Melbourne Law School - Theses
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ItemA conceptual history of recognition in international law( 2015)This thesis presents a conceptual history of recognition. It examines the development of ideas about the nature and meaning of recognition in the writings of British jurists from 1800–1950. After introducing recognition as a recurring metaphysical and ontological problem of international law and ordering, and explaining the focus on British juristic writings (Introduction), this thesis outlines a methodology for writing the history of concepts in international law (Chapter Two). While recent work in international legal history demonstrates a new attentiveness to the problems of historiography, efforts to grapple with these problems have rarely involved direct engagement with historical theory. In urging just such an engagement, this thesis adapts the themes, insights, and methods of conceptual history to the examination of concepts in international law. Conceptual history investigates the development of ‘basic concepts’: essentially contested ideas that are indispensable for political and thought and action throughout a period of time, within a national-linguistic society. This thesis adapts this methodology to guide a focus on juristic texts and their contexts. This forms the thesis’s first contribution to the field, specifically methodological debates in international legal history. It shows that historical theory is of real use in understanding and improving our attempts to grapple with the historiographical problems of international law. The thesis’s second contribution takes the form of a conceptual history of recognition (Chapter 3). In examining how recognition became a foundational idea in international law, as reflected in one important national tradition of juristic thought, this history shows how recognition was used to establish hierarchies of political communities and control entry into international society. Nowhere is this plainer than in the writings of British jurists in the context of the rise and fall of the British Empire. This development proceeded in four strands. In the first strand (1800–1880), generalised accounts of the criteria of recognition that are fixated almost solely on intra-European diplomatic disagreements gradually emerge. During the second strand (1871–85) recognition begins to incorporate ideas of Christianity, civilisation and progress to exclude non-European political communities from entry into the international community. The third strand (1885–1914) furthers this progress-orientation into the period of late colonialism and the ‘scramble for Africa’, shifting the focus of recognition to the technicalities of government and territorial control and, eventually, to a state-centric account that normalises civilisational inferiority into ‘difference’. With the fourth and final strand emerges (1915–50), recognition becomes a basic concept in international law, reflected in intense debates over its meaning and its use to advance or undermine a range of political projects within the League of Nations, including the universalisation of international law, changing modes of imperialism, and the constraint of state action through law. The thesis concludes with brief reflections on why British thinking turns away from recognition in the 1950s. With the collapse of the British Empire, the establishment of the United Nations, recognition is no longer a useful frame for exclusion and marginalisation, as the decolonising world turns to a new international law and self-determination.
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ItemRepresentation and reasoning in law: legal theory in the artificial intelligence and law movement( 1996)Over the past few decades there has emerged a group of researchers who , have used computerised techniques to investigate the nature of legal reasoning. These researchers have formed what is called the 'artificial intelligence and law movement.' Members of the movement have built computer systems which automate legal reasoning, and in so doing have assumed that certain models of legal reasoning are correct. This dissertation argues that in many instances the models relied on by artificial intelligence research are no longer commonly accepted as valid by legal theoreticians. It further argues that until the artificial intelligence and law movement begins to recognise alternative legal theoretical models of reasoning, it is - unlikely to produce accurate, reliable and useful automated legal reasoning systems. The dissertation examines the four main reasoning paradigms in the artificial intelligence and law movement: deductive reasoning, analogical reasoning, inductive reasoning and sub-symbolic (neural network) reasoning. In each of these reasoning paradigms it shows that there is an extensive legal theoretical literature which is largely ignored by artificial intelligence research. It reviews the different models presented by legal theorists in each of these paradigms, in, order to show the limitations of artificial intelligence assumptions about the paradigm. The dissertation reviews a representative sample of artificial intelligence and law implementations in each of the reasoning paradigms, and assesses the type of legal theory implicitly adopted in each It argues that, generally, the models of legal reasoning adopted in each paradigm by artificial intelligence research has been formalistic, static, and mechanical. As a consequence, the implementations have been computationally tractable, but unconvincing in legal theoretical terms. The dissertation shows how alternative legal theoretical models of reasoning may be incorporated into existing artificial intelligence approaches. The dissertation concludes with an indication of how in future artificial intelligence and law research might provide useful models of legal reasoning, and how it might inform legal theory.
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ItemUnadjudicated claims to equitable interests under a constructive trust: their assessment as property under the pension assets test( 1995-07)The Social Security Act 1991 incorporates the general legal meaning of property in its definition of an asset, for the purpose of the pension means test. This creates the opportunity for pension applicants to argue that assessable assets held by them should be reduced by the amount of any equitable proprietry rights held by others in the assets. The Federal Court has held in Kintominas v Secretary, DSS and in Kidner v Secretary, DSS that equitable proprietry claims under remedial doctrines, such as under the constructive trust doctrine discussed in Baumgartner v Baumgartner are to be regarded as property even though there has been no judicial declaration of their existence, no dispute between the legal owner and the person claiming an equitabe interest, an no unconscionable abuse of title rights by the legal owner. This thesis argues that the Federal Court’s approach is not the preferable one, for three main reasons. The first relates to the changing nature of the constructive trust to a necessary element. The second is that, at a time when the constructive trust in Australia is in transition from the traditional institutional conception to a remedial paradigm along North American lines, the beneficial interest should no longer be viewed as existing independently of a judicial decree. The third argument is that, even if an equitable interest under a remedial constructive trust is accepted as existing independently of a curial declaration, it cannot be valued for the purposes of the assets test.
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ItemProbability and paternity: the utility of probability theory in the legal determination of facts in issue with particular reference to the resolution of paternity disputes( 1986-05)In this thesis it is proposed to examine the forensic application of probability to judicial or curial decision making, both in general and with particular reference to the determination of parentage such as is required in a paternity suit.
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ItemSex work as work : labour regulation in the legal sex industry in Victoria( 2001-02)Prostitution occupies a significant place in academic research. It has been analysed from a range of disciplines including sociology and anthropology, women’s studies, criminology and law, and medicine and health services. Much of the recent scholarship in Australia concerning prostitution has focussed on the relationship between sex work and sexually transmissable diseases, and on the decriminalisation of prostitution. Despite the considerable number of studies into prostitution, there has been only limited consideration in Australia of prostitution as a form of waged labour. Some feminist theorists, writing from an historical perspective, have examined the concepts of sex and work and the way in which these are reproduced within the practice of prostitution.
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ItemInsolvent trading under the corporations law: the amending insolvent trading legislation introduced by the Corporate Law Reform Act 1992 addresses the major inadequacies of its predecessor, but also leaves a number of issues unresolved( 1996)The Corporate Law Reform Act (1992) (Cwth) (the Act) received Royal Assent on 24 December 1992. The provisions of the Act became operative in two stages: Parts 2, 3, 6 and 7 commenced on 1 February 1993 and Parts 4 and 5 commenced on 23 June 1993. The Act introduced a new insolvent trading regime into the Corporations Law replacing s 592 and related provisions. The new regime introduced significant changes to the Corporations Law (Law). Some of the main features are; imposing on directors a duty to prevent the company from engaging in insolvent trading, implementation of new statutory defences, introduction of provisions that relate to holding companies, decriminalisation of the insolvent trading provision and civil penalty orders for contravention of 588G in the absence of dishonest intent, new criminal proceedings for contravening 588G in circumstances of dishonesty, liquidators standing to take proceedings and power given to the court to make compensation orders for liquidators and creditors. (from introduction)
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ItemTime and the dimensions of substantiality: analysis of temporal market definition issues and the substantial lessening of competition standard( 2007)There is a lack of guidance on the underlying requirements of the substantial lessening of competition legal standard. This paper seeks to develop the analytical basis for such guidance. It works from the premise that such guidance would lead to more consistent decision-making and provide a clear framework for many aspects of market definition and competition analysis. The timeframe for assessing substitution possibilities is one area that is particularly vague. It is argued that existing approaches to timeframes are flawed, as they fail to focus on the fundamental requirements of the substantial lessening of competition standard. The paper advocates a new approach derived from an analysis of the duration requirement of substantiality - the requirement that competition effects have a certain duration. The paper then analyses factors other than duration that may also affect the analysis of substantiality. It is argued that there are only three dimensions of substantiality in the substantial lessening of competition standard: duration, size of the effect and probability. Other possible dimensions, such as the size of the industry, appear to be irrelevant. Finally, the paper examines how the thresholds for the three dimensions interact and vary, arguing that there must be some capacity for trade-off between the thresholds.
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Item‘Industrial disputes’ and the jurisdiction of the federal industrial tribunal( 1993)What constitutes an 'industrial dispute' for the purposes of s. 51 (xxxv) of the Commonwealth Constitution and s. 4 of the Australian Industrial Relations Act 1988 (Cth) is crucial for the determination of union-employer relations. Ultimately the ambit of the phrase 'industrial dispute' determines those matters that may legitimately be raised by a federally registered union with an employer before the Australian Industrial Relations Commission (hereafter the federal tribunal). The central thesis advanced here is that since 1904 the High Court has employed alternating approaches to identifying an 'industrial dispute'. One approach is that an 'industrial dispute' means no more than the traditionally perceived notion of an individual employer-employee dispute. The other approach is a much broader view, in that such a dispute relates to collective employment relations. Put at its most basic level, I submit in this thesis that the jurisdiction of the federal tribunal has been shaped less by the particular words 'industrial dispute' than by the perception of the kind of employment relationship with which these words are concerned. (From introduction)
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ItemAutomating the internet: the law of electronic commerce, contracts and autonomous software agents: regulation of Agent-mediated online contracting: enforceability, liability and risk allocation( 2002)This thesis enquires into the regulation of online contracts formed by autonomous, artificially intelligent software programs, called 'Agents'. It provides an overview of the current state of the law as applied to Agents that negotiate and transact online. Agent transactions are fundamentally different from other computerised transactions, as Agent actions are autonomous, proactive and informed by their ‘intelligence’ and ‘experience’. This paper focuses on three specific areas: (a) the extent to which Agent-generated contracts are, and should be, enforceable; (b) the liability of parties involved in Agent transactions; and (c) the manner in which risk is, and should be, allocated in respect of errors involved in the use of contracting Agents. In exploring these key areas, this thesis considers whether or not the current law adequately deals with Agent-mediated contracts. Areas in which the law fails to satisfactorily resolve issues of enforceability, liability and risk allocation are highlighted, and modifications and reform necessary to achieve such resolution are suggested. This thesis commences with a review of the technical aspects of Agent software, and identifies characteristics that differentiate Agents from other software. We then examine legal doctrine that may be invoked, in current or modified form, to govern Agent contracting activity. Principles of contract law, agency law, and legislative schemes are analysed to ascertain the extent to which they apply to Agent-mediated contracts. In evaluating the operation of contract law, principal-agent law and legislative initiatives, the benchmark against which proposed methods of regulating Agents are measured is the extent to which a particular approach facilitates electronic comerce by providing a strong legal infrastructure. In summary, this thesis: (a) defines and characterises software Agents and discusses e-commerce scenarios in which Agents are, and could be, utilised; (b) reviews principles of contract and agency law, as well as e-commerce legislation, analysing their application to online Agent contracting activity; (c) identifies areas where the law fails to adequately govern Agent-mediated contracts; and (d) suggests ways in which the law may more effectively regulate this new sphere of contracting activity.
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ItemRelationship contracting for the delivery of major projects: panacea or placebo?( 2011)This research investigates a range of legal issues with relationship contracts for the delivery of major construction and infrastructure projects. Historically, such projects have been delivered using a traditional form of construction contract. Relationship contracts attempt to foster a more productive working environment by shifting from a rights based culture to one based on collaboration. This research investigates a number of potential legal issues with this approach, including: the use of agreements to negotiate; collateral contracts; estoppel; fiduciary duties; good faith; and whether the dispute resolution mechanisms attempt to oust the jurisdiction of the courts.