Melbourne Law School - Theses
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ItemOvercoming legal impediments to a comprehensive legislative basis for war crimes trials in Australia(University of Melbourne, 2010)There are persistent allegations of war criminals from various conflicts that have occurred since the end of the Second World War residing in Australia. This raises difficult moral, legal and political questions for Australian authorities about how to deal with such allegations. War crimes, crimes against humanity and genocide are deemed to be the most serious crimes of concern to the international community and are now reflected in established international criminal law designed to bring individual perpetrators of such crimes to justice. However, Australia's record of domestically enforcing crimes found under international law is mostly non-existent. The practice of successive Australian Governments in dealing with war crimes reflects a piecemeal approach, whereby legislation has been enacted to give effect to various international treaties dealing with different types of war crimes. But, this legislation has either proven inadequate or has remained unused. Where war crimes trials have been initiated, they have ultimately proved to be ineffective. The thesis will challenge the existing state of affairs in Australia by firstly presenting a philosophical basis justifying the prosecution of individuals accused of committing international crimes in domestic Australian criminal courts and secondly, establishing that it is possible to overcome potential legal impediments to a comprehensive legislative basis for war crimes trials in Australia. The thesis proceeds on the basis that there is no justification for excusing war criminals from prosecution. The strong moral impact on society that the perpetration of war crimes has should ultimately be reflected in domestic legislation that provides for the prosecution and punishment of those committing such crimes in Australian courts. Indeed, there is a moral imperative that justice is done on behalf of victims and Australian society; and that the perpetrators are held accountable for their actions. The thesis employs an empirical analysis of existing Australian war crimes legislation and jurisprudence and then extends and relates that discussion to the possible conduct of future war crimes trials. A comparative analysis of domestic and international law is undertaken throughout the thesis that will demonstrate the legal capacity for establishing a systematic framework to facilitate prosecutions in Australia. This includes adopting a proper jurisdictional basis for war crimes trials; the enactment and operation of retrospective war crimes legislation; and challenges to the conduct of war crimes trials in Australian domestic criminal courts, such as appropriate judicial methodology in hearing and deciding such cases and whether a fair war crimes trial is possible. In demonstrating how the various perceived legal impediments and challenges can be overcome, the thesis also provides a broad blueprint for designing future Australian war crimes legislation. Ultimately, the contribution of the thesis will be to provide a validation for a comprehensive legislative basis for war crimes trials in Australia, particularly for the period between the end of the Second World War and the beginning of legislation giving effect to the provisions of the Rome Statute of the International Criminal Court. At the same time, the thesis will recognise that political reality in Australia suggests that enacting such legislation is far from inevitable. The political unwillingness and reluctance by successive Australian Governments to investigate and prosecute alleged war criminals living in Australia is instructive. But as the thesis will argue, there is strong moral and legal justification for enacting new war crimes legislation in order to conduct war crimes trials and in doing so, it will announce that there is no safe haven for war criminals in Australia.
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ItemThe development of a standard of review in world trade organization disputes(University of Melbourne, 2010)
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ItemAustralia's new cartel laws : time for a fresh look at compliance(University of Melbourne, 2010)
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ItemLocal women's NGOs and the reform of Islamic Law in Aceh : case study of MISPI(University of Melbourne, 2010)This thesis looks at the responses of local women's NGOs to the implementation of Islamic law in Aceh from 2006 to June 2009. In it, I argue that although the implementation of Islamic law in the province has placed some restrictions on women's freedom, it has not prevented women from engaging in public life. Acehnese women who have joined local women's movements have challenged the legal system and have demanded the reform of Qanun, or Provincial Regulations, the chief mechanism by which Islamic law has been introduced in Aceh. The implementation of Islamic law in Aceh has thus, in fact, motivated, even enabled, women's NGOs and other elements of civil society to become involved in wider discussion about the future faces of `sharia' in Aceh. The granting of Aceh of the right to apply precepts of 'syariat' in 1999 and the introduction of Qanun following the passing of Law No 18/2001 on the Special Autonomy have been responded to differently by different groups of Acehnese. Most Acehnese see the implementation of Islamic law as a path to authenticity and the return to Acehnese indigenous values, in particular Islamic values. Many hope it will be a path to regain Aceh's glorious past and distance them from Jakarta. However, there are also many Acehnese who demand reform of the Qanun, considering them to be biased and gender-insensitive. Local women's NGOs in Aceh have demanded reform of the Qanun and have promoted policy changes. Local women's NGOs develop people's awareness of their rights in Islam. They promote values and practices that do not discriminate against women. Local women's NGOs are adamant that legal reform should be carried out by rereading, or at least reinterpreting, the sources of Islamic law. The arrival of international organisations and foreign NGOs following the devastating tsunami on December 26, 2004 have introduced local women's NGOs to Western/international norms of Feminist discourse and human rights, in particular women's rights, and to new discourses such as gender equality and justice. These have now become part of their own, Acehnese, conversations. A case study of MISPI, Mitra Sejati Perempuan Indonesia (True Partner of Indonesian Women), a local women's NGO that responds to the implementation of Islamic law demonstrates local women's NGO's agency to enable Acehnese women to take active roles in Aceh's democratisation. MISPI understands that when working in a society where Islam and tradition are strongly entrenched in people's lives it needs to ensure that it works within that context. To do so it seeks to preserve its Islamic credentials while at the same time challenging conservative interpretation of Islam by pursuing a reinterpretation of the Islamic texts. It has developed networks with the male-dominated government and other authorities such as Ulama and the dayah community (traditional Islamic education) to introduce what it sees as more egalitarian interpretations of Islam. MISPI's activities thus mirror the broader agenda of Muslim women NGOs, which is framed under the rubric of `Islamic Feminism' to challenge the resurgence of Islamic conservatism. Although MISPI and its activists are still in their initial stages of introducing their ideas about Islamic equality and justice, the presence of democratic mechanisms in Aceh will allow MISPI to advance its agenda, which it is hoped will ultimately result in legal and social reforms that will further the empowerment of Acehnese women.
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ItemThe use and misuse of foreign materials by the Indonesian Constitutional Court: a study of constitutional court decisions 2003-2008( 2010)This thesis examines the Indonesian Constitutional Court's (MK) use of foreign and international sources of law in constitutional adjudication. Specifically, I seek to address three questions, each of which represent the main criticisms of the practice. First, is the MK's use of foreign materials in constitutional adjudication legitimate? Or is it undemocratic and an excessive exercise of the Court's judicial authority? Second, does the MK demonstrate a sufficient level of understanding of the contextual background from which the transnational principle derives, needed to evaluate whether the transplanted principle is suitable to the Indonesian context? Third, does the MK selectively use foreign materials only when the adopted principle supports an already identified position and ignores the sources that oppose the outcome sought by the Court? On the first question, the MK derives legitimacy from its adoption of a `universalist' interpretive theory. Under this approach, all courts are assumed to be identifying and interpreting the same set of constitutional norms thus providing the theoretical basis to use foreign materials to interpret those norms. However, the adoption of principles from transnational sources of law by the MK are generally not accompanied with clear reasons that justify why the principles it selects are relevant to the Indonesian context and why those it ignores are irrelevant. As a result, the Court does not demonstrate whether it has sufficient knowledge of the context from which the transplanted law derives. A lack of contextual knowledge gives rise to the risk that the court applying the laws may do so inappropriately or even incorrectly. The lack of transparency on the manner in which the foreign materials are selected; and quantitative evidence showing that the overwhelming majority of citations, in fact, did support the MK's decisions; exposes the Court to the third criticism, that it `cheery picks' foreign materials only when a supporting principle can be found to lend legitimacy to a preferred policy position or result.
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ItemThe assessment and regulation of market power in Australia( 2010)This thesis considers various issues relating to the assessment and regulation of market power in Australia It identifies a number of contentious questions concerning market power and considers how such questions are resolved in Australia. In doing so, it also examines whether Australia's tri-partite institutional structure — comprising the Courts, the Australian Competition Tribunal and the Australian Competition and Consumer Commission — is conducive to the consistent treatment of market power. Recent developments highlight new (or renewed) tensions between these institutions, calling into question their respective roles. To date, there has been extremely limited systematic analysis of competition law issues in Australia Academic research tends to be ad hoc, typically relating to a single decision or issue. The purpose of this thesis, however, is to undertake a detailed longitudinal study of how the key institutions address critical issues in order to understand: first, how such issues are generally resolved in Australia; and second, whether the institutions' approaches are consistent, and — in the event that they are not — to explore the significance of any inconsistencies. Accordingly, it is a comprehensive assessment of the institutions' views on market power from the enactment of the Trade Practices Act 1974 (Cth) until December 31 2008. The analysis is premised upon six focus questions. The first two questions (relating to market power generally) concern the reason(s) for which market power is regulated, and whether a structural or strategic analysis is preferred The next questions (prompted by issues concerning essential services) consider approaches to monopoly pricing and cross-subsidisation, as well as the impact of regulation on assessments of market power. The last questions specifically concern the Australian regime: first, considering the relationship between the structural and behavioural regulation of market power under the TPA and, secondly, reviewing the role of the various institutions in regulating market power. Considering each institution's response to the various questions, it is apparent that there are large areas of consistency but also some significant differences in approach. These differences are partially grounded in the particular roles of each institution and in fact represent a key strength of the Australian regime. It is clear that the institutions work together in a manner which ensures the TPA is applied with considerable flexibility, whilst generally maintaining appropriate consistency. Nonetheless, there are some inconsistencies which appear problematic, as they reflect different economic and legal methodologies which can impact upon parties when they are required to deal with two or more of Australia's competition law institutions.
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ItemRegulation of executive remuneration: an empirical study of the first three years of a 'disclosure and voting' regime in Australia and the UK( 2010)Legislation by the UK government in 2002 and the Australian government in 2004 sought to improve board accountability for executive remuneration practices in listed companies. The thesis examines whether the remuneration report plus an advisory vote were effective in achieving this and other government policy aims (such as reducing excessive remuneration and aligning pay with performance). The thesis focuses upon the initial three years of this regime in the UK (2003-2005) and Australia (2005/06-2007/08). Part I of the thesis reviews three theories of motivation from the human resource management literature, together with two derivatives of agency theory (optimal contract and the managerial power thesis) to justify executive remuneration practices and the need for it to be regulated. Drawing upon the concept of ‘regulatory space’ and Julia Black's writings on rule dimension and regulatory conversation, the thesis presents a conceptual model of the regulatory framework for executive remuneration: the regulated remuneration cycle consisting of four activities (remuneration practice, disclosure, engagement and voting). Close analysis of the rule types, regulators and regulatees within this regulated remuneration cycle demonstrates that most of the rules found in the cycle take the form of statements of best practice, or other kinds of ‘soft law’, rather than legislation. Thus enforcement of good remuneration practices does not rely upon legal sanctions. The enforcement pyramid for remuneration practice confirms that most of the enforcement strategies for remuneration practice belong to shareholders. However, the regulated remuneration cycle exposes the three roles that shareholders play within this regulatory space: a rule-maker for executive remuneration practice, an active engager of remuneration committees and a routine voter on remuneration-related resolutions. Part II presents qualitative and quantitative empirical evidence of the operation of the remuneration report and advisory vote in both jurisdictions. It analyses remuneration reports and voting results for a sample of companies from the FTSE 100 and the S&P/ASX 200 for the first three years. It supplements this publicly available information with interview evidence from remuneration committees and their consultants, institutional investors and institutional representative organisations. By analysing the rules for each of the four activities in light of the evidence of how they work in practice, it demonstrates the challenges facing remuneration committees and institutional investors in working within the regulated remuneration cycle. Using the advisory vote as a proxy for shareholder outrage, it demonstrates the effect that the vote had on remuneration practice over the first three years of its operation was not identical in the UK and Australia. Part III concludes the thesis by presenting six findings on the operation of the regulatory initiatives of the remuneration report and advisory vote. These reforms were only partially successful in improving board accountability and unsuccessful in reducing excessive remuneration over the first three years of its operation. The implications of these findings for the regulatory reforms enacted in response to the global financial crisis are noted.
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ItemBorderwork: ‘Illegality’, un-bounded labour and the lives of Basotho migrant domestic workers( 2010)This thesis provides an in-depth, ethnographic case study of women who have migrated from Lesotho to work as domestic workers in South Africa. It explores and analyses these women’s experiences of migration and employment, while examining the impacts of the Lesotho-South Africa border on their lives. The border is conceptualised in this thesis not merely as a territorial frontier but as an apparatus operating throughout a constellation of social and geographical sites. This apparatus is seen to produce migrant subjectivities. In the case of Basotho migrant domestic workers, it produces and disciplines them as ‘illegal’ migrant workers. These women’s ‘illegality’ is continually reproduced not only legally, but socially and discursively as well. It also arises from the repeated ostensible failure of migration and labour law to restrict women’s access to territory or the labour market. Through their ‘illegality’, Basotho domestics are produced as a form of un-bounded labour. The hyphenated term ‘un-bounded’ captures both boundedness and unboundedness. Basotho domestics and their labour migration appear unbounded, as in unrestricted or unregulated. However, women’s subjective experiences reveal their bounding and confinement – geographically, socially, spatially, economically, in the employment relationship, and in terms of their invisibility. Basotho women’s un-bounding and their subjectivity as ‘illegal’ migrant workers create a division between South Africa as the site of ‘work’ and Lesotho as the site of ‘family’ or ‘life’. Women’s social lives and identities, together with their family members, become bounded within Lesotho; within South Africa, their identity and subjectivity is reduced to that of ‘worker’. In order to maintain employment, family and life, women must manage a range of perpetual cross-border circulations, with regular remittances and visits home. As ‘illegal’ migrants, their experience of employment is also unique, as they are produced as dismissible, exploitable, dependent, submissive and ultimately dehumanised workers. Borderwork therefore carries three meanings in this thesis: the ‘work’ of many individuals and institutions in continually constructing the border as a social and legal reality; the impacts of the border on Basotho migrant domestic workers’ experience of employment; and women’s everyday strategies for negotiating and ‘working’ this border. Basotho migrant domestic workers and their difficult circumstances have to date been largely ignored by scholars and policy-makers alike. Drawing on these women’s own accounts, this rich analysis also challenges and extends scholarly understandings of borders, labour migration, ‘illegality’ and development. The significance and implications of this thesis therefore extend beyond the specific case study.
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ItemCreating saviour siblings: reconsidering the role of the welfare of the child principle in regulating pre-implantation tissue typing in Australia( 2010)Preimplantation tissue typing (PTT) is a form of assisted reproductive treatment (ART) used to conceive a child who is a direct tissue match for an existing sibling suffering from a life-threatening illness. The child born as a result of PTT is called a saviour sibling as s/he has the capacity to save the life of the existing sibling through stem cell donation. PTT raises concerns about the welfare of the child to be born, which are currently addressed in Australia through ART regulation. This thesis critiques the current regulation of PTT in Australia and proposes a revised regulatory framework for PTT that is supported by clear ethical principles. It argues that the current focus in Australian ART law and policy on the welfare and interests of the child to be born is inappropriate for PTT. PTT is a procedure affecting not only the interests of the child to be born but also those of the parents and their existing ill child. Furthermore, the welfare of the child to be born is inextricably connected to the welfare of his/her family as a whole. Decisions about PTT should therefore involve consideration of the interests of all family members likely to be affected by the procedure, not just those of the putative child. Two key issues for the regulation of PTT are the welfare of the child to be born and the role of the state in regulating ART. This thesis uses applied ethics to analyse the nature and role of the welfare of the child principle in relation to PTT. A relational approach to regulating PTT is proposed, based on a broad conceptualisation of the welfare of the child that includes both individual and collective family interests. Instead of treating the interests of the child to be born as paramount, this approach requires the child’s interests to be considered in connection with the interests of other family members. The ethical analysis is then applied to develop an improved regulatory framework for PTT in Australia. As part of this process, the thesis explores how the two key issues I have identified have been dealt with in practice by policy-makers, legislators, regulators and courts in the United Kingdom (UK). In contrast to Australia, the regulation of PTT and the welfare of the child principle have been extensively considered in the UK. The lessons learnt in the UK about regulating PTT are used to refine the proposed regulatory framework for PTT in Australia.
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ItemAccounting for profit for breach of contract: a theoretical and practical justification( 2010)The award of the remedy of an account of profits (or ‘disgorgement damages’) for breach of contract is justifiable in some circumstances, and it can be situated within orthodox contract law principle and cases. The primary goal of disgorgement damages is to deter a defendant from unilaterally breaching his contract in certain circumstances. It is important to note that disgorgement damages will not be available for all breaches of contract: the availability of disgorgement depends upon the nature of the plaintiff’s interest in performance of the contractual obligations and the availability of a substitute performance (either through an award of compensatory damages or through an award of specific relief). In addition, disgorgement damages have a punitive rationale. Thus, a defendant will only be deserving of punishment when his breach was advertent. Disgorgement damages are available in two categories of case: the ‘second sale’ cases, where the defendant breaches his contract with the plaintiff to make a more profitable contract with a third party; and the ‘agency problem’ cases, where the defendant promises the plaintiff he will not do a certain thing, and the plaintiff finds it difficult to supervise the performance. Concurrent breach of contract and fiduciary duty cases make up the core of this latter category, but it also encompasses some breach of negative covenant cases. Disgorgement may be full or partial. Awards of so-called or ‘reasonable fee damages’ for breach of contract are best understood as examples of partial disgorgement rather than as ‘restitutionary damages’. Courts award partial disgorgement because typically, specific relief is still possible, but the court does not award it for discretionary reasons. By contrast, in the full disgorgement cases, typically, the defendant has rendered it impossible for the plaintiff to be awarded her right to performance, and thus the deterrent and punitive considerations merit an award at the higher end of the scale. There is an overlap between ‘reasonable fee’ damages and awards for so-called ‘skimped performance’. Ordinarily, however, it will not be necessary to award disgorgement damages for an expense saved because compensatory damages will still be adequate. The primary question for the court in most cases is which measure should be utilised (difference in value or rectification cost). In rare cases, it may be necessary to award disgorgement damages, particularly where compensatory damages are inadequate and the purpose of the contract was to avoid a risk. Equitable bars to relief, such as hardship, laches and acquiescence and ‘clean hands’ should be adopted in relation to disgorgement damages. Similarly, allowances for skill and effort should be applied to disgorgement damages for breach of contract. The justification for this rests on notions of desert (namely, that the plaintiff does not deserve relief and that the defendant does not deserve to be punished) or on notions of mercy (that because of his particular circumstances, the defendant should not have to disgorge his profit).