Melbourne Law School - Theses
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ItemEmergency Powers in Times of Terror: A Comparative Study of Canada and France( 2022)Constitutions establish the fundamental principles of government, both grounding and limiting the legal exercise of state power. In times of emergency, when public safety is threatened and the state must act to protect its citizens, these two constitutional functions can come into tension. A constitution may provide the legal basis for the state’s response to an emergency, but it may also constrain the state’s ability to act effectively during the time of crisis. Some constitutions, like France’s Constitution du 4 octobre 1958, anticipate this dilemma with emergency provisions. Other constitutional texts, like those of Canada, have no special provisions for emergencies. In either case, the state may choose to provide for an emergency framework by statute, accepting that the law must necessarily be constrained by the overarching constitution. Following the attacks of 11 September 2001, this constitutional dimension of emergency management acquired a new urgency because terrorism places extraordinary pressures on constitutional systems. By its nature, terrorism affects the state in its very essence. Through its immediate effects, terrorism calls into question the state’s ability to provide for the physical security of its citizens and challenges its corollary monopoly on violence. Through its induced effects, terrorism affects constitutional rights through the restrictions that it causes. Two decades after the attacks of 11 September 2001, amidst an ongoing global terror threat, constitutional systems continue to grapple with these pressures. This thesis investigates whether and why constitutional emergency provisions are necessary, or desirable, or even useful for dealing with the threats posed by terrorism. To this end, it seeks insight from the comparison of two constitutional systems that exemplify these opposite approaches: Canada and France.
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ItemReconciling the responsibilities of parents and the state: Is the best interests principle still the appropriate test for making decisions about the provision of life sustaining treatment to young children?( 2022)High profile court cases in England and Wales, such as those involving Charlie Gard and Alfie Evans, highlighted the challenges of determining that life sustaining medical treatment is not in a young child's best interests. These cases led to calls for law reform, which reflect broader criticisms of the best interests principle that is applied under current laws. The criticisms suggest that the application of the best interests principle is too indeterminate to guide decisions and that the principle requires an impractically narrow focus on the child. This thesis considers whether the best interests principle should be retained to guide decisions about whether a young child receives life sustaining treatment. The thesis explores the theoretical foundations of the best interests principle and alternatives offered in the academic literature. The frameworks for decision-making identified in the academic literature are used to examine the application of the best interests principle in practice in England and Wales, Australia, and New Zealand through a review of the case law and qualitative research with specialist paediatric doctors. The exploration of theory and current practice demonstrates that although there are difficult cases, in which there is reasonable disagreement, there is actually substantial agreement about the circumstances in which a child should be provided life sustaining treatments. It is argued that it is necessary to retain the best interests principle in order to ensure that children's interests are not marginalised. However, a more comprehensive explanation of the situation is required and this may be provided through a rights-based approach. A rights-based approach provides a transparent process for determining what is in a child's best interests and when the child's best interests should be prioritised over the interests of others.
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ItemThe Structure of Human Rights: A Philosophical Investigation( 2020)There is a tendency for human rights bodies—at the international, regional, and national level—to take each human right to correspond to multiple duties. It has become almost a mantra of human rights institutions that human rights correlate with duties to ‘respect, protect, and fulfil’. This view of the structure of human rights—the Multiple Duty View—is echoed in much of the philosophical literature on human rights—and particularly the accounts of Henry Shue, John Tasioulas, and Rowan Cruft. These philosophers reject outright the claim that there is a one-to-one relationship between human rights and their duties. Instead—on their accounts— correlating to each human right are any and all of the duties that it takes to guarantee the substance of the right or to protect the interests or other features of the right-holder. In this thesis, I present a challenge to the Multiple Duty View. I claim that it struggles to make sense of important cases of waiver of human rights because it does not match each human right with a single duty of identical content. On the Multiple Duty View each human right correlates with multiple duties. So, when a right-holder releases the duty-bearer from just one (or, at least, not all) of the duties correlative to a single human right the Multiple Duty View cannot explain what happens to that right. It can only say that that right is either waived or retained, and neither properly captures the situation. I present an alternative picture of the structure of human rights that addresses this problem—the Individuation View of human rights. The Individuation View takes each human right to correspond to one duty only. As such, it registers that for every duty that a duty-bearer is released from a human right is also suppressed. I consider and address some objections to the Individuation View, including that it is inconsistent with human rights practice and leads to a proliferation of human rights by positing the existence of many more rights than the Multiple Duty View.