Melbourne Law School - Theses
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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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ItemWhen seeing is no longer believing: Is Australian law ready for deep fakes?( 2021)Deep fakes are currently proliferating in our society, and they are becoming increasingly indistinguishable from genuine photographs, audio or video recordings. In this paper, I explore the challenges that deep fakes present for individuals who may suffer harm as a result of these engines of disinformation targeting their identities. But at the same time, I point to some positive use cases involving deep fakes. As with many new technologies, I argue that a rush to regulate deep fakes risks stifling innovation and competition in the still fledgling market for synthetic media as a result of the shift it would entail from research and development to compliance costs. My argument therefore is for a more carefully considered, targeted approach designed to minimise the harms associated with deep fakes while leaving space for benefits.
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ItemThe war of the wrongdoers: When are wrongdoers truly unequal?( 2021)The law relating to multiple wrongdoers for civil wrongs has a chequered history. For centuries, solidary liability, which applies where wrongdoers jointly or independently cause the same loss, indivisible loss, has ensured that the plaintiff is able to seek full recourse from any defendant who was a necessary ingredient or cause of the harm suffered. Undoubtedly, the system has led many “deep-pocketed” defendants – who are the obvious targets of any plaintiff - to question whether they should be left on the hook for loss which the law recognises as the shared and indivisible fault of multiple defendant parties. In the relatively recent spate of reforms, the system of attributing fault between multiple defendants has been overhauled by a myriad of reforms. The reforms achieve multiple ends in different contexts. What this paper will refer to as “contribution reforms” have achieved two main ends. Firstly, they have enabled courts to order defendants to ‘contribute’ in the context of tortious wrongs an area in which the law has previously disallowed contribution. Secondly, the reforms have enabled courts to attribute liability on a pro rata basis which reflects the defendants’ respective wrongdoing – whereas previously the courts were only able to attribute a pro rata percentage of liability. What the paper will call “proportionate liability” reforms have removed solidary liability from the law altogether – in certain legislatively defined contexts. Similar to the contribution reforms, the court is empowered to apportion blame based on the respective wrongdoings of the wrongdoers or defendants. Drawing on from the law of contributory negligence, both sets of reforms rely on the dual tests of “causal potency” and “moral blameworthiness” when assessing the proportion of liability that should be attributed to either of the defendants. The focus of this paper will be to draw from the learnings of each of the “contribution” and contribution-like regimes: contribution as it applies in the general law, the contribution reforms and the proportionate liability reforms, in search of a unified approach to the principle of contribution in the context of civil wrongs. Section [II] of the paper considers the principle of contribution. It argues that that “eligibility” limitation, which requires that the defendants each be liable for coordinate liabilities is difficult to apply and unsound in principle. The Section concludes by arguing that unjust enrichment provides an adequate and unifying “eligibility” criterion, in preference to the existing “coordinate liabilities,” test. However, unjust enrichment does not provide an adequate basis upon which the court can attribute liability between the defendants. (The pro rata attribution of liability is an outworking of contribution’s paradigmatic or early cases which arose from surety situation – something which cannot be readily applied in the context of torts and civil wrongs, more generally). Sections [III] and [IV] consider how both the contribution and proportionate liability reforms manage apportioning liability regarding the perceived or actual responsibility for the loss (rather than pro rata) and the lessons that could be learned from the dual tests of causal potency and moral blameworthiness, which the reforms apply in attributing liability between multiple wrongdoers. The section concludes that the dual tests of “causal potency” and “moral blameworthiness” are inadequate and present no better or legitimate alternative to the pro rata status quo that applies under the general law of contribution. Section [V] provides an alternative approach to the apportionment of responsibility by referencing criminal law principles applicable to sentencing. The argument is underpinned by the acknowledgement that, once the plaintiff’s loss is determined as a loss necessarily caused by either defendant, the question necessarily becomes one of comparing and adjudging blame – a task which the criminal law courts conduct expertly.
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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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ItemTaxation of Charities and Not-for-Profits( 2021)This thesis is based on scholarly work which consists of a sole-authored book, Taxation of Charities and Not-for-Profits, published by LexisNexis in 2020, a number of chapters in books, and articles in highly regarded journals as well as submissions to government and other bodies on taxation of NFPs. I was also the lead Chief Investigator on and Australian Research Council Project, Defining, Regulating and Taxing Not-for-Profits in the 21st Century (2010 to 2014) that culminated in an edited collection of international contributions, Not-for-Profit Law, published by Cambridge University Press in 2014 of which I was co-editor. The principal aim of my research has been to identify complex issues in the field of taxation of charities and NFPs, and to put forward solutions for policy development. My general thesis is that the important charitable and NFP sector is shaped, at least in part, by taxation laws that have developed with scant policy analysis and lack of appetite for reform. The result is a system that is overly complex, contains many anomalies and does not take account of changing social and economic conditions. Although there is significant scholarship relating to the law of charity and the NFP sector more broadly, both in Australia and elsewhere, there has been a lack of scholarship relating to taxation despite the fact that taxation shapes much of the jurisprudence in the area and that the fiscal impact of the tax relief continues to grow. My scholarship in this area is unique as most of those working in the area are concerned with charity law more generally.
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ItemEmpowering customary land rights: can Indonesia rise to the challenge?( 2021)The struggle within Indonesia to resurrect strong customary tenure takes place within a highly contested legal landscape. Land administration is bifurcated, complex, uncertain and often contradictory. This paper analyses attempts to recognise and empower customary land rights in Indonesia's 2018 Draft Bill on Customary Legal Communities. It employs comparative analysis with another jurisdiction that has long grappled with the inherent compromises involved in enacting and empowering customary tenure: the Northern Territory of Australia. In doing so, it seeks to identify shared challenges as well as to highlight alternative responses to these challenges.