Melbourne Law School - Theses
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ItemWays of remembering: law, cinema and collective memory in the new India( 2018)This thesis explores the relationship between secular law and religious violence in contemporary India from a ‘law and aesthetics’ perspective. It offers an inquiry into and expands the understanding of secular law’s public life, by reading two narratives of collective memory produced in the wake of the 2002 Gujarat pogrom—postcolonial India’s most litigated and mediatized event of anti-Muslim mass violence. The first is a ‘factual’ narrative, contained in the texts of the judgments in the Best Bakery case (a key criminal trial related to the massacre of a Muslim family in Vadodara); and the second is a ‘fictional’ narrative captured in the images and sounds of three Bollywood films (whose plots prominently feature the pogrom). These two narratives—which are located both inside and outside conventional sources of law—have had a shared temporal journey. The three films span a period of nine years (2004–13), which closely coincides with the years through which the trials in the Best Bakery case ran (2003–12). Focusing on this post-pogrom decade, the thesis develops a ‘jurisprudential-aesthetic’ approach as an interpretive lens which treats the factual and the fictional as co-constitutive of imaginations of justice that shape collective memories of the pogrom. My reading shows that a shared narrative of the judgments and films engenders ways of remembering the pogrom that condemn the violence while simultaneously rationalizing it as aberrant. Such a reading makes visible the workings of a particular kind of postcolonial state-making and state-preserving rationality that orders collective memories of the pogrom. The workings of this rationality sustain a collective memory in which the reason of secular law triumphs over the violence of religious irrationality, and keeps intact the state’s ideological anti-Muslim foundations. This is increasingly marked by the combined rise of neoliberalism and Hindutva (right-wing Hindu nationalism). By simultaneously condemning and rationalizing the Gujarat pogrom in collective memory, this shared narrative of law and cinema both conceals and continues to perform the role that secular law plays in enabling religious mass violence in the state-making and state-preserving project of Indian postcoloniality.
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ItemLaw, change and socialisation: constructing an account of the role of NHRIs in addressing systemic human rights violations( 2017)National human rights institutions (NHRIs) are domestic statutory bodies established with broad mandates to protect and promote human rights within states. Over two decades since NHRIs agreed to minimum standards for independent institutions and set them out in the Paris Principles, scholarship has moved from its initial focus on the design, form and proliferation of NHRIs to examining their effectiveness, accountability role and contribution to social change. In my thesis I set out to answer the question: what, and how, do national inquiries conducted by NHRIs contribute to the socialisation of international human rights norms? I answer this question by exploring how NHRIs in the Asia-Pacific have utilised national inquiries to address systemic human rights violations. I privilege the experiences of NHRIs in conducting national inquires and adopt a constructivist grounded theory methodological approach. I explore three thematic areas: an NHRI’s foundation in law, what (if any) change has occurred, and the socialising dynamic which facilitates it. I analyse the mandate, functions and powers granted to NHRIs in their founding legislation including their capacity to undertake a national inquiry. I develop an anatomical conceptualisation of the national inquiry process to document the common procedural approaches taken by NHRIs. I begin my examination of the change created by national inquiries with the Mongolian Commission’s national inquiry on torture. From interviews with commissioners and Commission staff, judges, lawyers, prosecutors, police, prison guards, civil society representatives and leading NGOs, academics and donors I construct an account of the national inquiry process and the change it created. I also consider the change created by national inquiries in three jurisdictions across the Asia-Pacific. Focusing on process and impact, I review the Indian Commission’s national inquiry on the right to health care, the New Zealand Commission’s national inquiry addressing transgender discrimination and the Australian Commission’s national inquiry on the forced removal of indigenous children from their parents. I then analyse the socialisation processes evidenced through the national inquiries examined in the preceding chapters. I find that there are four core characteristics of the national inquiry which contribute to socialisation: a foundation in law, a relational dynamic, its public nature and orientation towards change. This complex socialisation process is a long-term project, and a national inquiry can be an influential part of it. While there are barriers to change and uncertainty about the extent of NHRI impact, the evidence does permit cautious optimism: national inquiries conducted by NHRIs offer an avenue to foster progressive and incremental domestic socialisation of international human rights norms.
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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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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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ItemThe history of legal institutions in Victoria( 1942)It has become inveterate in English legal writings to fit all English colonies into a dichotomy – colonies acquired by conquest or cession, and colonies acquired by settlement or occupation. Important constitutional differences attach according to whether a particular colony falls within the one class or the other. To quote the words of Lord Watson in giving the advice of the Privy Council in Copper v Stuart:- “The extent to which English law is introduced into a British Colony and the manner of its introduction must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cessation. In which case there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.” The locus classicus dealing with the position of a colony of the former class, that acquired by conquest or cessation, is to be found in the judgment of Lord Mansfield in Campbell v Hall. Its essential feature lies in the fact that the laws there in force continue until they are altered or abrogated, and until that time British subjects are under their control. This feature is necessarily excluded by the circumstances in which a colony is acquired by settlement. In such a colony from the nature of things there can be no lex loci to which the settlers are amenable, no existing laws to contest the superiority, and no power in the settlers to establish laws independently of the mother country to which they still owe allegiance. In such a colony English law prevails as the birthright of the settlers, and the bond of allegiance between the colonial subjects and their sovereign. (From Introduction)
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ItemProtecting the public? An analysis of complaints and disciplinary proceedings against doctors in Australia and New Zealand( 2013)The professional regulation of doctors is commonly justified as necessary for the protection of the public. However, the degree to which regulatory decision-making is actually consistent with public protection considerations is unclear. The impact of other influences, such as the wider public interest in ensuring an adequate supply of doctors in the workforce, is also unknown. This thesis uses empirical analyses of the complaints and disciplinary mechanisms of the Australian and New Zealand medical regulatory frameworks to explore these questions. The first empirical study is an analysis of the 485 determinations made by medical tribunals between 2000 and 2009 in the four most populous states of Australia and in New Zealand. The characteristics of the doctors involved are described, together with the characteristics of the cases. The nature of the misconduct at issue is analysed according to a new typology that is more refined than previous typologies and, for the first time, considers misconduct according to both its type and the underlying reason for that misconduct. Disciplinary sanctions imposed by the tribunals are explored in some detail, with removal from practice given special attention due to the unique role of that sanction in protecting the public. The results lead the author to question whether the potential for rehabilitation is being weighted too heavily by the tribunals, and whether this may indicate that other considerations (such as doctor supply and the doctor’s own interests) are being allowed to obscure the primary goal of public protection. The second empirical study investigates 5,323 complaints made to medical boards in Victoria and Western Australia between 2001 and 2008. Again, the characteristics of the doctors concerned are analysed, with particular attention paid to how those characteristics appear at different stages of the complaints and disciplinary process. A focus of the second study is doctor country of training, which is considered in a more nuanced way than ever before. Due to the regulatory response to doctor shortage in Australia, this doctor characteristic is of contemporary significance, including in relation to what it reveals of the tension between public protection and the wider public interest. The increased risk of complaints and disciplinary proceedings among international medical graduates suggests that more may need to be done in ensuring that the approach to the registration, support and supervision of such doctors does not expose the public to risk. The apparent association between elevated complaints risk and doctors from specific countries of training is highlighted as deserving of further study and analysis. As well as being instructive as to the priorities and operation of the complaints and disciplinary system, the knowledge gained through the empirical studies may be useful to medical boards in furthering their public protection agendas. In summary, the results indicate that the risk of being subject to complaints and/or disciplinary action is particularly elevated for doctors who: are male; specialise in obstetrics/gynaecology; psychiatry or general practice; obtained their primary medical qualification outside of Australia or New Zealand; hold general registration; and have previously come to the negative attention of the regulator. In terms of case characteristics, the first study shows that sexual misconduct, illegal or unethical prescribing, and inappropriate or inadequate treatment are the most common issues leading to disciplinary action. This increased knowledge may move regulators one step closer to being able to proactively identify of ‘at risk’ doctors and behaviours, thus allowing them to target training, support and interventions towards such doctors and concerns.
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ItemAcoustic jurisprudence: listening to the trial of Simon Bikindi( 2013)Sound is a fact of life. It is not a fact, however, that contemporary legal scholarship has made any particular efforts to acknowledge, let alone to interrogate in any depth. As a community of jurists we have become deaf to law and to the problem of the acoustic. We must begin to take responsibility for a dimension of legal thought and practice that is no less real or significant simply because we barely attend to it. This thesis argues, therefore, for a specifically acoustic jurisprudence. It proceeds by means of a case study. Between September 2006 and December 2008, Simon Bikindi stood trial at the International Criminal Tribunal for Rwanda in Arusha, Tanzania, accused of inciting genocide with his songs. My analysis of the Bikindi case is pursued according to two main axes. First, the Tribunal’s ‘sonic imagination’: how it thought about matters of acoustics for the purposes of judgment. Second, the ‘judicial soundscape’: the Tribunal’s own acoustics, how sound operated in the courtroom, what work it did, how it was used, ignored, co-opted or otherwise perceived. Each of these two lines of inquiry is further divided into three parts, on the topics of song, speech and sound respectively. I demonstrate how the ICTR drew on, reproduced and gave juridical shape to a whole range of familiar ways of imagining sound in its various forms. And I show how, even though the Tribunal was not always insensitive to matters of acoustics, its approach to Bikindi’s songs displayed an acute form of legal deafness: a real misunderstanding of how songs work, what they do and why they are important. Although the thesis takes the Bikindi case as its main site of analysis, its most important implications are intended to be much broader. Most of all, it is addressed to a gap in the extant literature on the formal, aesthetic and material dimensions of legal practice. Drawing on the jurisprudential literature into which it inserts itself, the emergent field of sound studies and a theological and metaphysical tradition which extends back at least as far back as Ancient Greece, it is both an argument for the importance of attending to questions of sound in law and a first exemplification of what it might mean to do so.
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ItemRegulation of executive remuneration: an empirical study of the first three years of a 'disclosure and voting' regime in Australia and the UK( 2010)Legislation by the UK government in 2002 and the Australian government in 2004 sought to improve board accountability for executive remuneration practices in listed companies. The thesis examines whether the remuneration report plus an advisory vote were effective in achieving this and other government policy aims (such as reducing excessive remuneration and aligning pay with performance). The thesis focuses upon the initial three years of this regime in the UK (2003-2005) and Australia (2005/06-2007/08). Part I of the thesis reviews three theories of motivation from the human resource management literature, together with two derivatives of agency theory (optimal contract and the managerial power thesis) to justify executive remuneration practices and the need for it to be regulated. Drawing upon the concept of ‘regulatory space’ and Julia Black's writings on rule dimension and regulatory conversation, the thesis presents a conceptual model of the regulatory framework for executive remuneration: the regulated remuneration cycle consisting of four activities (remuneration practice, disclosure, engagement and voting). Close analysis of the rule types, regulators and regulatees within this regulated remuneration cycle demonstrates that most of the rules found in the cycle take the form of statements of best practice, or other kinds of ‘soft law’, rather than legislation. Thus enforcement of good remuneration practices does not rely upon legal sanctions. The enforcement pyramid for remuneration practice confirms that most of the enforcement strategies for remuneration practice belong to shareholders. However, the regulated remuneration cycle exposes the three roles that shareholders play within this regulatory space: a rule-maker for executive remuneration practice, an active engager of remuneration committees and a routine voter on remuneration-related resolutions. Part II presents qualitative and quantitative empirical evidence of the operation of the remuneration report and advisory vote in both jurisdictions. It analyses remuneration reports and voting results for a sample of companies from the FTSE 100 and the S&P/ASX 200 for the first three years. It supplements this publicly available information with interview evidence from remuneration committees and their consultants, institutional investors and institutional representative organisations. By analysing the rules for each of the four activities in light of the evidence of how they work in practice, it demonstrates the challenges facing remuneration committees and institutional investors in working within the regulated remuneration cycle. Using the advisory vote as a proxy for shareholder outrage, it demonstrates the effect that the vote had on remuneration practice over the first three years of its operation was not identical in the UK and Australia. Part III concludes the thesis by presenting six findings on the operation of the regulatory initiatives of the remuneration report and advisory vote. These reforms were only partially successful in improving board accountability and unsuccessful in reducing excessive remuneration over the first three years of its operation. The implications of these findings for the regulatory reforms enacted in response to the global financial crisis are noted.
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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.