Melbourne Law School - Theses
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ItemTwo Worlds, One Forum: Investor-State Arbitration and Indigenous Rights( 2020)Investment treaties and investor-state dispute settlement (‘ISDS’) have been seen to have a significant effect on the rights of indigenous peoples, which has led to development in regards to both the substantive rights of investors in investments treaties (such as the inclusions of ‘carve out clauses’ which are intended to preserve the rights of indigenous from foreign investors) and how arbitral tribunals deal with the rights of indigenous peoples when adjudicating investor-state disputes. Accordingly this paper seeks to further examine developments in this niche jurisprudence and discuss the implications of these developments. This paper will firstly consider the various rights of indigenous peoples that are seen to be at play in an international law context, and various legal instruments in which some of those rights are reflected in and derived from. Secondly, this paper will examine a selection of relevant investment treaties which have provisions affecting the right of indigenous peoples that have been considered by tribunals. More recent investment treaties that have more developed provisions which affect the rights of indigenous peoples are also considered. Thirdly, this paper will examine how the rights of indigenous peoples have been applied by tribunals in investor-state arbitrations. Fourthly, this paper will explore how the rights of indigenous peoples may be further applied in investor-state arbitrations and consider the practical application thereof. Finally, this paper will briefly explore how ISDS reform may affect the rights of indigenous peoples being applied in investor-state arbitrations. In doing so, this paper argues that the development of ISDS jurisprudence in cases concerning the rights of indigenous peoples, indicate an openness to considering, incorporating, and applying the rights of indigenous peoples in investor-state arbitrations.
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ItemCrafting Legal and Institutional Frameworks for Groundwater Resources of Bangladesh: From Overexploitation to Sustainable Abstraction( 2020)Economic activities in Bangladesh are heavily dependent on groundwater resources, which contribute to approximately 79% of total annual water withdrawal. Indeed, Bangladesh has achieved near self-sufficiency in food through irrigated agriculture, and thriving on groundwater, it has become the world’s second-largest garments exporter. This achievement, however, continues to cause significant damage to its invaluable groundwater resources. In short, a growing population, ever-increasing agricultural, industrial, and domestic water demands, and the impact of climate change are all exerting unprecedented stress on Bangladesh’s groundwater systems and supplies. These combined effects result in the depletion of the water table to an extent where it cannot be naturally replenished. Declining water tables, therefore, continue to challenge groundwater sustainability in Bangladesh. Instead of groundwater governance and management, the country has focused on resource development for a considerable period of time. Against this backdrop, drawing on in-depth interviews conducted with the responsible government officials, judges, scholars, and groundwater users, this thesis examines the viability of the existing legal and institutional frameworks in tackling the mounting challenges stemming from groundwater over-extraction. The thesis finds that the existing legal framework is ineffective and inefficient in controlling unsustainable groundwater extraction. Though requiring a permit for the installation of a well, for instance, is a substantial legislative improvement, without an associated water metering obligation, it fails to control indiscriminate groundwater pumping. Additionally, the sustainability of this resource is threatened by the lack of a legislative requirement for capping extractions to prevent unrestrained groundwater withdrawal in the industrial sector. Moreover, conflicts and overlaps between water laws; an absence of community and expert involvement in the lawmaking process; and persistent legislative ambiguities in relation to the delineation of appropriate responsibilities among water institutions undermine the noble vision of groundwater sustainability. Beyond these fatal gaps in groundwater laws themselves, compliance and enforcement remain a perennial problem in Bangladesh. A lack of knowledge of groundwater laws among the regulators and the regulatees, and a historic lack of groundwater regulation, among other things, stand in the way of achieving sustainable extraction of groundwater resources in Bangladesh. The thesis further finds that water institutions that are responsible for governing groundwater withdrawal are poorly designed, resulting in their consistent failure to arrest the declining water table. The presence of an excessive and unnecessary number of water institutions creates substantial uncertainty in establishing robust coordination among these institutions, which is further exacerbated by resource and data shortages. This, in turn, significantly limits their capacity to undertake a sustained collective response to overcome the daunting challenges posed by growing groundwater depletion. In the face of these overwhelming institutional limitations, however, the thesis demonstrates the promise of the Barind Multipurpose Development Authority, which has significantly reduced groundwater pumping for irrigation in the Barind Tract through the introduction of a prepaid smart metering system. Beyond the legal and institutional frameworks, the thesis also considers whether the judicial intervention could offer some respite to this rampant crisis. The thesis finds that there remains considerable scope for the Court to facilitate groundwater sustainability through its balanced and targeted judicial action. Finally, the thesis identifies lessons for both policymakers and the literature on how these challenges may be overcome.
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ItemA (Functional-Purposive) Comparative Analysis of the Protection of Workers Involved in Triangular Work Arrangements through Labour Providers in Australia and Italy. How can the Australian labour hire regulatory approach benefit from the Italian agency work regulatory experience?( 2020)This thesis draws on the international debate around the role of labour law in protecting workers involved in triangular arrangements such as agency work, also referred to as ‘labour hire’ and broadly referred to in this thesis as ‘triangular work arrangements through labour providers’ (TWAs through labour providers). It does so with the aim of understanding the rationale of the seemingly divergent regulatory patterns that have emerged in Australia and in Italy, despite the similar challenges posed in many jurisdictions by this non-standard form of work. While in the former country there is a current call for regulation to provide a stronger protection for labour hire workers, the latter has gradually relaxed a series of strict provisions to ensure a higher level of flexibility for businesses that resort to agency work. Against this background, this thesis investigates why, despite the similarities of certain problems such as protecting workers involved in non-standard forms of work, legal solutions develop differently in different countries and what can be drawn from it. To this end, the thesis addresses the following questions: 1) what is the protection offered to workers involved in TWAs through labour providers in Australia and in Italy? 2) how can we explain and make sense of the differences and similarities that have emerged? 3) what can Australia learn from the Italian regulatory approach to TWAs through labour providers for the purpose of implementing protective measures for labour hire workers? In answering these questions, the present study distances itself from legalistic mainstream comparativism. It departs from previous attempts to assess the Australian relative lack of protection of this category of workers using system-specific concepts that belong to the European and/or other legal cultures. In contrast, this thesis takes a functional comparative approach to assess whether, behind the divergent paths taken in Australia and Italy to protect the workers under analysis, the results are functionally similar. To this end, the comparative analysis of the respective measures is structured around a system-independent normative benchmark: the function of the laws regulating TWAs through labour providers following a purposive approach to labour law. The differences and similarities of the regulatory solutions are discussed in light of their historical development, within the respective legal and socio-economic context. Lessons are drawn from the Italian regulatory experience, which despite its ostensibly superior purposive alignment, presents a series of shortcomings especially in relation to labour intensive and low skilled workers in sectors equally problematic in Australia. In light of these findings, relevant policy recommendations are made for the Australian regulatory approach. Final reflections on the method and on the ‘purposive approach’ theory underpinning the functional comparison are drawn and future research directions are highlighted.
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ItemAddressing the Vilification of Women: A Functional Theory of Harm and Implications for Law( 2020)Certain categories of vilification, including, in particular, vilification on the basis of race, are expressly recognised as legal wrongs under Australian, international, and foreign domestic laws. Notwithstanding its prevalence, vilifying speech directed at and about women on the basis of their female sex remains unregulated in most jurisdictions. Nor has the issue of sex-based vilification received much scholarly or policy attention. This thesis examines the need for anti-vilification laws to address sex-based vilification. It relies on critical and speech act theories to arrive at a functional theory of sex-based vilification with reference to its harms, as relevant to law, as discriminatory treatment of women that constitutes and causes the systemic subordination and silencing of women on the basis of their sex. It applies that functional theory of harm to sex-based vilification as it manifests as part of the cyber harassment of women to arrive at some commonly occurring categories of sex-based vilification, namely: threats and violent invective; sexualised invective; non-consensual pornography; other objectifying speech; and other contemptuous speech. It argues that speech constituting one or more of those categories of sex-based vilification systemically subordinates and silences women on the basis of their sex, in ranking women as inferior or for use on the basis of their sex and (re)enacting permissibility facts in and of patriarchal oppression that legitimate the treatment of women accordingly. This thesis then considers some implications of that functional theory of harm for law. In order to consider the utility of potential sex-based vilification laws, this thesis considers what the sex-based gap in anti-vilification laws, policies, and policy conversations plausibly presently does, as well as what sex-based vilification laws plausibly may do if enacted. It argues that the gap in the law accommodates and authorises sex-based vilification’s systemic subordination and silencing of women on the basis of their sex. It argues that, conversely, the enactment of sex-based vilification laws would constitute a counter-speech act of the state’s that plausibly may quash or mitigate some of the systemic subordination and silencing harms to women of sex-based vilification. It also considers the strength of the free speech interests to which sex-based vilification gives rise and that, accordingly, its regulation by law would potentially burden. It argues that speech constituting sex-based vilification ought to receive a relatively low degree of protection pursuant to a liberal free speech principle, unless it has communicative functions with relatively strong connections to the values, interests, or purposes that underly or motivate such a principle.
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ItemCriminal Sentencing in Indonesia: Disparity, Disproportionality and Biases( 2020)This thesis assesses 1,100 Indonesian criminal justice decisions on theft and embezzlement-related offences as well as corruption in four first instance courts (2011-2015, but excluding 2013) to better understand sentencing practices in that country. Using a socio-legal methodology, it investigates the consistency and proportionality, as well as fairness (unbiased) of the sentencing practice, particular between offenders of different socio-economic backgrounds as well as the legal and extra-legal factors that contribute to sentencing outcomes. This thesis finds unwarranted disparity and disproportionality in sentencing practices in Indonesia, particularly in cases involving medium and large losses. Further, while offenders charged with corruption received overall relatively longer imprisonment sentences than offenders charged with theft and embezzlement-related offences in the same categories of loss, when the differences in the offences’ minimum and maximum penalties – as the expression of an offence’s seriousness – are put into the equation, corruptors are indeed punished disproportionally more lenient compared to thieves and fraudsters. This is because the minimum and maximum imprisonment sentences for corruption are much longer then for theft and embezzlement-related offences. I also find that many law enforcers and judges have suffer from class-bias or are involved in corruption, which leads them to be lenient in charging and sentencing corruption offenders from middle and upper socio-economic backgrounds. They did so, including, by deliberately misinterpreted provisions in the Anti-corruption Law and Supreme Court guidance. Judges’ perspective of different offences seriousness between theft-related offences and corruption (with the first-mentioned offences are generally seen as more concerning to the public as the later one) also influence the disproportionality of sentences between the two types of offences. This thesis also shows that while judges do consider legal factors in sentencing, particularly the type of offence committed and the amount of loss caused, they tend to be overly influenced by a desire to avoid appeal by prosecutors (which would increase their workload and prolong the time that offenders have to spend behind bars due to the practice common of pretrial detention and, to a lesser extent, the long appeal process). This often leads judges to follow the prosecutor’s sentencing recommendations, particularly in theft and embezzlement related offences. Worse, to avoid appeal, judges imposed more severe sentence than what is permissible on minor theft and embezzlement offenders simply because the prosecutor mischarged them by non-minor offences provisions (that demand longer prison terms). In other words, how the case is processed by the investigator and prosecutors significantly shapes sentencing outcomes. The Supreme Court’s failure to provide sufficient sentencing guidelines and, more importantly, consistent decisions, including enforcing the existing guidelines, also contributes to these problems. In summary, this thesis empirically confirms the public perception of class-bias and corruption in the Indonesian criminal justice and, further, illustrates how poor law enforcement, case management and weaknesses in the Supreme Court distort sentencing.
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ItemReforming Group Legal Personhood in Indonesian Land Law: Towards Equitable Land Rights for Traditional Customary Communities( 2020)An adequate definition of group legal personhood (that is, a rights and obligation-holding personality) in Indonesian law is essential if there is to be equal land rights distribution. The present unclear definition of groups in the law as legal persons, coupled with uncoordinated and fragmented government policies, means that land-related decision-making usually operates only for the benefit of persons seen by the law as an ideal legal subject. In this thesis, I focus on 'person' in the sense of a group of individuals that associate as a single unified entity. In Indonesia and in general legal doctrine, the lack of clarity in the definition of ‘legal person’ has resulted in traditional customary (adat) groups and their customary land title being excluded and this vulnerable to marginalisation and land expropriation. This has given rise to much debate about which groups can be said to have a legal personality as bearers of rights and obligation, and why. The thesis aims: to understand the core concept of a group as a legal or juridical person; investigate how decisions on land rights are made by the Indonesian government; how traditional customary (adat) groups themselves choose to be recognised; and how such distributions could be reformed to better protect adat groups. Two case studies on specific policies related to the asserting of the customary communal land title (hak ulayat) are reviewed, covering the background of decisions on land rights entitlement (socio-legal and political), the process for distribution, and the consequences of the policies chosen. The primary contentions of this thesis are as follows: first, the current practice of legal and political recognition of adat groups requires ‘regional regulations’ (that is, local by-laws) to be passed to make operational a form of legal personhood and operational land title specific to particular local adat groups and ulayat land. These measures can empower adat groups to function before the law. Second, Indonesian law relating to group personhood needs to clearly define which category of legal subject adat groups fall into. The current approach of the government (simplification and homogenisation) presents a fundamental obstacle to adat groups, who seek a legal form that best represents their values and systems, and accurately reflects their group identities. Third, legal exercises by government bodies to translate traditional customary land rights into operational land titles and forest rights have played an important role in creating a legal breakthrough. This has provided a (potential) answer to decades of deadlock in seeking to make ulayat (communal land and forest) rights into legally cognisable and registrable land rights. This research concludes that the legal definition of group personhood creates difficulties facing adat groups in asserting their personhood, which becomes a major obstacle to the capacity of adat groups to assert their rights to their traditional land, but it also concludes that it is not impossible for adat groups to navigate these challenges.
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ItemNo Preview AvailableCommon risks in construction contracts: resolution and revision( 2020)This thesis explores the common risks in construction contracts and a review of the law in the relevant risk areas regarding their resolution, comments on what role standard form contracts play and could play in resolving these risks and thereby proposes revisions to terms often negotiated between parties on the same issues. The thesis also presents a comparison between AS4000-1997/AS4902-2000 and draft NCW4 released in 2019 to demonstrate and advocate how standard forms have progressed in the last 20 years in response to changing trends with more complex transactions arising. The thesis also provide some prospective from builders and developers on the common risks detailed and how those matters are generally resolved which support the overall thesis.
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ItemNon-charitable purpose trusts and the beneficiary principle( 2020)The thesis discusses whether the existence of valid trusts for purposes is conceptually consistent with the content of the beneficiary principle.
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ItemGoverning from Above: A History of Aerial Bombing and International Law( 2020)The advent of aircraft in the early twentieth century brought significant changes to human society, from transportation and infrastructure to surveillance and warfare. This technology provided a new way of seeing the world from above – an aerial perspective – with its assumptions and frames of understanding space, peoples and objects. In armed conflict, airplanes facilitated interventions in foreign places and attacks directed at cities and civilians, leading to significant changes to military strategy and to legal and political discourses on how wars should be pursued. This thesis studies how the rise of aerial bombing transformed the central concepts of international law of armed conflict. The focus is on the concepts of aerial territory, civilian population, military objectives, and the principle of proportionality. I argue that these core concepts of the laws of war emerged from or were substantially transformed by the emergence of aerial warfare. The thesis covers the period of 1899 to 1977. It begins with the first considerations by international lawyers of how international law should respond to the introduction airplanes in war and ends with the conclusion of the Additional Protocols to the Geneva Conventions, where the concepts and ideas that had emerged in the preceding decades were codified. I argue that the central debates and paradoxes of the contemporary laws of war can be traced back to the ideological, material and institutional transformations that took place as a result of aerial bombing in the period between 1899-1977. This thesis aims to shed light on the early history of aerial bombing and international law, a period often forgotten or ignored in scholarship on the laws of war. It uncovers the politics and assumptions behind international humanitarian law in its relation to aerial bombing. I challenge the universality and assimilation of the core concepts of international humanitarian law, exposing how legal discourse has played a central role in the legitimation of aerial violence. The thesis explores what alternative views have been articulated in the past and what could be gained from grasping the possibilities and arguments put forward by international lawyers throughout the rise of air power. This historical inquiry has substantial repercussions for current debates on drone warfare, autonomous weapons and new military technologies, which it claims are the culmination of a much longer history of international humanitarian law embracing a view from above.
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ItemAn Empire of Conduct: On the Jurisprudence of Criminal Procedure( 2020)Criminal procedure describes the conduct of lawful conduct. This thesis addresses how criminal procedure came to be the preponderant way through which the conduct of law was expressed and represented. A jurisprudential shift in procedure was accompanied by the recruitment of the criminal law into the administration of the British Empire. The argument of the thesis is that this emergence and subsequent transformation is a product of the practical involvement of a series of jurists of criminal law with imperial administration. These jurists include Jeremy Bentham, Thomas Macaulay, Henry Maine, and James Fitzjames Stephen. The thesis follows the jurisprudential writings of these thinkers and their involvements with various styles of imperialism to re-describe their contributions to the development of criminal law in light of this proximity to the government of empire. 'An Empire of Conduct' argues for an increased sensitivity to criminal procedure in thinking about the conduct of empire and the government of lawful conduct. Procedure describes not only how the rules of law apply to those subject to them, but also how those procedures were part of a process to re-organise the holding of office in the administration of law, colonies and government. To this end, the thesis looks at criminal procedure as an example of governmentality, concerned with how styles of conduct, rule and administration were shaped and then in turn shaped the holding of public office. By paying attention to questions of officeholding, it argues that the office of the jurist changes its political valence with respect to procedure: the thesis narrates changes in authorities, autonomies and privileges of office as the ascendency of legislative form, and how hierarchically imposed rules of official and juristic conduct contribute to changes in how law is administered. This thesis contends that criminal procedure is best understood as first inspired and then refined through jurists’ involvement with imperial administration, and simultaneously, as a vector for the development of strategies of government that both facilitated and constrained the emerging British Empire. As a jurisprudence, it accounts for a relationship between procedure as a mode of conduct that standardises the administration of law while providing an idiom for styles of modern government. To this end, the economic structure and material technologies of empire impose themselves in this story: as shipping, commodities, and labour all pose questions that a steadily accreted know-how of procedurally organised criminal law is increasingly marshalled to address.