Melbourne Law School - Theses

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    Reaching Out From the Ocean: Women's Experiences Navigating the Anti-Domestic Violence Law in Aceh, Indonesia
    Jones, Balawyn Jane ( 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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    Empowering customary land rights: can Indonesia rise to the challenge?
    Rennie, Sarah ( 2021)
    The struggle within Indonesia to resurrect strong customary tenure takes place within a highly contested legal landscape. Land administration is bifurcated, complex, uncertain and often contradictory. This paper analyses attempts to recognise and empower customary land rights in Indonesia's 2018 Draft Bill on Customary Legal Communities. It employs comparative analysis with another jurisdiction that has long grappled with the inherent compromises involved in enacting and empowering customary tenure: the Northern Territory of Australia. In doing so, it seeks to identify shared challenges as well as to highlight alternative responses to these challenges.