Melbourne Law School - Theses
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ItemThe use and misuse of foreign materials by the Indonesian Constitutional Court: a study of constitutional court decisions 2003-2008( 2010)This thesis examines the Indonesian Constitutional Court's (MK) use of foreign and international sources of law in constitutional adjudication. Specifically, I seek to address three questions, each of which represent the main criticisms of the practice. First, is the MK's use of foreign materials in constitutional adjudication legitimate? Or is it undemocratic and an excessive exercise of the Court's judicial authority? Second, does the MK demonstrate a sufficient level of understanding of the contextual background from which the transnational principle derives, needed to evaluate whether the transplanted principle is suitable to the Indonesian context? Third, does the MK selectively use foreign materials only when the adopted principle supports an already identified position and ignores the sources that oppose the outcome sought by the Court? On the first question, the MK derives legitimacy from its adoption of a `universalist' interpretive theory. Under this approach, all courts are assumed to be identifying and interpreting the same set of constitutional norms thus providing the theoretical basis to use foreign materials to interpret those norms. However, the adoption of principles from transnational sources of law by the MK are generally not accompanied with clear reasons that justify why the principles it selects are relevant to the Indonesian context and why those it ignores are irrelevant. As a result, the Court does not demonstrate whether it has sufficient knowledge of the context from which the transplanted law derives. A lack of contextual knowledge gives rise to the risk that the court applying the laws may do so inappropriately or even incorrectly. The lack of transparency on the manner in which the foreign materials are selected; and quantitative evidence showing that the overwhelming majority of citations, in fact, did support the MK's decisions; exposes the Court to the third criticism, that it `cheery picks' foreign materials only when a supporting principle can be found to lend legitimacy to a preferred policy position or result.
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ItemThe assessment and regulation of market power in Australia( 2010)This thesis considers various issues relating to the assessment and regulation of market power in Australia It identifies a number of contentious questions concerning market power and considers how such questions are resolved in Australia. In doing so, it also examines whether Australia's tri-partite institutional structure — comprising the Courts, the Australian Competition Tribunal and the Australian Competition and Consumer Commission — is conducive to the consistent treatment of market power. Recent developments highlight new (or renewed) tensions between these institutions, calling into question their respective roles. To date, there has been extremely limited systematic analysis of competition law issues in Australia Academic research tends to be ad hoc, typically relating to a single decision or issue. The purpose of this thesis, however, is to undertake a detailed longitudinal study of how the key institutions address critical issues in order to understand: first, how such issues are generally resolved in Australia; and second, whether the institutions' approaches are consistent, and — in the event that they are not — to explore the significance of any inconsistencies. Accordingly, it is a comprehensive assessment of the institutions' views on market power from the enactment of the Trade Practices Act 1974 (Cth) until December 31 2008. The analysis is premised upon six focus questions. The first two questions (relating to market power generally) concern the reason(s) for which market power is regulated, and whether a structural or strategic analysis is preferred The next questions (prompted by issues concerning essential services) consider approaches to monopoly pricing and cross-subsidisation, as well as the impact of regulation on assessments of market power. The last questions specifically concern the Australian regime: first, considering the relationship between the structural and behavioural regulation of market power under the TPA and, secondly, reviewing the role of the various institutions in regulating market power. Considering each institution's response to the various questions, it is apparent that there are large areas of consistency but also some significant differences in approach. These differences are partially grounded in the particular roles of each institution and in fact represent a key strength of the Australian regime. It is clear that the institutions work together in a manner which ensures the TPA is applied with considerable flexibility, whilst generally maintaining appropriate consistency. Nonetheless, there are some inconsistencies which appear problematic, as they reflect different economic and legal methodologies which can impact upon parties when they are required to deal with two or more of Australia's competition law institutions.
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ItemRegulation of executive remuneration: an empirical study of the first three years of a 'disclosure and voting' regime in Australia and the UK( 2010)Legislation by the UK government in 2002 and the Australian government in 2004 sought to improve board accountability for executive remuneration practices in listed companies. The thesis examines whether the remuneration report plus an advisory vote were effective in achieving this and other government policy aims (such as reducing excessive remuneration and aligning pay with performance). The thesis focuses upon the initial three years of this regime in the UK (2003-2005) and Australia (2005/06-2007/08). Part I of the thesis reviews three theories of motivation from the human resource management literature, together with two derivatives of agency theory (optimal contract and the managerial power thesis) to justify executive remuneration practices and the need for it to be regulated. Drawing upon the concept of ‘regulatory space’ and Julia Black's writings on rule dimension and regulatory conversation, the thesis presents a conceptual model of the regulatory framework for executive remuneration: the regulated remuneration cycle consisting of four activities (remuneration practice, disclosure, engagement and voting). Close analysis of the rule types, regulators and regulatees within this regulated remuneration cycle demonstrates that most of the rules found in the cycle take the form of statements of best practice, or other kinds of ‘soft law’, rather than legislation. Thus enforcement of good remuneration practices does not rely upon legal sanctions. The enforcement pyramid for remuneration practice confirms that most of the enforcement strategies for remuneration practice belong to shareholders. However, the regulated remuneration cycle exposes the three roles that shareholders play within this regulatory space: a rule-maker for executive remuneration practice, an active engager of remuneration committees and a routine voter on remuneration-related resolutions. Part II presents qualitative and quantitative empirical evidence of the operation of the remuneration report and advisory vote in both jurisdictions. It analyses remuneration reports and voting results for a sample of companies from the FTSE 100 and the S&P/ASX 200 for the first three years. It supplements this publicly available information with interview evidence from remuneration committees and their consultants, institutional investors and institutional representative organisations. By analysing the rules for each of the four activities in light of the evidence of how they work in practice, it demonstrates the challenges facing remuneration committees and institutional investors in working within the regulated remuneration cycle. Using the advisory vote as a proxy for shareholder outrage, it demonstrates the effect that the vote had on remuneration practice over the first three years of its operation was not identical in the UK and Australia. Part III concludes the thesis by presenting six findings on the operation of the regulatory initiatives of the remuneration report and advisory vote. These reforms were only partially successful in improving board accountability and unsuccessful in reducing excessive remuneration over the first three years of its operation. The implications of these findings for the regulatory reforms enacted in response to the global financial crisis are noted.
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ItemBorderwork: ‘Illegality’, un-bounded labour and the lives of Basotho migrant domestic workers( 2010)This thesis provides an in-depth, ethnographic case study of women who have migrated from Lesotho to work as domestic workers in South Africa. It explores and analyses these women’s experiences of migration and employment, while examining the impacts of the Lesotho-South Africa border on their lives. The border is conceptualised in this thesis not merely as a territorial frontier but as an apparatus operating throughout a constellation of social and geographical sites. This apparatus is seen to produce migrant subjectivities. In the case of Basotho migrant domestic workers, it produces and disciplines them as ‘illegal’ migrant workers. These women’s ‘illegality’ is continually reproduced not only legally, but socially and discursively as well. It also arises from the repeated ostensible failure of migration and labour law to restrict women’s access to territory or the labour market. Through their ‘illegality’, Basotho domestics are produced as a form of un-bounded labour. The hyphenated term ‘un-bounded’ captures both boundedness and unboundedness. Basotho domestics and their labour migration appear unbounded, as in unrestricted or unregulated. However, women’s subjective experiences reveal their bounding and confinement – geographically, socially, spatially, economically, in the employment relationship, and in terms of their invisibility. Basotho women’s un-bounding and their subjectivity as ‘illegal’ migrant workers create a division between South Africa as the site of ‘work’ and Lesotho as the site of ‘family’ or ‘life’. Women’s social lives and identities, together with their family members, become bounded within Lesotho; within South Africa, their identity and subjectivity is reduced to that of ‘worker’. In order to maintain employment, family and life, women must manage a range of perpetual cross-border circulations, with regular remittances and visits home. As ‘illegal’ migrants, their experience of employment is also unique, as they are produced as dismissible, exploitable, dependent, submissive and ultimately dehumanised workers. Borderwork therefore carries three meanings in this thesis: the ‘work’ of many individuals and institutions in continually constructing the border as a social and legal reality; the impacts of the border on Basotho migrant domestic workers’ experience of employment; and women’s everyday strategies for negotiating and ‘working’ this border. Basotho migrant domestic workers and their difficult circumstances have to date been largely ignored by scholars and policy-makers alike. Drawing on these women’s own accounts, this rich analysis also challenges and extends scholarly understandings of borders, labour migration, ‘illegality’ and development. The significance and implications of this thesis therefore extend beyond the specific case study.
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ItemCreating saviour siblings: reconsidering the role of the welfare of the child principle in regulating pre-implantation tissue typing in Australia( 2010)Preimplantation tissue typing (PTT) is a form of assisted reproductive treatment (ART) used to conceive a child who is a direct tissue match for an existing sibling suffering from a life-threatening illness. The child born as a result of PTT is called a saviour sibling as s/he has the capacity to save the life of the existing sibling through stem cell donation. PTT raises concerns about the welfare of the child to be born, which are currently addressed in Australia through ART regulation. This thesis critiques the current regulation of PTT in Australia and proposes a revised regulatory framework for PTT that is supported by clear ethical principles. It argues that the current focus in Australian ART law and policy on the welfare and interests of the child to be born is inappropriate for PTT. PTT is a procedure affecting not only the interests of the child to be born but also those of the parents and their existing ill child. Furthermore, the welfare of the child to be born is inextricably connected to the welfare of his/her family as a whole. Decisions about PTT should therefore involve consideration of the interests of all family members likely to be affected by the procedure, not just those of the putative child. Two key issues for the regulation of PTT are the welfare of the child to be born and the role of the state in regulating ART. This thesis uses applied ethics to analyse the nature and role of the welfare of the child principle in relation to PTT. A relational approach to regulating PTT is proposed, based on a broad conceptualisation of the welfare of the child that includes both individual and collective family interests. Instead of treating the interests of the child to be born as paramount, this approach requires the child’s interests to be considered in connection with the interests of other family members. The ethical analysis is then applied to develop an improved regulatory framework for PTT in Australia. As part of this process, the thesis explores how the two key issues I have identified have been dealt with in practice by policy-makers, legislators, regulators and courts in the United Kingdom (UK). In contrast to Australia, the regulation of PTT and the welfare of the child principle have been extensively considered in the UK. The lessons learnt in the UK about regulating PTT are used to refine the proposed regulatory framework for PTT in Australia.
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ItemAccounting for profit for breach of contract: a theoretical and practical justification( 2010)The award of the remedy of an account of profits (or ‘disgorgement damages’) for breach of contract is justifiable in some circumstances, and it can be situated within orthodox contract law principle and cases. The primary goal of disgorgement damages is to deter a defendant from unilaterally breaching his contract in certain circumstances. It is important to note that disgorgement damages will not be available for all breaches of contract: the availability of disgorgement depends upon the nature of the plaintiff’s interest in performance of the contractual obligations and the availability of a substitute performance (either through an award of compensatory damages or through an award of specific relief). In addition, disgorgement damages have a punitive rationale. Thus, a defendant will only be deserving of punishment when his breach was advertent. Disgorgement damages are available in two categories of case: the ‘second sale’ cases, where the defendant breaches his contract with the plaintiff to make a more profitable contract with a third party; and the ‘agency problem’ cases, where the defendant promises the plaintiff he will not do a certain thing, and the plaintiff finds it difficult to supervise the performance. Concurrent breach of contract and fiduciary duty cases make up the core of this latter category, but it also encompasses some breach of negative covenant cases. Disgorgement may be full or partial. Awards of so-called or ‘reasonable fee damages’ for breach of contract are best understood as examples of partial disgorgement rather than as ‘restitutionary damages’. Courts award partial disgorgement because typically, specific relief is still possible, but the court does not award it for discretionary reasons. By contrast, in the full disgorgement cases, typically, the defendant has rendered it impossible for the plaintiff to be awarded her right to performance, and thus the deterrent and punitive considerations merit an award at the higher end of the scale. There is an overlap between ‘reasonable fee’ damages and awards for so-called ‘skimped performance’. Ordinarily, however, it will not be necessary to award disgorgement damages for an expense saved because compensatory damages will still be adequate. The primary question for the court in most cases is which measure should be utilised (difference in value or rectification cost). In rare cases, it may be necessary to award disgorgement damages, particularly where compensatory damages are inadequate and the purpose of the contract was to avoid a risk. Equitable bars to relief, such as hardship, laches and acquiescence and ‘clean hands’ should be adopted in relation to disgorgement damages. Similarly, allowances for skill and effort should be applied to disgorgement damages for breach of contract. The justification for this rests on notions of desert (namely, that the plaintiff does not deserve relief and that the defendant does not deserve to be punished) or on notions of mercy (that because of his particular circumstances, the defendant should not have to disgorge his profit).
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ItemTuan Guru, community and conflict in Lombok, Indonesia( 2010)Violence is an ongoing issue of concern in Indonesia. Recent periods of political, social and economic instability have seen outbreaks of violence across the archipelago, often between rival religious or ethnic groups. This has also been the case on the eastern Indonesian island of Lombok, which has both an ethnically and religiously diverse population. Lombok’s capital, Mataram, and the surrounding area of West Lombok form the focus of the field research for this thesis. Both have a Muslim majority and large Christian and Hindu minority communities. This religious and cultural diversity has at times been a source of tension. This thesis explores two local communities in Mataram and West Lombok, as well as looking more broadly at Mataram during provincial elections. The research examines not only communal and political tensions that arose in these communities, but also how conflict was successfully avoided or resolved. This thesis argues that partnerships between state and non-state actors and institutions are integral to conflict management. This cooperation is of particular importance given the relative weakness of state institutions in Lombok, including the police and courts. Therefore, the value of local communities and non-state actors in conflict avoidance and resolution cannot be underestimated. Local religious leaders, Tuan Guru, are key non-state actors who are essential to conflict management processes in Lombok. Tuan Guru have a high degree of influence in pious Lombok society. This means that they are able to act as social stabilisers and mediators during periods of tension in local communities. This thesis also points to the localised nature of dispute resolution, as highlighted in case studies of conflict avoidance during the 2008 NTB gubernatorial elections and dispute resolution in the West Lombok village that I have named ‘Bok’. These cases demonstrate that social relationships both within and between communities, adat (customary practices) and local leadership all play vital roles in resolving tensions and protecting citizens from the effects of violence. Of particular importance are good social relations, the absence of which can lead ethnic minorities to become marginalised and alienated from the rest of the community. Without strong social relationships, minorities are vulnerable to violence should tensions arise. This thesis demonstrates that conflict management in Mataram and West Lombok, whether it be during local provincial elections or within a local community, is an intricate process. Rather than creating ‘one-size fits all’ solutions, conflict management in the highly localised context of Lombok draws upon local legal culture(s) that offer a range of social and legal tools. These include drawing upon sources of locally relevant authority, both state and non-state, such as religious leaders, public servants and the police. Working together, these groups can assist in facilitating community solutions to avoid or resolve conflict. The actors involved and approaches used will differ from community-to-community and depend upon the circumstance, but in most cases Tuan Guru are key to the outcome.
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ItemL'extension du plateau continental: consécration d'un nouveau rapport de l'Etat à son territoire = The extension of the continental shelf: sanctioning a new relationship of the state to its territory( 2010)The extension of the continental shelf holds the attention of the whole International Community. With nearly 96 expressions of interest lodged to the Commission on the Limits of Continental Shelf by the 1st May 2010, the extension interests States that are parties to the LOS Convention as well as States that are not. The rather sudden interest that States have shown since 2001 in the portion of the continental shelf beyond 200 nautical miles offers a unique opportunity to study the impact of this extension in the New Law of the Sea from the perspective of the territorial obsession that drives States. The creation and evolution of the continental shelf and the area of extended continental shelf in the Law of the Sea is an important step in the perception of the ocean space as well as its management. Motivated by economic and political considerations, coastal States undertake a race to the extension of the continental shelf. But this race, lured by promises of seabed riches, coveted though uncertain, is not guided solely by selfish national interests. It cleverly mixes the articulation of common interest and the special interest of States, correcting the continental shelf regime, which originally appears to be highly discriminatory, geographically and financially. The establishment of the zone of extended continental shelf by the New Law of the Sea also effects a profound change in the balance of the continental shelf regime. From a single uncertain continental shelf boundary, the continental shelf is now divided into two zones, extending below and beyond 200 nautical miles. This distinction creates a deep divide that weakens the legal relationship between the procedure for extending the continental shelf and the coastal State's rights, enshrined as ipso facto and ab initio. The new definition of the continental shelf and the incorporation of the principle of natural prolongation of the territory reveal the legal relationship between the State and the submarine area ipso jure. The legal link between the two is not one of resources, but of the territory, revealing publicly the continental shelf as an accessory territory of the coastal State. A new type of institution is at the heart of the extension procedure : the Commission on the Limits of Continental Shelf. Its innovative role is essential to the proper conduct of the extension procedure, but its role is difficult. It faces the strong and safeguarded power of the coastal State in the definition of its territorial limits as well as the mandate limitations of this Commission, erecting major barriers in its power to interpret. The significant voluntary participation of States in this extension procedure further demonstrates the symbolism and the role of this definition within the Law of the Sea. From a single unilateral limit definition, the outer limit of the continental shelf appears to be a multilateral platform and the laboratory of an emerging frontier. This boundary is unprecedented in nature, since for the first time the national state interest is confronting the interest of Humanity represented by the International Seabed Authority.
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ItemCorporate legal advisers of state-owned enterprises in the People's Republic of China: the developing watchdogs( 2010)This thesis critically assesses the design and operation of the corporate legal adviser (“CLA”) system for state-owned enterprises (“SOEs”) in the People’s Republic of China (“PRC”). The study of in-house legal advisers (commonly known as corporate counsel) in Western jurisdictions has developed as its own subfield of studies of the legal profession. That literature shows that the roles that in-house legal advisers in Western corporations should and can play is heavily influenced by their corporate environments, corporate policies and attitudes of the corporate leaders with whom they work. There are a range of complex organizational and ethical issues faced by Western corporate counsel in discharging the functions of effective gatekeepers, advisers and preventive law practitioners. However, as compared with the abundant published works on corporate counsel in the era of post-Enron corporate America, there is little academic literature on in-house legal advisers in China. In the face of the challenges and risks caused by the intensifying economic reforms in the PRC since the early 1990s, and China’s entry into the WTO in 2001, the PRC Government has been attempting to strengthen measures to preserve and protect those state assets that are managed and operated through SOEs. The supervisory body for SOEs is the powerful and well-known State-owned Assets Supervision and Administration Commission (“SASAC”) which is directly under the control of the State Council. SASAC has perceived that corporate counsel in Western corporations have been playing a critical role in corporate risk management and decision-making, and have been accorded a high status within their organizations. Therefore one of the measures implemented by SASAC under its risk management framework for SOEs is the CLA system. The CLA system requires SOEs to engage licensed CLAs as part of the corporate governance and risk management system. Pursuant to the Administrative Measures for State-owned Enterprise Corporate Legal Advisers (2004) (the SASAC document governing the system), the role, rights and obligations of CLAs are set out. The policy objective is to ensure that SOEs are managed and operated in compliance with law and with proper legal advice. SASAC leaders have claimed that the CLA system in SOEs has made great achievements in improving the risk management performance of SOEs. However, this thesis finds that SASAC has not properly addressed the ethical and role dilemmas commonly faced by Western corporate counsel. On the basis of the Western literature on corporate counsel and analysis of SASAC’s policies and the practice of SOEs, this thesis identifies the following key concerns with the CLA system of SOEs: the status and independence of CLAs, the qualification system for CLAs, the legal and professional regulation of CLAs, and the management structure and corporate culture of SOEs where CLAs work. Finally, the inherent problems caused by the power structure in SOEs, especially the role of senior cadres of the ruling Chinese Communist Party in SOEs, has not been resolved. This thesis concludes that CLAs as corporate watchdogs in SOEs are still at the developmental stage. More empirical research of CLAs of SOEs is warranted to better understand how China, as an emerging world economic power, is to play on the international stage.
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ItemThe contribution of cultural studies to right of publicity laws: evocative identification, associative appropriation and political recoding( 2010)Celebrity sells. The right of publicity, broadly defined as the inherent right of every individual to control the commercial use of his or her identity, has been well-established in the United States (US) for over fifty years. It protects the associative value that one brings to products and services, and is invoked mainly by celebrities to prevent unauthorised commercial uses of their persona. There is a wealth of legal literature in the US that discusses a broad range of issues from justifications for the right of publicity to its interaction with freedom of speech under the First Amendment. However, very few contributions have studied the connections between cultural practices and the right of publicity in depth. This dissertation draws on insights pertinent to aspects of right of publicity laws in its evaluation of how the cultural studies literature may contribute to doctrinal development. The usefulness of cultural studies in this inquiry rests in its examination of the roles and meanings of celebrities in contemporary society. This thesis demonstrates how an appreciation of the production, circulation and consumption of the celebrity personality can be incorporated into an analytical framework. It argues that what we generally call ‘celebrity’ is a collective product of the celebrity individual, the audience and the cultural producers. Two exemplary insights are explored. The first insight on the definition of the contemporary celebrity based on well-knownness provides the impetus for the legal protection of the commercial value of identity. The second insight about the celebrity’s function as a cultural sign representing majoritarian ideals has important implications both for contemporary consumption and identity politics. It will be shown how these insights support the concepts of evocative identification, associative appropriation and political recoding, all contributing to a more nuanced understanding of three key elements of a typical publicity claim. As celebrities in other common law jurisdictions like the United Kingdom and Australia rely on the passing off action to seek redress for unauthorised commercial uses of their identity, the relevance of these concepts to passing off is also examined. The findings indicate that insights from cultural studies on the celebrity phenomenon can support both an expansive interpretation of identification in a publicity claim and, at the same time, a more restrictive application of the requirement of commercial appropriation. The dissertation also demonstrates how treating ideological codings of the celebrity persona as political speech can influence the articulation of the First Amendment defence. In addition, these cultural insights have similar relevance to passing off laws, supporting a broad interpretation of goodwill and damage, and a standard of impressionistic association based on the notion of affective transfer as sufficient to constitute misleading conduct. In conclusion, this dissertation establishes that, far from being merely a theoretical discipline concerned with semiotic codings and the politics of power and identity, cultural studies provides a pragmatic framework for judges, scholars and lawyers to further their understanding of the extra-legal issues relating to the laws protecting the commercial value of the celebrity personality.