Melbourne Law School - Theses
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When Choice of Forum clauses in international commercial contracts are challenged: key lessons from Asian jurisdictions
While Asia leads the world in cross-border trade and investments, no comparative study exists on the approaches of Asian courts to Choice-of-Forum clauses in international commercial contracts. This thesis fills this important gap by seeking to explore, identify, compare and explain the approaches of courts in Singapore, Hong Kong, Malaysia and the Philippines when Choice-of-Forum clauses in international commercial contracts are challenged. Employing a comparative law method, this thesis argues that the manner courts characterise Choice-of-Forum clauses, party autonomy, procedure, factors considered during enforcement, choice of law process, state and international interests are the factors which determine how courts decide cases and issues. The key lessons gathered in this thesis highlight the need for parties to consider the direct and indirect effects in drafting their Choice-of-Forum clauses, the need for courts to be predicable, reliable and coherent in their analysis, the importance of maintaining court discretion, the need for procedural and legislative reforms, and the existence of a conducive environment in Asia for strengthening laws on party autonomy and for the accession of Asian countries to the Choice-of-Court Convention.
Crafting Legal and Institutional Frameworks for Groundwater Resources of Bangladesh: From Overexploitation to Sustainable Abstraction
Economic activities in Bangladesh are heavily dependent on groundwater resources, which contribute to approximately 79% of total annual water withdrawal. Indeed, Bangladesh has achieved near self-sufficiency in food through irrigated agriculture, and thriving on groundwater, it has become the world’s second-largest garments exporter. This achievement, however, continues to cause significant damage to its invaluable groundwater resources. In short, a growing population, ever-increasing agricultural, industrial, and domestic water demands, and the impact of climate change are all exerting unprecedented stress on Bangladesh’s groundwater systems and supplies. These combined effects result in the depletion of the water table to an extent where it cannot be naturally replenished. Declining water tables, therefore, continue to challenge groundwater sustainability in Bangladesh. Instead of groundwater governance and management, the country has focused on resource development for a considerable period of time. Against this backdrop, drawing on in-depth interviews conducted with the responsible government officials, judges, scholars, and groundwater users, this thesis examines the viability of the existing legal and institutional frameworks in tackling the mounting challenges stemming from groundwater over-extraction. The thesis finds that the existing legal framework is ineffective and inefficient in controlling unsustainable groundwater extraction. Though requiring a permit for the installation of a well, for instance, is a substantial legislative improvement, without an associated water metering obligation, it fails to control indiscriminate groundwater pumping. Additionally, the sustainability of this resource is threatened by the lack of a legislative requirement for capping extractions to prevent unrestrained groundwater withdrawal in the industrial sector. Moreover, conflicts and overlaps between water laws; an absence of community and expert involvement in the lawmaking process; and persistent legislative ambiguities in relation to the delineation of appropriate responsibilities among water institutions undermine the noble vision of groundwater sustainability. Beyond these fatal gaps in groundwater laws themselves, compliance and enforcement remain a perennial problem in Bangladesh. A lack of knowledge of groundwater laws among the regulators and the regulatees, and a historic lack of groundwater regulation, among other things, stand in the way of achieving sustainable extraction of groundwater resources in Bangladesh. The thesis further finds that water institutions that are responsible for governing groundwater withdrawal are poorly designed, resulting in their consistent failure to arrest the declining water table. The presence of an excessive and unnecessary number of water institutions creates substantial uncertainty in establishing robust coordination among these institutions, which is further exacerbated by resource and data shortages. This, in turn, significantly limits their capacity to undertake a sustained collective response to overcome the daunting challenges posed by growing groundwater depletion. In the face of these overwhelming institutional limitations, however, the thesis demonstrates the promise of the Barind Multipurpose Development Authority, which has significantly reduced groundwater pumping for irrigation in the Barind Tract through the introduction of a prepaid smart metering system. Beyond the legal and institutional frameworks, the thesis also considers whether the judicial intervention could offer some respite to this rampant crisis. The thesis finds that there remains considerable scope for the Court to facilitate groundwater sustainability through its balanced and targeted judicial action. Finally, the thesis identifies lessons for both policymakers and the literature on how these challenges may be overcome.
Trading in people and trading in services: the political economy of Indians’ international labour mobility, the development project and international law
In this thesis, my concern is with international legal frameworks that govern Indians’ movement abroad. I look specifically at two types of international agreements – trade agreements and labour migration agreements. I critically examine the manner in which India’s trade agreements and labour migration agreements govern Indians’ movement to Malaysia and the United Arab Emirates (‘UAE’). I argue that this governance is helping create, shape and authorise inequalities along a range of different axes. This governance helps shape particular kinds of Indians, a particular kind of India, and a particular kind of world. Indians’ freedom to move abroad is arranged hierarchically, and particular types of movement are prioritised over others. Some Indians are shaped into people who move to work in Malaysia or the UAE temporarily. They are placed in positions of vulnerability in those states, even as they perform work that helps some other people, especially particular kinds of employers, accumulate capital. An India is shaped that frames its ‘development’ as being delivered through the operation of ‘global markets’, and that positions itself as a producer and supplier of ‘low cost’ workers to employers in Malaysia and the UAE. This positioning nonetheless ultimately serves to locate India in an eternally ‘underdeveloped’ position within global society. Stories of ‘development’, ‘markets’ and ‘globalisation’ are crucial in the making of this world. These stories underpin India’s trade and labour migration agreements, naturalising the ways in which they help shape inequalities. At the same time, the agreements help shape particular kinds of ‘development’, ‘markets’ and ‘globalisation’ – thereby undercutting the treatment, in these stories, of development, markets and globalisation as aspects of the world’s organisation that pre-exist the agreements and remain unchanged by them. The agreements do this work partly through the ways in which they create knowledge and arrange authority. Knowledge is created about the sorts of people who should be allowed to move abroad, and how they are to be treated if they do. Particular people are given authority to govern particular types of movement, and according to particular logics. Some movement is governed as ‘trade’, and some movement as ‘temporary migration’ to meet ‘labour market demand’. Indian state sovereignty is exercised in accordance with the logics of the global markets being shaped by the agreements. Some people and some states benefit at the expense of others. In short, a world of particular kinds of unequal relations is being made. This world is being shaped and authorised by multiple sites of governance, and through their interaction. India’s trade and labour migration agreements work in conjunction with a story about India’s development, in helping shape India – and a discursive and administrative artifact that I describe as a mosaic of a ‘globalised India’. The agreements also serve as a window into broader global practices. At its most expansive, this thesis suggests that inequalities are being built into a global structure, and that international law is playing a fundamental role in erecting and maintaining this structure.
The Children's Court: Implications of a New Jurisdiction
This thesis examines the establishment of the Children’s Court of Victoria (1906) in the context of a perceived ‘youth crisis’ in early twentieth-century Melbourne. It focuses on the limits of law in responding to structural disadvantage and highlights how law can serve as a distraction, rather than a solution, to longstanding social problems.
The influence of conferences of the parties on the content and implementation of their parent treaties
Conferences of the Parties (‘COPs’) are intergovernmental meetings established by treaties. They are formed by representatives of all the states parties and they meet periodically to review and promote the execution of the convention that establishes them. COPs are empowered to perform several activities to achieve their objectives, such as adopting normative decisions, monitoring the implementation of measures by states parties, managing funds, and setting up subsidiary organs. The literature on COPs is not abundant and it has two main characteristics. First, it is based almost exclusively on multilateral environmental agreements adopted between the 1970s and the late 1990s. Second, it focuses on specific topics, such as the nature of COPs, the implications of COP normative activities for state consent in treaty law-making, and the legal status of COP decisions. These features reveal some gaps that deserve to be further studied. This thesis explores the ways in which COPs influence international law. It considers the following question: how do COP activities affect the content and the implementation of their parent-treaties? To provide an answer the thesis focuses on the normative activities of COPs to identify patterns in their relationship with the content and implementation of their parent treaties. The analysis is based on four case studies from different areas of international law: the WHO Framework Convention on Tobacco Control, the Convention for the Protection and Promotion of the Diversity of Cultural Expressions, the Convention on Cluster Munitions; and UN Convention Against Corruption. Building on the literature on COPs and on wider international legal scholarship, including approaches that consider ‘law and literature’ and studies of fragmentation and regime interaction, the thesis demonstrates that COP decisions develop the content and support the implementation of their parent treaties. COPs use their ‘standard-setting’ function to specify the substance of their treaty provisions. In particular, COP resolutions use this role to (i) increase what states parties must do to comply with their obligations; (ii) establish procedures and timeframes; and (iii) give content to the meaning of words and expressions in the treaty. The thesis also contends that COP decisions promote the implementation of their treaties using diverse strategies to consolidate them, strengthening their social and political position. These mechanisms are (i) momentum-building; (ii) stigmatising the adversaries of their parent treaties, including non-parties; and (ii) connecting their conventions to powerful narratives and other international legal regimes. In addition, the thesis engages with the most relevant debates in the existing literature on COPs. It argues that while the case studies do not present situations where COP resolutions bind a state without its consent, other factors support the idea that the role of state consent in treaty law-making is attenuated in the context of COP activities. Concerning the legal status of COP decisions, the thesis claims that COP resolutions can produce legal effects through more paths than assisting in the interpretation of their parent treaties. The analysis of the case studies and their connection to certain ICJ decisions reveal the existence of these alternative avenues.
Crypto-Financial Assets in a DLT-Based Market Infrastructure: Legal Principles of Ownership and Obligation
Decentralised ledger technology (‘DLT’) first emerged in late 2008 and has its origins in the ‘blockchain’ technology designed to prevent ‘double spending’ within the Bitcoin cryptocurrency network. Whilst cryptocurrencies, in themselves, remain controversial, there has been a general recognition amongst the major commercial banks, central banks, and policymakers, that DLT and smart contracts may well improve efficiency in financial accounting, settlement, and other post-trade services. Although DLT is still in its infancy, with many authorities unwilling to stifle innovation by premature regulatory interference, some stakeholders have recognised that regulatory ‘sandboxes’ would, nonetheless, be a useful tool to overcome any identified issues, and help keep regulations and legislation up to date with change. This thesis analyses the private law implications and consequences, predominantly in the English laws of property and obligations, of adopting DLT at three levels of the financial markets infrastructure by reference to live case studies: (i) by the issuer, thereby creating a direct link between issuers and investors (the LuxDeco and Overstock securities); (ii) by a top-tier intermediary, such as a settlement system or central securities depository (the Australian Stock Exchange); (iii) by lower-tier securities custodians inter se (Deutsche Börse). The legal analysis is informed by a technical understanding and explication of the code underpinning the Bitcoin and Ethereum networks, the current state of the markets in native cryptoassets, and developments in the UK's FCA regulatory sandbox.
A (Functional-Purposive) Comparative Analysis of the Protection of Workers Involved in Triangular Work Arrangements through Labour Providers in Australia and Italy. How can the Australian labour hire regulatory approach benefit from the Italian agency work regulatory experience?
This thesis draws on the international debate around the role of labour law in protecting workers involved in triangular arrangements such as agency work, also referred to as ‘labour hire’ and broadly referred to in this thesis as ‘triangular work arrangements through labour providers’ (TWAs through labour providers). It does so with the aim of understanding the rationale of the seemingly divergent regulatory patterns that have emerged in Australia and in Italy, despite the similar challenges posed in many jurisdictions by this non-standard form of work. While in the former country there is a current call for regulation to provide a stronger protection for labour hire workers, the latter has gradually relaxed a series of strict provisions to ensure a higher level of flexibility for businesses that resort to agency work. Against this background, this thesis investigates why, despite the similarities of certain problems such as protecting workers involved in non-standard forms of work, legal solutions develop differently in different countries and what can be drawn from it. To this end, the thesis addresses the following questions: 1) what is the protection offered to workers involved in TWAs through labour providers in Australia and in Italy? 2) how can we explain and make sense of the differences and similarities that have emerged? 3) what can Australia learn from the Italian regulatory approach to TWAs through labour providers for the purpose of implementing protective measures for labour hire workers? In answering these questions, the present study distances itself from legalistic mainstream comparativism. It departs from previous attempts to assess the Australian relative lack of protection of this category of workers using system-specific concepts that belong to the European and/or other legal cultures. In contrast, this thesis takes a functional comparative approach to assess whether, behind the divergent paths taken in Australia and Italy to protect the workers under analysis, the results are functionally similar. To this end, the comparative analysis of the respective measures is structured around a system-independent normative benchmark: the function of the laws regulating TWAs through labour providers following a purposive approach to labour law. The differences and similarities of the regulatory solutions are discussed in light of their historical development, within the respective legal and socio-economic context. Lessons are drawn from the Italian regulatory experience, which despite its ostensibly superior purposive alignment, presents a series of shortcomings especially in relation to labour intensive and low skilled workers in sectors equally problematic in Australia. In light of these findings, relevant policy recommendations are made for the Australian regulatory approach. Final reflections on the method and on the ‘purposive approach’ theory underpinning the functional comparison are drawn and future research directions are highlighted.
Addressing the Vilification of Women: A Functional Theory of Harm and Implications for Law
Certain categories of vilification, including, in particular, vilification on the basis of race, are expressly recognised as legal wrongs under Australian, international, and foreign domestic laws. Notwithstanding its prevalence, vilifying speech directed at and about women on the basis of their female sex remains unregulated in most jurisdictions. Nor has the issue of sex-based vilification received much scholarly or policy attention. This thesis examines the need for anti-vilification laws to address sex-based vilification. It relies on critical and speech act theories to arrive at a functional theory of sex-based vilification with reference to its harms, as relevant to law, as discriminatory treatment of women that constitutes and causes the systemic subordination and silencing of women on the basis of their sex. It applies that functional theory of harm to sex-based vilification as it manifests as part of the cyber harassment of women to arrive at some commonly occurring categories of sex-based vilification, namely: threats and violent invective; sexualised invective; non-consensual pornography; other objectifying speech; and other contemptuous speech. It argues that speech constituting one or more of those categories of sex-based vilification systemically subordinates and silences women on the basis of their sex, in ranking women as inferior or for use on the basis of their sex and (re)enacting permissibility facts in and of patriarchal oppression that legitimate the treatment of women accordingly. This thesis then considers some implications of that functional theory of harm for law. In order to consider the utility of potential sex-based vilification laws, this thesis considers what the sex-based gap in anti-vilification laws, policies, and policy conversations plausibly presently does, as well as what sex-based vilification laws plausibly may do if enacted. It argues that the gap in the law accommodates and authorises sex-based vilification’s systemic subordination and silencing of women on the basis of their sex. It argues that, conversely, the enactment of sex-based vilification laws would constitute a counter-speech act of the state’s that plausibly may quash or mitigate some of the systemic subordination and silencing harms to women of sex-based vilification. It also considers the strength of the free speech interests to which sex-based vilification gives rise and that, accordingly, its regulation by law would potentially burden. It argues that speech constituting sex-based vilification ought to receive a relatively low degree of protection pursuant to a liberal free speech principle, unless it has communicative functions with relatively strong connections to the values, interests, or purposes that underly or motivate such a principle.
Criminal Sentencing in Indonesia: Disparity, Disproportionality and Biases
This thesis assesses 1,100 Indonesian criminal justice decisions on theft and embezzlement-related offences as well as corruption in four first instance courts (2011-2015, but excluding 2013) to better understand sentencing practices in that country. Using a socio-legal methodology, it investigates the consistency and proportionality, as well as fairness (unbiased) of the sentencing practice, particular between offenders of different socio-economic backgrounds as well as the legal and extra-legal factors that contribute to sentencing outcomes. This thesis finds unwarranted disparity and disproportionality in sentencing practices in Indonesia, particularly in cases involving medium and large losses. Further, while offenders charged with corruption received overall relatively longer imprisonment sentences than offenders charged with theft and embezzlement-related offences in the same categories of loss, when the differences in the offences’ minimum and maximum penalties – as the expression of an offence’s seriousness – are put into the equation, corruptors are indeed punished disproportionally more lenient compared to thieves and fraudsters. This is because the minimum and maximum imprisonment sentences for corruption are much longer then for theft and embezzlement-related offences. I also find that many law enforcers and judges have suffer from class-bias or are involved in corruption, which leads them to be lenient in charging and sentencing corruption offenders from middle and upper socio-economic backgrounds. They did so, including, by deliberately misinterpreted provisions in the Anti-corruption Law and Supreme Court guidance. Judges’ perspective of different offences seriousness between theft-related offences and corruption (with the first-mentioned offences are generally seen as more concerning to the public as the later one) also influence the disproportionality of sentences between the two types of offences. This thesis also shows that while judges do consider legal factors in sentencing, particularly the type of offence committed and the amount of loss caused, they tend to be overly influenced by a desire to avoid appeal by prosecutors (which would increase their workload and prolong the time that offenders have to spend behind bars due to the practice common of pretrial detention and, to a lesser extent, the long appeal process). This often leads judges to follow the prosecutor’s sentencing recommendations, particularly in theft and embezzlement related offences. Worse, to avoid appeal, judges imposed more severe sentence than what is permissible on minor theft and embezzlement offenders simply because the prosecutor mischarged them by non-minor offences provisions (that demand longer prison terms). In other words, how the case is processed by the investigator and prosecutors significantly shapes sentencing outcomes. The Supreme Court’s failure to provide sufficient sentencing guidelines and, more importantly, consistent decisions, including enforcing the existing guidelines, also contributes to these problems. In summary, this thesis empirically confirms the public perception of class-bias and corruption in the Indonesian criminal justice and, further, illustrates how poor law enforcement, case management and weaknesses in the Supreme Court distort sentencing.
Reforming Group Legal Personhood in Indonesian Land Law: Towards Equitable Land Rights for Traditional Customary Communities
An adequate definition of group legal personhood (that is, a rights and obligation-holding personality) in Indonesian law is essential if there is to be equal land rights distribution. The present unclear definition of groups in the law as legal persons, coupled with uncoordinated and fragmented government policies, means that land-related decision-making usually operates only for the benefit of persons seen by the law as an ideal legal subject. In this thesis, I focus on 'person' in the sense of a group of individuals that associate as a single unified entity. In Indonesia and in general legal doctrine, the lack of clarity in the definition of ‘legal person’ has resulted in traditional customary (adat) groups and their customary land title being excluded and this vulnerable to marginalisation and land expropriation. This has given rise to much debate about which groups can be said to have a legal personality as bearers of rights and obligation, and why. The thesis aims: to understand the core concept of a group as a legal or juridical person; investigate how decisions on land rights are made by the Indonesian government; how traditional customary (adat) groups themselves choose to be recognised; and how such distributions could be reformed to better protect adat groups. Two case studies on specific policies related to the asserting of the customary communal land title (hak ulayat) are reviewed, covering the background of decisions on land rights entitlement (socio-legal and political), the process for distribution, and the consequences of the policies chosen. The primary contentions of this thesis are as follows: first, the current practice of legal and political recognition of adat groups requires ‘regional regulations’ (that is, local by-laws) to be passed to make operational a form of legal personhood and operational land title specific to particular local adat groups and ulayat land. These measures can empower adat groups to function before the law. Second, Indonesian law relating to group personhood needs to clearly define which category of legal subject adat groups fall into. The current approach of the government (simplification and homogenisation) presents a fundamental obstacle to adat groups, who seek a legal form that best represents their values and systems, and accurately reflects their group identities. Third, legal exercises by government bodies to translate traditional customary land rights into operational land titles and forest rights have played an important role in creating a legal breakthrough. This has provided a (potential) answer to decades of deadlock in seeking to make ulayat (communal land and forest) rights into legally cognisable and registrable land rights. This research concludes that the legal definition of group personhood creates difficulties facing adat groups in asserting their personhood, which becomes a major obstacle to the capacity of adat groups to assert their rights to their traditional land, but it also concludes that it is not impossible for adat groups to navigate these challenges.
Common risks in construction contracts: resolution and revision
This thesis explores the common risks in construction contracts and a review of the law in the relevant risk areas regarding their resolution, comments on what role standard form contracts play and could play in resolving these risks and thereby proposes revisions to terms often negotiated between parties on the same issues. The thesis also presents a comparison between AS4000-1997/AS4902-2000 and draft NCW4 released in 2019 to demonstrate and advocate how standard forms have progressed in the last 20 years in response to changing trends with more complex transactions arising. The thesis also provide some prospective from builders and developers on the common risks detailed and how those matters are generally resolved which support the overall thesis.
Copyright exceptions and contract
This thesis addresses the relationship between copyright exceptions and contractual provisions which seek to preclude users relying on those exceptions. It argues that the topic has been insufficiently theorised and that, in order to properly understand the interaction of copyright and contract, attention must be given to the rationale for freedom of contract and the contested rationales for copyright exceptions. Chapter 2 of the thesis addresses the doctrinal relationship between copyright exceptions and contract in UK. The chapter also considers recent legislative reforms in the EU and the way in which copyright exceptions and contract have been conceptualised under EU law, forming a context for the theoretical examination in later chapters. Chapter 3 discusses the nature of freedom of contract which is often referred to as a foundational or preeminent value within ‘western’ legal systems. The chapter argues that under the main theoretical understandings of contract theory there is significant scope to justifiably limited parties’ freedom of contract, particularly in connection with protecting the interests of third parties or where transaction involves significant externalities cannot take into account by the parties to the contract. Chapter 4 addresses Locke’s labour theory of property entitlement and the way it has been applied to copyright law. It analyses the extent to which Lockean theory can be applied to intellectual property law, discussing the nature of the intellectual commons that authors draw upon in order to create copyright protected works. It argues that the Lockean sufficiency, waste and charity provisos require the existence of copyright exceptions in order for property rights in expression to be legitimate. Chapter 5 of the thesis considers the law and economics understanding of copyright law and copyright exceptions. The chapter concludes that under a properly articulated law and economics approach to copyright law, copyright exceptions play important role in optimising the level of copyright protection and maximising social welfare. Chapter 6 considers the relationship between freedom of expression and copyright exceptions. It concludes that at both a theoretical level and within the approach taken by the courts, copyright exceptions must be consistent with freedom of expression interests and that copyright exceptions play important role in giving life to the broader social dimensions of freedom of expression. Chapter 7 draws together the material in chapter 3 on the nature of freedom of contract with the material in chapters 4, 5 and 6 on the rationales for copyright exceptions. The chapter argues that once the underlying theoretical rationales for both contract and copyright fully considered, it is clear that copyright exceptions are required under each of the underlying copyright rationales and that freedom of contract rationales do not justify permitting private parties to modify these copyright exceptions in their contractual dealings.