Melbourne Law School - Theses
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ItemTruth Commissions: The Authority of International Law and the State after Conflict( 2022)This thesis argues that Truth Commissions have drawn, in different ways, on the authority of international law to ‘authorise’ their accounts of the truth of past violence and their promises of future community. Over the last thirty years, Truth Commissions have proliferated and gained an international reputation as important post-conflict institutions that help to create a peaceful, just, and law-abiding relationship between state and society after civil conflict. Truth Commissions are generally understood to be investigatory institutions that establish an official, yet independent, account of past violent events. This thesis examines how Truth Commissions create an authoritative account of violent conflicts, and how they deal with the plurality of (rival) accounts that exist across communities. The thesis examines three of the earliest and most internationally-influential Truth Commissions: Argentina (1983-1984); Chile (1990-1991); and El Salvador (1992-1993). It attends to how each Truth Commission crafted its ‘truth’. The argument that emerges is that these Truth Commissions have drawn on international law to authorise their accounts of violent conflict as the truth. In doing so, their accounts can be seen to have privileged a ‘global’, internationally-authorised truth over other local truths, which are displaced or silenced in public life. This has implications for how societies can be imagined after conflict. At the same time, the thesis shows how the authority of international law is also strengthened by the Truth Commissions’ work. The thesis shows how these Truth Commissions did this in three main ways: by invoking international law’s post-conflict promises (Argentina); by using the language of international human rights law (Chile); and by linking the Truth Commission to the identity and status of the United Nations (El Salvador). In developing this argument, the thesis focuses on three ‘cultural objects’ connected to the work of each respective Truth Commission: a literary prologue (Argentina), a museum of memory (Chile), and a tapestry (El Salvador). These cultural objects enable us to consider the ‘truth’ being crafted by each Truth Commission as they either gave continuity to the Truth Commissions’ accounts (in the case of Argentina and Chile), or countered the Truth Commission’s account (in El Salvador). Through this innovative approach, the thesis contributes a way of examining Truth Commissions as post-conflict institutions as well as new knowledge about how they harness and advance the world-making power of international law. This is grounded in original archival research and in-country visits, as well as scholarship on jurisdictional thinking, histories and theories of international law, and law and humanities.
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ItemConsensus in International Law: Authority, Democracy, Difference( 2022)This thesis investigates the idea of ‘consensus’ in international law. It does so through an exploration of two case studies: consensus decision-making in the General Agreement on Tariffs and Trade (1947) (GATT) and the World Trade Organisation (WTO), and the European Court of Human Rights’ use of ‘European consensus’ as a method of treaty interpretation. The thesis redescribes consensus in international law as an historically specific technique of authorisation. It argues that consensus lends authority to institutional practices and decisions by gesturing towards a widespread, yet unfixed, level of agreement. On the one hand, the gesture towards a widespread agreement works to imbue institutional practices with an air of equality, and project visions of unity onto a decision. On the other hand, the variable nature of the agreement means that the idea of consensus can be applied flexibly, including in situations in which no such equality or unity exists. The thesis contends that consensus gained prominence as a technique of authorisation in the GATT and European Court of Human Rights in the 1970s, when the authority of those institutions had come under challenge. This was also a time when alternative accounts of international law were being put forward, which claimed to be more democratic than the existing system. In my argument, the idea of consensus helped to shore up the authority of both institutions and their decisions by enabling them to claim that they spoke in the name of ‘the many’. Yet, by giving rise to discourses of representation and agreement that did not always match the reality on the ground, the notion of consensus has contributed to some of the backlash and instability facing both the WTO and the European Court of Human Rights today.
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ItemCampus Foodscapes as Sites of Transformation: Mapping Policy and Projects in US Universities Envisioning Just, Sustainable, and Healthy Food Systems( 2022)Many North American universities are actively working to transform their campuses, expanding beyond their traditional missions of teaching and research. Through programming, curriculum, research and community organising as well as procurement and infrastructure, university staff and students are working together to create policies and projects for just and sustainable food system transitions. Drawing on fieldwork and interviews across eleven US institutions and their campus foodscapes this research presents insights into the emergence of policies, projects, and protest to envision and enact more just, sustainable and healthy food futures. It looks at drivers and barriers to change as well as power dynamics in this complex ecosystem. Results are presented as analysis and as maps of campus and higher education foodscapes which include activities, policies and stakeholders as well as vignettes of exemplar projects and considerations of the impact of corporate influence in educational settings.
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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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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.