Melbourne Law School - Theses
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ItemEmergency Powers in Times of Terror: A Comparative Study of Canada and France( 2022)Constitutions establish the fundamental principles of government, both grounding and limiting the legal exercise of state power. In times of emergency, when public safety is threatened and the state must act to protect its citizens, these two constitutional functions can come into tension. A constitution may provide the legal basis for the state’s response to an emergency, but it may also constrain the state’s ability to act effectively during the time of crisis. Some constitutions, like France’s Constitution du 4 octobre 1958, anticipate this dilemma with emergency provisions. Other constitutional texts, like those of Canada, have no special provisions for emergencies. In either case, the state may choose to provide for an emergency framework by statute, accepting that the law must necessarily be constrained by the overarching constitution. Following the attacks of 11 September 2001, this constitutional dimension of emergency management acquired a new urgency because terrorism places extraordinary pressures on constitutional systems. By its nature, terrorism affects the state in its very essence. Through its immediate effects, terrorism calls into question the state’s ability to provide for the physical security of its citizens and challenges its corollary monopoly on violence. Through its induced effects, terrorism affects constitutional rights through the restrictions that it causes. Two decades after the attacks of 11 September 2001, amidst an ongoing global terror threat, constitutional systems continue to grapple with these pressures. This thesis investigates whether and why constitutional emergency provisions are necessary, or desirable, or even useful for dealing with the threats posed by terrorism. To this end, it seeks insight from the comparison of two constitutional systems that exemplify these opposite approaches: Canada and France.
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ItemConstitutionally protective statutory interpretation( 2022)What does the Australian Constitution have to say about statutory interpretation? Is it irrelevant? Is the only constitutional norm that matters in statutory interpretation that which separates judicial and legislative power? Does the rule of law have any work to do? Might constitutional conceptions of sovereignty influence the way judges interpret statutes? What about federalism? These are the questions with which this thesis is concerned. The answers it gives reveal that the principles and practices of statutory interpretation are informed and constrained by systemic norms of the Australian legal system, the most important of which are traceable to our written Constitution. This thesis develops significantly the presently nascent suggestions that the separation of powers informs the practice of statutory interpretation. It shows a constitutional commitment to the rule of law that has bite, in contrast to the suggestions in more recent ‘pure’ constitutional law cases and commentary that the rule of law has no doctrinal force beyond the extent to which it is inscribed in the constitutional text and structure. Less flatteringly, but no less importantly, this view of Australian constitutional law reveals a number of points at which our constitutional culture remains retarded by its monarchical roots and colonial history. Finally, this thesis’ novel perspective allows us to see that federalism is alive and well in statutory interpretation, albeit that there are aspects of the federal principle that remain underenforced. The original contribution of this thesis is, then, to chart the relationship between the Constitution and the principles and practice of statutory interpretation – two fields of study that have to date rarely overlapped. While the thesis is intended primarily for a domestic audience, it also constitutes the first Australian contribution to the recent trend in international scholarship exploring the realm of ‘quasi-constitutional law’ at the penumbra of written constitutions.
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ItemResiding Permanently in the Midst of the Border: Why Discrimination Law Fails Indefinitely Temporary Migrants and How the Disaggregation of Citizenship can Come to Their Aid( 2022)Over the last decade, Australia has embraced uncapped temporary migration. Commonly, people now spend several years in Australia as temporary residents before qualifying for permanent residence. The focus of this thesis is on a subset of those: the indefinitely temporary, people who have lived here for five years or more but still have no path to permanency. Part A of the thesis explores how immigration law leads to the exclusion of temporary residents and why discrimination laws fail to address that exclusion. Immigration law establishes an internal border that regulates non-citizens via their immigration status. Other government and private sector entities become part of the internal border when they enforce immigration law or adopt immigration status as a means of restricting access to services. Dorsett and McVeigh’s framework of legal categories is adopted to explain how the internal border functions and what occurs when discrimination law encounters immigration law, as in complaints of discrimination based on immigration or citizenship status. Discrimination legislation from Australia and the United States, and constitutional equality jurisprudence from Canada and the United States are analysed. These laws require legislators and decision-makers to ‘imagine’ a community in which discrimination is problematic and where a complainant sits in relation to that community. I conclude that when a state claims a sovereign right to discriminate, a complainant’s immigration status is accepted as an accurate representation of their relationship to the community. Temporary residents are identified as non-members of the political community and discrimination on the basis of their status is seen as unproblematic. However, when state sovereignty is not in issue, temporary residents can be understood as part of an imagined community that is social and/or economic, rather than political. Discrimination law can then limit discrimination based on immigration or citizenship status. Part B of the thesis identifies evolutionary changes that are occurring within citizenship and argues that those changes create an opportunity for law to limit the exclusion of indefinitely temporary migrants. I apply to the Australian context, Cohen’s account of citizenship disaggregating into its constituent elements of legal personhood, social membership, and political membership. I conclude that the legal personhood element has separated from formal citizenship and that Australian law recognises the legal personhood of temporary residents. However, it is unable to form a basis of a claim to non-discrimination. Political membership, consistently with Cohen’s disaggregation model, remains closely aligned to formal citizenship, but temporary residents are constitutionally excluded from it. Social membership is also separating from formal citizenship and is a status that indefinitely temporary residents can hold. I develop a set of markers that indicate that an individual is a social member and explain that the concept is not foreign to Australian law. I argue that social membership at the subnational level can resist the internal border and improve the capacity of discrimination law to address discrimination based on immigration status. Crucially, it can do this without undermining the border controls that are considered fundamental to the sovereignty of nation states.
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ItemThe Political Dimensions of Intimate Partner Violence in Refugee Law( 2022)This thesis concerns refugee decision-making in claims of women fleeing a risk of intimate partner violence (‘IPV’) in their country of origin. Existing scholarship on these claims explains the conceptual challenges decision-makers face, including the ubiquity of IPV and its perpetration by non-state agents within a personal relationship. However, issues with the approach to and determination of these claims have not been resolved: women experiencing IPV are not consistently recognized as refugees within and across jurisdictions. While IPV remains an equally urgent social and legal issue, there has been a general shift away from gender concerns as a topic of deeper and innovative study. There is a notable absence of analysis on the application of the political opinion ground to the IPV context. Indeed, there is no consensus on the desirability and applicability of this ground in the context of such violence, even among scholars who otherwise support its broader use in gender claims. The thesis responds to these gaps in two ways. First, it draws on every publicly available IPV decision in five jurisdictions to provide an up-to-date understanding of IPV decision-making. This analysis reveals that decision-makers fail to define and adequately understand the key concepts of ‘gender’ and ‘intimate partner violence’ and that this failure underpins common and fundamental errors in interpreting and applying the refugee criteria. It also identifies that in these claims, decision-makers routinely fail to draw on typical normative and evidentiary frameworks supporting orthodox refugee status determination, engendering inconsistent outcomes. Second, in relation to political opinion, the thesis analyses the scholarly debate and case law concerning the political opinion ground in IPV claims against the international human rights framework and definitions of ‘political opinion’ in refugee law. It develops, through an exploration of real case examples, guidance for decision-makers on the application of the political opinion ground in this context. The thesis details how an IPV context may give rise to political opinions recognized under both contextual and formalised approaches to the definition of ‘political’ in refugee law. It also addresses the issue of ‘nexus’ to an opinion, which the case law analysis reveals is a previously underappreciated barrier to applying the political opinion ground in IPV claims. Finally, the thesis argues that the identified issues with IPV claims may be overcome by an ‘informed gender-sensitive approach’ to the decision-making process. It is suggested that decision-makers access subject-matter expertise, such as on the causes and dynamics of IPV, to ground gender-sensitive decision-making in this area. This thesis concludes that a renewed focus on the international legal framework and the political opinion ground in this context is crucial to improving adjudication in this area.
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ItemHuman rights for the data society( 2022)In 2011, United Nations Secretary-General Ban Ki-Moon launched the UN Global Pulse, an initiative on digital data technologies. According to Ban, the Global Pulse would ‘bring the work of the United Nations fully into the digital age’. By the end of the decade, in 2020, Ban’s successor Antonio Guterres published the ‘Road map for digital co-operation’, in which Guterres declared that the international community stands at ‘new frontiers of technology and human rights’. The aim of the Road map was to co-ordinate activity across the UN system to address both opportunities and risks that Guterres identified at this frontier. The risks were that digital technologies might be used for ‘surveillance, repression, censorship and online harassment’. The opportunities were for digital technologies to ‘provide new means to advocate, defend and exercise human rights’. This thesis is concerned with the UN’s engagement with digital data technologies in its human rights work in the 2010s. During that decade, the UN has both embraced new technologies and attempted to regulate them. Much of the existing scholarship on the relationship between digital data technologies and human rights in the international sphere has mirrored the UN’s ‘opportunities’ and ‘risks’ framing. The question implicit in this scholarship is how to use human rights goals and norms to make the inevitable datafication of the world better. This sense of inevitability is reflected in the commonly used periodisation of ‘a digital age’, which suggests that there is a singular human world that moves from one technological age to another. In contrast to these approaches, this thesis focuses on how the UN’s work on digital data technologies and human rights might make and shape a particular world. I use ‘world’ in the sense of a normative and imaginative universe in which there is a shared common sense about what it is possible to do, and what ought to be done, and the material environment underpinning that common understanding. My argument is that the UN’s attempts to embrace and respond to digital data technologies are producing a world in which the biggest technology corporations and their data technologies are widely accepted as indispensable to the international human rights project. I call that world the data society. The UN does so through a series of technical projects during the 2010s that produce what one might call ‘datafied’ forms of human rights. In these emerging forms of human rights, core concepts and practices are understood by reference to or performed through digital data technologies. The central implication of this argument is that when human rights practitioners – at the UN and beyond – use datafied forms of human rights, they play a significant role in making the data society possible. By the same token, they also play a significant role in foreclosing alternative possibilities – of worlds in which human rights and digital data technologies might be imagined differently.
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ItemTruth Commissions: The Authority of International Law and the State after Conflict( 2022)This thesis argues that Truth Commissions have drawn, in different ways, on the authority of international law to ‘authorise’ their accounts of the truth of past violence and their promises of future community. Over the last thirty years, Truth Commissions have proliferated and gained an international reputation as important post-conflict institutions that help to create a peaceful, just, and law-abiding relationship between state and society after civil conflict. Truth Commissions are generally understood to be investigatory institutions that establish an official, yet independent, account of past violent events. This thesis examines how Truth Commissions create an authoritative account of violent conflicts, and how they deal with the plurality of (rival) accounts that exist across communities. The thesis examines three of the earliest and most internationally-influential Truth Commissions: Argentina (1983-1984); Chile (1990-1991); and El Salvador (1992-1993). It attends to how each Truth Commission crafted its ‘truth’. The argument that emerges is that these Truth Commissions have drawn on international law to authorise their accounts of violent conflict as the truth. In doing so, their accounts can be seen to have privileged a ‘global’, internationally-authorised truth over other local truths, which are displaced or silenced in public life. This has implications for how societies can be imagined after conflict. At the same time, the thesis shows how the authority of international law is also strengthened by the Truth Commissions’ work. The thesis shows how these Truth Commissions did this in three main ways: by invoking international law’s post-conflict promises (Argentina); by using the language of international human rights law (Chile); and by linking the Truth Commission to the identity and status of the United Nations (El Salvador). In developing this argument, the thesis focuses on three ‘cultural objects’ connected to the work of each respective Truth Commission: a literary prologue (Argentina), a museum of memory (Chile), and a tapestry (El Salvador). These cultural objects enable us to consider the ‘truth’ being crafted by each Truth Commission as they either gave continuity to the Truth Commissions’ accounts (in the case of Argentina and Chile), or countered the Truth Commission’s account (in El Salvador). Through this innovative approach, the thesis contributes a way of examining Truth Commissions as post-conflict institutions as well as new knowledge about how they harness and advance the world-making power of international law. This is grounded in original archival research and in-country visits, as well as scholarship on jurisdictional thinking, histories and theories of international law, and law and humanities.
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ItemConsensus in International Law: Authority, Democracy, Difference( 2022)This thesis investigates the idea of ‘consensus’ in international law. It does so through an exploration of two case studies: consensus decision-making in the General Agreement on Tariffs and Trade (1947) (GATT) and the World Trade Organisation (WTO), and the European Court of Human Rights’ use of ‘European consensus’ as a method of treaty interpretation. The thesis redescribes consensus in international law as an historically specific technique of authorisation. It argues that consensus lends authority to institutional practices and decisions by gesturing towards a widespread, yet unfixed, level of agreement. On the one hand, the gesture towards a widespread agreement works to imbue institutional practices with an air of equality, and project visions of unity onto a decision. On the other hand, the variable nature of the agreement means that the idea of consensus can be applied flexibly, including in situations in which no such equality or unity exists. The thesis contends that consensus gained prominence as a technique of authorisation in the GATT and European Court of Human Rights in the 1970s, when the authority of those institutions had come under challenge. This was also a time when alternative accounts of international law were being put forward, which claimed to be more democratic than the existing system. In my argument, the idea of consensus helped to shore up the authority of both institutions and their decisions by enabling them to claim that they spoke in the name of ‘the many’. Yet, by giving rise to discourses of representation and agreement that did not always match the reality on the ground, the notion of consensus has contributed to some of the backlash and instability facing both the WTO and the European Court of Human Rights today.
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ItemCampus Foodscapes as Sites of Transformation: Mapping Policy and Projects in US Universities Envisioning Just, Sustainable, and Healthy Food Systems( 2022)Many North American universities are actively working to transform their campuses, expanding beyond their traditional missions of teaching and research. Through programming, curriculum, research and community organising as well as procurement and infrastructure, university staff and students are working together to create policies and projects for just and sustainable food system transitions. Drawing on fieldwork and interviews across eleven US institutions and their campus foodscapes this research presents insights into the emergence of policies, projects, and protest to envision and enact more just, sustainable and healthy food futures. It looks at drivers and barriers to change as well as power dynamics in this complex ecosystem. Results are presented as analysis and as maps of campus and higher education foodscapes which include activities, policies and stakeholders as well as vignettes of exemplar projects and considerations of the impact of corporate influence in educational settings.
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ItemReforming the Education of Islamic Judges in Indonesia( 2022)The Religious Courts of Indonesia, the country's Islamic courts, have been criticised for their inability to deliver justice to vulnerable groups, such as women and children. One of the causes of this is major shortcomings in the pre-and post-appointment education of the judges who preside in these courts. However, judicial education in Indonesia is an understudied area. This study seeks to respond to this by investigating the challenges faced by the current education system for Religious Court judges in Indonesia, identifying its weaknesses and the factors causing them, and proposing reforms. The research was conducted in three institutions that provide tertiary-level Islamic legal education, the Faculties of Shari'a and Law of the Jakarta State Islamic University, the Aceh State Islamic University, and the Mataram State Islamic University, in Lombok. The research was also conducted in the Supreme Court's Centre for Judicial Training and Religious Court Agency. Data were obtained from documents and regulations, and interviews with Religious Court judges, faculty members, lecturers, and trainers. This thesis argues that the systems of education for Indonesian Religious Court judges offered by both universities and the Supreme Court are insufficient to ensure they have the necessary judicial competencies. This is the result of multiple causes, including poor teacher selection, curriculum content, teaching and learning methods, and a lack of resources, all stemming from the past neglect of these courts by the state. This thesis finds that the main weakness of the legal education provided by the shari'a and Law Faculties is an inability to balance a doctrinal and theoretical approach with a more practical and professionally-oriented approach. The judicial training provided by the Supreme Court-affiliated institutions attempts to respond to the gaps left by the legal education system by offering more practically-oriented education. This has been made possible by the post-Soeharto Reformasi (Reformation) movement that delivered broader judicial reform. Nevertheless, the current educational system still needs much improvement. The organisers of training and education for Religious Court judges need to consider areas beyond the procedural aspects of judicial work, particularly issues relating to social equity, such as gender equality.
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ItemReconciling the responsibilities of parents and the state: Is the best interests principle still the appropriate test for making decisions about the provision of life sustaining treatment to young children?( 2022)High profile court cases in England and Wales, such as those involving Charlie Gard and Alfie Evans, highlighted the challenges of determining that life sustaining medical treatment is not in a young child's best interests. These cases led to calls for law reform, which reflect broader criticisms of the best interests principle that is applied under current laws. The criticisms suggest that the application of the best interests principle is too indeterminate to guide decisions and that the principle requires an impractically narrow focus on the child. This thesis considers whether the best interests principle should be retained to guide decisions about whether a young child receives life sustaining treatment. The thesis explores the theoretical foundations of the best interests principle and alternatives offered in the academic literature. The frameworks for decision-making identified in the academic literature are used to examine the application of the best interests principle in practice in England and Wales, Australia, and New Zealand through a review of the case law and qualitative research with specialist paediatric doctors. The exploration of theory and current practice demonstrates that although there are difficult cases, in which there is reasonable disagreement, there is actually substantial agreement about the circumstances in which a child should be provided life sustaining treatments. It is argued that it is necessary to retain the best interests principle in order to ensure that children's interests are not marginalised. However, a more comprehensive explanation of the situation is required and this may be provided through a rights-based approach. A rights-based approach provides a transparent process for determining what is in a child's best interests and when the child's best interests should be prioritised over the interests of others.