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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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.
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ItemConstitutionally protective statutory interpretation( 2022)What does the Australian Constitution have to say about statutory interpretation? Is it irrelevant? Is the only constitutional norm that matters in statutory interpretation that which separates judicial and legislative power? Does the rule of law have any work to do? Might constitutional conceptions of sovereignty influence the way judges interpret statutes? What about federalism? These are the questions with which this thesis is concerned. The answers it gives reveal that the principles and practices of statutory interpretation are informed and constrained by systemic norms of the Australian legal system, the most important of which are traceable to our written Constitution. This thesis develops significantly the presently nascent suggestions that the separation of powers informs the practice of statutory interpretation. It shows a constitutional commitment to the rule of law that has bite, in contrast to the suggestions in more recent ‘pure’ constitutional law cases and commentary that the rule of law has no doctrinal force beyond the extent to which it is inscribed in the constitutional text and structure. Less flatteringly, but no less importantly, this view of Australian constitutional law reveals a number of points at which our constitutional culture remains retarded by its monarchical roots and colonial history. Finally, this thesis’ novel perspective allows us to see that federalism is alive and well in statutory interpretation, albeit that there are aspects of the federal principle that remain underenforced. The original contribution of this thesis is, then, to chart the relationship between the Constitution and the principles and practice of statutory interpretation – two fields of study that have to date rarely overlapped. While the thesis is intended primarily for a domestic audience, it also constitutes the first Australian contribution to the recent trend in international scholarship exploring the realm of ‘quasi-constitutional law’ at the penumbra of written constitutions.