Melbourne Law School - Theses
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ItemJudicial, Administrative, or ‘Quasi-Judicial’?: Adjudicating Proofs of Debt in Liquidation( 2023)According to the High Court, when adjudicating proofs of debt, a liquidator acts quasi-judicially ‘according to the standards no less than the standards of a court or judge’. That is an onerous standard for a liquidator, who is not legally trained and invariably carries out their function in an environment hampered with severe financial constraints. This thesis seeks to unpack – and ultimately disprove – the characterisation of a liquidator’s function in adjudicating proofs as being ‘quasi-judicial’. It does so by conducting a review of the jurisprudence concerning the proof of debt procedure that applies in corporate insolvency. The review focusses on the doctrinal basis or character of the liquidator’s power, its origins in the Court of Chancery and development over the last three centuries, and the nature and extent of liquidators’ obligations when dealing with proofs. The thesis argues that, when adjudicating proofs of debt, liquidators exercise administrative power and that the function is not comparable to the adjudicative functions of courts nor administrative bodies that form part of executive government. Further, there can be no ‘one-size-fits-all’ approach when it comes to the obligations of liquidators, because their obligations are conditioned upon the financial circumstances of the particular liquidation. What is expected of liquidators will vary from appointment to appointment. The thesis concludes that the High Court’s description of the liquidator’s function in adjudicating proofs sets the bar too high and that courts have seized on the status of a liquidator as an officer of the court to describe their duties as ‘quasi-judicial’ or similar, which does not reflect contemporary standards or the fact-specific nature of liquidators’ obligations when dealing with proofs of debt.
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ItemAustralian Carbon Credit Units in the Blockchain Environment – Legal Issues in Collateralised Financing Transactions( 2023)The Australian voluntary carbon offset market and its native tradeable commodity, Australian Carbon Credit Units (‘ACCUs’), serve a critical role in the public and private sector’s emissions reduction strategies. This paper is not concerned with this role. Rather, it builds on the distilled view that ACCUs are a type of financial asset capable of being utilised in a variety of ways in the broader economy. After all, participants who engage with ACCUs or emissions units in general are not necessarily concerned with their carbon footprint, but in its value as an alternative investment vehicle. To date, ACCUs are not just traded on the Australian voluntary carbon offset market, but also through blockchain trading platforms, albeit in a tokenised form. This paper focuses on a particular transaction that has the potential for widespread deployment: transactions where lenders extend financing in exchange for a security interest in ACCUs or tokenised ACCUs.
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ItemWhen seeing is no longer believing: Is Australian law ready for deep fakes?( 2021)Deep fakes are currently proliferating in our society, and they are becoming increasingly indistinguishable from genuine photographs, audio or video recordings. In this paper, I explore the challenges that deep fakes present for individuals who may suffer harm as a result of these engines of disinformation targeting their identities. But at the same time, I point to some positive use cases involving deep fakes. As with many new technologies, I argue that a rush to regulate deep fakes risks stifling innovation and competition in the still fledgling market for synthetic media as a result of the shift it would entail from research and development to compliance costs. My argument therefore is for a more carefully considered, targeted approach designed to minimise the harms associated with deep fakes while leaving space for benefits.
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ItemThe war of the wrongdoers: When are wrongdoers truly unequal?( 2021)The law relating to multiple wrongdoers for civil wrongs has a chequered history. For centuries, solidary liability, which applies where wrongdoers jointly or independently cause the same loss, indivisible loss, has ensured that the plaintiff is able to seek full recourse from any defendant who was a necessary ingredient or cause of the harm suffered. Undoubtedly, the system has led many “deep-pocketed” defendants – who are the obvious targets of any plaintiff - to question whether they should be left on the hook for loss which the law recognises as the shared and indivisible fault of multiple defendant parties. In the relatively recent spate of reforms, the system of attributing fault between multiple defendants has been overhauled by a myriad of reforms. The reforms achieve multiple ends in different contexts. What this paper will refer to as “contribution reforms” have achieved two main ends. Firstly, they have enabled courts to order defendants to ‘contribute’ in the context of tortious wrongs an area in which the law has previously disallowed contribution. Secondly, the reforms have enabled courts to attribute liability on a pro rata basis which reflects the defendants’ respective wrongdoing – whereas previously the courts were only able to attribute a pro rata percentage of liability. What the paper will call “proportionate liability” reforms have removed solidary liability from the law altogether – in certain legislatively defined contexts. Similar to the contribution reforms, the court is empowered to apportion blame based on the respective wrongdoings of the wrongdoers or defendants. Drawing on from the law of contributory negligence, both sets of reforms rely on the dual tests of “causal potency” and “moral blameworthiness” when assessing the proportion of liability that should be attributed to either of the defendants. The focus of this paper will be to draw from the learnings of each of the “contribution” and contribution-like regimes: contribution as it applies in the general law, the contribution reforms and the proportionate liability reforms, in search of a unified approach to the principle of contribution in the context of civil wrongs. Section [II] of the paper considers the principle of contribution. It argues that that “eligibility” limitation, which requires that the defendants each be liable for coordinate liabilities is difficult to apply and unsound in principle. The Section concludes by arguing that unjust enrichment provides an adequate and unifying “eligibility” criterion, in preference to the existing “coordinate liabilities,” test. However, unjust enrichment does not provide an adequate basis upon which the court can attribute liability between the defendants. (The pro rata attribution of liability is an outworking of contribution’s paradigmatic or early cases which arose from surety situation – something which cannot be readily applied in the context of torts and civil wrongs, more generally). Sections [III] and [IV] consider how both the contribution and proportionate liability reforms manage apportioning liability regarding the perceived or actual responsibility for the loss (rather than pro rata) and the lessons that could be learned from the dual tests of causal potency and moral blameworthiness, which the reforms apply in attributing liability between multiple wrongdoers. The section concludes that the dual tests of “causal potency” and “moral blameworthiness” are inadequate and present no better or legitimate alternative to the pro rata status quo that applies under the general law of contribution. Section [V] provides an alternative approach to the apportionment of responsibility by referencing criminal law principles applicable to sentencing. The argument is underpinned by the acknowledgement that, once the plaintiff’s loss is determined as a loss necessarily caused by either defendant, the question necessarily becomes one of comparing and adjudging blame – a task which the criminal law courts conduct expertly.
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ItemTwo Worlds, One Forum: Investor-State Arbitration and Indigenous Rights( 2020)Investment treaties and investor-state dispute settlement (‘ISDS’) have been seen to have a significant effect on the rights of indigenous peoples, which has led to development in regards to both the substantive rights of investors in investments treaties (such as the inclusions of ‘carve out clauses’ which are intended to preserve the rights of indigenous from foreign investors) and how arbitral tribunals deal with the rights of indigenous peoples when adjudicating investor-state disputes. Accordingly this paper seeks to further examine developments in this niche jurisprudence and discuss the implications of these developments. This paper will firstly consider the various rights of indigenous peoples that are seen to be at play in an international law context, and various legal instruments in which some of those rights are reflected in and derived from. Secondly, this paper will examine a selection of relevant investment treaties which have provisions affecting the right of indigenous peoples that have been considered by tribunals. More recent investment treaties that have more developed provisions which affect the rights of indigenous peoples are also considered. Thirdly, this paper will examine how the rights of indigenous peoples have been applied by tribunals in investor-state arbitrations. Fourthly, this paper will explore how the rights of indigenous peoples may be further applied in investor-state arbitrations and consider the practical application thereof. Finally, this paper will briefly explore how ISDS reform may affect the rights of indigenous peoples being applied in investor-state arbitrations. In doing so, this paper argues that the development of ISDS jurisprudence in cases concerning the rights of indigenous peoples, indicate an openness to considering, incorporating, and applying the rights of indigenous peoples in investor-state arbitrations.
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ItemCrypto-Financial Assets in a DLT-Based Market Infrastructure: Legal Principles of Ownership and Obligation( 2019)Decentralised ledger technology (‘DLT’) first emerged in late 2008 and has its origins in the ‘blockchain’ technology designed to prevent ‘double spending’ within the Bitcoin cryptocurrency network. Whilst cryptocurrencies, in themselves, remain controversial, there has been a general recognition amongst the major commercial banks, central banks, and policymakers, that DLT and smart contracts may well improve efficiency in financial accounting, settlement, and other post-trade services. Although DLT is still in its infancy, with many authorities unwilling to stifle innovation by premature regulatory interference, some stakeholders have recognised that regulatory ‘sandboxes’ would, nonetheless, be a useful tool to overcome any identified issues, and help keep regulations and legislation up to date with change. This thesis analyses the private law implications and consequences, predominantly in the English laws of property and obligations, of adopting DLT at three levels of the financial markets infrastructure by reference to live case studies: (i) by the issuer, thereby creating a direct link between issuers and investors (the LuxDeco and Overstock securities); (ii) by a top-tier intermediary, such as a settlement system or central securities depository (the Australian Stock Exchange); (iii) by lower-tier securities custodians inter se (Deutsche Börse). The legal analysis is informed by a technical understanding and explication of the code underpinning the Bitcoin and Ethereum networks, the current state of the markets in native cryptoassets, and developments in the UK's FCA regulatory sandbox.
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ItemNo Preview AvailableCommon risks in construction contracts: resolution and revision( 2020)This thesis explores the common risks in construction contracts and a review of the law in the relevant risk areas regarding their resolution, comments on what role standard form contracts play and could play in resolving these risks and thereby proposes revisions to terms often negotiated between parties on the same issues. The thesis also presents a comparison between AS4000-1997/AS4902-2000 and draft NCW4 released in 2019 to demonstrate and advocate how standard forms have progressed in the last 20 years in response to changing trends with more complex transactions arising. The thesis also provide some prospective from builders and developers on the common risks detailed and how those matters are generally resolved which support the overall thesis.
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ItemNon-charitable purpose trusts and the beneficiary principle( 2020)The thesis discusses whether the existence of valid trusts for purposes is conceptually consistent with the content of the beneficiary principle.
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ItemThe Victorian treaty process: towards an authentic and meaningful form of Indigenous self-determination?( 2020)This thesis offers a reflection on the transformative potential of the Victorian treaty process with regard to self-determination of the Aboriginal community of Victoria. It postulates that the creation of an Indigenous political constituency through the First Peoples’ Assembly, together with the preponderance given to Aboriginal voices throughout the treaty process and the collaborative approach observed by the Victorian government, testify to the emergence of a political culture based on the accommodation of the interests and aspirations of both Indigenous peoples and the Victorian state. In the meantime, it stresses the challenges of a consensual form of self-determination, which arise from the weak negotiating leverage of Aboriginal parties, the structural weaknesses of the treaty making process, as well as the dissatisfaction and disillusionment among a significant part of the Aboriginal community. Also, drawing on the treaty experience in countries with a colonial history close to Australia, as well as on the crucial and extensive work carried out by Indigenous advocacy, the thesis provides a set of key avenues for the elaboration of a treaty framework and the conclusion of subsequent agreements carrying an authentic and meaningful form of Indigenous self-determination.
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ItemWhistleblower Laws: the other employment law( 2018)While there has been a considerable amount of research and writing on enhancing whistleblower laws to encourage whistleblowing and protect whistleblowers, little has been written on these laws’ impact on employers’ ability to manage employees. This paper, first, outlines how whistleblower laws impose restrictions and duties on employers dealing with employees’ alleged misconduct. Second, it critically evaluates these restrictions and duties, and advocates for changes. It argues for reforms to some public sector whistleblower laws to enable employers to discipline employees for making deliberately false and misleading disclosures. More importantly, however, it argues that requirements on employers in public sector whistleblower laws to investigate employee disclosures inappropriately interfere with employers’ ability to respond to allegations of employee misconduct. These requirements force employers to go through an ‘investigation’ process where other forms of management action are preferable; may discourage employees reporting wrongdoing; and impose substantial administrative costs. Alternatives models are considered.