Melbourne Law School - Theses

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    Interrogating The Boundaries Of Labour Law: The Divide Between Work And Private Life
    Meredith, Jacqueline ( 2024-03)
    Labour law draws boundaries between conduct that is regulated as work and conduct that falls outside the scope of labour law because it is seen as insufficiently connected to work (‘the work/non-work divide’). This thesis examines where the divides between ‘work’ and ‘non-work’ are drawn in three areas of Australian labour law: (i) Unfair dismissal law (when determining if an employee’s off-duty conduct is sufficiently connected to their employment); (ii) Workers’ compensation law (when determining if a worker’s off-duty injury is sufficiently work-related); and (iii) Sexual harassment and bullying laws (when determining if off-duty sexual harassment or bullying is sufficiently connected to work). This analysis provides important insights about how broadly or narrowly the work and non-work domains are conceptualised across different areas of Australian labour law. The divisions between work and non-work in each of the three areas are examined through the novel normative lens of the ‘worker as a human being’. This analysis reveals that workers’ rights to private life, personal autonomy, and human dignity are frequently subordinated to employers’ rights and interests, alongside other considerations (e.g. the rights and interests of third parties; financial considerations) when drawing the work/non-work divide. It is further shown that the current laws are fragmented and uncertain, within and across the three areas, making it challenging for workers and employers to properly identify the scope of their rights, duties, and obligations. In considering the normative question of how the boundaries between work and non-work should be drawn, it is argued that increased weight should be given to workers’ rights to private life, autonomy, and dignity. This would better align the work/non-work divide with an overarching goal of labour law, as well as a specific goal of unfair dismissal, workers’ compensation, sexual harassment and bullying laws: recognition of the worker as a human being.
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    Responding to consumers with overwhelming debt and improving their financial wellbeing: a mixed methods study of debtor and practitioner perspectives on bankruptcy and other debt management options
    Howell, Nicola Joanne ( 2024-02)
    This thesis explores how the use of a debt management option affects Australian consumers who are burdened with overwhelming debt. A state of overwhelming debt causes financial and emotional stress for debtors and can also adversely affect the debtor’s family and others. Conversely, helping a debtor to recover has ongoing positive effects for the debtor, their family and the broader community. Recognising this, Australia – like many other jurisdictions – provides several options for such consumers through insolvency and other laws. Thousands of people use the common debt management options each year, but there is little information about how they experience these options and whether they are able to recover from their debt problems. Although some data are available from other jurisdictions, this information is not readily transferable to the Australian situation. This absence of data makes it difficult to know whether the current options are working as intended, and also makes it hard to have well-informed debates about proposals for law reform. In this thesis, the experiences of debtors who have used one of three debt management options (financial difficulty assistance, bankruptcy or a debt agreement) to deal with their consumer debts are explored through quantitative and qualitative data. The experiences of practitioners who work in the consumer debt field are also incorporated, providing a different perspective on the topic. In a novel approach compared with previous studies, the thesis also uses a financial wellbeing scale to examine debtor outcomes. In general, this thesis finds that many debtors experience positive outcomes, both financially and emotionally, from using a debt management option. It also finds improvements in average financial wellbeing scores associated with each of the three options. Practitioners also recognise the potential for each of these options to offer positive outcomes. However, given that the features of the three options can be quite different, the thesis confirms that the potential for good outcomes is reduced if a debtor chooses an option that is not aligned with their specific circumstances. Debtors can also experience feelings of shame and/or disapproval from others, hindering their recovery. This thesis finds that those people who had used a debt agreement were more likely to report positive outcomes than other debtors. However, this may be attributed partially to the higher incomes of this group of participants. Overall, the thesis concludes that the current options for consumer debts can work well in the right circumstances. However, there are changes to law and regulation that could improve debtor outcomes further, including by providing a formal breathing space and a less restrictive insolvency option for low-income debtors. The thesis argues that additional research is needed to further interrogate the features that lead to better debtor outcomes and suggests that collecting and reporting on the financial wellbeing of consumers using a debt management option would be a valuable addition to existing data-collection approaches.
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    The Law of Relatives: Ontological and Moral Foundations of a Chthonic Natural Law Theory
    Whiting, Sean Francis ( 2023-12)
    Motivated by the claims of Chthonic elders and scholars, this thesis seeks to construct a Chthonic moral philosophy that is at once faithful to Chthonic ontology and ethico-legal thought, while also being in genuine accord with the leading characteristics of the paradigm case of Western natural law theory (viz., Aquinas). I contend that (i) a faithful and genuine Chthonic natural law moral theory can be plausibly constructed; while, at the same time, (ii) such a Chthonic theory differs markedly and provocatively from its Western cousins. If correct, this argument is important because it (a) is the first attempt to cash out the pervasive claim that Chthonic Law is a species of natural law, (b) is a necessary first step in developing a complete Chthonic natural law theory, (c) brings Chthonic ethico-legal thought into closer dialogue with an important strain of Western ethico-legal thought, and (d) constitutes a fecund provocation to existing Western natural law scholarship.
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    Double Handmaid: Tales of Law and Literature
    Commins, Johanna Ruth ( 2023-12)
    This thesis is about representations of women in law and literature. It is also about relations between law and literature as practices of representation. I explore these ideas through a sustained, close reading of Margaret Atwood’s novel, The Handmaid’s Tale. The trope of the double and the practice of doubling recur in Atwood’s work, beginning with her very first publication, Double Persephone. In The Handmaid’s Tale this doubling is both thematic and structural. Thematically, the Handmaid is twice doubled: she is the madonna/whore paradox given form and she is both a ‘made thing’ of the Gileadean regime, and its caustic, ironic observer. Atwood uses the doubling of the Handmaid to expose the paradox at the heart of patriarchal representations of women and to offer the possibility of resisting or transforming such representations. Structurally, The Handmaid’s Tale is a metanarrative that gives an account of one woman’s experiences under an imagined totalitarian state and self-reflexively comments on that account. Atwood uses doubling in this way to superimpose different narratives or types of narratives on each other, producing ironic effects which destabilise categories and hierarchies of knowledge production. Guided by my reading of Atwood together with the works of a range of feminist scholars, I read a series of legal texts. I demonstrate how the Handmaid as a protest figure embodies the doubling of law and literature through the regulation of women’s sexual agency and reproductive potential. My reading of the reception of the Handmaid’s tale within Atwood’s novel frames my reading of the reception of a postmodern feminist law review article at Harvard Law School in the early 1990s. By pairing two of the opinions in Dobbs v Jackson Women’s Health Organization with the graphic novel adaptation of The Handmaid’s Tale I exemplify my argument about the Handmaid as a double figure, demonstrating how the composition of the judicial texts make inevitable the Handmaid in her passive and critical forms. Across all of these readings I suggest that both representations of women and relations between law and literature as representational practices are given shape as forms of doubling. Despite its popularity, versatility, and treatment of pressing social, political, and legal themes, The Handmaid’s Tale has been understudied by law and literature scholars. This thesis seeks to address this oversight, remind law and literature scholars of the exciting potential of Atwood’s work for interdisciplinary scholarship and to insist, once again, that representations of women in law and literature matter.
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    An International Law of Peoples: The International Rights of Nature Tribunal and International Law
    Lindgren, Tim ( 2024-02)
    International law is a discipline of States. Nonetheless, legal institutions organised by civil society actors have become a popular feature of the international legal arena. This thesis approaches one such institution from the perspective of international law. The thesis explores the emergence and conduct of the International Rights of Nature Tribunal, treating it as a novel space of international law-making. It traces how this peoples’ tribunal authorised itself as an international legal institution and considers what it tells us about the discipline of international law. The thesis reads the institutional legal form of the Tribunal alongside formal international legal institutions, such as the League of Nations and an investor-state arbitration tribunal. It considers how international legal concepts and themes of sovereignty, territory and place, sources, people, jurisdiction and Statehood shape the Tribunal and more conventional institutional forms of authority under international law. The argument that the thesis advances is that the Tribunal is developing an international law of peoples, expressed through the Tribunal’s own convention, statute, legal norms, procedures, conduct and methods of transmission. This is an international law with its own unique shortcomings and possibilities. It is also a law and institutional form that reproduces issues commonly associated with the discipline of international law. But it is, most significantly, a law and institutional form that prompts a more pluralised understanding of the international legal domain – including of what relationships are possible between peoples and nature under international law. It offers a mirror through which we can better understand how international law fails to engage the milieu of international legal relationships that exist between humans and the non-human world. The thesis is an invitation to international lawyers to consider how seemingly given concepts and institutional forms of authority are crafted by competing understandings of the environment – and what world they give shape to. But to also consider what kind of legal practices are needed for an international law that accounts for a range of human and non-human relationships that currently remain offstage.
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    Do the ‘matter provisions’ really matter? Analysing trends in statutory unconscionability cases which apply s 22 of the Australian Consumer Law or s 12CC of the Australian Securities and Investments Commission Act 2001 (Cth)
    De Bono, Adam ( 2023)
    This thesis considers and analyses trends in recent cases applying s 22 of the Australian Consumer Law1 (‘ACL’) or s 12CC of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’) involving the statutory prohibitions on unconscionable conduct. It asks whether those trends reflect the form, structure and intended purpose of those provisions. It is fair to say that the concept of unconscionability wears many different hats under Australian law. Within the equitable jurisdiction alone it bears multiple layers of meaning, not to mention the various statutory adaptations to which the concept has been adopted by way of, among other provisions, s 21 of the ACL and s 12CB of the ASIC Act. In particular, these provisions are accompanied by what are referred to in this thesis as the ‘Matter Provisions’ (a more detailed definition of which appears at paragraph [15]), comprising s 22 of the ACL and s 12CC of the ASIC Act. Broadly speaking, these contain legislative guidance on various matters which inform the meaning of unconscionability for the respective provisions they regard. In light of these various uses of the term ‘unconscionable’, it is little wonder that commentators have expressed the view that ‘[a]bove all other concepts, unconscionability has emerged as an all-pervasive, yet persistently elusive, undercurrent in Australian contract law’. The premise of this thesis is to formulate a comprehensive overview of the practical application of cases concerning statutory unconscionability. This review is couched through the lens of applying the Matter Provisions, which, as this thesis will explain, are foundational to the proper application of statutory unconscionability. From this overview, various trends will be revealed that can be used to paint a portrait of how cases engaging with the Matter Provisions in statutory unconscionability claims are being applied, and the extent to which this application reflects substantive judicial engagement consistent with the structure and intended purpose of those provisions. This overview is founded on a comprehensive analysis of data collected from cases which have considered the Matter Provisions in recent years, enclosed at Appendix 1 to this paper (‘Case Review’). Lying at the heart of this paper, the Case Review is a systematic collation, review and coding of 252 cases which have considered the Matter Provisions from the period of 1 January 2010 to 6 September 2023. This data collection has been undertaken in accordance with the methodology outlined from paragraph [39]. While there may inevitably be some cases which were not captured, the vision for compiling the Case Review was that if a case grapples with the Matter Provisions, it was included, such that as exhaustive a list of cases as reasonably possible was considered. The Case Review takes the form of a spreadsheet with columns for various quantitative and qualitative data points extracted from an individual review of each case. That data is then applied to the statistical analyses outlined in this paper (including by way of graphs, charts and tables).
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    Justice and the Legal Regulation of Employer Conduct during Workplace Investigations
    Orifici, Adriana Olga ( 2024-01)
    Employers often conduct high-stakes workplace investigations into potential misconduct by employees. This thesis critiques Australian law that regulates employer conduct towards employees or ‘respondents’ during workplace investigations. It argues that existing law is fragmented and inadequate, and that respondents are vulnerable to harm and detriment. This is supported by novel empirical research into respondent perspectives using tribunal decisions. A framework of justice is developed and statutory reforms are proposed to directly regulate workplace investigations and better promote justice for respondents.
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    Political dissent, law and legitimacy in China's Hong Kong
    Clift, Brendan David ( 2023-11)
    Hong Kong’s mass protest movements of the 2010s triggered clampdowns on fundamental rights, the closure of the political system, the denunciation of politically incorrect ideas, and the retreat of regional autonomy in favour of sovereign state power. This research challenges mainstream claims that Hong Kong’s rule of law was in good health during this period. It argues that by 2020 Hong Kong’s once-trusted legal institutions had reached a crisis of legitimacy due to sustained pressure from authoritarian politics. It substantiates the argument via an examination of law’s interactions with, and responses to, political dissent. Legitimacy, the extent to which an entity rightfully exercises its power, is central to the thesis. Drawing on literature on political legitimacy, democracy and authoritarianism, and the rule of law, I propose an original, multifaceted model for political and legal legitimacy. It comprises two main categories, intrinsic legitimacy and consequential legitimacy—or legitimacy drivers and effects—the presence or absence of which is indicative of an entity’s legitimacy. I posit that democratic systems have greater intrinsic legitimacy, largely derived from consent, and consequential legitimacy, with benefits including stability and liberty, compared with authoritarian systems where dissent and its suppression indicate illegitimacy. Legal legitimacy rests on comparable bases, with adherence to rule of law principles being a particularly important component of intrinsic legitimacy, and consequential legitimacy including rights protection and moderation of executive authority. Chapter 1 introduces the research and provides background on Hong Kong. Chapter 2 explains and justifies the analytical framework and outlines the legitimacy models of China and Hong Kong. The next four chapters are case studies of conflict, whereby political dissent triggering a politico-legal state response with legitimacy implications. Chapter 3 examines the use of national symbols to express dissent. It argues that contrary legislation protected an ideocratic authoritarian aesthetic lacking legitimacy in Hong Kong. The courts upheld that legislation in deference to political power, facilitating further repression and diminishing their rights-protection and independent institutional credentials. Chapter 4 considers protests before and during the 2014 protests, then before and during the 2019 protests. It argues that public order legislation, police conduct and political intransigence were contrary to norms and expectations shared by Hongkongers and the international community. The courts’ inconsistent record upholding protest freedoms and regulating contentious politics diminished their authority. Chapter 5 charts the state’s efforts to close down political opposition, demonstrating a retreat from democratic to authoritarian political ideals. In the face of executive power, the courts were unable to maintain their independent authority, and their rationalisation efforts rendered them agents of state authority. Chapter 6 completes the picture of a judiciary powerless to limit the state’s deployment of exceptional measures despite the excessive nature and popular rejection of those measures. The thesis concludes that Hong Kong’s legal apparatus, under pressure from authoritarian politics, wavered in its commitment to upholding rights and regulating power, detracting from its legitimacy, while fidelity to law’s technical requirements in furtherance of a repressive, undemocratic political agenda was also damaging to legal legitimacy.
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    Patent Grip: The Marketplace Making of Patent Law's Subjects
    Hopper, Benjamin Robert ( 2023-09)
    This work demonstrates that the grip of patent laws has to do with the development of market relations. It contrasts the core of patent law, namely, the concept of “invention”, with that epistemological form often cast as the defining “other” of invention, namely, the concept of “traditional knowledge” (TK). It finds that patent law protects a specific form of “invention”, namely, a discrete unit of commodifiable knowledge with certain characteristics that developed in reciprocity with the development of capitalist markets for intellectual things. The corollary is that those more ensconced in capitalist markets will more likely share patent law’s epistemology. Taking this insight, the work develops a theoretical framework to explain patent grip. At this framework’s core is the thinking of Soviet legal scholar, Evgeny Pashukanis, that law is contingent in the sense that it expresses underlying social relations. The development of a market for a given intellectual thing is connected with the development of a commodifying attitude to that thing in which people more readily perceive it, or additions and modifications to it, as a propertisable “invention” rather than some other form of knowledge. Thus, it is hypothesised that more commodity-oriented people are more likely to use and obey patent law, i.e., to have higher patent grip. This work tests this hypothesis using a case study of the extent to which, in southwestern China’s Guizhou province, TK-knowers, namely, traditional medical knowledge (TMK) practitioners, use and obey patent laws in respect of TMK. The case study involves a social survey of 53 mostly ethnic minority TMK practitioners, capturing, inter alia, measures of individual commodity-orientation (also called marketisation) and patent grip. Case study analysis finds: (i) statistically significant correlations between a TMK practitioner’s commodity-orientation and their patent grip; and (ii) a TMK practitioner’s commodity-orientation affects their treatment of knowledge, such that the more commodity-oriented are more likely to view TMK as a patentable “invention”. The work concludes that patent law is a historically specific phenomenon. It thereby counters the idea, pervasive in the patent literature, that individuals will respond homogenously to patent laws. Rather, this work demonstrates that, whether or not the introduction of patent laws will lead to patenting in respect of intellectual things, depends on the extent to which people are patent-receptive, i.e., the extent to which they have become patent law’s subjects. This work also undoes the idea that patent laws determine the operation of markets. Rather, it demonstrates that markets have a hitherto under-recognised role in determining the operation of patent laws.
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    Reforms of the International Tax System in Kuwait to Deliver a More Sustainable Revenue Base
    Alsairafi, Jumanah ( 2023-08)
    Blessed with vast oil reserves, Kuwait has historically relied on oil production as its primary source of government revenue. However, the inevitable fluctuation of oil prices and eventual depletion of resources necessitates the exploration of alternative revenue sources. Amidst a dearth of other major industries that could match oil’s economic output, taxation emerges as the most reliable income source capable of meeting escalating government expenditure demands. This thesis critically investigates Kuwait’s current income tax system, particularly considering global shifts in taxation policies. As a rentier economy heavily reliant on oil exports, Kuwait does not impose personal tax or VAT. Instead, it primarily relies on corporate tax—an income tax levied on net profits, notably from foreign companies operating within the country. However, this system is marked by ad hoc arrangements, inconsistencies, and meagre tax rates. Legislative loopholes further complicate the landscape, creating uncertainty, inviting tax disputes, and providing opportunities for multinational companies to exploit intricate schemes to evade taxes. Given the country’s economic and political circumstances, the likelihood of significant alterations for these features is slim. Therefore, this thesis advocates addressing legislative deficiencies to bolster tax revenue and prevent exploitation. The thesis explores two primary challenges in determining tax liability and ensuring that multinational corporations pay an appropriate amount of income tax in Kuwait. The first challenge pertains to the tax nexus for foreign entities operating within Kuwait, where current regulations may inadequately capture the full range of business activities, leading to potential revenue leakage. The second challenge concerns the application of transfer pricing rules—a complex area of taxation prone to manipulation, resulting in reduced taxable profit and subsequent lower tax revenue. While Kuwait’s current tax system has historically served it to some extent, it cannot continue to do so amidst evolving economic changes. The thesis underlines the urgent need for fundamental tax reforms, emphasising the importance of a consistent, transparent, and equitable taxation system for the nation’s long-term economic stability and growth. The study proposes several measures to improve Kuwait’s tax system’s efficacy and efficiency, including policy reforms to combat tax base erosion caused by multinational entities’ avoidance schemes. As there is limited literature on implementing a new income tax nexus and transfer pricing system in Kuwait, this thesis analyses the potential of these proposed reforms to address the country’s dwindling revenue issue. The suggestions presented in the thesis intend to address the identified challenges and ensure a more equitable and robust taxation framework capable of facilitating sustainable revenue collection in Kuwait. By doing so, the thesis substantially contributes to the broader discourse on tax reform in oil-exporting countries, providing critical insights to inform policy decisions.