Melbourne Law School - Theses
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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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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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ItemForestalling nuclear proliferation and use through preventative uses of force( 2020)75 years after the cataclysmic nuclear strikes on Hiroshima and Nagasaki, nuclear weapons pose an existential threat to human civilisation. In spite of this fact, the international community has proven largely unable to peacefully halt the spread of nuclear weapons. With Iran’s nuclear intentions in question and North Korea now in possession of a small nuclear arsenal, a debate has ensued on the legality of States using force to forestall the proliferation or use of nuclear weapons. Using the Iranian and North Korean situations as case studies, this thesis enters the debate by analysing the legal permissibility of preventative uses of force. In particular, the thesis considers: (1) the traditional interpretation of anticipatory self-defence and its crucial ‘imminence’ requirement; (2) growing calls for a broader interpretation of imminence; and (3) the potential existence of a customary rule permitting pre-emptive self-defence in the nuclear proliferation context. After applying these concepts to the Iranian and North Korean situations, it is concluded that preventative strikes on these States’ nuclear programs would not be lawful at the time of writing.
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ItemArtificial intelligence and Article 36: Implementing minimum standards for reviewing artificially intelligent military systems( 2020)Artificially intelligent military technologies are being rapidly developed for use in the contemporary battlefield. Such technology includes drones, sentry-robots, and missile-launch systems, as well as surveillance, reconnaissance, and decision-making support systems. With such complicated and sophisticated systems in use, it is increasingly important to ensure that these systems comply with international humanitarian law (‘IHL’). Recent debates in international fora indicate that a specific and effective treaty governing the uses of artificial intelligence in the military context is unlikely. There is, nevertheless, a very real need to ensure that systems used in armed conflict comply with IHL. This paper proposes that the best way to monitor and regulate the development of artificially intelligent military technologies is to subject them to thorough testing, verification, validation and certification processes.
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Item'I will fight for freedom until I die': international humanitarian law, international human rights law and the grey zone of regulating violence in cities( 2020)This thesis argues that international human rights law and international humanitarian law do not adequately govern the conduct of violence in cities, including violent protests, riots and civil unrest. Specifically, it is theorised that situations of violence in cities fall into a "grey zone" of international law insofar as neither international humanitarian law nor international human rights law provide clear and specific rules governing the conduct of violence in these contexts. While international humanitarian law is the field of public international law best equipped to govern the use of force, including the use of certain kinds of weapons and the protection of civilians from violence, modern situations of urban violence often fall below international humanitarian law’s threshold of application for non-international armed conflicts. Consequently, it falls to the international law of human rights to govern these types of violence. However, international human rights law’s ability to be derogated from, lack of specificity regarding permissible and prohibited means of use of force, and general lack of applicability to non-state armed actors, often means that it has limited utility in regulating such situations and effectively protecting victims. Consequently, there is a clear impetus for a policy-oriented approach based on norms found in both international humanitarian law and international human rights law to protect those affected by urban violence. Specifically, this thesis proposes the development of a “Basic Principles” style document to seek to set standards for the use of force, by both state and non-state parties to violence in cities.