Melbourne Law School - Theses
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ItemWhen Choice of Forum clauses in international commercial contracts are challenged: key lessons from Asian jurisdictions( 2019)While Asia leads the world in cross-border trade and investments, no comparative study exists on the approaches of Asian courts to Choice-of-Forum clauses in international commercial contracts. This thesis fills this important gap by seeking to explore, identify, compare and explain the approaches of courts in Singapore, Hong Kong, Malaysia and the Philippines when Choice-of-Forum clauses in international commercial contracts are challenged. Employing a comparative law method, this thesis argues that the manner courts characterise Choice-of-Forum clauses, party autonomy, procedure, factors considered during enforcement, choice of law process, state and international interests are the factors which determine how courts decide cases and issues. The key lessons gathered in this thesis highlight the need for parties to consider the direct and indirect effects in drafting their Choice-of-Forum clauses, the need for courts to be predicable, reliable and coherent in their analysis, the importance of maintaining court discretion, the need for procedural and legislative reforms, and the existence of a conducive environment in Asia for strengthening laws on party autonomy and for the accession of Asian countries to the Choice-of-Court Convention.
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ItemCrypto-Financial Assets in a DLT-Based Market Infrastructure: Legal Principles of Ownership and Obligation( 2019)Decentralised ledger technology (‘DLT’) first emerged in late 2008 and has its origins in the ‘blockchain’ technology designed to prevent ‘double spending’ within the Bitcoin cryptocurrency network. Whilst cryptocurrencies, in themselves, remain controversial, there has been a general recognition amongst the major commercial banks, central banks, and policymakers, that DLT and smart contracts may well improve efficiency in financial accounting, settlement, and other post-trade services. Although DLT is still in its infancy, with many authorities unwilling to stifle innovation by premature regulatory interference, some stakeholders have recognised that regulatory ‘sandboxes’ would, nonetheless, be a useful tool to overcome any identified issues, and help keep regulations and legislation up to date with change. This thesis analyses the private law implications and consequences, predominantly in the English laws of property and obligations, of adopting DLT at three levels of the financial markets infrastructure by reference to live case studies: (i) by the issuer, thereby creating a direct link between issuers and investors (the LuxDeco and Overstock securities); (ii) by a top-tier intermediary, such as a settlement system or central securities depository (the Australian Stock Exchange); (iii) by lower-tier securities custodians inter se (Deutsche Börse). The legal analysis is informed by a technical understanding and explication of the code underpinning the Bitcoin and Ethereum networks, the current state of the markets in native cryptoassets, and developments in the UK's FCA regulatory sandbox.
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ItemCopyright exceptions and contract( 2019)This thesis addresses the relationship between copyright exceptions and contractual provisions which seek to preclude users relying on those exceptions. It argues that the topic has been insufficiently theorised and that, in order to properly understand the interaction of copyright and contract, attention must be given to the rationale for freedom of contract and the contested rationales for copyright exceptions. Chapter 2 of the thesis addresses the doctrinal relationship between copyright exceptions and contract in UK. The chapter also considers recent legislative reforms in the EU and the way in which copyright exceptions and contract have been conceptualised under EU law, forming a context for the theoretical examination in later chapters. Chapter 3 discusses the nature of freedom of contract which is often referred to as a foundational or preeminent value within ‘western’ legal systems. The chapter argues that under the main theoretical understandings of contract theory there is significant scope to justifiably limited parties’ freedom of contract, particularly in connection with protecting the interests of third parties or where transaction involves significant externalities cannot take into account by the parties to the contract. Chapter 4 addresses Locke’s labour theory of property entitlement and the way it has been applied to copyright law. It analyses the extent to which Lockean theory can be applied to intellectual property law, discussing the nature of the intellectual commons that authors draw upon in order to create copyright protected works. It argues that the Lockean sufficiency, waste and charity provisos require the existence of copyright exceptions in order for property rights in expression to be legitimate. Chapter 5 of the thesis considers the law and economics understanding of copyright law and copyright exceptions. The chapter concludes that under a properly articulated law and economics approach to copyright law, copyright exceptions play important role in optimising the level of copyright protection and maximising social welfare. Chapter 6 considers the relationship between freedom of expression and copyright exceptions. It concludes that at both a theoretical level and within the approach taken by the courts, copyright exceptions must be consistent with freedom of expression interests and that copyright exceptions play important role in giving life to the broader social dimensions of freedom of expression. Chapter 7 draws together the material in chapter 3 on the nature of freedom of contract with the material in chapters 4, 5 and 6 on the rationales for copyright exceptions. The chapter argues that once the underlying theoretical rationales for both contract and copyright fully considered, it is clear that copyright exceptions are required under each of the underlying copyright rationales and that freedom of contract rationales do not justify permitting private parties to modify these copyright exceptions in their contractual dealings.
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ItemShould physical features discrimination be prohibited?( 2019)This paper commences by outlining a framework for determining when the moral underpinnings of discrimination laws on ‘traditional grounds’ (such as race, sex, disability and age) can be applied to justify further prohibited grounds of discrimination. Applying this framework, and drawing on the psychological literature and experience in the only Australian jurisdictions with physical features discrimination laws (Victoria and the Australian Capital Territory), it considers whether physical features discrimination should be prohibited. It argues, first, for prohibiting discrimination on the ground of physical features that are ‘immutable’, in the sense they are not chosen and are difficult to change. Second, it argues against prohibiting discrimination on the ground of chosen physical features generally. Third, it argues for also prohibiting discrimination on the ground of physical features that represent attributes already protected by discrimination laws.
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ItemDecentralisation, Law, and the Failure of Palm Oil Licensing( 2019)This thesis seeks to understand why the Indonesian central government has been unable to ensure local government compliance with the national laws and regulations that govern the licensing of palm oil plantations. Using a socio-legal methodology, it finds that the central government’s failures are rooted in a poor legal framework, a lack of supportive institutions, and the absence of political will. These findings have implications for decentralisation, the sustainability of palm oil, and the management of natural resources in Indonesia. Theoretically, decentralisation of government is seen as the key to improve democracy, security, and development, as it promises to bring government ‘closer' to the public. Embedded in this concept is a more inclusive decision-making process. Thus, in the context of natural resources management, decentralisation is said to improve fairness in benefit distribution as well as the sustainability of natural resources. Yet, almost 20 years after decentralisation began, the management of natural resources has still not improved, as the proliferation of irregular palm oil licenses demonstrates. Much research has tried to explain why the promises of decentralisation have not fully materialised in Indonesia, and most look at local level actors. However, in a unitary state like Indonesia, the central government is the ultimate expression of sovereign power responsible for governmental affairs. The few scholars who have investigated the central government’s role usually argue that it has been reluctant to let go power, and that is why problems have dogged decentralisation. While that is largely true in some other natural resources sectors, such as forestry, this research has only limited application to the palm oil industry. As this thesis shows, the Ministry of Agriculture, the portfolio ministry, does not try to assert its power over local governments, and, in fact, remains inactive in the face of problematic licensing. Further, the central government does not try to take ‘advantage’ of problematic palm oil licensing by withdrawing the licensing power from local governments, as it has in other sectors, such as mining and forestry. In short, the existing scholarship does not explain the nature of the central government’s role in managing natural resources, particularly palm oil. My research finds that while the central government has an important constitutional role, there are at least three interrelated factors that hamper optimal implementation of its role in the decentralisation of palm oil licensing. Legally, the regulatory framework for its role has been very weak, particularly monitoring and oversight of local government licensing powers. This is worsened by the nature of the sectoral approach to natural resource management in Indonesia, which is characterised by vague and conflicting legal frameworks. Institutionally, the ministry of agriculture has not developed an appropriate structure for monitoring and overseeing palm oil licensing, and as a result, there is no national database of palm oil licenses. The third factor, which underlies the other two, is the absence of political will to ensure palm oil licensing is sustainable.
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ItemIndonesia as a weak state? Bank restructuring after the Asian Financial Crisis( 2019)This thesis presents an original case study of the Indonesian Bank Restructuring Agency (IBRA), which was established to manage virtually all interventions into Indonesia’s banking system during the 1997-1998 Asian Financial Crisis. Although a seminal moment in Indonesia’s economic history, there is limited scholarship and even less popular understanding about the crisis and IBRA’s work to overcome it. This thesis is interested in how the state goes about defining, legitimising, and executing its responsibilities. Often, the state, or, more accurately, its actors and organisations, seems to work at cross-purposes to its ostensible policy objectives. Indeed, sometimes the state becomes more a site for different groups or actors to contest these actions. Examined closely, these contests reveal much about the nature of power in a society. To conceptualise these tensions, this thesis uses the analytical framework of a ‘weak state’, at the centre of which is understanding of the institutional factors that make some states less effective. This thesis surveys sociology, political economy, and economics literatures to synthesise its own definition of a weak state, that is, a state reliant on informal, negotiated, and ad hoc strategies to accomplish its objectives. Frequently these strategies are at odds with the established legal or procedural tools at its disposal. They are, as the thesis shows, historically and institutionally embedded. The thesis applies the weak state premise through its original research on IBRA. This analysis uses data collected through interviews and audits of the agency. In particular, the thesis closely examines IBRA’s work to conclude contracts, known as Shareholder Settlement Agreements, with two owners of major private banks it took over during the crisis. These contracts were ‘out of court settlements’ designed to trade legal release for the bank owners for the transfer of assets that could be quickly sold to recover part of the government’s spending on the rescue. This analysis shows how despite initial aspirations, IBRA made most progress within the modalities of a weak state, including negotiated and ad hoc strategies. Indeed, the very essence of this work and the actual procedures used to accomplish these settlements were highly informal. Moreover, IBRA’s progress generated considerable controversy and opposition within the state. This continues to have implications today, as evidenced through the corruption conviction – and unprecedented acquittal – of former IBRA Chairman Syafruddin Temenggung for actions related to one of the Shareholder Settlement Agreements. Ultimately, as the thesis shows, it was not only IBRA’s strategies that were highly contested, but even the state’s attempts to adhere to a transparent and legal approach in dealing with private bank owners. Ultimately, although IBRA recovered but a fraction of the funds spent rescuing private banks – a finding confirmed by this research – the thesis challenges whether this really was a poor outcome in light of the institutional problems confronting the agency.
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ItemThe state of knowledge and knowledges of the state in Pakistan( 2019)The subject matter of this thesis is the Pakistani state in its early years of founding. A broad ranging study of the conditions and discourses that organized the offices of the state, offices inherited and or formally authorized by an outgoing colonial power, has mostly been absent across studies that have found a great deal of other matter to investigate in reference to the Pakistani state and nation. In fact, as attention is often directed at a state that operates above and below as well as through the law in a manner that elides the imposition of limits on it’s powers, this lacunae is significant. Understanding the quality of interaction between branches of government or between the state and its citizenry requires a a slowing down of analysis to take account of these founding conditions; specifically, that representative government was chimerical at best and administrative office holders and members of the high executive acted with considerable latitude in a context of crisis and against ever present fears of national disintegration. In this thesis I argue from the premise that the actualization of governmental order simultaneous to the formal announcement of founding is a central aspect of post-colonial state formation. Furthermore, the priority of sovereignty and the challenges posed to its specific articulation make visible the logics and techniques to mark a dominant site of power in the new state. While it is tempting to see the primacy accorded to administrative offices thereafter merely as a hangover of colonial rule, by which the processes and hence the possibilities of popular sovereignty are denatured, it is my argument that more complicated operations were at play at this moment. To develop this argument I have taken four sites at which definite and deliberate choices were made to give shape to the administrative state. These are: the appropriation of colonial governmental forms and technologies; the promotion of aspirations related to a dominant Muslim nationalism and the quelling of other ideological programs; the alignment of territory and population to enable a concurrence between them in reference to identity and ideology; and the management of Pakistan’s relations with other states to bolster the powers of certain offices and officeholders. These sites enter into fields of operations by which early office holders, as evidenced by a record of their deliberations on a range of issues, engineer a novel governmental order The larger part of this thesis is focused on the early years after 1947 and situates a record of cabinet and executive documents from this time in a broader history of local and global events. This record of speeches, meetings, exchange of memo’s and correspondence traverses a vast field of governmental activity including economic and defense planning, foreign affairs, legislative drafting and relations with provinces. In addition, the presence of documents pertaining to private individuals, including intelligence files shared between governmental departments shows how coercive operations upon persons and groupings complemented the innovation and emergence of more diffuse governmental means. Altogether, the governmental operations within these sites are inter-related and emphasize practices of government in relation to the establishment of the state as an entity separate from nation, in the elaboration of a paradigmatic sense of internal security and in the practices of border-marking for the emergent state.
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ItemInternational Law Applicable to the Use of Nanomaterials in War( 2019)This thesis examines existing international law applicable to the use of nanomaterials during war. Although much has been written about the regulation of nanotechnology per se over the past decade, very little has been written about the regulation of individual ‘means or methods of warfare’ containing nanomaterials. This thesis analyses applicable international law by reference to three specific ‘means or methods of warfare’ that utilise the properties of nanomaterials, namely thermobaric weapons with nanomaterials, optogenetics and genetic modification. A full review of the legality of each use of nanomaterials under international law is considered, as would be required by Article 36 of Additional Protocol I. On the basis of this analysis, it is concluded that international law applies to the use of nanomaterials in war. By carefully examining the applicability of international law to these three examples of specific uses of nanomaterials at differing stages of use or development, it becomes clear that there is ample room for interpretation of the existing law to comprehend and include new technologies harnessing the properties of nanomaterials. In order for international law to function to the fullest, States should always conduct Article 36 reviews when any ‘means or methods’ of war include nanomaterials. Moreover, by conducting Article 36 reviews, States will generate commentaries and interpretations to support further reviews of all uses of nanomaterials to be used in war. Supplementary to Article 36 reviews, this thesis recommends that States strengthen existing law by including nanomaterials in official statements and expert advice provided to the treaty advisory bodies. Additionally, in some areas, such as international environmental law, new treaties are required to safeguard against the particular properties and unknown long-term health effects of nanomaterials. This research has relevance not only for future ‘means or methods of warfare’ including nanomaterials, but also for the complexity and breadth of law that should be considered for legal review prior to the use of any new and emerging technology or technologies in war or in peace.
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ItemMaking the world safe for investment: the protection of foreign property 1922-1959( 2019)This thesis studies the creation of the field of international investment law from 1922 to 1959. It investigates how the building blocks for an international legal regime for the protection of foreign private property came into being, understanding investment law as a practice, a way of doing things and attaching meaning to them, rather than as a conceptual framework. This approach leads to a shift in focus on two levels. First, the thesis studies the period before the contemporary instruments governing the field, bilateral investment treaties and the ICSID Convention, came into being. Second, the shift leads to a focus on the formation of rules, rather than their application. Sharpening the focus on what I argue are the events, which background what is traditionally taken to be the origin of the field, the thesis identifies the way particular preferences were stabilised into apparent necessities through the development of novel legal doctrine. A key site of the analysis is the assertion of jurisdictional authority over concession agreements, contracts for large-scale infrastructure projects and natural resource exploitation, in particular investor state arbitrations and attempts at codification. While concession agreements in the 1920s were considered exclusively a matter of domestic law, in the 1950s a powerful community of scholars and practitioners argued that they should fall under an international legal order and be called ‘economic development agreements’. This internationalisation was a claim for the universality of ideas propagating private property and the sanctity of contract, and a rejection of the authority of socialist and anti-colonial policies to redistributive ends. Western industry, former imperial governments, and liberal thinkers of law and of economics successfully claimed the international sphere for building a new legal order. The authority for such an international legal regime was based on a temporalisation of difference that relied on concepts like ‘civilisation’ and development to downgrade challenges to the rules of property protection by locating such challenges in the past. This was a process of self-authorisation through legal practice and academic writing, laying the groundwork for the later emergence of the regime of international investment law. The aim of this thesis is to pluralise understandings of legality in international investment law by drawing out the way that the ‘universal’ primacy of rights of property protection, which underpins the field today, emerged historically from a particular view of the world, and continues to privilege the interests associated with that world view.
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ItemThe Privilege against Self-Incrimination and the Compelled Production of a Password( 2019)Over the past decade, the use of encryption to protect electronic devices, including smartphones and computers, has become commonplace. Most people use encryption daily, often unwittingly. This has consequences for law enforcement, which increasingly finds itself unable to access data on encrypted devices, even where a warrant has been obtained to search that device. A common response to this problem is for law enforcement officials to seek an order compelling a suspect in a criminal investigation to produce the password to the encrypted device. In response, suspects have argued that providing that information would infringe the privilege against self-incrimination as it might reveal incriminating information. This thesis considers whether the privilege against self-incrimination can prevent the granting of an order to produce the password. It does so by asking whether an order compelling the production of a password – what this thesis terms a compelled production order – falls within the scope of the privilege; by examining how Australia’s understanding of the scope of the privilege compares to that adopted by courts in Canada, England and the United States; and by assessing how Australia, and the three comparator jurisdictions, have addressed this issue. This thesis adopts a doctrinal approach. It identifies how courts in the four jurisdictions have previously established the boundaries of the privilege when considering related cases, being cases that are concerned with similar issues to compelled production order cases. Such cases include those involving orders for bodily samples and single question reporting obligations such as those imposed on motor vehicle drives. Once the scope of the privilege is identified through those related cases, and the reasoning behind those decisions analysed, the thesis considers whether compelled production orders fall within that scope and if they have been resolved in a manner consistent with those earlier cases. This thesis does not, therefore, engage with the various proposed rationales for the privilege but instead has a more pragmatic focus. Recently, alternative means of accessing encrypted data, such as hacking powers for law enforcement and the power to compel a telecommunications company to remove encryption from their products, have received growing attention. In England and Australia, such alternative encryption workarounds are, like compelled production orders, authorised by statute. Those statutory provisions, however, require that the order sought, be it a compelled production order or one authorising the use of an alternative encryption workaround, must be proportionate – a requirement that demands that the measure used is the least intrusive of the effective means available. This creates a symbiotic relationship between compelled production orders and the alternative encryption workarounds, one that has consequences for the scope of the privilege. This thesis finds that while compelled production orders in Australia may fall outside the scope of the privilege in instances where the privilege has been abrogated, the use of a proportionality requirement in the relevant statutes means that the scope of the privilege has a fluid form and will contract or expand depending on the availability of an alternative encryption workaround.