Melbourne Law School - Theses
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ItemMultireligious Adherence and the Right to Freedom of Religion in India( 2022-10)This thesis examines the scope for constitutional guarantee for the freedom of ‘multireligious adherence’ in India. Multireligious adherence means the adherence to the norms of more than one religion at the same time. This thesis asks whether multireligious adherents and syncretic religious groups are recognised by the Indian Supreme Court, the highest court in India. To answer this question, the thesis analyses the decisions of the Court from 1950 to 2022 on the interpretation of the right to freedom of religion under Articles 25 and 26 of the Indian Constitution. The thesis finds that multireligious adherents and syncretic religious groups are not judicially recognised due to the Court’s implicit assumption that religious adherence is necessarily exclusive. The thesis argues that the extent to which the Indian Supreme Court recognises multireligious adherents and syncretic religious groups significantly influences the right to freedom of religion of both individuals and religious groups in India. Furthermore, the thesis highlights that Article 25 of the Constitution, which protects a person’s right to freely profess, practise, and propagate religion, is an inclusive provision; it does not differentiate between those who adhere to the norms of a religion exclusively and those who do so non-exclusively. Therefore, Article 25 protects even the right to adhere to multiple religions. The thesis concludes that the Court’s ‘exclusivist understanding’ of religious adherence, which fails to consider the possibility of multireligious adherence, conflicts with this interpretation of Article 25 of the Constitution. This thesis aims to contribute to the fields of ‘law and religion’ and constitutional law: first, it offers an ‘inclusive view’ of religion and religious adherence, where adhering to the norms of one religion does not preclude a person from simultaneously adhering to the norms of another; and second, it shows how the judicial understanding of religious adherence influences the constitutional right to freedom of religion in India.
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ItemEmpowering customary land rights: can Indonesia rise to the challenge?( 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.
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ItemConstitutionalism as Postwar International Law( 2020)This thesis inquires into the significance of the histories of constitution-making in Germany and Japan for international practices of constitution-making after conflict, and for the discipline of international law. It argues that, in offering constitutionalism as a solution to the problems of civil war and conflict in the decolonised world, contemporary scholarship on international law and constitution-making draws on a tradition that was developed during the post-World War II era in relation to the occupations of Germany and Japan. That tradition represents a rejection of material accounts of the causes of war and imperial aggression, and more radical visions of economic redistribution and political self-determination. In invoking these histories, international legal scholars reproduce an understanding of constitutional forms as an object of legal analysis and of technical reproduction, distinct from broader economic and political choices about the government of a society and about the international legal order in which that society exists. By exploring this tradition, this thesis seeks to denaturalise internationally-directed constitutional transformation, paired with economic liberalisation, as a technique for managing the postwar state. The Introduction sets out the paradox of the internationalisation of constitution-making, on the one hand, and the idea of constitutions as a lawful means of governing a public, on the other. It gives an account of the method of inquiring into the way the discipline of international law has sought to invoke the histories of constitution-making in Germany and Japan to resolve this paradox, which I term ‘discipline as method’. Chapter 1 describes the field of international law and constitution-making, and sets out the significance of the histories of constitution-making in Germany and Japan for the discipline of international law. Chapter 2 explores the emergence of a tradition of constitutional thought in international law in the postwar period, articulated in opposition to economic and material accounts of empire, by reference to the work of three lawyers: Quincy Wright, Ernst Fraenkel and Carl Friedrich. Chapter 3 describes the conduct of the Allied occupations of Germany and Japan, reading Allied practices and debates, and the making of constitutions, through competing ideas of the requirements of peace in the aftermath of imperial aggression. The thesis concludes by reflecting on what knowledge of this tradition offers for the discipline of international law.
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ItemDiscretionary trusts and family property disputes( 2016)Whether property held on a discretionary trust is property of a spouse affects the rights of spouses when obtaining orders for property division under the Family Law Act. It is argued that the court can exercise its supervisory power to direct execution of a discretionary trust, to ensure that a discretionary beneficiary or object is not unconscionably held out of an appropriate share of the assets held on trust. As a result it is argued that the rights of the discretionary beneficiary or object are capable of categorisation as equitable property interests for the property settlement provisions in the Family Law Act.
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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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ItemSterilisation decision making and the Family Court: the far bridge or the fields?( [1997])This thesis is about the "sterilisation" jurisprudence of the Family Court of Australia. It is also about the nature of "judging" and the stories that have been told about young women with intellectual disabilities in sterilisation cases. The focus of the thesis is on the ways in which particular stories selected by judges have come to tell the "truth" about those young women, even though there are other versions that could lead to different conclusions. In recent years critical legal scholars have become attentive to the role that "storytelling" plays in the law, and especially in the judicial context. The justification for such an approach in this thesis is a belief that the consequences of judicial decision making are not just legal, but include the possibility of "particularly grave" material effects for the particular women in sterilisation cases, and for all young women described as "intellectually disabled". At the time of writing there have been 7 reported sterilisation decisions of the Family Court. In none of the judgments is the "voice" of the young woman heard. What is known about her has been told by others. Some of the stories are told by people who know her well, some are told by "expert witnesses" who have never met her. The people whose views have been privileged by the Court are doctors and parents. Ironically, the need for court based sterilisation decision making arose out of a desire to ensure that the views of doctors and parents did not displace the interests of children with disabilities. (From introduction)