Melbourne Law School - Theses
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ItemElements of accessorial modes of liability : article 25(3)(b) & (c) of the Rome Statute of the International Criminal Court(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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ItemRelationship contracting for the delivery of major projects: panacea or placebo?( 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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ItemCopyright exceptions: the experiences of cultural institutions in the United States, Canada and Australia( 2011)This thesis argues that we need a new paradigm through which to analyse the drafting of exceptions to copyright infringement – one that pays far greater attention to the attitudes and behaviours of those whose conduct is regulated by copyright law. Without empirical evidence, we risk misdiagnosing problems and recommending misguided solutions. However by combining both doctrinal and empirical techniques, we can provide a fuller account of the operation of the law, and determine how exceptions are best crafted to ensure they function as optimally as possible. This research focuses on the experiences of museums, galleries, libraries and archives. In addition to doctrinal methods, this thesis uses fieldwork to gain an understanding of how leading institutions in the US, Canada and Australia invoke exceptions, most notably fair use, fair dealing and sector-specific provisions. This analysis reveals that institutional experiences are far more nuanced than may be suggested by statements such as ‘flexible fair use standards are responsive but lack predictability’ or ‘detailed rules provide certainty but are unduly rigid’. This thesis concludes by considering what its findings means for law reform debates in Australia and North America.
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ItemA history of trade mark law in Australia: the colonial trade mark regime( 2011)This thesis provides for the first time, a history of trade mark law in Australia. Its focus is on the latter to middle part of the 19th century and early into the 20th century, predating the Commonwealth Trade Marks Act. This is because it was during this period when the legislative framework for trade mark protection was first established under the colonial trade mark regime and the most important, characteristic features of modern trade mark law developed. With a specific focus on this critical period, the legal narrative and this thesis considers the inception of the colonial trade mark regime, contextualising its genesis. It also examines the architecture of the colonial trade mark regime. The final part of the narrative focuses on the operation of the colonial trade mark regime. The key reason for this particular doctrinal focus is twofold. The primary reason relates to the lack of consideration given to the historical development of trade mark law in Australia to date, and in particular, the colonial trade mark regime. The second ancillary reason relates to the potential importance of this thesis to modern debates about trade mark law, which often refer back to and rely upon the assumed traditional principles of trade mark law, without any inquiry or deep understanding as to what those traditional foundations actually are, at least from an Australian perspective. In taking a doctrinal and empirical approach, this thesis draws on the relevant legal archive, containing the limited primary and secondary sources available relating to the colonial trade mark regime. Here, particular attention is paid to the colonial trade mark registers, which have been examined in detail. However, the relevant legal archive also includes the colonial trade mark statutes, the related Hansard reports, colonial newspapers and the case law reported as arising out of the colonial trade mark regime. This thesis further draws on the body of 19th century British (and to a lesser extent American) trade mark and other treatises as the authoritative legal texts of the time, as well as the statutory protection afforded to trade marks in the United Kingdom and the extrinsic material concerning early British trade mark law, so far as it relates to the colonial trade mark regime.
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ItemOpposition to Christian proselytisation in democratic Indonesia: legal disputes between Muslims and Christians in West Java (1998-2009)( 2011)Indonesia has a history of conflict between Muslims and Christians. Between 1998 and 2001, violence between these two communities increased across the archipelago. Some radical Islamists continue to wage sporadic campaigns against Christian religious activities. These campaigns are centred on the allegation that Christians are attempting to convert Muslims to Christianity, referred to as ‘Christianisation’. This thesis examines how and why Muslim opposition to Christian proselytisation, real and perceived, has intensified since 1998, and to what extent this has affected the resolution of disputes between Muslims and Christians through legal processes. This thesis argues that Muslims are opposing Christian efforts at proselytisation by using democratic state institutions and processes to legitimise violence, to establish laws that are based on Islam with little concern for religious minorities, and to publically condemn and punish converts from Islam to Christianity and those accused of insulting Islam. This opposition has increased since 1998 because of greater opportunities and freedom for all religious groups to practise and express their religion and beliefs. Free and fair elections, and the decentralisation of power to local governments, has created a more competitive political environment and contributed to the politicisation of religion at the local level. Radical Islamists have had a disproportionate voice in public debates on religion and law reform because of government ambivalence towards vigilante actions against minorities. This has affected the extent to which legal disputes between Muslims and Christians have been resolved, with local courts under pressure to issue decisions favourable to the religious majority. In response, Christians have exercised their democratic rights by appealing to independent human rights bodies and participating in the political process through debates, advocacy and political parties. Some churches have initiated judicial review of administrative decisions cancelling their building permits, while others have sought judicial review of laws and regulations that are perceived to discriminate against religious minorities. Through three case studies of litigation relating to religious education, church permits and blasphemy, this thesis demonstrates that Islamists are increasingly pressuring legislatures to pass laws, and the judiciary to make decisions, that discriminate against religious minorities, particularly Christians. This contest over Christian activities, intensified in an atmosphere of greater democratic freedoms, has placed increasing demands on the legal system and the courts to resolve disputes concerning religion. This is particularly problematic at the local level in an era of decentralisation, where the district courts remain weak, corrupt and easily intimidated by radical Islamic groups. This thesis argues that hostility towards Christian proselytisation, real or perceived, is partly responsible for many of the emerging legal disputes between Muslims and Christians in democratic Indonesia. It concludes that Muslim opposition to Christian proselytisation remains a key to understanding and addressing the escalation of legal disputes between Muslims and Christians in Indonesia.
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ItemThe final cut: film censorship in Malaysia, Hong Kong and Australia( 2011)This thesis reviews the film censorship system in Malaysia by comparing it with the Hong Kong and Australian systems. It identifies key issues that arise from the system by examining the laws, guidelines and administrative processes on paper and, evaluating film practitioners’ and censors’ opinion of, and experiences in, dealing with those issues in practice, and finally, develops reform proposals for the film censorship system. From both doctrinal and empirical research, it is suggested that the Malaysian film censorship system adversely affects that country’s film industry and its film practitioners. Hence, reforms to the system are warranted. The thesis therefore investigates what changes to the Malaysian film censorship system appear likely to promote the artistic vibrancy and commercial viability of the country’s film industry and makes systematic reform proposals. In addition to proposing reforms to the film censorship system, the thesis also explores the availability and suitability of judicial review as a legal avenue for film practitioners to redress grievances occasioned by state censorship of film. The remedies available to Malaysian film practitioners by way of judicial review application are examined, and the question whether such application is the best option for film practitioners to tackle censorship problems is weighed against countervailing factors. The thesis serves three functions. First, it offers original materials to enrich media law and media studies literature by analysing film censorship from a legal perspective, as well as considering film practitioners’ and censors’ opinions and experiences when dealing with censorship. The focus of much of the existing literature centres on the history of, and debates about, the desirability of censorship and the justifications for freedom of expression. Scholarly discussion about the effects of censorship laws on a country’s film industry and its film practitioners is limited, so this thesis makes an original contribution through investigation of film practitioners’ attitudes towards and experiences of the censorship process. Second, the thesis explains the need for, and the potential of, judicial review in film censorship matters. Third, the thesis develops law reform proposals and makes recommendations for changes to the Malaysian film censorship system in light of detailed analysis of the systems in Hong Kong and Australia, both on paper and in practice. The suggested reform proposals may also be applicable to other jurisdictions facing similar censorship issues and weaknesses in their existing systems.
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ItemRights, wrongs and the river between: extraterritorial application of the human right to water in Africa( 2011)Since it was declared as a human right for the first time in the General Comment of the Committee on Economic, Social and Cultural Rights (CESCR) in 2002, the human right to water has been a favourite subject of academic controversy. Much of the debate has been about whether the right exists as such, and, if so, whether it exists as an auxiliary right or as an autonomous, self-standing entitlement. This debate arises from the absence of an explicit reference in the texts of the main human rights treaties to the right to water. The CESCR found the right in the implicit terms of related rights. This purposive approach to ‘reading-in’ the right has been endorsed by the African human rights monitoring and adjudicatory body, the African Commission on Human and People’s Rights, a conclusion that is supported in the present study. This thesis joins the debate but, more importantly, also goes ahead of the current controversy and analyses the immediate implementation problems triggered by declaration of the right given the shared nature of scarce water resources in regions such as Africa. Unlike or beyond the necessities of implementing other socio-economic rights, the human right to water often depends primarily on a uniquely international resource for its realisation. Of the 54 African states, 51 states are dependent for drinking and sanitation water on international rivers that are shared between/among 2-10 co-riparian states. An action or omission relating to a shared river in one state thus has a direct impact on the fate of the human right to water in co-riparian states. Unless riparian states are held to account for their (in)actions that produce extraterritorial effects, some co-riparian states would be unable to realise the human right to water within their territories. Thus, the declaration of the human right to water would be an empty gesture for the right holders unless the relevant legal regime provides for ways to hold foreign states accountable for their acts or omissions that cause the violation of the human right to water abroad. The thesis thus analyses the extraterritorial scope of the right to water, relevant state duties and attendant remedies. The central question of the thesis is whether states owe extraterritorial obligations directly to individual and group right holders in a co-riparian state’s territory for the realisation of their human right to water. After analysing the corpus of relevant international and regional human rights treaties, the rules and principles of international water law and related case law (which may be relied upon as ‘inspirational sources’ of the African Charter on Human and Peoples Rights) the thesis answers this question in the affirmative. It is argued that while the extraterritorial duties to respect and protect the human right to water have firm legal bases in the international human rights regime, the duty to fulfil - a crucial guarantee in the water-scarce regions such as Africa - needs to be sought in international water law. The thesis therefore calls for ‘humanising’ international water law, and pinpoints textual bases in the 1997 Convention on International Watercourses and related customary rules for such an approach.