Melbourne Law School - Theses
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ItemLimitation periods in child sexual assault litigation in Victoria(University of Melbourne, 2005)
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ItemJurisdiction in the international sale of goods : a comparative between Europe, the USA and England(University of Melbourne, 2008)
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Item[Law minor thesis](University of Melbourne, 2009)
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ItemThe search for jurisdictional salvation : assessing the Australian Law of Jurisdiction(University of Melbourne, 2008)
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ItemThe concept of joint employment in Australia and the need for statutory reform(University of Melbourne, 2008)
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ItemThere must be limits : the Commonwealth spending power(University of Melbourne, 2008)
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ItemLockean foundations of private property rights(University of Melbourne, 2013)
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ItemGetting it right for the future : Aboriginal law, Australian law and native title corporations(University of Melbourne, 2013)When native title is recognised by Australian common law, by statute the court must determine a corporation to manage it, giving the native title group legal personality under Australian law. As a group, they can now make contracts, bold interests in land, and better engage with the broader economy. If these native title corporations are to manage native title effectively and achieve other benefits for the group, they must operate in both the Australian and the Aboriginal legal systems. However, use of corporations imposes the assumptions and theoretical underpinnings of the corporate form, developed in Western law over centuries, on relationships between Aboriginal people, their country and their law that have existed for thousands of years. The thesis considers several theoretical approaches for native title groups and their corporations engaging with two laws, including the Harvard Project's cultural match idea, legal pluralism and postcolonial theory. Specifically, Pearson's argument that native title recognition occurs in a 'recognition space' is applied to native title corporations and expanded by reference to Bhabha's conception of new political entities arising in a third space between the colonised and the coloniser. This thesis considers particular engagements between Aboriginal and Australian law in the third space, and contends that its boundaries should be semi-permeable to allow native title corporations shaped and influenced by both laws to operate across them in a manner controlled by the native title group. In its consideration of these issues, the thesis examines the nature of the corporate form, which is found to be contingent, having developed in response to particular circumstances and needs. It follows that the native title corporation can be adapted to meet Aboriginal needs. An examination of Aboriginal use of corporations shows that this has not occurred; rather they engage with Aboriginal law outside the formal structures of their corporations. Based on a multisite case study of two native title corporations that are engaging with Aboriginal and Australian laws, the thesis concludes that native title corporations are more likely to achieve the aspirations of native title groups if they are conceived as operating in a third space between both laws. In that space, better recognition of Aboriginal law governing the native title group's organisation and decision-making in corporate structures and operations, and its relationships with the group, governments and other parties would give these groups greater control of their engagement with the Australian society and economy through their corporations. Such corporations would become more Aboriginal and less corporate, reducing the impact of inappropriate corporate law norms. In this way, it is likely that they will become new political entities, neither wholly creatures of Aboriginal law nor of Australian law, but something in-between, which can engage effectively with both. They would thus become significant vehicles for Aboriginal people to achieve long-term economic, social and cultural aspirations: 'getting it right for the future'.