Melbourne Law School - Theses
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ItemReaching Out From the Ocean: Women's Experiences Navigating the Anti-Domestic Violence Law in Aceh, Indonesia( 2021)This thesis investigates the barriers to access to justice faced by domestic violence victims when seeking to exercise their rights under the Indonesian Anti-Domestic Violence Law (the Law). Applying a qualitative socio-legal methodology, I analyse how the intersections between religion, gender, and law affect the implementation of the Law in Aceh – a 98 percent Muslim-majority province in Indonesia. My thesis navigates the different avenues that a hypothetical victim could take when seeking help or attempting to assert her rights under the Law. Victims generally seek help first at the community level via adat (customary) mediation, before filing for divorce at the Mahkamah Syariah (Islamic Court) and/or reporting violence to the police, which may be followed by prosecution of the perpetrator at the Pengadilan Negeri (State Court). By analysing these avenues, I identified three key sites of contestation relating to access to justice. First, the intersection between religion and gender. Community understandings of domestic violence are informed by gender norms which, in Aceh, are constructed based on local religious interpretations. Hegemonic norms that embody patriarchal ideas about gender and marriage operate as a barrier to access to justice for women, particularly at the community level. Second, the intersection between gender and law. The implementation of the Law is affected, at every stage, by the operation of religiously informed gender norms. In addition to analysing the Mahkamah Syariah approach toward domestic violence and divorce, I examine 70 domestic violence cases decided by the Pengadilan Negeri between 2013-2017. Based on this analysis, I argue that judges are influenced by gender bias in exercising their discretion when deciding and sentencing domestic violence cases, and this leads to a failure to protect women’s rights and a culture of impunity for perpetrators. Third, the intersection between religion and law. The competition between moral-religious law (prevalent in the community) and positive-State law (applied by the State) is a barrier to victims seeking a divorce to escape domestic violence at the Mahkamah Syariah. The dominance of moral religious law at the community level, to an extent, undermines the implementation of the law and protection of women’s rights. This thesis also draws out theoretical implications from the data relating to women’s agency and the role of the State in protecting women’s rights.
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ItemProcedurally Fair? – the efficacy and use of the principles of natural justice in the (disciplinary) tribunals of sporting organisations( 2021)While elite athletes have access to skilled representation and international arbitral tribunals in seeking to overcome disputes with their sporting organisations, the relevance of similar rules and processes to recreational participants is not clear. Moreover, appeal to a supra-national forum is generally beyond the reach of the lay athlete placing a heavy emphasis on first instance disciplinary tribunals. Where tribunal determinations proved unsatisfactory, the final recourse will in practice, be the regular courts. This emergence of legal effects on sporting endeavour has been described as a process of juridification characterised by the ‘legalisation’ of a social sphere (demonstrated by the development of sporting rule books and codes); its ‘bureaucratisation’ (visible in the establishment of internal tribunal mechanisms); and the ‘judicialisation’ of sport (as those mechanisms amend their practices in order to conform with accrued decisions and other judicial norms). Notwithstanding the historical reluctance of the regular courts to intervene in the operations of private tribunals, one area where contemporary courts will provide clear oversight is in ensuring compliance with the principles of natural justice. This research has sought then to discover whether sporting bodies are cognisant of those principles and whether (or not) they comply with them in their disciplinary tribunals. Initially, the provenance and substance of natural justice principles and how they have been reflected and defined by the courts both generally and with regard to the specific sporting context have been canvassed. Subsequently, through an analysis of the relevant sporting rule books and through empirical observation of disciplinary tribunals in action, the research investigated whether or not those tribunals were adhering to the norms of procedural fairness. The conclusion drawn is that the observed sporting organisations do include procedural fairness principles in their relevant rules and are largely compliant with those principles in their operations. However, the impact of issues emerging in areas of arbitral neutrality, tribunal independence and human rights factors will doubtless provide greater challenges.
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ItemMaking-good-again? Law, Aesthetics and Responsibility( 2021)Over the last 75 years since the end of WWII, the state-based gestures of taking responsibility for Wiedergutmachung (restitution) in the aftermath in Germany have been the most visible. But in this thesis, I argue for a new understanding of restitution, encapsulated by the literal translation of Wiedergutmachung in English which is ‘making-good-again.’ I examine the work of selected jurists, authors and artists who all engage with the NS regime and the Holocaust and contend they also offer accounts of restitution; they take responsibility for restitution through the ‘making’ of texts and objects. Parallel to this, I highlight the jurisprudential commentary within their accounts, focusing on questions of form and technique. This thesis therefore tells a different story about restitution which expands across genres, sites and temporalities; it re-writes the jurisprudence of restitution within the context of law and humanities scholarship. There are four main areas of focus. I begin by analysing a form of writing called the ‘gloss’ as published by a German-Jewish lawyer, Dr Walter Schwarz. Dr Schwarz returned to Berlin in the 1950s and practiced as a restitution lawyer, setting up a legal journal, where he also (pseudonymously) published ‘glosses’ which offer an account of the legislative restitution process. The first chapter sets up the way giving an account of restitution can be an ethos – of writing, but also of conduct, of practice. Chapter two is on the theme of writers, audience and responsibility, taking as a starting point the exhortation by W. G. Sebald regarding the role of literature to undertake restitution, and analysing literary works by Alexander Kluge and Heimrad Baecker. Chapter three focuses on visual art and its display, examining art works by Anselm Kiefer and Gerhard Richter. Finally, chapter four is a walking tour of Berlin’s memorial art, following the way making-good-again in the streets of Berlin becomes a question of legal place and movement. The practices of making-good-again examined in this thesis are dynamic, iterative and incomplete: they are practices of failure. Nevertheless, the question of how to conduct restitution emerges as a material question of responsibility asked through the making of texts and objects in different genres, including law. Responsibility in this context is shown to be shaped by practices, personae and places. The resulting thesis is an expansion and re-conceptualisation of the practices of jurisprudence, restitution and responsibility in the context of the aftermath in Germany.
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ItemImagining new modes of cultural co-existence for ethnocultural groups in Australia: An interdisciplinary study( 2021)This thesis utilises a variety of disciplines such as politics, philosophy, history and law and systems and structures in other jurisdictions and at different historical times to argue that modern democratic nation states need to be better attuned to cultural, religious and legal diversity and to the issues faced by members of ethnocultural communities. The main areas of focus are faith-based dispute resolution and religious divorce.
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ItemRights, Risks and Rules: The Rise of Human Rights Due Diligence and Implications for Transnational Labour Governance( 2021)Over the last decade, the concept of human rights due diligence (‘HRDD’) has emerged as a dominant means through which to conceptualise and operationalise corporate responsibility for working conditions in transnational supply chains. This thesis applies a transnational labour law lens to HRDD. Proceeding from the observation that HRDD as originally articulated in the UN Guiding Principles on Business and Human Rights is open to multiple interpretations, this thesis examines contests that have taken place globally over the role and status of the concept as it relates to workers’ rights. It also considers the implications of HRDD’s ascension for transnational labour law, as a distinct field of law, scholarship and activism. Using conceptual and empirical analysis, this thesis argues that HRDD is not being institutionalised at either global or national level in a way that renders it a transformative or even robust mechanism of transnational labour law. This is despite the fact that the concept’s legalisation is being welcomed – indeed in part driven by – actors that believe it will broaden and deepen respect for workers’ rights in internal corporate processes and legal frameworks. This thesis further contends that the rise of HRDD is leading to subtle shifts in configurations of actors and institutions in transnational labour governance. Through its reframing of labour rights issues as matters for risk management, HRDD has facilitated the expansion within the field of for-profit actors such as management consultancies, risk advisory services and law firms. The proliferation of HRDD-related legislation at the national level is positioning courts to play a greater role in determining the nature and scope of corporate responsibility for workers’ rights in transnational supply chains. In addition, the rise of HRDD has enabled the Organisation for Economic Cooperation and Development (OECD) to consolidate its position as the leading global authority in the area of corporate accountability and labour rights. The OECD has successfully capitalised on the resonance of the HRDD frame with its apolitical working methods, and its technical expertise and formidable research capacity, to engage in an ambitious work programme on HRDD. In contrast, the International Labour Organisation (ILO) has struggled to establish itself as an authority on HRDD or to generate broad-based support for related standard-setting activities. This thesis makes an original contribution to transnational labour law by examining an increasingly influential concept that has yet to receive sustained examination from scholars in the discipline. It also makes a novel contribution through its empirical investigation of a stage in the regulatory process that tends to be overlooked in transnational labour law scholarship: how an international labour norm, subsequent to its adoption, is shaped, translated and contested, by whom and with what implications.
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ItemUnderstanding the exploitation of temporary migrant workers in Australia: examining temporary labour migration from preFederation until 2020( 2021)This thesis concerns the treatment of temporary migrant workers in Australia. Within the last 20 years, migration programs have swung from facilitating and encouraging permanent settlement in Australia to embracing large-scale temporary labour migration. Certain sectors of employment have become reliant on temporary migrant workers — such as agriculture, hospitality, aged care, cleaning, security, and construction. This trend towards an embrace of temporary labour migration has been accompanied by growing concerns about the mistreatment of temporary migrant workers in Australia. Numerous reports, inquiries, and investigations have revealed widespread patterns of their abuse and mistreatment. The term ‘exploitation’ is routinely used to describe the abuse and mistreatment of temporary migrant workers in Australia, yet there has been little theoretical engagement with the concept of ‘exploitation’. It is rarely defined and is most often used to describe conduct that is already unlawful. I argue that there is a need to use the term with greater precision. I introduce the concepts of ‘transactional’ and ‘structural’ exploitation to examine the exploitation of temporary migrant workers in Australia, and to evaluate recent legal reforms. Additionally, the treatment of temporary migrant workers is seen as a very contemporary issue. It is seen as a departure from the norm of Australia as a nation of permanent settlers. Yet, there are important historical antecedents of contemporary temporary labour migration in Australia — the significance of which have been overlooked. I argue that Australia’s labour migration history foretells much about the nature of temporary labour migration today, especially concerning the role of the State in relation to the treatment of temporary migrant workers. Fundamentally, temporary migrant workers participate in the Australian labour market on an unequal basis. This is the case irrespective of whether their employers comply with existing workplace and other laws, or not. Temporary migrant workers are denied — to varying degrees, depending on the temporary labour migration program — access to social and economic rights which, I argue, are associated with social membership in the Australian community. This is not a contemporary phenomenon. As my thesis examines, temporary migrant workers have been subjected to various forms of exclusion from membership since before Federation. These are matters that pertain to the structure of temporary labour migration programs in Australia and concern the role of the State in relation to the treatment of temporary migrant workers, which I suggest have been underemphasised in recent literature on this subject. Accordingly, this thesis reveals the role of the State in relation to the exploitation of temporary migrant workers. I argue that the State enacts rights restrictions and exclusions based on their temporary migrant status that place temporary migrant workers under the threat of domination by their employers and other actors. This enables and facilitates exploitative transactions within the workplace. Further, the State enacts regulations that deprive temporary migrant workers from being able to develop and exercise their capacities as human beings, by treating temporary migrant workers as labour market inputs. This has occurred through the imposition of rights restrictions and exclusions, and prioritising the interests of employers and industry by favouring so-called ‘labour market’ imperatives. This thesis details the various ways that this has occurred, depending on the specific temporary labour migration program involved. Finally, this thesis explores Sarah Song’s ‘principle of reciprocity’ and suggests how this principle may be used to reorient discussions on how to address the exploitation of temporary migrant workers in Australia. This principle focuses on the relationship between the State and temporary migrant workers and concerns the question of how to ensure that temporary labour migration provides an authentic and sufficient benefit to the workers themselves.
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ItemTrading in people and trading in services: the political economy of Indians’ international labour mobility, the development project and international law( 2021)In this thesis, my concern is with international legal frameworks that govern Indians’ movement abroad. I look specifically at two types of international agreements – trade agreements and labour migration agreements. I critically examine the manner in which India’s trade agreements and labour migration agreements govern Indians’ movement to Malaysia and the United Arab Emirates (‘UAE’). I argue that this governance is helping create, shape and authorise inequalities along a range of different axes. This governance helps shape particular kinds of Indians, a particular kind of India, and a particular kind of world. Indians’ freedom to move abroad is arranged hierarchically, and particular types of movement are prioritised over others. Some Indians are shaped into people who move to work in Malaysia or the UAE temporarily. They are placed in positions of vulnerability in those states, even as they perform work that helps some other people, especially particular kinds of employers, accumulate capital. An India is shaped that frames its ‘development’ as being delivered through the operation of ‘global markets’, and that positions itself as a producer and supplier of ‘low cost’ workers to employers in Malaysia and the UAE. This positioning nonetheless ultimately serves to locate India in an eternally ‘underdeveloped’ position within global society. Stories of ‘development’, ‘markets’ and ‘globalisation’ are crucial in the making of this world. These stories underpin India’s trade and labour migration agreements, naturalising the ways in which they help shape inequalities. At the same time, the agreements help shape particular kinds of ‘development’, ‘markets’ and ‘globalisation’ – thereby undercutting the treatment, in these stories, of development, markets and globalisation as aspects of the world’s organisation that pre-exist the agreements and remain unchanged by them. The agreements do this work partly through the ways in which they create knowledge and arrange authority. Knowledge is created about the sorts of people who should be allowed to move abroad, and how they are to be treated if they do. Particular people are given authority to govern particular types of movement, and according to particular logics. Some movement is governed as ‘trade’, and some movement as ‘temporary migration’ to meet ‘labour market demand’. Indian state sovereignty is exercised in accordance with the logics of the global markets being shaped by the agreements. Some people and some states benefit at the expense of others. In short, a world of particular kinds of unequal relations is being made. This world is being shaped and authorised by multiple sites of governance, and through their interaction. India’s trade and labour migration agreements work in conjunction with a story about India’s development, in helping shape India – and a discursive and administrative artifact that I describe as a mosaic of a ‘globalised India’. The agreements also serve as a window into broader global practices. At its most expansive, this thesis suggests that inequalities are being built into a global structure, and that international law is playing a fundamental role in erecting and maintaining this structure.
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ItemThe Children's Court: Implications of a New Jurisdiction( 2021)This thesis examines the establishment of the Children’s Court of Victoria (1906) in the context of a perceived ‘youth crisis’ in early twentieth-century Melbourne. It focuses on the limits of law in responding to structural disadvantage and highlights how law can serve as a distraction, rather than a solution, to longstanding social problems.
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ItemThe influence of conferences of the parties on the content and implementation of their parent treaties( 2021)Conferences of the Parties (‘COPs’) are intergovernmental meetings established by treaties. They are formed by representatives of all the states parties and they meet periodically to review and promote the execution of the convention that establishes them. COPs are empowered to perform several activities to achieve their objectives, such as adopting normative decisions, monitoring the implementation of measures by states parties, managing funds, and setting up subsidiary organs. The literature on COPs is not abundant and it has two main characteristics. First, it is based almost exclusively on multilateral environmental agreements adopted between the 1970s and the late 1990s. Second, it focuses on specific topics, such as the nature of COPs, the implications of COP normative activities for state consent in treaty law-making, and the legal status of COP decisions. These features reveal some gaps that deserve to be further studied. This thesis explores the ways in which COPs influence international law. It considers the following question: how do COP activities affect the content and the implementation of their parent-treaties? To provide an answer the thesis focuses on the normative activities of COPs to identify patterns in their relationship with the content and implementation of their parent treaties. The analysis is based on four case studies from different areas of international law: the WHO Framework Convention on Tobacco Control, the Convention for the Protection and Promotion of the Diversity of Cultural Expressions, the Convention on Cluster Munitions; and UN Convention Against Corruption. Building on the literature on COPs and on wider international legal scholarship, including approaches that consider ‘law and literature’ and studies of fragmentation and regime interaction, the thesis demonstrates that COP decisions develop the content and support the implementation of their parent treaties. COPs use their ‘standard-setting’ function to specify the substance of their treaty provisions. In particular, COP resolutions use this role to (i) increase what states parties must do to comply with their obligations; (ii) establish procedures and timeframes; and (iii) give content to the meaning of words and expressions in the treaty. The thesis also contends that COP decisions promote the implementation of their treaties using diverse strategies to consolidate them, strengthening their social and political position. These mechanisms are (i) momentum-building; (ii) stigmatising the adversaries of their parent treaties, including non-parties; and (ii) connecting their conventions to powerful narratives and other international legal regimes. In addition, the thesis engages with the most relevant debates in the existing literature on COPs. It argues that while the case studies do not present situations where COP resolutions bind a state without its consent, other factors support the idea that the role of state consent in treaty law-making is attenuated in the context of COP activities. Concerning the legal status of COP decisions, the thesis claims that COP resolutions can produce legal effects through more paths than assisting in the interpretation of their parent treaties. The analysis of the case studies and their connection to certain ICJ decisions reveal the existence of these alternative avenues.