have been examined in detail. However, the relevant legal archive also includes the colonial trade mark statutes, the related Hansard reports, colonial newspapers and the case law reported as arising out of the colonial trade mark regime. This thesis further draws on the body of 19th century British (and to a lesser extent American) trade mark and other treatises as the authoritative legal texts of the time, as well as the statutory protection afforded to trade marks in the United Kingdom and the extrinsic material concerning early British trade mark law, so far as it relates to the colonial trade mark regime.
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ItemThe parens patriae and wardship jurisdiction of the Family Court of Australia: its history and current status( 1992)Before the Family Law Act 1975 (Cth) came into operation, the Supreme Court of each State exercised a complete jurisdiction over a child of a marriage. That jurisdiction included the jurisdiction conferred by the Matrimonial Causes Act 1959 - 1973 (Cth) and the state Supreme Courts' inherent parens patriae jurisdiction and wardship of court jurisdiction. With the passing of the Family Law Act 1975 (Cth), the Commonwealth Parliament did not include in that Act provisions that created a parens patriae jurisdiction and a wardship of court jurisdiction in the Family Court. Consequently, the jurisdiction over children of a marriage became fragmented between the Family Court exercising jurisdiction conferred by the Family Law Act, and the state Supreme Courts exercising their inherent parens patriae jurisdiction and wardship of court jurisdiction. This paper discusses the question whether it is a valid exercise of the Commonwealth's Marriage Power and the Matrimonial Causes Power for the Commonwealth to pass enactments creating a parens patriae jurisdiction and a wardship of court jurisdiction and vesting them in the Family Court of Australia.
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ItemAustralian water law: an historical and analytical background( 1971)The thesis traces the history of governmental intervention in Australian water management. At the State level, it examines traditional common law doctrines, their inadequacies to meet Australian demands, and the tensions between private rights and public control inherent in the Australian system of administrative rights to water. It argues for clearer recognition of the role of private law actions in such a system. At the national level it documents the history of the conflicts which have shaped the administration of inter-State rivers as a background to the integrated enquiries of other research students.