Melbourne Law School - Theses

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    Online Dispute Resolution and Consumer Disputes in Australia: Dispute System Design Analysis
    Tan, Vivi Julita ( 2023-11)
    Online dispute resolution (‘ODR’) first originated as a response to the e-commerce phenomenon and is now widely accepted and implemented in many jurisdictions. The COVID-19 pandemic has undoubtedly been a major catalyst in the wider adoption of ODR systems to resolve different types of disputes. Although ODR was initially more prominent in private dispute resolution, for example being used by PayPal or eBay for resolving disputes with customers and suppliers, it has now extended to public sector entities, including to judicial institutions. Courts and tribunals are increasingly using various types of ODR systems to provide more flexible and efficient dispute resolution processes. Given the uptake in such systems, there is a need to shift attention away from the analysis of whether or not to adopt ODR systems towards how best to design such systems. Additionally, much analysis of ODR has focused on commercial disputes, not differentiating consumer disputes, or dealing with this latter category only fleetingly. This thesis focuses squarely on the question of whether and how an ODR system might be designed to provide consumers with an avenue to resolve disputes and obtain redress in a fair and efficient manner. It moreover focuses on the use of ODR by courts and tribunals, as opposed to the use of such systems by suppliers or businesses. In this thesis, I argue that ODR does offer opportunities for resolving consumer disputes. However, more sustained attention needs to be given to the principles that should govern the design of ODR systems. Good design is essential to ensure that ODR is appropriate for the context of consumer disputes, fulfils its intended objectives in this unique context, provides a high-quality alternative for consumers to the traditional and offline court processes, and maintains its legitimacy among its consumer users. Such focus on system design necessitates a shift in attention from analysing whether or not courts and tribunals should adopt an ODR system towards how best to design such systems to ensure they are normatively compelling and contextually appropriate given their inevitable adoption. The system design approach is also consistent with the conceptualisation of access to justice as entailing both accessibility (access to courts) and fairness in the legal process itself. The approach, moreover, recognises and respects the unique demands of consumer dispute resolution. Consumer disputes are typically characterised by significant inequalities of bargaining power, information asymmetry and hurdles to access to courts. Yet importantly, under legislation, consumers are often provided with immutable rights that temper the traditional rigour of commercial contracting. Therefore, this thesis seeks to investigate how an ODR system designed for resolving consumer disputes in courts and tribunals fits with the structure and requirements of civil justice in the unique context of consumer protection, and the rule of law in a democratic society.
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    "News from Pan-Africa": Black Internationalism, Literature & International Law', 1900-1963
    Gevers, Christopher Carl ( 2023-07)
    This Thesis traces the collective worldmaking and unmaking project of Black Internationalists, from the 1900 Pan-African Conference to the formation of the Organization of African Unity by newly-independent states in 1963. It tells the story of how Black Internationalists – including Alice Kinloch, Pauline Hopkins, Anna Julia Cooper, WEB DuBois, George Padmore, Nnamdi Azikiwe, CLR James, Peter Abrahams and Kwame Nkrumah – attempted to re-imagine and re-make the world through their political, fictional and historical writings, and collective transnational activism, and how this worldmaking project borrowed from, contested and was ultimately defeated by International Law. The story of its defeat remains instructive for worldmaking projects today, including those of International Lawyers. In order to grasp the scope of this worldmaking project and the terms of its defeat, this study draws on ‘fictional worlds’ theory to better understand International Law and Literature as worldmaking projects and practices. It particular, it shows how the world(un)making project of Black Internationalists reveals modern International Law and Global White Supremacy to be co-constitutive; unsettles the discipline’s Eurocentric histories; and radically re-orients its ‘imaginative geographies’. It argues that, as co-fabrications, International Law and Literature are not just connected but inseparable – historically and theoretically – and illustrates how Black Internationalists’ alternative sociopolitical, historical and geographical imaginaries surface the sedimented worlds that International Law makes, and those it makes impossible.
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    The Ethics of Care in Nepali Citizenship-Equality Activism
    Brennan, Deirdre Evelyn ( 2023-07)
    Discourse around how to ‘end statelessness’, both in terms of the search for solutions to statelessness, and in how statelessness success stories are framed, is dominated by a justice-centred, or rights-based, approach. Such an approach prioritises engagement with international human rights law, United Nations treaty bodies, committees, and mechanisms. While important, in this thesis I argue that the legal approach is limiting insofar as it overlooks the contributions of activism in solutions to statelessness. To bring activism’s unseen or hidden contributions into the ‘end statelessness’ discourse, I draw on a feminist ethics-of-care framework in this thesis and question the dominance afforded to the rights-based legal approaches. This thesis presents the experiences of Nepali activists campaigning against gender discriminatory nationality laws, the intricacies of which have so far been unattended to within statelessness scholarship. Less concerned with the why questions of statelessness: why stateless people have a right to a nationality under international law, this thesis explores the how questions: how do activists, practitioners, and people affected by statelessness conduct and sustain their work towards legal reform and citizenship rights? As this thesis reveals, there is an under-acknowledgement and undervaluation of an intricate web of care, costs, compromises, labour, emotions, and community amongst activists. This care web, I conclude, sustains and reproduces the ‘labour power’ required of campaigning, be it local or global.
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    Judicial, Administrative, or ‘Quasi-Judicial’?: Adjudicating Proofs of Debt in Liquidation
    Angelakis, Nikita ( 2023)
    According to the High Court, when adjudicating proofs of debt, a liquidator acts quasi-judicially ‘according to the standards no less than the standards of a court or judge’. That is an onerous standard for a liquidator, who is not legally trained and invariably carries out their function in an environment hampered with severe financial constraints. This thesis seeks to unpack – and ultimately disprove – the characterisation of a liquidator’s function in adjudicating proofs as being ‘quasi-judicial’. It does so by conducting a review of the jurisprudence concerning the proof of debt procedure that applies in corporate insolvency. The review focusses on the doctrinal basis or character of the liquidator’s power, its origins in the Court of Chancery and development over the last three centuries, and the nature and extent of liquidators’ obligations when dealing with proofs. The thesis argues that, when adjudicating proofs of debt, liquidators exercise administrative power and that the function is not comparable to the adjudicative functions of courts nor administrative bodies that form part of executive government. Further, there can be no ‘one-size-fits-all’ approach when it comes to the obligations of liquidators, because their obligations are conditioned upon the financial circumstances of the particular liquidation. What is expected of liquidators will vary from appointment to appointment. The thesis concludes that the High Court’s description of the liquidator’s function in adjudicating proofs sets the bar too high and that courts have seized on the status of a liquidator as an officer of the court to describe their duties as ‘quasi-judicial’ or similar, which does not reflect contemporary standards or the fact-specific nature of liquidators’ obligations when dealing with proofs of debt.
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    ‘Not served on a silver plate’: The role of civil society actors in promoting the human rights of refugees in Indonesia
    Walden, Max Conrad Fretwell ( 2023-05)
    Indonesia is one of the main hosting countries for refugees and asylum seekers in Southeast Asia but is not a signatory to the 1951 Refugee Convention and has scant domestic law pertaining to refugees. This thesis analyses the extent to which refugees can access the rights to education, healthcare, and livelihoods in Indonesia, as these rights have been identified by refugees themselves as fundamental rights for a dignified life while in prolonged “transit” in Indonesia. I argue that in the absence of the state, civil society plays a key role in service delivery and advocacy for the realisation of these human rights for marginalised non-citizens. The thesis also proposes that Indonesia’s denial of employment rights, which renders some refugees destitute thereby necessitating a return to their country due to economic compulsion, may constitute what human rights groups have deemed “constructive refoulement”. Civil society organisations (CSOs), whether international non-governmental organisations (NGOs), local NGOs or refugee-led organisations such as learning centres, fill a major gap in service provision and undertake advocacy to advance refugee rights. They do so in what scholars have identified as an increasingly illiberal political environment under President Joko Widodo. The difficult conditions created by the COVID-19 pandemic have only emphasised the important role of civil society organisations in providing for refugees’ basic needs in Indonesia. However, my research finds that while CSO service provision and activism is remarkably effective in the Indonesian context, ultimately the state must assume greater responsibility to ensure refugee protection and that Indonesia’s obligations under international human rights law are fulfilled.
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    Legalist Reasoning and its Limits: Legal Professional Culture and Constitutional Development in Australia and Germany
    Hicks, Elizabeth ( 2023-05)
    In this thesis I demonstrate the value of ‘legal professional culture’ as a contextual ‘layer’ that can assist in understanding constitutional development and disagreements about constitutional method. I describe legal professional culture as an infrastructure for socialising legal actors in an experience of ‘constraint of choice’: the experience that some forms of reasoning, but not others, are open to a legal decision-maker. I explore legal professional culture as a bundle of institutionalised practices that work to produce that experience of constraint of choice. These institutionalised practices can include legal education and training, scholarship and knowledge production, and the organisation of courts. I argue that culturally embedded beliefs, narratives and values are reproduced through those institutionalised practices and ensure the workability and stability of method when applied at scale. To explore my description of legal professional culture I compare Australian and German constitutional histories. I explore how German and Australian legal professional cultures have influenced practices of constitutional development and disagreements regarding method. Both jurisdictions share a high degree of professional cultural cohesion, despite differences in constitutional text, methodological tradition and court organisation. I explore the relationship between that cohesion and ‘legalist’ approaches to reasoning, which I both employ as a device to explore the significance of legal professional culture and explore as a constitutional problem in its own right. ‘Legalist’ reasoning — an umbrella term that I use to encompass ‘formalist’ and ‘positivist’ reasoning — tends to assume the determinacy of legal materials, deny the role of judicial choice between multiple plausible interpretations, and insist on a hard distinction between legal and extra-legal considerations in constitutional reasoning. I argue that legalist, formalist and positivist styles of reasoning tend to emerge in professional cultures when there is a high degree of stability in cultural beliefs and narratives regarding method. Exploring how legalist arguments first emerge and then lose credibility over time sheds light on the interplay between professional culture and an experience of constraint of choice in legal actors. I rely on analysis of what I describe as ‘stability seeking’ decisions to demonstrate my arguments regarding legal professional culture and legalist reasoning. In case studies drawn from the German Federal Constitutional Court (FCC) and Australian High Court (HCA), I demonstrate how the stability of professional beliefs and narratives, and the emergence of legalist or positivist reasoning, flowed from key decisions made by each court during a period of instability in their early history. During those periods the HCA and FCC attempted to introduce ideas or narratives that could reintroduce an experience of constraint of choice. I demonstrate how ‘stability seeking’ decisions introduced later in each court’s history were less successful at establishing new, or shoring up existing, beliefs and narratives that could be accepted by the professional community and produce an experience of constraint in legal actors. In comparing how ‘stability seeking’ decisions emerged and were received, I demonstrate the relevance of professional cultural conditions to constitutional development and its stability over time.
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    Constitutionally guaranteeing information flow
    Van Wyk, Cornelia Toerien Laura ( 2023-06)
    The thesis outlines the potential and limits of the constitutional recognition of a right to information. Relying on doctrinal and comparative methodology, it draws insights from the South African experience. The research suggests that, while there are theoretically solid justifications for recognising the right, constitutional recognition does not necessarily achieve the goals envisaged for it in practice. To achieve its potential, such a right needs continued acknowledgement and active support from all the branches of government of the state as a whole.
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    A Theatrical Jurisprudence of Repair
    Sheikh, Danish ( 2023-06)
    This thesis explores the capacity of law to conduct repair, through learning from acts of legal dissent. I argue that we can better understand the jurisprudential significance of a set of dissenting acts against the colonial sodomy law in India by describing them as activities of repair. The sodomy law, which was enacted in 1860 and struck down by the Indian Supreme Court in 2018, criminalised the intimate lives of queer persons. The dissenting acts that I follow turn away from the sodomy law, staging alternative worlds which allow us to imagine ways of living differently with law. The worlds that they stage are lawful: they are constructed using minor forms and techniques of law. Some of these queer dissidents explicitly use and rework what we might understand as more conventional legal forms: the form of a contract, the form of an affidavit, the form of a judgment. In other instances, they rely upon a form that might not be conventionally understood as a legal form, such as theatre. I start by suggesting that each of these actors offers us a different way of conducting repair. The colonial sodomy law impairs the ability of queer persons in India to forge lawful relations. The acts of dissent that I describe attempt to repair this damage through relying on law’s forms and techniques. Law is the thing that breaks; laws are also the things that are used to remake. Repair allows us to watch and describe how this work of remaking might be done. It also allows us to consider an element of creativity involved in these acts of dissent: things are re-paired, they are paired differently, to create new resources that allow for different ways of living with law. I find my vocabulary of repair by first turning to the US American queer theorist Eve Kosofksy Sedgwick. In her work, Sedgwick names a reparative impulse through paying attention to the ways in which queer people attempt to extract sustenance from the objects of a culture whose avowed desire has often been to not sustain them. I identify a number of training exercises through which Sedgwick attempts to practice this impulse in her own writings. In my first chapter, I draw out these exercises as part of Sedgwick’s ethos. Given that Sedgwick does not have an account of law, I then place these training exercises in relation with a set of writings by US American law and humanities scholars: James Boyd White, Robert Cover, and Patricia Williams. These latter texts are also acts of dissent, in this case against the conventions of legal-theoretical writing. The dissenting writers that I follow turn away from styles of critical scholarship that they find constraining, practicing forms of writing that creatively hold the descriptive work of their enquiry. In doing so, I find that each of these writers offers different kinds of training in repair-work. My thesis proceeds by pairing a different act of queer dissent against the sodomy law in India with the teachings of different sets of US American reparative writers. These pairings are ordered through a particular idiom that anchors each chapter: dramaturgy, attachment, translation, voice, and pedagogy. These idioms allow me to pay attention to a distinct aspect of reparative jurisprudence in each chapter: the staging of reparative dissent (Chapter Two: Dramaturgy); the love for law that might animate reparative dissent (Chapter Three: Attachment); how this love might inhibit ways of listening to dissent and consequently require us to practice an art of recognition and response (Chapter Four: Translation); how writing in a borrowed voice might allow us to practice legal criticism differently (Chapter Five: Voice); and how pedagogy might serve as a means of teaching and transmitting reparative dissent (Chapter Six: Pedagogy). By staging my chapters and inflecting my idioms in this manner, I write within the field of theatrical jurisprudence. Theatrical jurisprudence is characterised by its practitioners’ usage of techniques and practices influenced by theatre and performance to enliven law. In the process, theatrical jurisprudents draw attention to how law is staged - and how it might be staged differently. Writing with the resources offered by this field allows me to pay attention to how my cast of dissenters go about their dissent, and allows their voices, styles, and genres to guide my own writing.
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    Multireligious Adherence and the Right to Freedom of Religion in India
    Agarwal, Radhika ( 2022-10)
    This thesis examines the scope for constitutional guarantee for the freedom of ‘multireligious adherence’ in India. Multireligious adherence means the adherence to the norms of more than one religion at the same time. This thesis asks whether multireligious adherents and syncretic religious groups are recognised by the Indian Supreme Court, the highest court in India. To answer this question, the thesis analyses the decisions of the Court from 1950 to 2022 on the interpretation of the right to freedom of religion under Articles 25 and 26 of the Indian Constitution. The thesis finds that multireligious adherents and syncretic religious groups are not judicially recognised due to the Court’s implicit assumption that religious adherence is necessarily exclusive. The thesis argues that the extent to which the Indian Supreme Court recognises multireligious adherents and syncretic religious groups significantly influences the right to freedom of religion of both individuals and religious groups in India. Furthermore, the thesis highlights that Article 25 of the Constitution, which protects a person’s right to freely profess, practise, and propagate religion, is an inclusive provision; it does not differentiate between those who adhere to the norms of a religion exclusively and those who do so non-exclusively. Therefore, Article 25 protects even the right to adhere to multiple religions. The thesis concludes that the Court’s ‘exclusivist understanding’ of religious adherence, which fails to consider the possibility of multireligious adherence, conflicts with this interpretation of Article 25 of the Constitution. This thesis aims to contribute to the fields of ‘law and religion’ and constitutional law: first, it offers an ‘inclusive view’ of religion and religious adherence, where adhering to the norms of one religion does not preclude a person from simultaneously adhering to the norms of another; and second, it shows how the judicial understanding of religious adherence influences the constitutional right to freedom of religion in India.
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    ‘Climate Finance’ and the Philippines: Law, Practice, and Meaning
    Araneta-Alana, Ma. Niña Blesilda Comoro ( 2023-03)
    The international legal response emphasizes ‘climate finance’ as the way forward to increase the capacity of countries to deal with the climate change crisis. Under the Paris Agreement, developed countries have promised to take the lead in mobilizing climate finance to support developing countries to reduce their greenhouse gas emissions and adapt to the effects of climate change. For the Philippines, however, ‘climate finance,’ as experienced, may be different from what has been envisioned. The thesis investigates the Philippine experience of accessing ‘climate finance’ with the aim of learning more about the meaning and practice of the term. The thesis offers a critical account of climate finance in doctrine and practice. Doctrinal scholarship is used to describe and analyse the legal rules relating to ‘climate finance.’ The thesis uses critical analysis to examine the climate change treaties, the decisions of the Conferences of the Parties and the domestic law relating to climate change and ‘climate finance.’ The thesis then examines the Philippine practice of accessing climate finance specifically through the debts it has incurred, particularly in relation to the energy sector, its adaptation response and the promotion of climate bonds. This thesis demonstrates that climate finance has no fixed or defined meaning. Instead, I argue that climate finance is understood through practices borne out of the interaction of nation-states with each other and with institutions, and through such practices, its meaning has become intertwined with debt, the privatization of the energy sector, the promotion of international trade, and the endorsement of private capital. Insufficient scholarly attention has been given to the historical context of colonialism and development and how this influences current trajectories of climate finance. This thesis aims to fill this gap. The thesis interrogates the Philippines’ interactions with institutions through a decolonial lens and pays attention to the colonial legacies that have influenced and have persisted in such interactions. From such examination, the thesis critically redescribes climate finance as part of a narrative of development – the funding that has gone to the nation-state’s mitigation and adaptation responses have carried on an ongoing development project, and the encounter between climate action and development takes place in the context of an enduring coloniality. The thesis makes a novel contribution to international legal scholarship oriented towards the concerns of the Global South. Furthermore, it contributes to scholarship that engages with the interaction between international law and state-based practice, and it does so within the context of ‘climate finance’ and the climate regime.