Melbourne Law School - Theses

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    Lockean foundations of private property rights
    Elkman, Saba (University of Melbourne, 2013)
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    Getting it right for the future : Aboriginal law, Australian law and native title corporations
    Frith, Angus Roycroft (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'.
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    Unconditional life : the time and technics of international law
    Otomo, Yoriko (University of Melbourne, 2012)
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    The Court of Arbitration for Sport : law-making and thequestion of independence
    Vaitiekunas, Andrew (University of Melbourne, 2013)
    The Court of Arbitration for Sport ('CAS') was established by the International Olympic Committee ('IOC') in 1983 for the purpose of resolving international sports disputes. In its relatively short history, CAS has become the world's foremost sports arbitration tribunal. Notably, CAS's jurisdiction is recognised under the World Anti-Doping Code ('WADC) and under the statutes of all Olympic sports federations. A number of commentators claim that CAS's jurisprudence, described as a 'lex sportiva\ constitutes an autonomous body of law. If correct, such a development represents a significant contribution to world legal order. Legal theorists have identified a number of factors which are the hallmarks of a law-maker. One of these is independence. Independence is recognised as a law-making requirement in two different contexts, both of which are relevant to CAS. First, according to some scholars, a court must he perceived to he independent and impartial for it to he regarded as a law-maker. Although CAS is not a court, its compliance with recognised judicial standards of independence and impartiality may enhance its prospects of being regarded as a law-maker. Second, in the case of a non-state normative order, its independence from state law is considered necessary for it to he a law-maker. Unless a non-state order has independence from state law, it does not have final authority over its affairs and therefore cannot he considered a law-maker. The thesis examines the role of independence in determining a body's law-making status and assesses CAS's independence. In particular, the thesis assesses CAS's independence from the Olympic Movement, on the one hand, and from state law, onthe other. First, the thesis shows that CAS falls short of judicial standards of independence and impartiality and that this detracts from CAS being a law-maker. The thesis makes a number of recommendations the purpose of which is to enhance CAS's prospects of being a law maker. These encompass both changes of an institutional nature to ensure CAS's independence from the Olympic Movement governing bodies and also changes to the terms of appointment of CAS arbitrators to ensure their individual independence. Second, the thesis examines CAS's independence from state law and whether it exercises final authority in its decision-making. This is done with reference to Swiss law, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (commonly known as the New York Convention {'NYC))^ (with particular attention paid to its role in United States' and Australian law) and European Union ('EU') law. The thesis shows that, although CAS has a large measure of independence in determining disputes, its independence is not unlimited. State public policy and EU competition and freedom of movement laws are key areas limiting CAS's independence and hence its final authority.
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    Civilian detention in United Nations peace operations : the need for a special legal regime governing detention
    Oswald, Bruce Michael. (University of Melbourne, 2009)
    This thesis is concerned with examining the significant legal issue of UN personnel temporarily detaining civilians in UN peace operations. More specifically, it addresses the question: is the temporary detention of civilians by UN peacekeepers in peace operations appropriately regulated? The argument here is that the temporary detention of civilians by peacekeepers is not appropriately regulated by extant legal frameworks, and, consequently, the thesis proposes the creation of a special legal regime governing detention. Such a regime would provide greater certainty, clarity and consistency of applicable legal norms and would ensure the effective and efficient conduct of UN peace operations in the context of the recognition of the rights and obligations of both the civilian population affected by the operation and the peacekeepers conducting the operation. This thesis argues that the taking and handling of detainees by UN peacekeepers is not appropriately regulated by extant legal frameworks for a number of reasons. The key reasons are: (1) there is no single legal regime that applies to the temporary detention of civilians in UN peace operations; (2) the law applicable to UN peace operations temporarily detaining civilians is fragmented; (3) where norms are identified as applying, they are sometimes, on closer analysis, inadequate to meet the operational necessities of peace operations; and (4) there are a number of gaps in the existing law, and the law, therefore, must be further developed so as to be relevant to contemporary UN peace operations. It should be noted that this thesis does not argue that there is no legal framework applicable to the treatment of civilian detainees nor that existing legal regimes applicable to the treatment of civilian detainees should be abandoned. It does, however, seek to contribute to the search for greater certainty, clarity and consistency of the norms dealing with detention by arguing for formalisation and systematisation. Consequently, this thesis restates, where relevant and appropriate, obligations within the existing legal frameworks that apply to UN peace operations. It also identifies where existing norms do not adequately respond to the needs of either detainees or the peaceoperation, and proposes norms that are more specific and nuanced to meet the requirements of the context. The fundamental aim of this thesis is to argue for a special legal regime to govern UN peacekeepers dealing with detainees.
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    Freedom and fairness in contract law : a republican theory of contract law
    Sharpe, Michelle. (University of Melbourne, 2005)
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    Elements of accessorial modes of liability : article 25(3)(b) & (c) of the Rome Statute of the International Criminal Court
    Finnin, Sarah. (University of Melbourne, 2011)
    The collective nature of participation in international crimes has made accessorial modes of liability fundamental to the effort to prosecute individuals for such crimes. The Rome Statute of the International Criminal Court recognises three accessorial modes of liability: ordering (in Article 25(3)(b)), soliciting/inducing (in Article 25(3)(b)) and aiding and abetting (in Article 25(3)(c)). The purpose of this thesis is to assist the Court in interpreting these provisions by developing proposed material and mental elements for the three accessorial modes of liability. The development of proposed elements for accessorial modes of liability is necessary because while detailed elements for the substantive crimes within the jurisdiction of the Court have been identified in the 'Elements of Crimes' adopted by the Assembly of States Parties to the Rome Statute, no such elements have been elaborated for the modes of liability in those crimes. This is despite the fact that the elements of modes of liability are just as complex, if not more so, than the elements of the substantive crimes. There is therefore considerable potential for' inaccuracy and inconsistency between the various Chambers of the Court in their elaboration of the elements of modes of liability. Furthermore, the potential impact of such inaccuracy or inconsistency on the liability of an accused tried before the Court is significant. The proposal for ordering includes a conduct element, two circumstance elements and a consequence element (each with an accompanying mental element). The conduct element describes a prohibited act. The first circumstance element qualifies the conduct element by describing the requisite features of that act. The second circumstance element qualifies the conduct element by describing the requisite features of the accused. Together, the conduct element and circumstance elements represent what is referred to throughout the thesis as the 'accessorial act'. The consequence element describes a result (that is, the commission or attempted commission of a crime by the principal perpetrator). This is referred to throughout the thesis as the 'accessorial object'. Finally, the proposal includes a causation requirement, which connects the conduct element and the consequence element. The proposal for soliciting/inducing largely replicates the proposal for ordering, except that there is no circumstance element to qualify the conduct element by describing the requisite features of the accused. The conduct element and remaining circumstance element therefore constitute the accessorial act, and the consequence element constitutes the accessorial object. Like the proposal for ordering, the proposal for soliciting/inducing includes a causation requirement. The proposal for aiding and abetting includes a conduct element and a consequence element (each with an accompanying mental element). The conduct element constitutes the accessorial act, and the consequence element constitutes the accessorial object. Like the proposal for ordering, the proposal for aiding and abetting includes a causation requirement. In addition, the wording of Article 25(3)(c) requires proof of an additional (or special) mental element. It is hoped that this thesis will provide guidance to the Court when it seeks to apply the provisions regarding accessorial modes of liability to the first cases which come before it for trial.
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    Overcoming legal impediments to a comprehensive legislative basis for war crimes trials in Australia
    Nastevski, Vasko. (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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    The development of a standard of review in world trade organization disputes
    Becroft, Ross Stuart. (University of Melbourne, 2010)
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    Legislating illiberalism : law, discourse and legitimacy in Singapore
    Saunthararajah, Jothi. (University of Melbourne, 2009)
    This thesis conducts a socio-legal reading of legislation and public discourse to track the manner in which the Singapore state has reframed the liberal idea of the `rule of law' into a rights-eroding `rule by law' while sustaining its legitimacy as a `lawful' state. It demonstrates the complex entanglements between `law', language and struggles for power in the Singapore state's construction and consolidation of its rule. Applying critical theory on language and power to studies of four legislative enactments spanning the first thirty years of Singapore's existence, the thesis shows that the state has responded to moments of public contestation by characterising critics as threats to national security. Legislation relating to seemingly disparate subjects � vandals, the press, the legal profession and religious harmony � effect a uniform outcome: the silencing of non-state actors, and the emasculation of the courts. The thesis uncovers four main strategies relating to the state's use of `law' to render the state the primary legitimate speaker of the public domain. First, through an adherence to procedure, the state claims to be properly `rule of law'. Second, the state uses legislation and its dominance of public discourse to recalibrate state-citizen relations such that citizens are constructed as subordinate to the state. Third, the state links questions of `law' to a state-scripted account of perpetual territorial vulnerability. Through its narrative of Singapore's vulnerability, the state selectively adopts facets of `Western' liberal notions of the `rule of law' such that `law' relating to commerce is substantively equivalent to the `West' while civil and political liberties are treated as grants rather than entitlements. Finally, the thesis demonstrates that legislative text has been scripted in increasingly opaque terms such that `law' becomes comprehensible only through acquiesence to the state's ideologically-driven attribution of meaning.