Melbourne Law School - Theses
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ItemUsing comparative regional law to identify future directions for the Central American integration system( 2019)The Central American Integration System (SICA) is the latest integration enterprise in a long line of regional governance arrangements in the Central American region. SICA was founded in 1991 as a manifestation of a broader political movement to leave behind the region’s dictatorial regimes and gross human rights violations that marred the previous decades. The fundamental objective of SICA is to transform Central America into a region of peace, respect for democracy and social development, through the protection of human rights. It was therefore created to support the region’s states in their quest to promote social justice and deal with inequality, which was recognised as the source of violence, war and human rights violations. Yet, it has been unable to fulfil its objectives and purposes due to a series of challenges arising from its history. Since colonial times, Central American governance, at both domestic and regional levels, has displayed two characteristics: first, executive state-led dominance and, second, susceptibility to external ideas and influences. These historical characteristics, or legacies, have manifested themselves in various ways in the many reunification and integration efforts of Central American states, and in their failure. These historical legacies continue to burden the latest Central American integration enterprise in various ways which have become inherent features of Central American governance. Today, they are reflected within the SICA legal regime at the conceptual, institutional and judicial levels. To solve these challenges faced by the SICA legal regime, this thesis turns to comparative regionalism. This thesis draws on comparative constitutional law and comparative international law to determine a methodology for the emerging field of comparative regionalism. In this thesis comparative regionalism is used both as a critique and a solution to the current analytical approaches to Central American regionalism, which neglect the context of Central American governance within which regionalism operates. Thus, it offers a new approach to comparison across regional legal systems. The approach to comparative regionalism developed in this thesis draws on insights from other integration regimes around the globe. It takes the European and Southeast Asian integration experiences as case studies, which represent opposite spectrums of governance models, respectively. While Europe is the quintessential supranational model, Southeast Asia takes an intergovernmental approach to integration. In comparative terms, Central America represents a middle point between them, with a model driven by intergovernmentalism with certain supranational features and institutions. As such, Central America is well placed to gain insights from both comparative case studies for integration governance. This thesis shows how the study of SICA, and Central American regionalism more broadly, contribute to a new field of comparative regional studies, not only to address shared problems among regional arrangements, but also to understand the complexities and contest Eurocentric concepts of integration from a global perspective.
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ItemInstitutions of the dead: law, office and the coroner( 2017)This thesis writes a history of the institutional life of coronial law in the nineteenth and twentieth centuries. The office of coroner has occupied an important role in the common law since the twelfth century. Its status may have waned, its duties may have changed, yet its enduring concern with investigating the causes of death has preserved its vital role in the juridical governance of the dead. This thesis offers a historical account of the modalities by which coroners have occupied their offices and formed lawful relations with the dead in Australia. It does so by examining coronial law in terms of its technologies and its institutional formations. The chapters that follow explore a range of lawful technologies, including place-making, architecture, super visum corporis, manuals and files, each of which became attached to the conduct of the office of coroner in the nineteenth and twentieth centuries. The thesis thus offers an institutional history of the coroner by thinking through how technologies have attached the dead to coronial institutions, how coroners have performed their offices, and how they have assumed responsibilities for caring for the dead.
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ItemThe history of legal institutions in Victoria( 1942)It has become inveterate in English legal writings to fit all English colonies into a dichotomy – colonies acquired by conquest or cession, and colonies acquired by settlement or occupation. Important constitutional differences attach according to whether a particular colony falls within the one class or the other. To quote the words of Lord Watson in giving the advice of the Privy Council in Copper v Stuart:- “The extent to which English law is introduced into a British Colony and the manner of its introduction must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cessation. In which case there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.” The locus classicus dealing with the position of a colony of the former class, that acquired by conquest or cessation, is to be found in the judgment of Lord Mansfield in Campbell v Hall. Its essential feature lies in the fact that the laws there in force continue until they are altered or abrogated, and until that time British subjects are under their control. This feature is necessarily excluded by the circumstances in which a colony is acquired by settlement. In such a colony from the nature of things there can be no lex loci to which the settlers are amenable, no existing laws to contest the superiority, and no power in the settlers to establish laws independently of the mother country to which they still owe allegiance. In such a colony English law prevails as the birthright of the settlers, and the bond of allegiance between the colonial subjects and their sovereign. (From Introduction)