Melbourne Law School - Theses
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ItemLockean foundations of private property rights(University of Melbourne, 2013)
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ItemGetting it right for the future : Aboriginal law, Australian law and native title corporations(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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ItemThe general anti-avoidance rule in Australian tax law(University of Melbourne, 2013)
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ItemThe Court of Arbitration for Sport : law-making and thequestion of independence(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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ItemInternational adjudicatory functions: a comparative study through the lens of environmental cases( 2016)This thesis asks how international adjudicators might discharge their functions given the demands of the contemporary international legal order and the limitations of their roles. In order to answer that question, the thesis uses the focus of environmental cases to analyse how adjudicators across four key sites of international adjudication manage the pressing problems of change, dispute resolution, and the standard and method of review, and why their practices differ. Addressing the question posed is important because international adjudication is in need of legal techniques which help meet contemporary demands, including by addressing concerns and potential shortcomings that have arisen with the increased adjudicatory activity of the past twenty years. The adjudication settings focused upon – dispute settlement in the World Trade Organization (WTO) and the United Nations Convention on the Law of the Sea (UNCLOS), International Court of Justice (ICJ) litigation, and investment treaty arbitration – are the key fora of global reach where environmental cases are litigated. Environmental cases are used as a focus because they arise across international tribunals with markedly different design features and functional orientations and are thus representative of the diversity which characterises contemporary international adjudication. The thesis incorporates methodological insights from comparative law as the issue of comparative methodology has often been neglected in existing comparisons of different areas of international law. The core argument the thesis develops is that international law needs adjudicators to adapt law incrementally, to enforce treaty disciplines, and to assist parties to resolve their disputes. However, the limitations on how international adjudicators might discharge their functions include both formal limitations, created by states as system designers, and practical limitations. Specifically, adjudicators often lack the legitimacy, specialist knowledge, or familiarity with local facts needed to engage in significant lawmaking, to weigh the relative importance of competing regulatory goals, or to fully dispose of a dispute. The findings of my analysis contribute to debates concerning the diverse functions performed by contemporary adjudicators, the legitimacy of international adjudication, and the nature of international law-making. The thesis adds to understandings of the role of adjudicators in incrementally adapting treaties. I explain why this is a key challenge, given international law’s limited processes for law adjustment, and why it plays out differently across various contexts, particularly in investment treaty arbitration. The thesis extends existing debates regarding the standard and method of review, which largely focus on WTO and investment adjudication, by also analysing these problems in the ICJ and UNCLOS contexts. This part of my analysis highlights significant and underappreciated opportunities for comparatively informed learning. The thesis extends existing debates regarding how adjudication might complement broader processes of dispute resolution involving post-adjudication negotiation or cooperation. I explain why, given relevant contextual features, adjudication in the WTO, UNCLOS and ICJ contexts often has a partly forward-looking and facilitative character, whereas investment arbitration has a largely retrospective and compensatory focus. I evaluate the potential for investment treaty arbitrators to adopt a more facilitative form of adjudication, which could assist the disputing parties to rebuild their relationship.
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ItemThe dynamics of legal transplantation: regulating industrial conflicts in post-Đổi mới Vietnam( 2016)The economic reforms (Đổi mới) initiated from the late 1980s in Vietnam led to the introduction of a new regulatory framework for industrial conflicts, which was built extensively on transplanted legal concepts. This thesis investigates how state actors borrowed, interpreted, adapted and implemented these concepts and the factors that impacted these processes. This investigation adopts systems theory as the general theoretical framework and discourse analysis as a methodological tool. This thesis finds that despite its extensive reliance on imported legal concepts, the regulatory framework for industrial conflicts in post-Đổi mới Vietnam was a unique system, with mixed features of socialist, capitalist and international labour laws. Further, state actors regularly retranslated and disregarded capitalist and international legal concepts and their underlying ideas while remaining substantially loyal to Marxist-Leninist notions and traditional perspectives. This resulted in the marginalisation of legal mechanisms, which were transplanted from capitalist and international labour laws, and the emergence of alternative mechanisms, which essentially replicated Marxist-Leninist and traditional regulatory means and principles. Notwithstanding this, there was limited but growing reception of legal transplants from capitalist market economies and international labour laws. Moreover, the thesis shows that several factors shaped the borrowing, adaptation, reception and marginalisation of foreign legal concepts. The most important factors include the continual but eroding impact of Marxist-Leninist political and economic ideas, the emergence of new modes of political and economic thought, the persistence, decentralisation and liberalisation of the Leninist political system after Đổi mới, and changes in economic policy and practice following this transition. Other influential factors include the frequent emphasis on moral values and perspectives, pre-Đổi mới and newly emerged legal ideas and principles, dialogical contestation between the actors involved, and their technical knowledge and communicative strategies.
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ItemGenerating content on social media: regulation by copyright laws, the terms of service and technological features( 2016)In this thesis, I analyse how the content generative behaviours of social media users are regulated from a copyright perspective. My focus is on comparing copyright laws with other regulatory factors on social media. These factors, being the terms of service and the technological features of social media platforms, can alter the effectiveness of the regulation of content generative behaviours by copyright laws. In making this assessment, I examine the regulation of such behaviours across five social media platforms, namely, Facebook, Pinterest, YouTube, Twitter and Wikipedia. Together, these popular platforms on which users generate content serve as a good sample for my purpose. In particular, I consider the application of copyright laws to various uses on social media, and how this application is aligned with the terms of service and the technological features of social media platforms. I have chosen to examine the terms of service and the technological features as they constitute the points of contact between users and social media platforms which can be readily surveyed. I have two reasons for taking this approach. The primary reason relates to the dearth of in-depth discussions of how specific social media platforms affect the role laws, including copyright laws, play in securing compliance from their users. The examination of the application of the terms of service and the influence of the technological features on users’ content generative behaviours is an attempt to address this. The second reason is to stimulate more critical reflections on how laws should develop to take into account the influence of social media platforms on user behaviours, through reform that gives users more leeway for the activities they engage in. This is crucial as the platforms are becoming increasingly ubiquitous. With the thesis, I will demonstrate how the regulation of users’ content generative behaviours by copyright laws, the terms of service and the technological features, can be analysed in a structured way, in a space as random as social media. In this respect, I will refer to the copyright laws of three jurisdictions – the United States, the United Kingdom and Australia – as well as the terms of service and the technological features of the five social media platforms. I will also use a case study detailing the content generative activities undertaken by a hypothetical user named Jane Doe and other users on the relevant social media platforms, as an anchor to conduct specific discussions on how copyright laws and the other two factors can regulate the content generative behaviours of users. Finally, I draw further from earlier empirical studies to support the arguments I will make in this thesis.
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ItemIntergovernmental relations in the administration of Islamic matters in Malaysia: strengthening cooperative federalist framework( 2016)Cooperative federalism is closely connected to the concept of intergovernmental relations. Both subjects have not been much researched in Malaysia, although several intergovernmental institutions are mentioned in the Malaysian Constitution. The administration of Islamic matters is a critical area affecting more than 60 percent of the total Malaysian population. Despite the distribution of powers stated in the Malaysian Constitution, there are many areas where there are problems in the administration of Islamic matters and their impact is not limited to Muslims. There are existing inter-governmental coordination and cooperation in the administration of Islamic matters in Malaysia. Although these inter-governmental arrangements (IGAs) are sometimes effective, they are not officially recognized as constitutional mechanism. The overall argument of the thesis is that inter-governmental relations in the administration of Islamic matters in Malaysia needs to be strengthened towards establishing a cooperative federalist framework in order to overcome some of the problems caused by the distribution of powers in the administration of Islamic matters in Malaysia. The existence of intergovernmental relations in the form of cooperative federalism in the administration of Islamic matters in Malaysia can be found in the constitutional distribution of powers in the administration of Islamic matter, the constitutional function of the Conference of Rulers, the administrative frameworks at the federal and state levels for the administration of Islamic matters, the efforts made by the Technical Committee of Syariah and Civil Laws towards uniformity of Islamic laws in Malaysia and the intergovernmental relations in the exercise of legislative and executive powers in the administration of Islamic matters. Data from library research and interviews conducted with a number of officers involved in the administration of Islamic matters at the Federal and State Islamic Religious Departments is used to explain and understand how the existing cooperative federalism operates. This study identified two current problems in the administration of Islamic matters where cooperative federalism has potential to provide solutions. The first problem is non-uniformity. The problem of non-uniformity is divided into two: the non-uniformity of regulations pertaining to the admission of Syariah Court lawyer to the States’ Syariah Courts and fatwa and its enforcement. The second problem relates to Islamic matters involving non-Muslims when one of the spouses in a non-Muslim marriage converts to Islam. The effects of conversion to Islam to the non-Muslim marriage is discussed including the marital status, the right to custody and guardianship, the maintenance obligation and the right to inheritance. A number of formalized cooperative federalism mechanisms can be implemented in order to overcome some of the existing problems and improve the administration of Islamic matters at the federal and state level. There are several challenges that need to be dealt if the cooperative federalist framework proposed is going to be implemented. These challenges are not insurmountable if all levels of governments are in agreement on working towards establishing a formalized cooperative federalist framework in the administration of Islamic matters in Malaysia.
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ItemHealth law, scholarship and forensic expertise: complications and challenges( 2016)The body of work submitted traverses a range of published scholarship on the intersections between the law and other disciplines, principally within the health domain. It grapples with dilemmas posed by how scholarly misconduct is responded to by the law, including fabrication and misrepresentation of research data. It also deals with a cross-section of health conditions that are challenging mental health assessors by their forensic requirements. It tracks the evolution of health law as an area of scholarly endeavour and aspects of mental health law, including by reference to therapeutic jurisprudence. It also engages with medicinal cannabis law reform, controversial issues in relation to regulation of health practitioners, accountability in relation to expert evidence, and modern developments in coronial law and policy.
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ItemMonitoring laws: the role of privacy in constraining state surveillance( 2016)This thesis explores the role of privacy law and allied concepts in constraining law enforcement surveillance and profiling. New predictive analytics technologies facilitate ‘automated’ profiling techniques that pre-empt criminal behaviour and identify suspicious individuals. It is argued that, at present, those surveillance exercises are insufficiently or inadequately constrained by law, and their relationship to privacy law, in particular, is unclear. Contemporary law enforcement information systems deploying automated profiling techniques did not emerge in a vacuum. They have their origins in earlier law enforcement technologies and practices such as dossier archives and habitual criminal registers. Privacy law, in different guises, and to different extents, has previously addressed the retention and processing of data in those types of file keeping systems. In particular, this thesis argues that, when applied to law enforcement profiling, privacy law functions as a negative protection of identity - a freedom from being profiled as a suspicious individual when such a characterisation is unjustified. That may be because profiling is based on information that inevitably produces an unfair interpretation of an individual (photography and habitual criminal registers), because profiling decisions are based on factually inaccurate or irrelevant data (text and dossier systems), or because a decision-making system manipulates data so extensively as to sever any connection with its semantic referent (transactional data and automated identification of criminal propensity). By understanding the connections and continuities between these surveillance technologies and uses, as well as understanding what in particular about the older technical regimes privacy law considered sufficiently objectionable to warrant legal intervention, the thesis explores the role privacy law might play in addressing contemporary automated profiling. This is achieved through two parallel investigations. The first is a socio-technical exploration of law enforcement information systems including photographic registers, dossiers and algorithmic decision-making tools. The second is a doctrinal exploration of privacy ideas, including constitutional rights to private life, data protection, and the possibility of integrating privacy enforcement with informational environments in order to automate legal action. The thesis identifies the harms associated with each surveillance technique, as well as how and to what extent privacy law has been able to assuage those harms, and then extrapolates the analysis into suggestions for how contemporary automated profiling might be appropriately regulated. This ultimately provokes reflection on the appropriate media of legal transmission in an increasingly technical social milieu, and the changing nature of the technologies of law.
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