Melbourne Law School - Theses
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ItemPolitical dissent, law and legitimacy in China's Hong Kong( 2023-11)Hong Kong’s mass protest movements of the 2010s triggered clampdowns on fundamental rights, the closure of the political system, the denunciation of politically incorrect ideas, and the retreat of regional autonomy in favour of sovereign state power. This research challenges mainstream claims that Hong Kong’s rule of law was in good health during this period. It argues that by 2020 Hong Kong’s once-trusted legal institutions had reached a crisis of legitimacy due to sustained pressure from authoritarian politics. It substantiates the argument via an examination of law’s interactions with, and responses to, political dissent. Legitimacy, the extent to which an entity rightfully exercises its power, is central to the thesis. Drawing on literature on political legitimacy, democracy and authoritarianism, and the rule of law, I propose an original, multifaceted model for political and legal legitimacy. It comprises two main categories, intrinsic legitimacy and consequential legitimacy—or legitimacy drivers and effects—the presence or absence of which is indicative of an entity’s legitimacy. I posit that democratic systems have greater intrinsic legitimacy, largely derived from consent, and consequential legitimacy, with benefits including stability and liberty, compared with authoritarian systems where dissent and its suppression indicate illegitimacy. Legal legitimacy rests on comparable bases, with adherence to rule of law principles being a particularly important component of intrinsic legitimacy, and consequential legitimacy including rights protection and moderation of executive authority. Chapter 1 introduces the research and provides background on Hong Kong. Chapter 2 explains and justifies the analytical framework and outlines the legitimacy models of China and Hong Kong. The next four chapters are case studies of conflict, whereby political dissent triggering a politico-legal state response with legitimacy implications. Chapter 3 examines the use of national symbols to express dissent. It argues that contrary legislation protected an ideocratic authoritarian aesthetic lacking legitimacy in Hong Kong. The courts upheld that legislation in deference to political power, facilitating further repression and diminishing their rights-protection and independent institutional credentials. Chapter 4 considers protests before and during the 2014 protests, then before and during the 2019 protests. It argues that public order legislation, police conduct and political intransigence were contrary to norms and expectations shared by Hongkongers and the international community. The courts’ inconsistent record upholding protest freedoms and regulating contentious politics diminished their authority. Chapter 5 charts the state’s efforts to close down political opposition, demonstrating a retreat from democratic to authoritarian political ideals. In the face of executive power, the courts were unable to maintain their independent authority, and their rationalisation efforts rendered them agents of state authority. Chapter 6 completes the picture of a judiciary powerless to limit the state’s deployment of exceptional measures despite the excessive nature and popular rejection of those measures. The thesis concludes that Hong Kong’s legal apparatus, under pressure from authoritarian politics, wavered in its commitment to upholding rights and regulating power, detracting from its legitimacy, while fidelity to law’s technical requirements in furtherance of a repressive, undemocratic political agenda was also damaging to legal legitimacy.
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ItemPatent Grip: The Marketplace Making of Patent Law's Subjects( 2023-09)This work demonstrates that the grip of patent laws has to do with the development of market relations. It contrasts the core of patent law, namely, the concept of “invention”, with that epistemological form often cast as the defining “other” of invention, namely, the concept of “traditional knowledge” (TK). It finds that patent law protects a specific form of “invention”, namely, a discrete unit of commodifiable knowledge with certain characteristics that developed in reciprocity with the development of capitalist markets for intellectual things. The corollary is that those more ensconced in capitalist markets will more likely share patent law’s epistemology. Taking this insight, the work develops a theoretical framework to explain patent grip. At this framework’s core is the thinking of Soviet legal scholar, Evgeny Pashukanis, that law is contingent in the sense that it expresses underlying social relations. The development of a market for a given intellectual thing is connected with the development of a commodifying attitude to that thing in which people more readily perceive it, or additions and modifications to it, as a propertisable “invention” rather than some other form of knowledge. Thus, it is hypothesised that more commodity-oriented people are more likely to use and obey patent law, i.e., to have higher patent grip. This work tests this hypothesis using a case study of the extent to which, in southwestern China’s Guizhou province, TK-knowers, namely, traditional medical knowledge (TMK) practitioners, use and obey patent laws in respect of TMK. The case study involves a social survey of 53 mostly ethnic minority TMK practitioners, capturing, inter alia, measures of individual commodity-orientation (also called marketisation) and patent grip. Case study analysis finds: (i) statistically significant correlations between a TMK practitioner’s commodity-orientation and their patent grip; and (ii) a TMK practitioner’s commodity-orientation affects their treatment of knowledge, such that the more commodity-oriented are more likely to view TMK as a patentable “invention”. The work concludes that patent law is a historically specific phenomenon. It thereby counters the idea, pervasive in the patent literature, that individuals will respond homogenously to patent laws. Rather, this work demonstrates that, whether or not the introduction of patent laws will lead to patenting in respect of intellectual things, depends on the extent to which people are patent-receptive, i.e., the extent to which they have become patent law’s subjects. This work also undoes the idea that patent laws determine the operation of markets. Rather, it demonstrates that markets have a hitherto under-recognised role in determining the operation of patent laws.
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ItemReforms of the International Tax System in Kuwait to Deliver a More Sustainable Revenue Base( 2023-08)Blessed with vast oil reserves, Kuwait has historically relied on oil production as its primary source of government revenue. However, the inevitable fluctuation of oil prices and eventual depletion of resources necessitates the exploration of alternative revenue sources. Amidst a dearth of other major industries that could match oil’s economic output, taxation emerges as the most reliable income source capable of meeting escalating government expenditure demands. This thesis critically investigates Kuwait’s current income tax system, particularly considering global shifts in taxation policies. As a rentier economy heavily reliant on oil exports, Kuwait does not impose personal tax or VAT. Instead, it primarily relies on corporate tax—an income tax levied on net profits, notably from foreign companies operating within the country. However, this system is marked by ad hoc arrangements, inconsistencies, and meagre tax rates. Legislative loopholes further complicate the landscape, creating uncertainty, inviting tax disputes, and providing opportunities for multinational companies to exploit intricate schemes to evade taxes. Given the country’s economic and political circumstances, the likelihood of significant alterations for these features is slim. Therefore, this thesis advocates addressing legislative deficiencies to bolster tax revenue and prevent exploitation. The thesis explores two primary challenges in determining tax liability and ensuring that multinational corporations pay an appropriate amount of income tax in Kuwait. The first challenge pertains to the tax nexus for foreign entities operating within Kuwait, where current regulations may inadequately capture the full range of business activities, leading to potential revenue leakage. The second challenge concerns the application of transfer pricing rules—a complex area of taxation prone to manipulation, resulting in reduced taxable profit and subsequent lower tax revenue. While Kuwait’s current tax system has historically served it to some extent, it cannot continue to do so amidst evolving economic changes. The thesis underlines the urgent need for fundamental tax reforms, emphasising the importance of a consistent, transparent, and equitable taxation system for the nation’s long-term economic stability and growth. The study proposes several measures to improve Kuwait’s tax system’s efficacy and efficiency, including policy reforms to combat tax base erosion caused by multinational entities’ avoidance schemes. As there is limited literature on implementing a new income tax nexus and transfer pricing system in Kuwait, this thesis analyses the potential of these proposed reforms to address the country’s dwindling revenue issue. The suggestions presented in the thesis intend to address the identified challenges and ensure a more equitable and robust taxation framework capable of facilitating sustainable revenue collection in Kuwait. By doing so, the thesis substantially contributes to the broader discourse on tax reform in oil-exporting countries, providing critical insights to inform policy decisions.
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ItemBehind La Bonne Administration de la Justice: Values in the Procedure of the International Court of Justice( 2023-11)Behind the principle of la bonne administration de la justice lie the values of the International Court of Justice. Values, and choices between values, are embedded in the procedural rules and practices of the Court. This thesis seeks to identify where such values arise in the Court’s procedures by studying particular procedures in order to observe the values that are in play, and the choices being made between them. This thesis offers a detailed account of three procedures – revision, intervention, and oral proceedings. It observes that the form and content of a procedure is neither neutral nor inevitable, but rather implicates values and choices between values such as accuracy, efficiency, party equality, and dignity. Values inform the Court’s procedures in respect of rule design, as justification for rule application or interpretation, and expressively. This thesis begins with the observation that the Court has a very broad power to govern its own procedures, and that values are integrated into every procedural choice. Rather than offering a top-down theory of procedural values, this thesis will undertake a close reading of the three selected procedures in order to observe where values arise. These three case studies suggest that values are likely to shape the form of final orders, the drafting of the Rules of Court, and other acts in respect of all of the Court’s procedures. This thesis adopts a posture of exploration rather than one of prescription – identifying what values are revealed and where, rather than making an instrumental or consequentialist argument that particular values should be adopted or are optimal. This thesis argues that presently the Court’s values are neither fully nor consistently articulated. While at times the Court’s values are clear and openly relied upon, in other instances they are buried and require excavation. Understanding the Court’s values has implications for the form that a procedure may take, and the manner in which the procedure may be implemented in practice. Appreciating the role of values in the Court’s procedure also enables contestation; it moves beyond a simple acceptance of the Court’s procedural practices as simply the way things have always been done.
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ItemOnline Dispute Resolution and Consumer Disputes in Australia: Dispute System Design Analysis( 2023-11)Online dispute resolution (‘ODR’) first originated as a response to the e-commerce phenomenon and is now widely accepted and implemented in many jurisdictions. The COVID-19 pandemic has undoubtedly been a major catalyst in the wider adoption of ODR systems to resolve different types of disputes. Although ODR was initially more prominent in private dispute resolution, for example being used by PayPal or eBay for resolving disputes with customers and suppliers, it has now extended to public sector entities, including to judicial institutions. Courts and tribunals are increasingly using various types of ODR systems to provide more flexible and efficient dispute resolution processes. Given the uptake in such systems, there is a need to shift attention away from the analysis of whether or not to adopt ODR systems towards how best to design such systems. Additionally, much analysis of ODR has focused on commercial disputes, not differentiating consumer disputes, or dealing with this latter category only fleetingly. This thesis focuses squarely on the question of whether and how an ODR system might be designed to provide consumers with an avenue to resolve disputes and obtain redress in a fair and efficient manner. It moreover focuses on the use of ODR by courts and tribunals, as opposed to the use of such systems by suppliers or businesses. In this thesis, I argue that ODR does offer opportunities for resolving consumer disputes. However, more sustained attention needs to be given to the principles that should govern the design of ODR systems. Good design is essential to ensure that ODR is appropriate for the context of consumer disputes, fulfils its intended objectives in this unique context, provides a high-quality alternative for consumers to the traditional and offline court processes, and maintains its legitimacy among its consumer users. Such focus on system design necessitates a shift in attention from analysing whether or not courts and tribunals should adopt an ODR system towards how best to design such systems to ensure they are normatively compelling and contextually appropriate given their inevitable adoption. The system design approach is also consistent with the conceptualisation of access to justice as entailing both accessibility (access to courts) and fairness in the legal process itself. The approach, moreover, recognises and respects the unique demands of consumer dispute resolution. Consumer disputes are typically characterised by significant inequalities of bargaining power, information asymmetry and hurdles to access to courts. Yet importantly, under legislation, consumers are often provided with immutable rights that temper the traditional rigour of commercial contracting. Therefore, this thesis seeks to investigate how an ODR system designed for resolving consumer disputes in courts and tribunals fits with the structure and requirements of civil justice in the unique context of consumer protection, and the rule of law in a democratic society.
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Item"News from Pan-Africa": Black Internationalism, Literature & International Law', 1900-1963( 2023-07)This Thesis traces the collective worldmaking and unmaking project of Black Internationalists, from the 1900 Pan-African Conference to the formation of the Organization of African Unity by newly-independent states in 1963. It tells the story of how Black Internationalists – including Alice Kinloch, Pauline Hopkins, Anna Julia Cooper, WEB DuBois, George Padmore, Nnamdi Azikiwe, CLR James, Peter Abrahams and Kwame Nkrumah – attempted to re-imagine and re-make the world through their political, fictional and historical writings, and collective transnational activism, and how this worldmaking project borrowed from, contested and was ultimately defeated by International Law. The story of its defeat remains instructive for worldmaking projects today, including those of International Lawyers. In order to grasp the scope of this worldmaking project and the terms of its defeat, this study draws on ‘fictional worlds’ theory to better understand International Law and Literature as worldmaking projects and practices. It particular, it shows how the world(un)making project of Black Internationalists reveals modern International Law and Global White Supremacy to be co-constitutive; unsettles the discipline’s Eurocentric histories; and radically re-orients its ‘imaginative geographies’. It argues that, as co-fabrications, International Law and Literature are not just connected but inseparable – historically and theoretically – and illustrates how Black Internationalists’ alternative sociopolitical, historical and geographical imaginaries surface the sedimented worlds that International Law makes, and those it makes impossible.
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ItemThe Ethics of Care in Nepali Citizenship-Equality Activism( 2023-07)Discourse around how to ‘end statelessness’, both in terms of the search for solutions to statelessness, and in how statelessness success stories are framed, is dominated by a justice-centred, or rights-based, approach. Such an approach prioritises engagement with international human rights law, United Nations treaty bodies, committees, and mechanisms. While important, in this thesis I argue that the legal approach is limiting insofar as it overlooks the contributions of activism in solutions to statelessness. To bring activism’s unseen or hidden contributions into the ‘end statelessness’ discourse, I draw on a feminist ethics-of-care framework in this thesis and question the dominance afforded to the rights-based legal approaches. This thesis presents the experiences of Nepali activists campaigning against gender discriminatory nationality laws, the intricacies of which have so far been unattended to within statelessness scholarship. Less concerned with the why questions of statelessness: why stateless people have a right to a nationality under international law, this thesis explores the how questions: how do activists, practitioners, and people affected by statelessness conduct and sustain their work towards legal reform and citizenship rights? As this thesis reveals, there is an under-acknowledgement and undervaluation of an intricate web of care, costs, compromises, labour, emotions, and community amongst activists. This care web, I conclude, sustains and reproduces the ‘labour power’ required of campaigning, be it local or global.
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Item‘Not served on a silver plate’: The role of civil society actors in promoting the human rights of refugees in Indonesia( 2023-05)Indonesia is one of the main hosting countries for refugees and asylum seekers in Southeast Asia but is not a signatory to the 1951 Refugee Convention and has scant domestic law pertaining to refugees. This thesis analyses the extent to which refugees can access the rights to education, healthcare, and livelihoods in Indonesia, as these rights have been identified by refugees themselves as fundamental rights for a dignified life while in prolonged “transit” in Indonesia. I argue that in the absence of the state, civil society plays a key role in service delivery and advocacy for the realisation of these human rights for marginalised non-citizens. The thesis also proposes that Indonesia’s denial of employment rights, which renders some refugees destitute thereby necessitating a return to their country due to economic compulsion, may constitute what human rights groups have deemed “constructive refoulement”. Civil society organisations (CSOs), whether international non-governmental organisations (NGOs), local NGOs or refugee-led organisations such as learning centres, fill a major gap in service provision and undertake advocacy to advance refugee rights. They do so in what scholars have identified as an increasingly illiberal political environment under President Joko Widodo. The difficult conditions created by the COVID-19 pandemic have only emphasised the important role of civil society organisations in providing for refugees’ basic needs in Indonesia. However, my research finds that while CSO service provision and activism is remarkably effective in the Indonesian context, ultimately the state must assume greater responsibility to ensure refugee protection and that Indonesia’s obligations under international human rights law are fulfilled.
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ItemLegalist Reasoning and its Limits: Legal Professional Culture and Constitutional Development in Australia and Germany( 2023-05)In this thesis I demonstrate the value of ‘legal professional culture’ as a contextual ‘layer’ that can assist in understanding constitutional development and disagreements about constitutional method. I describe legal professional culture as an infrastructure for socialising legal actors in an experience of ‘constraint of choice’: the experience that some forms of reasoning, but not others, are open to a legal decision-maker. I explore legal professional culture as a bundle of institutionalised practices that work to produce that experience of constraint of choice. These institutionalised practices can include legal education and training, scholarship and knowledge production, and the organisation of courts. I argue that culturally embedded beliefs, narratives and values are reproduced through those institutionalised practices and ensure the workability and stability of method when applied at scale. To explore my description of legal professional culture I compare Australian and German constitutional histories. I explore how German and Australian legal professional cultures have influenced practices of constitutional development and disagreements regarding method. Both jurisdictions share a high degree of professional cultural cohesion, despite differences in constitutional text, methodological tradition and court organisation. I explore the relationship between that cohesion and ‘legalist’ approaches to reasoning, which I both employ as a device to explore the significance of legal professional culture and explore as a constitutional problem in its own right. ‘Legalist’ reasoning — an umbrella term that I use to encompass ‘formalist’ and ‘positivist’ reasoning — tends to assume the determinacy of legal materials, deny the role of judicial choice between multiple plausible interpretations, and insist on a hard distinction between legal and extra-legal considerations in constitutional reasoning. I argue that legalist, formalist and positivist styles of reasoning tend to emerge in professional cultures when there is a high degree of stability in cultural beliefs and narratives regarding method. Exploring how legalist arguments first emerge and then lose credibility over time sheds light on the interplay between professional culture and an experience of constraint of choice in legal actors. I rely on analysis of what I describe as ‘stability seeking’ decisions to demonstrate my arguments regarding legal professional culture and legalist reasoning. In case studies drawn from the German Federal Constitutional Court (FCC) and Australian High Court (HCA), I demonstrate how the stability of professional beliefs and narratives, and the emergence of legalist or positivist reasoning, flowed from key decisions made by each court during a period of instability in their early history. During those periods the HCA and FCC attempted to introduce ideas or narratives that could reintroduce an experience of constraint of choice. I demonstrate how ‘stability seeking’ decisions introduced later in each court’s history were less successful at establishing new, or shoring up existing, beliefs and narratives that could be accepted by the professional community and produce an experience of constraint in legal actors. In comparing how ‘stability seeking’ decisions emerged and were received, I demonstrate the relevance of professional cultural conditions to constitutional development and its stability over time.
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ItemConstitutionally guaranteeing information flow( 2023-06)The thesis outlines the potential and limits of the constitutional recognition of a right to information. Relying on doctrinal and comparative methodology, it draws insights from the South African experience. The research suggests that, while there are theoretically solid justifications for recognising the right, constitutional recognition does not necessarily achieve the goals envisaged for it in practice. To achieve its potential, such a right needs continued acknowledgement and active support from all the branches of government of the state as a whole.