Melbourne Law School - Theses
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ItemCivilian detention in United Nations peace operations : the need for a special legal regime governing detention(University of Melbourne, 2009)This thesis is concerned with examining the significant legal issue of UN personnel temporarily detaining civilians in UN peace operations. More specifically, it addresses the question: is the temporary detention of civilians by UN peacekeepers in peace operations appropriately regulated? The argument here is that the temporary detention of civilians by peacekeepers is not appropriately regulated by extant legal frameworks, and, consequently, the thesis proposes the creation of a special legal regime governing detention. Such a regime would provide greater certainty, clarity and consistency of applicable legal norms and would ensure the effective and efficient conduct of UN peace operations in the context of the recognition of the rights and obligations of both the civilian population affected by the operation and the peacekeepers conducting the operation. This thesis argues that the taking and handling of detainees by UN peacekeepers is not appropriately regulated by extant legal frameworks for a number of reasons. The key reasons are: (1) there is no single legal regime that applies to the temporary detention of civilians in UN peace operations; (2) the law applicable to UN peace operations temporarily detaining civilians is fragmented; (3) where norms are identified as applying, they are sometimes, on closer analysis, inadequate to meet the operational necessities of peace operations; and (4) there are a number of gaps in the existing law, and the law, therefore, must be further developed so as to be relevant to contemporary UN peace operations. It should be noted that this thesis does not argue that there is no legal framework applicable to the treatment of civilian detainees nor that existing legal regimes applicable to the treatment of civilian detainees should be abandoned. It does, however, seek to contribute to the search for greater certainty, clarity and consistency of the norms dealing with detention by arguing for formalisation and systematisation. Consequently, this thesis restates, where relevant and appropriate, obligations within the existing legal frameworks that apply to UN peace operations. It also identifies where existing norms do not adequately respond to the needs of either detainees or the peaceoperation, and proposes norms that are more specific and nuanced to meet the requirements of the context. The fundamental aim of this thesis is to argue for a special legal regime to govern UN peacekeepers dealing with detainees.
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ItemLegislating illiberalism : law, discourse and legitimacy in Singapore(University of Melbourne, 2009)This thesis conducts a socio-legal reading of legislation and public discourse to track the manner in which the Singapore state has reframed the liberal idea of the `rule of law' into a rights-eroding `rule by law' while sustaining its legitimacy as a `lawful' state. It demonstrates the complex entanglements between `law', language and struggles for power in the Singapore state's construction and consolidation of its rule. Applying critical theory on language and power to studies of four legislative enactments spanning the first thirty years of Singapore's existence, the thesis shows that the state has responded to moments of public contestation by characterising critics as threats to national security. Legislation relating to seemingly disparate subjects � vandals, the press, the legal profession and religious harmony � effect a uniform outcome: the silencing of non-state actors, and the emasculation of the courts. The thesis uncovers four main strategies relating to the state's use of `law' to render the state the primary legitimate speaker of the public domain. First, through an adherence to procedure, the state claims to be properly `rule of law'. Second, the state uses legislation and its dominance of public discourse to recalibrate state-citizen relations such that citizens are constructed as subordinate to the state. Third, the state links questions of `law' to a state-scripted account of perpetual territorial vulnerability. Through its narrative of Singapore's vulnerability, the state selectively adopts facets of `Western' liberal notions of the `rule of law' such that `law' relating to commerce is substantively equivalent to the `West' while civil and political liberties are treated as grants rather than entitlements. Finally, the thesis demonstrates that legislative text has been scripted in increasingly opaque terms such that `law' becomes comprehensible only through acquiesence to the state's ideologically-driven attribution of meaning.
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ItemJurisdiction : the expression and representation of law(University of Melbourne, 2009)Theories of legal power in modern jurisprudence have tended to focus upon the metaphysical problematic of sovereignty and its relation to the origin, foundation and purpose of State authority. Questions of jurisdiction on the other hand continue to order the local, technical and technological languages of law, the modalities of legal institution and the aesthetics of judgment, in a way that has remained relatively unaddressed in modern theoretical discourse. Thus, while the major philosophies of law can be characterized by surveying a distinctly `representational' aesthetic of legal authority, the matter of the `expression' of this authority is left to relatively minor jurisdictional arrangements or technical contrivances of law. To address what it means for legal power and authority to be thought within the terms of jurisdiction is also therefore to approach the theme of law 's expression�its affects of speech and its modes of repetition�through the medium of its technical genres. In this thesis, jurisdiction is taken as a practical and theoretical tool which allows one to navigate the plural and expressive dimensions of legal authority. The work of Gilles Deleuze is enlisted in this regard as offering not just an important methodological. recovery of an `expressionism' in philosophy�specifically through Nietzsche and Spinoza�but also a jurisprudence which recasts the major technical terms of jurisdiction (persons, things and actions) in terms of their distinctively expressive or performative modalities. As part of the genres of jurisprudence, the fashioning of persons; possessions and procedures of law involve institutional techniques which cannot be easily reduced to the metaphysical co-ordinates of rational judgment, objectivity or a `subject of rights'. In paying attention to the articulation of these technical genres and their relation to the ordering of legal knowledge, this thesis purports to account specifically for how meaning may attach to the instrument and medium of law and how legal desire maybe registered within the texture and technology of jurisdiction.
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ItemChildren's right to health : seeking clarity in the content of Article 24 of the United Nations convention on the rights of the child(University of Melbourne, 2009)The right to health is now firmly implanted within international human rights law. Despite significant work in recent years to develop an understanding as to its content, this project is far from complete. The aim of this thesis therefore is t� examine the extent to which clarity can be brought to the content of one particular formulation of this right, namely article 24 of the United Nations Convention on the Rights of the Child (`Convention'). In undertaking this task, chapter I will detail the methodology by which the interpretation of article 24 offered is to be generated. In the first instance a strong call is made to apply the principles of interpretation under the Vienna Convention on the Law of Treaties 1969 (`VCLT'). Such an approach is considered to impose a constraint on the, interpretative process � a constraint that other bodies examining the right to health, such as the Committee on Economic Social and Cultural Rights and the Committee on the Rights of the Child, have on occasions tended to overlook in their enthusiasm to develop a�vision of the right which may be appealing but has no textual foundation. At the same time, it is generally accepted that sole reliance on an application of the principles of interpretation under the VCLT is problematic. This is because a requirement to identify the ordinary meaning of a treaty in its context and in light of the object and purpose of a treaty is unlikely to produce the meaning of a provision such as a child's right to health given the inherent indeterminacy of language. Chapter I will therefore outline those additional factors that will guide the selection of a meaning for the various subparagraphs of article 24 in this thesis, the aim being to . produce an' interpretation that can be said to be not only principled, but practical, coherent 'and context sensitive. Having detailed the methodology to be used to interpret article 24, chapters 2 to 5 will engage with the core function of this thesis which is to detail the measures required of States that flow from: (a) their recognition of a child's right-to health under paragraph 1 of article 24; (b) their obligation to address a range of specific issues such as child mortality and environmental pollution under paragraph 2; (c) their obligation to abolish traditional practices prejudicial to the health of a child under paragraph 3; and (d) their obligation to promote and encourage international co-operation for the purpose of securing the progressive implementation of children's right to health. Although no claim is made that this thesis will provide the definitive account as to the nature of these provisions, it will be submitted that it is able to offer a greater level of understanding as to the meaning of article 24.
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ItemOccupation, resistance & the law: Was armed resistance to the occupation of Iraq justified under international Law?( 2009)The 2003 invasion and occupation of Iraq triggered a plethora of legal questions. This study focuses upon two: Was Iraqi resistance to the invasion and occupation justified under the laws of war? If so, by whom and for how long? ('The research questions') These are questions that the UN Security Council deliberately avoided when it responded to the intervention. Given that most States and commentators regarded the intervention as a violation of the UN Charter, the legality of armed resistance to the invasion and occupation warrants analysis. The present study examines, inter alia, whether Iraq was justified in using force against Coalition forces in the exercise of rights under the jus ad hellum. It considers whether self-defence and self determination provided a juridical foundation for armed resistance to the invasion and subsequent occupation of Iraq. Attention is also paid to the jus in hello. Issues addressed include: the nature of the conflict(s) during the occupation; whether members of various resistance forces qualified as combatants; and the issue of compliance with the jus in hello during resistance operations. In order to address these matters with precision, the occupation of Iraq is considered in several stages: 1. The immediate aftermath of the ouster of the Ba'ath regime (April-May 2003); 2. Post-UNSCR 1483; 3. Post-UNSCR 1511; and 4. Post-UNSCR 1546 (and pre-28 June 2004). The fourth stage highlights a matter of fundamental importance to this study the end point of the occupation. The position adopted here is that the occupation was terminated, with UNSC approval, upon the transfer of power to an Iraqi government on 28 June 2004. Thereafter, armed resistance could not have been justified under the right of national self-defence, as this right is exercisable by governments, not insurgent forces. While it may be argued that military occupation continued, as a matter of fact, beyond the transfer of power, this writer's view is that, as a matter of law, the occupation was terminated on 28 June 2004, in accordance with UNSCR 1546. Discussion of 'the legality of resistance to occupation' is thus confined to the period between the collapse of the Ba'ath regime in April 2003 and the transfer of power on 28 June 2004. In addressing the research questions, a range of contemporary legal issues are highlighted. They include: 1. Unresolved tensions within the laws of war over the precise parameters of 'lawful resistance' to foreign occupation; 2. Overlap and convergence of the jus in hello and the }us ad hellum in the context of armed resistance to occupation. (The clearest example is the right of peoples to fight for self determination against alien occupation which falls within both branches of the laws of war); 3. Whether the right of self-defence may be overridden by the UNSC; 4. Whether UNSC resolutions depend for their validity upon their conformity with jus cogens norms; and 5. Whether armed resistance to UN-authorized forces is, by its nature, a breach of the UN Charter and therefore an unlawful use of force.
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ItemConstitutional constraints on the reasonableness ground of judicial review: a wrong turning in the High Court of Australia?( 2009)Australian law imposes a duty to exercise statutory discretions reasonably, but Australian courts are circumspect about developing the duty's content. The application of the unreasonableness ground of review requires an assessment of the quality of discretionary decisions, and the ground is therefore seen to carry a risk of shading into review on the merits. While the need for restraint in reasonableness review is clear, there are divergent views on how to ensure appropriate, principled limits on the ground are observed. One area of difficulty is the scope for consideration of the rationality of discretionary decision-makers' reasons. Another is the scope for consideration of any injustice or substantive unfairness that may be involved in the outcome of the exercise of statutory discretions. Australian authorities emphasise that the scope for consideration of these matters is extremely limited. This is generally understood to mean that it is confined to extreme cases, i.e. that the standard of review is high. In this thesis, the author identifies a second sense in which the scope for consideration of these matters is confined in Australian law. Specifically, the author argues that there is support in High Court authorities for two restrictions on judicial development of the grounds of review: (i) it is not a ground of review that material "discretionary' determinations are irrational, assessed against the judge-made standards that apply to determinations that are' preconditions to power'; and (ii) it is not a ground of review that a decision's impact on expectations engendered by the decision-maker's conduct or representations is unreasonable, assessed against judge-made standards that apply to review of decisions' impact on ‘interests'. The judicial theory of the restrictions is that they ensure that review against judge-made standards focuses solely on considerations mandated ‘by statute'. What this seems to mean in practice is that review excludes consideration of matters whose relevance is implied from a course of dealing by the executive. The doctrinal expression of the restriction is that 'expectations' engendered by executive conduct or representations do not attract the protection of the duty of reasonableness. It is not clear whether this restriction commands majority support in the High Court, but the author argues that it underpins three influential reasons for judgment handed down in the period of the Gleeson Court. The author argues that the emergence of support for these restrictions on judicial power to develop the grounds of review is troubling. The inflexible nature of the restrictions impedes the evolution of the reasonableness ground to ensure that discretionary decision-making complies with minimum standards of rationality, proportionality and equal treatment. Further, the author argues that constitutional constraints on the courts' role in judicial review of executive action do not support these restrictions on review. The constitutional principles do not support an inflexible judgment that terminates analysis upon determination that a matter, said to bear on the reasonableness of a decision, emerges from a course of dealing by the executive. In examining the judicial claim that the restrictions are required by constitutional principle, the author looks at the operation of the principle of legislative supremacy, and further engages with the idea that distinctive limits on judicial review of federal executive action can be derived from the text and structure of the Constitution.
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ItemReforming Australia's anti-discrimination legislation: individual complaints, the equality commission and tackling discrimination( 2009)Australian courts hear very few discrimination complaints each year. Most complaints are resolved prior to hearing, in the privacy of conciliation. The hypothesis of this thesis is that the law is not operating as intended and there is a shortage of decisions because complainants are disinclined to use the formal legal system to resolve their complaint. Commentators have identified problems with both the substantive law and its interpretation, the problems related to proving discrimination and the lack of support available to complainants. This thesis considers the extent to which these problems are a factor in the high rate of settlement of complaints based on interviews of staff at the Victorian Equal 0pPoliunity and Human Rights Commission, lawyers and non-legal advocates practicing in discrimination law in Victoria, and a survey of complainants and respondents who have participated in conciliation. This is supported by an analysis of court decisions and complaint statistics. This research revealed that most complainants settle to avoid the time and energy required to pursue the complaint, the cost of litigating or the risk that if they are successful and awarded compensation, it may not cover their legal fees. It also identified problems with the resolution process, particularly the facilitative nature of conciliation and that there is little publicly available information about settlement outcomes. Furthermore, the research revealed that although complainants may initially seek wider remedies, most complaints are resolved with compensation and an analysis of substantive decisions showed that the tribunal most often orders compensation in Victoria. Drawing on mechanisms used overseas, this thesis proposes a strengthened model of individual enforcement. Under this model, complainants have direct access to a specialist 'equality' tribunal and can choose 'rights-based' conciliation or adjudication using less formal and less adversarial hearing procedures. In addition to remedying the complainant's experience, the tribunal is required to make an order targeting discrimination more broadly. The second part of this proposal is to introduce a statutory 'questionnaire procedure' to assist complainants with obtaining information relevant to their complaint and, for those who proceed to litigation, shifting the burden of proof to the respondent once the complainant has established prima facie discrimination. As a result of the proposed changes to the individual enforcement process, the equality commission would not be responsible for resolving complaints. The thesis proposes to add another enforcement 'tier' - enabling the equality commission to assist complainants with resolving the complaint. The thesis argues that the equality commission should use its assistance function strategically to develop the law and to obtain outcomes which benefit a group. Finally, the thesis argues that addressing discrimination with an individual complaints based process is limited because it is reactive and passive. The thesis concludes by presenting an overview of positive duties in the United Kingdom and shows how they attempt to overcome the limits of the individual complaints based approach in tackling discrimination.
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ItemLaw, policy and practice for ecologically sustainable water allocation and management: an analysis of institutional developments to provide for environmental water needs in the Murray-Darling Basin (New South Wales and Victoria), 1994-2009( 2009)A comprehensive national program of water reform, aimed at achieving more sustainable and efficient water allocation and management, commenced in Australia in 1994. A key platform of the reform agenda has been the commitment to provide for environmental water needs by addressing unsustainable levels of water allocation; providing legal recognition and protection for environmental water; and reforming river management arrangements. This thesis evaluates progress on this reform agenda in the Murray-Darling Basin, Australia’s major inland river system. This evaluation centres on the developing law, policy and practice of environmental water allocation, particularly processes to allocate water between competing users; legal mechanisms and supporting legal structures to facilitate and protect environmental water; and management arrangements for rivers with environmental water regimes. A central focus is the strategic and structuring role of law in establishing and sustaining effective environmental water governance across these three areas. To structure this evaluation, an analytical framework of institutional considerations is developed early in the thesis. This framework represents a synthesis of pertinent research, drawing on the scientific basis for environmental water reforms and a range of conceptual approaches to institutional design and governance for sustainable natural resource management. Essentially, this framework establishes the parameters for an emergent model of governance for ecologically sustainable water allocation and management, focusing particularly on the role of law within a broader institutional context. The framework is applied in a range of different management contexts and at a range of jurisdictional levels through case studies. This contextual application allows the considerations and contentions raised through the framework to be further explored, tested and advanced, with the purpose of contributing to the articulation of a proposed model of governance for effective environmental water allocation in conclusion to the thesis. This governance model proposes more strategic and purposeful use of legal settings to set standards and parameters for a range of water allocation and management functions; to guide and constrain relevant decision-making; and to distribute duty and authority, and foster institutional capacity in a manner which best supports effective environmental outcomes. The model represents an important blueprint at a critical time in the ongoing Australian water reform process; and at a broader level contributes to the literature on the role of law and legal change in establishing institutions for sustainability outcomes.
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ItemRecognition, redistribution and resistance: the legalisation of the right to health and its potential and limits in Africa( 2009)This thesis examines the use of the right to health as a legal tool for ensuring access to better health care in Africa and as a means of dealing with threats to human health on the continent. The thesis critically assesses some of the key ways in which the right to health has been used at the local, regional and global levels as part of efforts to improve health on the continent. The aim of the thesis is to assess the utility of the right to health in Africa particularly in light of challenges posed by the power of international economic actors, local and international structural constraints and the paradoxical position of the state as both a potential violator and protector of the right. As this thesis shows, human rights are a powerful and inspirational language for people struggling against degradation, domination and deprivation for the reason that they give expression to the notion that human dignity, equality and freedom ought to be respected and protected. They are also a tool for resisting oppressive power, in addition to providing legitimacy for the redistribution of material resources necessary to meet basic human needs and to alleviate human suffering. The thesis further shows that these benefits of human rights have been enhanced through legalisation, a process through which human rights have been translated from moral or natural rights into legal rights capable of being enforced through judicial and quasi-judicial processes. But legalisation has its drawbacks, as the thesis demonstrates. The thesis argues that despite the significant advances that have been made, particularly in the last fifteen years, in the elaboration and clarification of the content and justiciability of the right to health, its limitations as a legal right are particularly evident in light of a number of factors. These include the power of international economic actors, local and international structural constraints and the problematic potential of the state as both a protector and violator of the right to health. By examining concrete instances in which efforts have been made to use the right to health in the context of some or of all these factors, the thesis demonstrates the limits and potential of the right as a legal right. The thesis thus argues that a proper account of the utility of the right to health should not overemphasise the legalisation of the right but must include an analysis of the power relations and structural constraints at play at both the international and local levels, which jeopardise good health in Africa in the first place. It is further argued that such an account offers a better understanding of how the moral, legal and political forms of the right to health might be strategically and productively combined in the struggle for better health in Africa.
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ItemThe Indigenous right of self-determination and 'the state' in the Northern Territory of Australia( 2009)The topic of this thesis is the prolonged denial and eventual recognition of the rights of the Indigenous peoples of Australia following the British assertion of sovereignty. The analysis considers the manner in which the denial and subsequent recognition of Indigenous rights has affected the system of government of the dominant society (the Commonwealth of Australia) in terms of the establishment and evolution of the constitutional framework and associated processes of institutional change in the principles, structures and procedures of the system of government. The primary jurisdiction in which this topic is explored is the Northern Territory of Australia; the primary contexts are the recognition of Indigenous land rights (defined broadly to include associated natural and cultural heritage and resource rights) and the Indigenous right to self government within ‘the state’ (the internationally constituted and recognised polity of the Commonwealth of Australia). The thesis draws on analogous developments in Canada and New Zealand to demonstrate that, while significant progress has been made in the recognition of Indigenous rights since the 1960s, many forms of recognition remain conceptually and procedurally limited. In particular, associated regimes have almost invariably been devised and implemented within a fundamentally monocultural context in which Indigenous rights remain subject to unilateral abrogation or extinguishment by Commonwealth governments. In addition, the legal basis of and requirements for recognition of Indigenous rights according to Commonwealth law result in extremely variable levels of recognition in different areas and contexts, and principles and procedures for the mutual recognition and co-existence of Indigenous and Commonwealth law and systems of government are only partially apparent in the Federal and Northern Territory systems of government. In addition to extending and deepening the recognition of Indigenous rights throughout all relevant institutions of the system of government, to address these deficiencies the thesis argues that constitutional recognition and protection of Indigenous rights and the negotiation of treaties are essential if the Indigenous right of self-determination is to be respected and accommodated by the dominant society.