Melbourne Law School - Theses

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    Empowering customary land rights: can Indonesia rise to the challenge?
    Rennie, Sarah ( 2021)
    The struggle within Indonesia to resurrect strong customary tenure takes place within a highly contested legal landscape. Land administration is bifurcated, complex, uncertain and often contradictory. This paper analyses attempts to recognise and empower customary land rights in Indonesia's 2018 Draft Bill on Customary Legal Communities. It employs comparative analysis with another jurisdiction that has long grappled with the inherent compromises involved in enacting and empowering customary tenure: the Northern Territory of Australia. In doing so, it seeks to identify shared challenges as well as to highlight alternative responses to these challenges.
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    Constitutionalism as Postwar International Law
    Saunders, Anna Joy ( 2020)
    This thesis inquires into the significance of the histories of constitution-making in Germany and Japan for international practices of constitution-making after conflict, and for the discipline of international law. It argues that, in offering constitutionalism as a solution to the problems of civil war and conflict in the decolonised world, contemporary scholarship on international law and constitution-making draws on a tradition that was developed during the post-World War II era in relation to the occupations of Germany and Japan. That tradition represents a rejection of material accounts of the causes of war and imperial aggression, and more radical visions of economic redistribution and political self-determination. In invoking these histories, international legal scholars reproduce an understanding of constitutional forms as an object of legal analysis and of technical reproduction, distinct from broader economic and political choices about the government of a society and about the international legal order in which that society exists. By exploring this tradition, this thesis seeks to denaturalise internationally-directed constitutional transformation, paired with economic liberalisation, as a technique for managing the postwar state. The Introduction sets out the paradox of the internationalisation of constitution-making, on the one hand, and the idea of constitutions as a lawful means of governing a public, on the other. It gives an account of the method of inquiring into the way the discipline of international law has sought to invoke the histories of constitution-making in Germany and Japan to resolve this paradox, which I term ‘discipline as method’. Chapter 1 describes the field of international law and constitution-making, and sets out the significance of the histories of constitution-making in Germany and Japan for the discipline of international law. Chapter 2 explores the emergence of a tradition of constitutional thought in international law in the postwar period, articulated in opposition to economic and material accounts of empire, by reference to the work of three lawyers: Quincy Wright, Ernst Fraenkel and Carl Friedrich. Chapter 3 describes the conduct of the Allied occupations of Germany and Japan, reading Allied practices and debates, and the making of constitutions, through competing ideas of the requirements of peace in the aftermath of imperial aggression. The thesis concludes by reflecting on what knowledge of this tradition offers for the discipline of international law.
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    Discretionary trusts and family property disputes
    Riethmuller, Grant Theo ( 2016)
    Whether property held on a discretionary trust is property of a spouse affects the rights of spouses when obtaining orders for property division under the Family Law Act. It is argued that the court can exercise its supervisory power to direct execution of a discretionary trust, to ensure that a discretionary beneficiary or object is not unconscionably held out of an appropriate share of the assets held on trust. As a result it is argued that the rights of the discretionary beneficiary or object are capable of categorisation as equitable property interests for the property settlement provisions in the Family Law Act.
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    A conceptual history of recognition in international law
    Clark, Martin ( 2015)
    This thesis presents a conceptual history of recognition. It examines the development of ideas about the nature and meaning of recognition in the writings of British jurists from 1800–1950. After introducing recognition as a recurring metaphysical and ontological problem of international law and ordering, and explaining the focus on British juristic writings (Introduction), this thesis outlines a methodology for writing the history of concepts in international law (Chapter Two). While recent work in international legal history demonstrates a new attentiveness to the problems of historiography, efforts to grapple with these problems have rarely involved direct engagement with historical theory. In urging just such an engagement, this thesis adapts the themes, insights, and methods of conceptual history to the examination of concepts in international law. Conceptual history investigates the development of ‘basic concepts’: essentially contested ideas that are indispensable for political and thought and action throughout a period of time, within a national-linguistic society. This thesis adapts this methodology to guide a focus on juristic texts and their contexts. This forms the thesis’s first contribution to the field, specifically methodological debates in international legal history. It shows that historical theory is of real use in understanding and improving our attempts to grapple with the historiographical problems of international law. The thesis’s second contribution takes the form of a conceptual history of recognition (Chapter 3). In examining how recognition became a foundational idea in international law, as reflected in one important national tradition of juristic thought, this history shows how recognition was used to establish hierarchies of political communities and control entry into international society. Nowhere is this plainer than in the writings of British jurists in the context of the rise and fall of the British Empire. This development proceeded in four strands. In the first strand (1800–1880), generalised accounts of the criteria of recognition that are fixated almost solely on intra-European diplomatic disagreements gradually emerge. During the second strand (1871–85) recognition begins to incorporate ideas of Christianity, civilisation and progress to exclude non-European political communities from entry into the international community. The third strand (1885–1914) furthers this progress-orientation into the period of late colonialism and the ‘scramble for Africa’, shifting the focus of recognition to the technicalities of government and territorial control and, eventually, to a state-centric account that normalises civilisational inferiority into ‘difference’. With the fourth and final strand emerges (1915–50), recognition becomes a basic concept in international law, reflected in intense debates over its meaning and its use to advance or undermine a range of political projects within the League of Nations, including the universalisation of international law, changing modes of imperialism, and the constraint of state action through law. The thesis concludes with brief reflections on why British thinking turns away from recognition in the 1950s. With the collapse of the British Empire, the establishment of the United Nations, recognition is no longer a useful frame for exclusion and marginalisation, as the decolonising world turns to a new international law and self-determination.
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    Relationship contracting for the delivery of major projects: panacea or placebo?
    THOMAS, TREVOR ( 2011)
    This research investigates a range of legal issues with relationship contracts for the delivery of major construction and infrastructure projects. Historically, such projects have been delivered using a traditional form of construction contract. Relationship contracts attempt to foster a more productive working environment by shifting from a rights based culture to one based on collaboration. This research investigates a number of potential legal issues with this approach, including: the use of agreements to negotiate; collateral contracts; estoppel; fiduciary duties; good faith; and whether the dispute resolution mechanisms attempt to oust the jurisdiction of the courts.
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    Corporate legal advisers of state-owned enterprises in the People's Republic of China: the developing watchdogs
    Poon, Kai Cho ( 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.