Melbourne Law School - Theses

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    Judicial, Administrative, or ‘Quasi-Judicial’?: Adjudicating Proofs of Debt in Liquidation
    Angelakis, Nikita ( 2023)
    According to the High Court, when adjudicating proofs of debt, a liquidator acts quasi-judicially ‘according to the standards no less than the standards of a court or judge’. That is an onerous standard for a liquidator, who is not legally trained and invariably carries out their function in an environment hampered with severe financial constraints. This thesis seeks to unpack – and ultimately disprove – the characterisation of a liquidator’s function in adjudicating proofs as being ‘quasi-judicial’. It does so by conducting a review of the jurisprudence concerning the proof of debt procedure that applies in corporate insolvency. The review focusses on the doctrinal basis or character of the liquidator’s power, its origins in the Court of Chancery and development over the last three centuries, and the nature and extent of liquidators’ obligations when dealing with proofs. The thesis argues that, when adjudicating proofs of debt, liquidators exercise administrative power and that the function is not comparable to the adjudicative functions of courts nor administrative bodies that form part of executive government. Further, there can be no ‘one-size-fits-all’ approach when it comes to the obligations of liquidators, because their obligations are conditioned upon the financial circumstances of the particular liquidation. What is expected of liquidators will vary from appointment to appointment. The thesis concludes that the High Court’s description of the liquidator’s function in adjudicating proofs sets the bar too high and that courts have seized on the status of a liquidator as an officer of the court to describe their duties as ‘quasi-judicial’ or similar, which does not reflect contemporary standards or the fact-specific nature of liquidators’ obligations when dealing with proofs of debt.
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    ‘Not served on a silver plate’: The role of civil society actors in promoting the human rights of refugees in Indonesia
    Walden, Max Conrad Fretwell ( 2023-05)
    Indonesia is one of the main hosting countries for refugees and asylum seekers in Southeast Asia but is not a signatory to the 1951 Refugee Convention and has scant domestic law pertaining to refugees. This thesis analyses the extent to which refugees can access the rights to education, healthcare, and livelihoods in Indonesia, as these rights have been identified by refugees themselves as fundamental rights for a dignified life while in prolonged “transit” in Indonesia. I argue that in the absence of the state, civil society plays a key role in service delivery and advocacy for the realisation of these human rights for marginalised non-citizens. The thesis also proposes that Indonesia’s denial of employment rights, which renders some refugees destitute thereby necessitating a return to their country due to economic compulsion, may constitute what human rights groups have deemed “constructive refoulement”. Civil society organisations (CSOs), whether international non-governmental organisations (NGOs), local NGOs or refugee-led organisations such as learning centres, fill a major gap in service provision and undertake advocacy to advance refugee rights. They do so in what scholars have identified as an increasingly illiberal political environment under President Joko Widodo. The difficult conditions created by the COVID-19 pandemic have only emphasised the important role of civil society organisations in providing for refugees’ basic needs in Indonesia. However, my research finds that while CSO service provision and activism is remarkably effective in the Indonesian context, ultimately the state must assume greater responsibility to ensure refugee protection and that Indonesia’s obligations under international human rights law are fulfilled.
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    Legalist Reasoning and its Limits: Legal Professional Culture and Constitutional Development in Australia and Germany
    Hicks, Elizabeth ( 2023-05)
    In this thesis I demonstrate the value of ‘legal professional culture’ as a contextual ‘layer’ that can assist in understanding constitutional development and disagreements about constitutional method. I describe legal professional culture as an infrastructure for socialising legal actors in an experience of ‘constraint of choice’: the experience that some forms of reasoning, but not others, are open to a legal decision-maker. I explore legal professional culture as a bundle of institutionalised practices that work to produce that experience of constraint of choice. These institutionalised practices can include legal education and training, scholarship and knowledge production, and the organisation of courts. I argue that culturally embedded beliefs, narratives and values are reproduced through those institutionalised practices and ensure the workability and stability of method when applied at scale. To explore my description of legal professional culture I compare Australian and German constitutional histories. I explore how German and Australian legal professional cultures have influenced practices of constitutional development and disagreements regarding method. Both jurisdictions share a high degree of professional cultural cohesion, despite differences in constitutional text, methodological tradition and court organisation. I explore the relationship between that cohesion and ‘legalist’ approaches to reasoning, which I both employ as a device to explore the significance of legal professional culture and explore as a constitutional problem in its own right. ‘Legalist’ reasoning — an umbrella term that I use to encompass ‘formalist’ and ‘positivist’ reasoning — tends to assume the determinacy of legal materials, deny the role of judicial choice between multiple plausible interpretations, and insist on a hard distinction between legal and extra-legal considerations in constitutional reasoning. I argue that legalist, formalist and positivist styles of reasoning tend to emerge in professional cultures when there is a high degree of stability in cultural beliefs and narratives regarding method. Exploring how legalist arguments first emerge and then lose credibility over time sheds light on the interplay between professional culture and an experience of constraint of choice in legal actors. I rely on analysis of what I describe as ‘stability seeking’ decisions to demonstrate my arguments regarding legal professional culture and legalist reasoning. In case studies drawn from the German Federal Constitutional Court (FCC) and Australian High Court (HCA), I demonstrate how the stability of professional beliefs and narratives, and the emergence of legalist or positivist reasoning, flowed from key decisions made by each court during a period of instability in their early history. During those periods the HCA and FCC attempted to introduce ideas or narratives that could reintroduce an experience of constraint of choice. I demonstrate how ‘stability seeking’ decisions introduced later in each court’s history were less successful at establishing new, or shoring up existing, beliefs and narratives that could be accepted by the professional community and produce an experience of constraint in legal actors. In comparing how ‘stability seeking’ decisions emerged and were received, I demonstrate the relevance of professional cultural conditions to constitutional development and its stability over time.
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    Constitutionally guaranteeing information flow
    Van Wyk, Cornelia Toerien Laura ( 2023-06)
    The thesis outlines the potential and limits of the constitutional recognition of a right to information. Relying on doctrinal and comparative methodology, it draws insights from the South African experience. The research suggests that, while there are theoretically solid justifications for recognising the right, constitutional recognition does not necessarily achieve the goals envisaged for it in practice. To achieve its potential, such a right needs continued acknowledgement and active support from all the branches of government of the state as a whole.
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    A Theatrical Jurisprudence of Repair
    Sheikh, Danish ( 2023-06)
    This thesis explores the capacity of law to conduct repair, through learning from acts of legal dissent. I argue that we can better understand the jurisprudential significance of a set of dissenting acts against the colonial sodomy law in India by describing them as activities of repair. The sodomy law, which was enacted in 1860 and struck down by the Indian Supreme Court in 2018, criminalised the intimate lives of queer persons. The dissenting acts that I follow turn away from the sodomy law, staging alternative worlds which allow us to imagine ways of living differently with law. The worlds that they stage are lawful: they are constructed using minor forms and techniques of law. Some of these queer dissidents explicitly use and rework what we might understand as more conventional legal forms: the form of a contract, the form of an affidavit, the form of a judgment. In other instances, they rely upon a form that might not be conventionally understood as a legal form, such as theatre. I start by suggesting that each of these actors offers us a different way of conducting repair. The colonial sodomy law impairs the ability of queer persons in India to forge lawful relations. The acts of dissent that I describe attempt to repair this damage through relying on law’s forms and techniques. Law is the thing that breaks; laws are also the things that are used to remake. Repair allows us to watch and describe how this work of remaking might be done. It also allows us to consider an element of creativity involved in these acts of dissent: things are re-paired, they are paired differently, to create new resources that allow for different ways of living with law. I find my vocabulary of repair by first turning to the US American queer theorist Eve Kosofksy Sedgwick. In her work, Sedgwick names a reparative impulse through paying attention to the ways in which queer people attempt to extract sustenance from the objects of a culture whose avowed desire has often been to not sustain them. I identify a number of training exercises through which Sedgwick attempts to practice this impulse in her own writings. In my first chapter, I draw out these exercises as part of Sedgwick’s ethos. Given that Sedgwick does not have an account of law, I then place these training exercises in relation with a set of writings by US American law and humanities scholars: James Boyd White, Robert Cover, and Patricia Williams. These latter texts are also acts of dissent, in this case against the conventions of legal-theoretical writing. The dissenting writers that I follow turn away from styles of critical scholarship that they find constraining, practicing forms of writing that creatively hold the descriptive work of their enquiry. In doing so, I find that each of these writers offers different kinds of training in repair-work. My thesis proceeds by pairing a different act of queer dissent against the sodomy law in India with the teachings of different sets of US American reparative writers. These pairings are ordered through a particular idiom that anchors each chapter: dramaturgy, attachment, translation, voice, and pedagogy. These idioms allow me to pay attention to a distinct aspect of reparative jurisprudence in each chapter: the staging of reparative dissent (Chapter Two: Dramaturgy); the love for law that might animate reparative dissent (Chapter Three: Attachment); how this love might inhibit ways of listening to dissent and consequently require us to practice an art of recognition and response (Chapter Four: Translation); how writing in a borrowed voice might allow us to practice legal criticism differently (Chapter Five: Voice); and how pedagogy might serve as a means of teaching and transmitting reparative dissent (Chapter Six: Pedagogy). By staging my chapters and inflecting my idioms in this manner, I write within the field of theatrical jurisprudence. Theatrical jurisprudence is characterised by its practitioners’ usage of techniques and practices influenced by theatre and performance to enliven law. In the process, theatrical jurisprudents draw attention to how law is staged - and how it might be staged differently. Writing with the resources offered by this field allows me to pay attention to how my cast of dissenters go about their dissent, and allows their voices, styles, and genres to guide my own writing.
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    Multireligious Adherence and the Right to Freedom of Religion in India
    Agarwal, Radhika ( 2022-10)
    This thesis examines the scope for constitutional guarantee for the freedom of ‘multireligious adherence’ in India. Multireligious adherence means the adherence to the norms of more than one religion at the same time. This thesis asks whether multireligious adherents and syncretic religious groups are recognised by the Indian Supreme Court, the highest court in India. To answer this question, the thesis analyses the decisions of the Court from 1950 to 2022 on the interpretation of the right to freedom of religion under Articles 25 and 26 of the Indian Constitution. The thesis finds that multireligious adherents and syncretic religious groups are not judicially recognised due to the Court’s implicit assumption that religious adherence is necessarily exclusive. The thesis argues that the extent to which the Indian Supreme Court recognises multireligious adherents and syncretic religious groups significantly influences the right to freedom of religion of both individuals and religious groups in India. Furthermore, the thesis highlights that Article 25 of the Constitution, which protects a person’s right to freely profess, practise, and propagate religion, is an inclusive provision; it does not differentiate between those who adhere to the norms of a religion exclusively and those who do so non-exclusively. Therefore, Article 25 protects even the right to adhere to multiple religions. The thesis concludes that the Court’s ‘exclusivist understanding’ of religious adherence, which fails to consider the possibility of multireligious adherence, conflicts with this interpretation of Article 25 of the Constitution. This thesis aims to contribute to the fields of ‘law and religion’ and constitutional law: first, it offers an ‘inclusive view’ of religion and religious adherence, where adhering to the norms of one religion does not preclude a person from simultaneously adhering to the norms of another; and second, it shows how the judicial understanding of religious adherence influences the constitutional right to freedom of religion in India.
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    ‘Climate Finance’ and the Philippines: Law, Practice, and Meaning
    Araneta-Alana, Ma. Niña Blesilda Comoro ( 2023-03)
    The international legal response emphasizes ‘climate finance’ as the way forward to increase the capacity of countries to deal with the climate change crisis. Under the Paris Agreement, developed countries have promised to take the lead in mobilizing climate finance to support developing countries to reduce their greenhouse gas emissions and adapt to the effects of climate change. For the Philippines, however, ‘climate finance,’ as experienced, may be different from what has been envisioned. The thesis investigates the Philippine experience of accessing ‘climate finance’ with the aim of learning more about the meaning and practice of the term. The thesis offers a critical account of climate finance in doctrine and practice. Doctrinal scholarship is used to describe and analyse the legal rules relating to ‘climate finance.’ The thesis uses critical analysis to examine the climate change treaties, the decisions of the Conferences of the Parties and the domestic law relating to climate change and ‘climate finance.’ The thesis then examines the Philippine practice of accessing climate finance specifically through the debts it has incurred, particularly in relation to the energy sector, its adaptation response and the promotion of climate bonds. This thesis demonstrates that climate finance has no fixed or defined meaning. Instead, I argue that climate finance is understood through practices borne out of the interaction of nation-states with each other and with institutions, and through such practices, its meaning has become intertwined with debt, the privatization of the energy sector, the promotion of international trade, and the endorsement of private capital. Insufficient scholarly attention has been given to the historical context of colonialism and development and how this influences current trajectories of climate finance. This thesis aims to fill this gap. The thesis interrogates the Philippines’ interactions with institutions through a decolonial lens and pays attention to the colonial legacies that have influenced and have persisted in such interactions. From such examination, the thesis critically redescribes climate finance as part of a narrative of development – the funding that has gone to the nation-state’s mitigation and adaptation responses have carried on an ongoing development project, and the encounter between climate action and development takes place in the context of an enduring coloniality. The thesis makes a novel contribution to international legal scholarship oriented towards the concerns of the Global South. Furthermore, it contributes to scholarship that engages with the interaction between international law and state-based practice, and it does so within the context of ‘climate finance’ and the climate regime.
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    Australian Carbon Credit Units in the Blockchain Environment – Legal Issues in Collateralised Financing Transactions
    Chan, Ryan ( 2023)
    The Australian voluntary carbon offset market and its native tradeable commodity, Australian Carbon Credit Units (‘ACCUs’), serve a critical role in the public and private sector’s emissions reduction strategies. This paper is not concerned with this role. Rather, it builds on the distilled view that ACCUs are a type of financial asset capable of being utilised in a variety of ways in the broader economy. After all, participants who engage with ACCUs or emissions units in general are not necessarily concerned with their carbon footprint, but in its value as an alternative investment vehicle. To date, ACCUs are not just traded on the Australian voluntary carbon offset market, but also through blockchain trading platforms, albeit in a tokenised form. This paper focuses on a particular transaction that has the potential for widespread deployment: transactions where lenders extend financing in exchange for a security interest in ACCUs or tokenised ACCUs.
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    Knowledge, data, visibility, and power: the Convention on the Rights of Persons with Disabilities article 31 in refugee contexts
    Duell-Piening, Philippa Ruth ( 2023-04)
    The Convention on the Rights of Persons with Disabilities (‘CRPD’) article 31, entitled ‘Statistics and data collection’, is commonly used to advocate for and sanction the production and processing of data about the bodies and lives of people with disability. While this practice is common, the legal basis is unclear. This research undertakes a doctrinal interpretation of article 31 and scrutinises disability data production and processing practices in refugee contexts. The research demonstrates that greater attention is required to ensure that disability data practices in refugee contexts adhere to human rights law. Two research lenses are employed to examine article 31’s obligations and implications in refugee contexts: a disability human rights lens and a data and power lens. Congruent with the disability human rights lens, this research argues that the CRPD creates new legal obligations that require the participation of rights-holders in treaty interpretation. Adhering to this new demand on legal research, a Stakeholder Advisory Group of people with disability from refugee backgrounds informs this research’s doctrinal interpretation of article 31 and exploration of the implications in refugee contexts. The second research lens, data and power, provides a critical vantage point for interpreting the article’s text and current disability data practices. This research demonstrates that the growing prominence of disability rights in refugee contexts was followed swiftly by operational guidance recommending the production and processing of data about the bodies and lives of people with disability. While this may have been well-intentioned, nuances necessary for human rights protections were omitted while translating the legal obligations into operational guidelines. One of these protections is the stipulation that data are only produced and processed ‘as appropriate’. Further, this move to quantify the bodies and lives of people with disability in refugee contexts assumes that greater visibility is a path to human rights realisation. An analytical framework developed during this research highlights that strategic anonymity is necessary to attain human rights in some contexts. Strategic anonymity is only achievable through restoring neglected human rights principles that enable individuals to self-identify and groups to self-define. These principles have been elaborated by the CRPD doctrinal contributions to individual autonomy and group rights but continue to be poorly adhered to. This research proposes practical remedies to establish human rights–compliant disability data practices in refugee contexts. The practical remedies include a test for whether it is ‘appropriate’ to produce and process data about the bodies and lives of people with disability in a given context and the inclusion of a non-response option on all surveys, such as ‘I prefer not to say’. Other CRPD-compliant approaches to gaining the information necessary to inform treaty implementation are highlighted, including close consultation and active involvement of people with disability and disability human rights research.
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    The Judicial Concept of Religion in a Comparative Constitutional Context
    Datar, Darshan ( 2022-12)
    For centuries, scientists and philosophers have debated what religion is. The debates have also been acknowledged by lawyers, judges and legal academics who are also engaged in a debate about the concept of religion that judges must possess to give effect to free exercise and non-establishment provisions. This thesis considers what concept of religion judges possess. Based on a doctrinal study of the United States, India, the European, this thesis hypothesises that the judicial concept of religion in countries with generalisable free exercise clauses and non-establishment provisions is broad in free exercise cases and narrow in non-establishment cases. Additionally, this thesis seeks to demonstrate that judges narrow their concept of religion in non-establishment cases through a process called judicial inculturation. Judges ‘inculturate’ a symbol by holding it as a part of a particular country's cultural and historical traditions. Accordingly, judges repeatedly hold that symbols and practices from the country's majority religion are cultural and not religion. As such, the judges narrow the concept of religion to exclude the country's majority religion, and accordingly, prohibitions placed on the government by establishment clauses do not operate. Finally, this thesis will demonstrate key limitations to its hypothesis through a study of Australia and the UK. Through a study of Australia, this thesis will demonstrate that judges do not narrow the concept of religion in establishment cases in countries where judges have narrowed the concept of establishment in non-establishment cases. Finally, this thesis will also demonstrate that judges possess a broad concept of religion which emerges from free exercise cases in countries which do not have establishment clauses.