Melbourne Law School - Theses
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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.
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ItemA Theatrical Jurisprudence of Repair( 2023-06)This thesis explores the capacity of law to conduct repair, through learning from acts of legal dissent. I argue that we can better understand the jurisprudential significance of a set of dissenting acts against the colonial sodomy law in India by describing them as activities of repair. The sodomy law, which was enacted in 1860 and struck down by the Indian Supreme Court in 2018, criminalised the intimate lives of queer persons. The dissenting acts that I follow turn away from the sodomy law, staging alternative worlds which allow us to imagine ways of living differently with law. The worlds that they stage are lawful: they are constructed using minor forms and techniques of law. Some of these queer dissidents explicitly use and rework what we might understand as more conventional legal forms: the form of a contract, the form of an affidavit, the form of a judgment. In other instances, they rely upon a form that might not be conventionally understood as a legal form, such as theatre. I start by suggesting that each of these actors offers us a different way of conducting repair. The colonial sodomy law impairs the ability of queer persons in India to forge lawful relations. The acts of dissent that I describe attempt to repair this damage through relying on law’s forms and techniques. Law is the thing that breaks; laws are also the things that are used to remake. Repair allows us to watch and describe how this work of remaking might be done. It also allows us to consider an element of creativity involved in these acts of dissent: things are re-paired, they are paired differently, to create new resources that allow for different ways of living with law. I find my vocabulary of repair by first turning to the US American queer theorist Eve Kosofksy Sedgwick. In her work, Sedgwick names a reparative impulse through paying attention to the ways in which queer people attempt to extract sustenance from the objects of a culture whose avowed desire has often been to not sustain them. I identify a number of training exercises through which Sedgwick attempts to practice this impulse in her own writings. In my first chapter, I draw out these exercises as part of Sedgwick’s ethos. Given that Sedgwick does not have an account of law, I then place these training exercises in relation with a set of writings by US American law and humanities scholars: James Boyd White, Robert Cover, and Patricia Williams. These latter texts are also acts of dissent, in this case against the conventions of legal-theoretical writing. The dissenting writers that I follow turn away from styles of critical scholarship that they find constraining, practicing forms of writing that creatively hold the descriptive work of their enquiry. In doing so, I find that each of these writers offers different kinds of training in repair-work. My thesis proceeds by pairing a different act of queer dissent against the sodomy law in India with the teachings of different sets of US American reparative writers. These pairings are ordered through a particular idiom that anchors each chapter: dramaturgy, attachment, translation, voice, and pedagogy. These idioms allow me to pay attention to a distinct aspect of reparative jurisprudence in each chapter: the staging of reparative dissent (Chapter Two: Dramaturgy); the love for law that might animate reparative dissent (Chapter Three: Attachment); how this love might inhibit ways of listening to dissent and consequently require us to practice an art of recognition and response (Chapter Four: Translation); how writing in a borrowed voice might allow us to practice legal criticism differently (Chapter Five: Voice); and how pedagogy might serve as a means of teaching and transmitting reparative dissent (Chapter Six: Pedagogy). By staging my chapters and inflecting my idioms in this manner, I write within the field of theatrical jurisprudence. Theatrical jurisprudence is characterised by its practitioners’ usage of techniques and practices influenced by theatre and performance to enliven law. In the process, theatrical jurisprudents draw attention to how law is staged - and how it might be staged differently. Writing with the resources offered by this field allows me to pay attention to how my cast of dissenters go about their dissent, and allows their voices, styles, and genres to guide my own writing.
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Item‘Climate Finance’ and the Philippines: Law, Practice, and Meaning( 2023-03)The international legal response emphasizes ‘climate finance’ as the way forward to increase the capacity of countries to deal with the climate change crisis. Under the Paris Agreement, developed countries have promised to take the lead in mobilizing climate finance to support developing countries to reduce their greenhouse gas emissions and adapt to the effects of climate change. For the Philippines, however, ‘climate finance,’ as experienced, may be different from what has been envisioned. The thesis investigates the Philippine experience of accessing ‘climate finance’ with the aim of learning more about the meaning and practice of the term. The thesis offers a critical account of climate finance in doctrine and practice. Doctrinal scholarship is used to describe and analyse the legal rules relating to ‘climate finance.’ The thesis uses critical analysis to examine the climate change treaties, the decisions of the Conferences of the Parties and the domestic law relating to climate change and ‘climate finance.’ The thesis then examines the Philippine practice of accessing climate finance specifically through the debts it has incurred, particularly in relation to the energy sector, its adaptation response and the promotion of climate bonds. This thesis demonstrates that climate finance has no fixed or defined meaning. Instead, I argue that climate finance is understood through practices borne out of the interaction of nation-states with each other and with institutions, and through such practices, its meaning has become intertwined with debt, the privatization of the energy sector, the promotion of international trade, and the endorsement of private capital. Insufficient scholarly attention has been given to the historical context of colonialism and development and how this influences current trajectories of climate finance. This thesis aims to fill this gap. The thesis interrogates the Philippines’ interactions with institutions through a decolonial lens and pays attention to the colonial legacies that have influenced and have persisted in such interactions. From such examination, the thesis critically redescribes climate finance as part of a narrative of development – the funding that has gone to the nation-state’s mitigation and adaptation responses have carried on an ongoing development project, and the encounter between climate action and development takes place in the context of an enduring coloniality. The thesis makes a novel contribution to international legal scholarship oriented towards the concerns of the Global South. Furthermore, it contributes to scholarship that engages with the interaction between international law and state-based practice, and it does so within the context of ‘climate finance’ and the climate regime.
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ItemKnowledge, data, visibility, and power: the Convention on the Rights of Persons with Disabilities article 31 in refugee contexts( 2023-04)The Convention on the Rights of Persons with Disabilities (‘CRPD’) article 31, entitled ‘Statistics and data collection’, is commonly used to advocate for and sanction the production and processing of data about the bodies and lives of people with disability. While this practice is common, the legal basis is unclear. This research undertakes a doctrinal interpretation of article 31 and scrutinises disability data production and processing practices in refugee contexts. The research demonstrates that greater attention is required to ensure that disability data practices in refugee contexts adhere to human rights law. Two research lenses are employed to examine article 31’s obligations and implications in refugee contexts: a disability human rights lens and a data and power lens. Congruent with the disability human rights lens, this research argues that the CRPD creates new legal obligations that require the participation of rights-holders in treaty interpretation. Adhering to this new demand on legal research, a Stakeholder Advisory Group of people with disability from refugee backgrounds informs this research’s doctrinal interpretation of article 31 and exploration of the implications in refugee contexts. The second research lens, data and power, provides a critical vantage point for interpreting the article’s text and current disability data practices. This research demonstrates that the growing prominence of disability rights in refugee contexts was followed swiftly by operational guidance recommending the production and processing of data about the bodies and lives of people with disability. While this may have been well-intentioned, nuances necessary for human rights protections were omitted while translating the legal obligations into operational guidelines. One of these protections is the stipulation that data are only produced and processed ‘as appropriate’. Further, this move to quantify the bodies and lives of people with disability in refugee contexts assumes that greater visibility is a path to human rights realisation. An analytical framework developed during this research highlights that strategic anonymity is necessary to attain human rights in some contexts. Strategic anonymity is only achievable through restoring neglected human rights principles that enable individuals to self-identify and groups to self-define. These principles have been elaborated by the CRPD doctrinal contributions to individual autonomy and group rights but continue to be poorly adhered to. This research proposes practical remedies to establish human rights–compliant disability data practices in refugee contexts. The practical remedies include a test for whether it is ‘appropriate’ to produce and process data about the bodies and lives of people with disability in a given context and the inclusion of a non-response option on all surveys, such as ‘I prefer not to say’. Other CRPD-compliant approaches to gaining the information necessary to inform treaty implementation are highlighted, including close consultation and active involvement of people with disability and disability human rights research.
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ItemThe Judicial Concept of Religion in a Comparative Constitutional Context( 2022-12)For centuries, scientists and philosophers have debated what religion is. The debates have also been acknowledged by lawyers, judges and legal academics who are also engaged in a debate about the concept of religion that judges must possess to give effect to free exercise and non-establishment provisions. This thesis considers what concept of religion judges possess. Based on a doctrinal study of the United States, India, the European, this thesis hypothesises that the judicial concept of religion in countries with generalisable free exercise clauses and non-establishment provisions is broad in free exercise cases and narrow in non-establishment cases. Additionally, this thesis seeks to demonstrate that judges narrow their concept of religion in non-establishment cases through a process called judicial inculturation. Judges ‘inculturate’ a symbol by holding it as a part of a particular country's cultural and historical traditions. Accordingly, judges repeatedly hold that symbols and practices from the country's majority religion are cultural and not religion. As such, the judges narrow the concept of religion to exclude the country's majority religion, and accordingly, prohibitions placed on the government by establishment clauses do not operate. Finally, this thesis will demonstrate key limitations to its hypothesis through a study of Australia and the UK. Through a study of Australia, this thesis will demonstrate that judges do not narrow the concept of religion in establishment cases in countries where judges have narrowed the concept of establishment in non-establishment cases. Finally, this thesis will also demonstrate that judges possess a broad concept of religion which emerges from free exercise cases in countries which do not have establishment clauses.
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ItemEmergency Powers in Times of Terror: A Comparative Study of Canada and France( 2022)Constitutions establish the fundamental principles of government, both grounding and limiting the legal exercise of state power. In times of emergency, when public safety is threatened and the state must act to protect its citizens, these two constitutional functions can come into tension. A constitution may provide the legal basis for the state’s response to an emergency, but it may also constrain the state’s ability to act effectively during the time of crisis. Some constitutions, like France’s Constitution du 4 octobre 1958, anticipate this dilemma with emergency provisions. Other constitutional texts, like those of Canada, have no special provisions for emergencies. In either case, the state may choose to provide for an emergency framework by statute, accepting that the law must necessarily be constrained by the overarching constitution. Following the attacks of 11 September 2001, this constitutional dimension of emergency management acquired a new urgency because terrorism places extraordinary pressures on constitutional systems. By its nature, terrorism affects the state in its very essence. Through its immediate effects, terrorism calls into question the state’s ability to provide for the physical security of its citizens and challenges its corollary monopoly on violence. Through its induced effects, terrorism affects constitutional rights through the restrictions that it causes. Two decades after the attacks of 11 September 2001, amidst an ongoing global terror threat, constitutional systems continue to grapple with these pressures. This thesis investigates whether and why constitutional emergency provisions are necessary, or desirable, or even useful for dealing with the threats posed by terrorism. To this end, it seeks insight from the comparison of two constitutional systems that exemplify these opposite approaches: Canada and France.
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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.
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ItemResiding Permanently in the Midst of the Border: Why Discrimination Law Fails Indefinitely Temporary Migrants and How the Disaggregation of Citizenship can Come to Their Aid( 2022)Over the last decade, Australia has embraced uncapped temporary migration. Commonly, people now spend several years in Australia as temporary residents before qualifying for permanent residence. The focus of this thesis is on a subset of those: the indefinitely temporary, people who have lived here for five years or more but still have no path to permanency. Part A of the thesis explores how immigration law leads to the exclusion of temporary residents and why discrimination laws fail to address that exclusion. Immigration law establishes an internal border that regulates non-citizens via their immigration status. Other government and private sector entities become part of the internal border when they enforce immigration law or adopt immigration status as a means of restricting access to services. Dorsett and McVeigh’s framework of legal categories is adopted to explain how the internal border functions and what occurs when discrimination law encounters immigration law, as in complaints of discrimination based on immigration or citizenship status. Discrimination legislation from Australia and the United States, and constitutional equality jurisprudence from Canada and the United States are analysed. These laws require legislators and decision-makers to ‘imagine’ a community in which discrimination is problematic and where a complainant sits in relation to that community. I conclude that when a state claims a sovereign right to discriminate, a complainant’s immigration status is accepted as an accurate representation of their relationship to the community. Temporary residents are identified as non-members of the political community and discrimination on the basis of their status is seen as unproblematic. However, when state sovereignty is not in issue, temporary residents can be understood as part of an imagined community that is social and/or economic, rather than political. Discrimination law can then limit discrimination based on immigration or citizenship status. Part B of the thesis identifies evolutionary changes that are occurring within citizenship and argues that those changes create an opportunity for law to limit the exclusion of indefinitely temporary migrants. I apply to the Australian context, Cohen’s account of citizenship disaggregating into its constituent elements of legal personhood, social membership, and political membership. I conclude that the legal personhood element has separated from formal citizenship and that Australian law recognises the legal personhood of temporary residents. However, it is unable to form a basis of a claim to non-discrimination. Political membership, consistently with Cohen’s disaggregation model, remains closely aligned to formal citizenship, but temporary residents are constitutionally excluded from it. Social membership is also separating from formal citizenship and is a status that indefinitely temporary residents can hold. I develop a set of markers that indicate that an individual is a social member and explain that the concept is not foreign to Australian law. I argue that social membership at the subnational level can resist the internal border and improve the capacity of discrimination law to address discrimination based on immigration status. Crucially, it can do this without undermining the border controls that are considered fundamental to the sovereignty of nation states.