Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 10 of 26
-
ItemThe Ethiopian civil code project: reading a ‘landmark’ legal transfer case differently( 2017)The 1960 Ethiopian Civil Code is the largest legal transfer project into 20th century Ethiopia. Considered as one of the ‘landmark’ cases of ‘voluntary reception’ of western law in a non-western country, it has been studied by students of legal transfer, particularly in the 1960s and 1970s. This thesis responds to calls for the re-examination of the legal transfer project that sailed through radically different times – times that saw the emergence in Ethiopia of successive political regimes with their own ideologically-driven legal modernisation projects. It critiques and provides an alternative account to existing scholarship on the Ethiopian Civil Code project. It examines how contests over the nature of state and society relationships in Ethiopia (1890s-2010) have shaped the project. In order to do undertake this study, I develop an approach that spatially and temporally relativises Ethiopia’s experience with the legal transfer project and, rejects the modernist assumptions, methodologies and questions, which informed existing scholarship on the Ethiopian Civil Code project. Drawing on the case of the codification and implementation of, and pedagogical approaches to, Book III and the inter-temporal and inter-spatial contests thereof, the thesis argues the Ethiopian Civil Code, a familiar ‘poster’ of legal transfer failure in a non-western nation, is not the failure it is usually depicted to be by existing scholarship. Indeed, my approach avoids the question of success or failure altogether. Adopted and incorporated by Christian Amhara landed elites engaged in their own local project of imperialism, the Ethiopian Civil Code was a product of Ethiopia’s contested semicolonial legal modernity. Despite persisting through three different historical times and continuing to influence local practices, the Ethiopian Civil Code project is still subject to ongoing contestation and reinterpretation. As such, it is a repository of Ethiopia’s competing and entangled modernisms and imperialisms.
-
ItemEmpirical analysis of judicial reasoning: all trade mark infringement cases under s 120 of the Trade Mark Act 1995 (Cth)( 2017)In Australia, there has been no empirical research examining what legal factors determine a trade mark infringement claim under s 120 of the Trade Marks Act 1995 (Cth) (‘1995 TM Act’). Nor has there been empirical research regarding the impact of litigating collateral, concurrent claims under passing off or s 18 Australian Consumer Law (‘ACL’). This thesis fills that gap and is first Australian study to employ systematic content analysis of judicial decisions to investigate multiple aspects of trade mark infringement law. The thesis findings are based on 78 Australian judgments reported over a 20-year period (1 January 1996 – 1 January 2016). This dataset represents all first instance trade mark infringement decisions reported since the commencement of the 1995 TM Act where a s 120 claim was judicially considered. The thesis method is based on an empirical approach used by Barton Beebe in his study of US trade mark infringement law. The empirical analysis provides insights not available via traditional doctrinal analysis and resolves several uncertainties in Australian trade mark infringement law. With regards to the outcome of a s 120 claim, regression analysis reveals that two statutory elements are determinative — ‘trade mark use’ and ‘deceptive similarity’. Chi-square analysis shows that with regards to trade mark use, the determinative factors are the ‘immediate context’ of the mark, the ‘purpose and nature of use’, and an application of ‘policy’ considerations. With regards to deceptive similarity, the three determinative factors are ‘similarity in ideas’, ‘similarity of impression’, and ‘aural/visual similarity’. These findings are consistent with Beebe’s study (in respect of the cognitive finding) that only three cues are judicially relied upon to determine a trade mark infringement claim. This thesis finds (contrary to the tropes in the literature) that considerations such as reputation, marketplace factors, or estimates of consumer confusion are not strongly associated with a use or deceptive similarity finding. Also, in contrast to the US critique — that the Australian trade mark use test creates inefficiencies caused by a laboured consumer-dependent inquiry — this thesis reveals that the Australian use test actually operates as an efficiency tool. This thesis shows that cases that ‘turn on’ use, resolve 39% more quickly than cases that ‘turn on’ deceptive similarity. The distinctive aspects of Australian law that enable the effectiveness of the trade mark use test are discussed. This thesis also reveals that a collateral claim under s 18 ACL improves the chances of a plaintiff’s net win by up to 10%; but that passing off in this context has become redundant. Importantly, the analysis also reveals a decline in pleading under ss 120 (2) and (3) and an increase in reliance on s 120 (1). A further, original contribution of this thesis is to provide doctrinal and practical implications of this and other findings. Reflections on the method as well as directions for future research are proposed in the concluding chapter.
-
ItemHuman trafficking for forced labour under transnational criminal law: responses to the abuse of migrant workers in Southeast Asian Fisheries( 2017)In light of the human trafficking of Cambodian migrant workers on board Thai-owned fishing vessels operating in Indonesian waters, in this thesis I ask: 'what does the legal response to the human trafficking for forced labour of fishermen in Southeast Asia tell us about transnational criminal law?' I address this central research question through an analysis of the transnational criminal law created by both the United Nations treaties, and by multilateral and bilateral Southeast Asian regional instruments, as it relates to the human trafficking for forced labour of fishermen in Southeast Asia. Through this analysis, I argue that the transnational criminal law regime of human trafficking has four central obligations which are imposed on States Parties. These are the obligation to harmonise state responses to human trafficking; the obligation to criminalise the offence of human trafficking as defined by the Trafficking Protocol; the obligation to establish jurisdiction over offenders on a range of bases; and the obligation to implement the aut dedere, aut judicare principle. Of these, the requirement to harmonise responses to human trafficking between states parties is the primary obligation. All others are subsidiary to this. I argue that in Southeast Asia, key states - namely Cambodia, Thailand and Indonesia - have failed to effectively harmonise their responses to the human trafficking of fishermen, in contravention of their obligations under transnational criminal law. This failure has drawn into sharp relief the work of certain 'intermediaries' such as ASEAN, the International Organisation for Migration, and the International Labour Organisation in the anti-trafficking area. I argue that through their programmes and pronouncements, such intermediaries are contributing to a body of 'soft' transnational criminal law.
-
ItemAn expressive theory of possession( 2017)Possession is universally regarded as a keystone concept within the law of property. Yet, it is also notoriously complex and poorly understood. Although it is uncontroversial to say that, at common law, possession is a “root of title”, or way of creating an original property right in a tangible thing, leading scholars agree on little else. The disagreement spreads across several fronts. There is no consensus on whether possession is simply a fact that creates property rights, or whether it also describes a sort of legal interest in an object of property. There is also disagreement about whether possession is a simple, observable fact about physical control or a more complex, and uniquely legal, concept concerned with the particular intention, or animus, displayed by the possessor. And this is to say nothing of the broader philosophical argument about why the unilateral act of possession should create a right in rem at all. This thesis aims to explain the nature and function of possession in the law and, in doing so, to demonstrate that the concept is far simpler than generations of lawyers have been led to believe. The expressive theory of possession developed in this thesis has important implications for the way in which lawyers conceive of possession in both theory and practice. This thesis argues that possession is not a right, or other form of jural interest, but a fact that creates original property rights in objects of property. Although this is not in itself controversial, the account offered in this thesis departs from traditional Anglo-Australian explanations in so far as it stresses that the significance of possession has little, if anything, to do with the ability of the possessor to exercise physical control over a tangible thing. Instead, it is argued that possession plays an almost exclusively expressive role within the law of property. That is, certain acts amount to “possession” because, within a particular population, they send a recognized and accepted signal about the intention of some person to stake a claim to an object that counts as a “thing” within property law. Moreover, drawing on insights from game theory, the theory of possession developed in this thesis departs from influential philosophical explanations in so far as it argues that, despite its obvious and important distributive consequences, possession’s status as the rule that answers the most basic questions of mine and thine cannot be not attributable to some moral quality that is peculiar to acts of possession.
-
ItemBusiness persons and international criminal law: challenges of policy, principle and proof( 2017)This thesis addresses the challenges to the investigation and prosecution of business persons, including officials of corporations, before international criminal courts with a focus on the International Criminal Court. It examines this issue by considering the relationship between individual criminal liability for collective system crimes, substantive doctrine, modes of liability, the negative implications for the individual criminal responsibility of corporate officials caused by the lack of corporate criminal liability, prosecutorial policy regarding suspect selection and evidence collection and use. It is a novel study particularly with respect to the evidentiary challenges to the investigation and successful prosecution of private economic actors. Each of these factors operate so as to focus international criminal prosecutions on public and organisational actors involved in genocide, crimes against humanity and war crimes, rather than private economic actors. Each of these factors make the prosecution of individual business persons at international courts under international criminal law, difficult and unlikely, but not impossible.
-
ItemPower, legal authority and legitimacy in the regulation of international sport( 2017)This thesis challenges the conventional conception of the private law regulatory regime of international sport. That conception is that regulatory authority in international sport is consent-based and exercised by voluntary associations acting through private law contracts. This orthodox conception is untenable. It involves a basic conflict with the categorical nature of regulatory power claimed and exercised in international sport. Further, the incidence of direct contracts between the regulatory bodies and those subject to regulation only covers a small minority of those whose activities are regulated and is inadequate to support the characterisation. Resort to ‘indirect’ contractual links and other legal fictions is also inadequate to support the characterisation. This thesis argues that on proper analysis, international sports governing bodies principally exercise arbitrary de facto private power which is made possible by their monopoly position in sport’s hierarchies and their unique capacity to enforce their own sanctions without requiring support from state legal systems. This de facto power is also supported by the arbitral regime of the Court of Arbitration for Sport. This arbitral regime is permitted to operate by state legal systems in the absence of an arbitration agreement between international federations and those over whom they exercise regulatory power, this concession based on manifestly inadequate justifications. It is also argued that the assumption implicit in the conventional consent-based conception that the de facto power of international sports governing bodies represents the exercise by those bodies of their individual liberty as voluntary associations is incoherent: the scope of individual liberty cannot extend to include non-consensual de facto power over others as this would be defeating of all liberty. The implications of these inadequacies in the conventional conception are amplified by the fact that the regulatory regime of international sport is afflicted by a fundamental legitimacy deficit in that power is exercised by institutions that are neither representative of nor accountable to those who are regulated. In addition to the moral and legal issues raised by the reality of the regime being based on de facto power, institutional corruption in sport is argued to be one consequence of the absence of proper legal and democratic legitimacy. The concern is not that there is private regulatory power in international sport, but that this regulatory power is neither legitimate, nor is it legally sound. Securing a legitimate and legally sound regulatory framework is equally the concern of the international federations as well as those subjected to the federation’s regulatory power. Reforms are required to establish a regulatory regime that is both legitimate and legally sound. However, to be efficacious, these reforms must resolve the tension between international sport’s inherent requirement for the application of uniform and consistent, and therefore categorical regulation, with the prerequisites for the creation of obligations in private law. Reforms based on the introduction of a legitimate regulatory regime based on democracy and legally supported by an international convention are proposed.
-
ItemIsraeli Settlements and the ICC: what does the application of the crimes of the Rome Statute to the continued existence and expansion of Israeli Settlements in the West Bank reveal about the operation of the Rome Statute?( 2017)The International Criminal Court, established by the Rome Statute, was created to provide a venue of last resort for the prosecution of the most serious international crimes. However, whether the Statute successfully established a coherent and legally effective system of international criminal justice is open to question. This thesis examines this issue by considering how the crimes of the Rome Statute might apply to the continued existence and expansion of Israeli settlements in the West Bank. The examination reveals some of the difficulties caused by incorporating the principles and obligations of international humanitarian law generally and the law of military occupation specifically into the crimes of the Rome Statute. This methodological approach allows for parts of the Statute to be ‘stress-tested’ to see how they meet, or fail to meet, the Statute’s broader aim of establishing a coherent and legally effective international criminal justice system where the law is knowable, predictable, and able to be applied. Two crimes have been identified as being particularly relevant to the settlements. First, the war crime of transfer of population in article 8(2)(b)(viii) and second, the war crime of unlawful appropriation of property in article 8(2)(a)(iv). The texts of these two war crimes in the Rome Statute are taken verbatim from relevant provisions of international humanitarian law (IHL) and the law of occupation more specifically. This thesis also addresses the threshold question of whether the law of occupation applies to the West Bank, and how the principles of individual criminal responsibility, and specifically common purpose liability, might operate in this context. The study of the operation of these crimes shows some of the consequences of taking clauses from IHL and inserting them wholesale into the Rome Statute, without any amendments to reflect the reality that individual criminal responsibility is different from state responsibility. This thesis demonstrates how the interface between IHL and international criminal law can be problematic. It shows how the adoption of vague and flexible principles from IHL into crimes for which individuals can be held liable has the potential to cause serious inconsistencies between IHL doctrine and the operation of international criminal law. In addition, in the event of an investigation or prosecution in relation to the settlements, the thesis provides a point of comparison to the legal approaches of the Prosecution and of the Court’s Chambers, allowing for an assessment of how each organ is carrying out their roles, and providing insight into how each organ may perform in any specific future case. While the thesis does not set out to determine the criminal responsibility of any particular individual, it does in some instances stake a claim about what is the most persuasive legal position to take on the scope and operation of the crimes. Deviation by the Prosecutor or the Judges from these positions could reveal a different attitude to the most persuasive legal position to take but may also suggest something about the priorities and operation of the relevant organs of the Court.
-
ItemThe Australian Takeovers Panel: an effective forum for dispute resolution?( 2017)The Australian Takeovers Panel (‘the Panel’) has been the primary forum for resolving takeover disputes since reforms to Australian corporate law on 13 March 2000. This thesis makes a sustained scholarly contribution to the evaluation of takeover regulation under Australian corporate law by analysing the extent to which the Panel has been an effective forum for dispute resolution. The thesis addresses two overarching research questions, namely to determine the criteria that should be used to measure the effectiveness of the Panel in resolving takeover disputes and the extent to which the Panel has satisfied these criteria. The work in the thesis is original and is based on a detailed evaluation of the Panel’s decisions from 13 March 2000 to 30 June 2016. It is the first major academic study of the Panel since it became the primary forum for resolving takeover disputes. Chapter 1 provides an explanation of the key concepts relevant to the analysis in the thesis, explains the research questions and methodology used to answer them, and sets out the structure of the thesis. Chapter 2 informs the assessment of the effectiveness of the Panel in the thesis by analysing the policy goals underlying the historical development of Australian takeover regulation and the establishment of the Panel and its predecessors. Chapter 3 examines the historical development of the Panel on Takeovers and Mergers (‘UK Panel’), which is the key comparator for the Australian Panel for the purposes of establishing the criteria to be applied to determine the effectiveness of the Panel. It concludes that the three objectives for the UK Panel, namely speed, flexibility and certainty, can be used as the criteria to be applied to the Australian Panel to determine its effectiveness. Chapter 4 assesses the speed of Panel decision-making based on an empirical analysis of the timing of the announcement of Panel decisions and publication of the reasons. It concludes that the Panel has achieved a strong form of speed overall. Chapter 5 assesses flexibility of Panel decision-making based on procedural and substantive flexibility. It concludes that the Panel has achieved a strong form of flexibility overall. Chapter 6 assesses the certainty of Panel decision-making based on consistency and finality of decision-making. It concludes that the Panel has achieved a medium to strong form of certainty overall. Given this, Chapter 7 concludes that the Panel has provided an effective forum for dispute resolution in light of the aims of the CLERP reforms.
-
ItemLaw, change and socialisation: constructing an account of the role of NHRIs in addressing systemic human rights violations( 2017)National human rights institutions (NHRIs) are domestic statutory bodies established with broad mandates to protect and promote human rights within states. Over two decades since NHRIs agreed to minimum standards for independent institutions and set them out in the Paris Principles, scholarship has moved from its initial focus on the design, form and proliferation of NHRIs to examining their effectiveness, accountability role and contribution to social change. In my thesis I set out to answer the question: what, and how, do national inquiries conducted by NHRIs contribute to the socialisation of international human rights norms? I answer this question by exploring how NHRIs in the Asia-Pacific have utilised national inquiries to address systemic human rights violations. I privilege the experiences of NHRIs in conducting national inquires and adopt a constructivist grounded theory methodological approach. I explore three thematic areas: an NHRI’s foundation in law, what (if any) change has occurred, and the socialising dynamic which facilitates it. I analyse the mandate, functions and powers granted to NHRIs in their founding legislation including their capacity to undertake a national inquiry. I develop an anatomical conceptualisation of the national inquiry process to document the common procedural approaches taken by NHRIs. I begin my examination of the change created by national inquiries with the Mongolian Commission’s national inquiry on torture. From interviews with commissioners and Commission staff, judges, lawyers, prosecutors, police, prison guards, civil society representatives and leading NGOs, academics and donors I construct an account of the national inquiry process and the change it created. I also consider the change created by national inquiries in three jurisdictions across the Asia-Pacific. Focusing on process and impact, I review the Indian Commission’s national inquiry on the right to health care, the New Zealand Commission’s national inquiry addressing transgender discrimination and the Australian Commission’s national inquiry on the forced removal of indigenous children from their parents. I then analyse the socialisation processes evidenced through the national inquiries examined in the preceding chapters. I find that there are four core characteristics of the national inquiry which contribute to socialisation: a foundation in law, a relational dynamic, its public nature and orientation towards change. This complex socialisation process is a long-term project, and a national inquiry can be an influential part of it. While there are barriers to change and uncertainty about the extent of NHRI impact, the evidence does permit cautious optimism: national inquiries conducted by NHRIs offer an avenue to foster progressive and incremental domestic socialisation of international human rights norms.
-
ItemOrdering human mobility: international law, development, administration( 2017)This thesis examines how international laws and institutions have come to regulate human mobility in the contemporary world. The last two decades have seen a flurry of activity within international institutions concerned with facilitating the movement of people between states, including to and from states in the Global South. In this thesis, I characterise this activity as a form of international administration through which international institutions exercise authority over mobile people and contribute to shaping the conditions and possibilities of human mobility. In the contemporary moment, I argue that the international administration of human mobility has made lawful particular forms of human mobility, crafted certain migrant subjectivities and shaped specific practices of statehood for governing human mobility. This thesis demonstrates this argument through narrating three illustrative episodes of international migration administration from the mid-20th century onwards. These episodes identify a repertoire of techniques and practices that international institutions have used to render human mobility a problem of international concern and a subject of international administration. Specifically, I show that these diverse techniques and practices have been organised around two technologies of international administration: those of ‘population’ and the ‘human’. In paying attention to how these techniques and practices of international institutions have come to order different forms and subjects of international migration, this thesis foregrounds two recurring imperatives of the international administration of human mobility: that of authorising the lawful control of states over human mobility on the one hand, and that of facilitating and regulating the ‘optimal’ movement of peoples across the world on the other. I contend that the articulation of these imperatives has been mediated through the enterprise of development directed towards Third World states and people that underpins the contemporary international administration of human mobility. This thesis thus invites readers to take seriously how international law and institutions have shaped and ordered human mobility in the world. This thesis suggests that the techniques and practices of international migration administration have important consequences for the states and people of the Global South, who in the contemporary moment have become both subjects of ever-more restrictive migration controls and objects of ever-more prescriptive political interventions.