Melbourne Law School - Theses

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    Justice and the Legal Regulation of Employer Conduct during Workplace Investigations
    Orifici, Adriana Olga ( 2024-01)
    Employers often conduct high-stakes workplace investigations into potential misconduct by employees. This thesis critiques Australian law that regulates employer conduct towards employees or ‘respondents’ during workplace investigations. It argues that existing law is fragmented and inadequate, and that respondents are vulnerable to harm and detriment. This is supported by novel empirical research into respondent perspectives using tribunal decisions. A framework of justice is developed and statutory reforms are proposed to directly regulate workplace investigations and better promote justice for respondents.
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    Political dissent, law and legitimacy in China's Hong Kong
    Clift, Brendan David ( 2023-11)
    Hong Kong’s mass protest movements of the 2010s triggered clampdowns on fundamental rights, the closure of the political system, the denunciation of politically incorrect ideas, and the retreat of regional autonomy in favour of sovereign state power. This research challenges mainstream claims that Hong Kong’s rule of law was in good health during this period. It argues that by 2020 Hong Kong’s once-trusted legal institutions had reached a crisis of legitimacy due to sustained pressure from authoritarian politics. It substantiates the argument via an examination of law’s interactions with, and responses to, political dissent. Legitimacy, the extent to which an entity rightfully exercises its power, is central to the thesis. Drawing on literature on political legitimacy, democracy and authoritarianism, and the rule of law, I propose an original, multifaceted model for political and legal legitimacy. It comprises two main categories, intrinsic legitimacy and consequential legitimacy—or legitimacy drivers and effects—the presence or absence of which is indicative of an entity’s legitimacy. I posit that democratic systems have greater intrinsic legitimacy, largely derived from consent, and consequential legitimacy, with benefits including stability and liberty, compared with authoritarian systems where dissent and its suppression indicate illegitimacy. Legal legitimacy rests on comparable bases, with adherence to rule of law principles being a particularly important component of intrinsic legitimacy, and consequential legitimacy including rights protection and moderation of executive authority. Chapter 1 introduces the research and provides background on Hong Kong. Chapter 2 explains and justifies the analytical framework and outlines the legitimacy models of China and Hong Kong. The next four chapters are case studies of conflict, whereby political dissent triggering a politico-legal state response with legitimacy implications. Chapter 3 examines the use of national symbols to express dissent. It argues that contrary legislation protected an ideocratic authoritarian aesthetic lacking legitimacy in Hong Kong. The courts upheld that legislation in deference to political power, facilitating further repression and diminishing their rights-protection and independent institutional credentials. Chapter 4 considers protests before and during the 2014 protests, then before and during the 2019 protests. It argues that public order legislation, police conduct and political intransigence were contrary to norms and expectations shared by Hongkongers and the international community. The courts’ inconsistent record upholding protest freedoms and regulating contentious politics diminished their authority. Chapter 5 charts the state’s efforts to close down political opposition, demonstrating a retreat from democratic to authoritarian political ideals. In the face of executive power, the courts were unable to maintain their independent authority, and their rationalisation efforts rendered them agents of state authority. Chapter 6 completes the picture of a judiciary powerless to limit the state’s deployment of exceptional measures despite the excessive nature and popular rejection of those measures. The thesis concludes that Hong Kong’s legal apparatus, under pressure from authoritarian politics, wavered in its commitment to upholding rights and regulating power, detracting from its legitimacy, while fidelity to law’s technical requirements in furtherance of a repressive, undemocratic political agenda was also damaging to legal legitimacy.
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    Patent Grip: The Marketplace Making of Patent Law's Subjects
    Hopper, Benjamin Robert ( 2023-09)
    This work demonstrates that the grip of patent laws has to do with the development of market relations. It contrasts the core of patent law, namely, the concept of “invention”, with that epistemological form often cast as the defining “other” of invention, namely, the concept of “traditional knowledge” (TK). It finds that patent law protects a specific form of “invention”, namely, a discrete unit of commodifiable knowledge with certain characteristics that developed in reciprocity with the development of capitalist markets for intellectual things. The corollary is that those more ensconced in capitalist markets will more likely share patent law’s epistemology. Taking this insight, the work develops a theoretical framework to explain patent grip. At this framework’s core is the thinking of Soviet legal scholar, Evgeny Pashukanis, that law is contingent in the sense that it expresses underlying social relations. The development of a market for a given intellectual thing is connected with the development of a commodifying attitude to that thing in which people more readily perceive it, or additions and modifications to it, as a propertisable “invention” rather than some other form of knowledge. Thus, it is hypothesised that more commodity-oriented people are more likely to use and obey patent law, i.e., to have higher patent grip. This work tests this hypothesis using a case study of the extent to which, in southwestern China’s Guizhou province, TK-knowers, namely, traditional medical knowledge (TMK) practitioners, use and obey patent laws in respect of TMK. The case study involves a social survey of 53 mostly ethnic minority TMK practitioners, capturing, inter alia, measures of individual commodity-orientation (also called marketisation) and patent grip. Case study analysis finds: (i) statistically significant correlations between a TMK practitioner’s commodity-orientation and their patent grip; and (ii) a TMK practitioner’s commodity-orientation affects their treatment of knowledge, such that the more commodity-oriented are more likely to view TMK as a patentable “invention”. The work concludes that patent law is a historically specific phenomenon. It thereby counters the idea, pervasive in the patent literature, that individuals will respond homogenously to patent laws. Rather, this work demonstrates that, whether or not the introduction of patent laws will lead to patenting in respect of intellectual things, depends on the extent to which people are patent-receptive, i.e., the extent to which they have become patent law’s subjects. This work also undoes the idea that patent laws determine the operation of markets. Rather, it demonstrates that markets have a hitherto under-recognised role in determining the operation of patent laws.
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    Reforms of the International Tax System in Kuwait to Deliver a More Sustainable Revenue Base
    Alsairafi, Jumanah ( 2023-08)
    Blessed with vast oil reserves, Kuwait has historically relied on oil production as its primary source of government revenue. However, the inevitable fluctuation of oil prices and eventual depletion of resources necessitates the exploration of alternative revenue sources. Amidst a dearth of other major industries that could match oil’s economic output, taxation emerges as the most reliable income source capable of meeting escalating government expenditure demands. This thesis critically investigates Kuwait’s current income tax system, particularly considering global shifts in taxation policies. As a rentier economy heavily reliant on oil exports, Kuwait does not impose personal tax or VAT. Instead, it primarily relies on corporate tax—an income tax levied on net profits, notably from foreign companies operating within the country. However, this system is marked by ad hoc arrangements, inconsistencies, and meagre tax rates. Legislative loopholes further complicate the landscape, creating uncertainty, inviting tax disputes, and providing opportunities for multinational companies to exploit intricate schemes to evade taxes. Given the country’s economic and political circumstances, the likelihood of significant alterations for these features is slim. Therefore, this thesis advocates addressing legislative deficiencies to bolster tax revenue and prevent exploitation. The thesis explores two primary challenges in determining tax liability and ensuring that multinational corporations pay an appropriate amount of income tax in Kuwait. The first challenge pertains to the tax nexus for foreign entities operating within Kuwait, where current regulations may inadequately capture the full range of business activities, leading to potential revenue leakage. The second challenge concerns the application of transfer pricing rules—a complex area of taxation prone to manipulation, resulting in reduced taxable profit and subsequent lower tax revenue. While Kuwait’s current tax system has historically served it to some extent, it cannot continue to do so amidst evolving economic changes. The thesis underlines the urgent need for fundamental tax reforms, emphasising the importance of a consistent, transparent, and equitable taxation system for the nation’s long-term economic stability and growth. The study proposes several measures to improve Kuwait’s tax system’s efficacy and efficiency, including policy reforms to combat tax base erosion caused by multinational entities’ avoidance schemes. As there is limited literature on implementing a new income tax nexus and transfer pricing system in Kuwait, this thesis analyses the potential of these proposed reforms to address the country’s dwindling revenue issue. The suggestions presented in the thesis intend to address the identified challenges and ensure a more equitable and robust taxation framework capable of facilitating sustainable revenue collection in Kuwait. By doing so, the thesis substantially contributes to the broader discourse on tax reform in oil-exporting countries, providing critical insights to inform policy decisions.
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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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    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.