Melbourne Law School - Theses
Now showing items 1-12 of 339
The unique governance structure of Chinese charitable trusts
This thesis explores the governance structure of Chinese charitable trusts and their distinctive characteristics. Its central concern is to investigate the legislative changes that legislators have made to the governance framework for charitable trusts and the ways in which legislated governance rules are given effect in practice. The thesis assesses the governance structure of charitable trusts from the perspective of China’s particular political, social and economic conditions. It discovers three aspects that are relevant to understanding the governance of Chinese charitable trusts; law, administrative practice and private action. In contrast to the public law model of public welfare trusts, legislators introduced a public law-private law hybrid model for charitable trusts. Despite increasing autonomy of trust parties to an extent, the charitable trust model continues to privilege the state’s control over the use of charitable resources. This hybrid nature permeates and informs the design of the governance structure of charitable trusts. The public law aspects connect the analysis of charitable trust governance to the role of regulators. In the Chinese bureaucratic system, regulators suffer under policy pressures and are thus strongly responsive to extra-legal concerns in their implementation of the law. Practice shows that administrative factors supplement or even prevail over legal rules to guide the supervisory work of regulators. Administrative practice is therefore essential in the governance framework. The private law aspects connect the analysis of charitable trust governance to the roles of trust parties. The law sets up the internal relationship between settlors and trustees, but it is vague in how their roles should be performed. Due to the risks posed by administrative practice and the vagueness of the law, settlors and trustees have incentives to use contracts to guide their management of charitable assets. Private action is thus a significant part in the governance framework for charitable trusts. The thesis identifies the norms of public law and private law in the legal structure of charitable trusts, and examines the ways in which China’s policy and social conditions influence the interaction of these two types of norms. It argues that the governance framework for charitable trusts may only be understood fully in light of relevant law, administrative practice and private action. The three aspects are interrelated and taken together to constitute the particular mode of governance of Chinese charitable trusts.
The Regulatory Failure of Spatial Planning in Bali and its Environmental and Social Impact: A Case Study of Hotel Projects
This thesis argues that spatial planning laws in Bali fail to achieve their regulatory objectives, finding that inter-related legal and non-legal factors contribute to this. Although the hotel industry offers Bali, and Indonesia more broadly, significant economic and social benefits, the failure of spatial planning laws has meant that these developments are not being sustainably managed. Drawing on original field research and case study analysis, the thesis proposes some possible means of addressing these failures.
Children’s right to decisional privacy in Australian family law
This thesis develops a theory of children’s decisional privacy in the context of Australian family law. Decisional privacy gives individuals the freedom to act and to make decisions about how they live their lives, without unjustifiable interference from other individuals or the state. Difficulties persist in recognising and respecting children as capable of enjoying decisional privacy rights. These difficulties emanate from the dominant conception of children in Western liberal societies as vulnerable, dependent on adults, and incapable of rational decision-making. Adopting a children’s rights approach, this thesis argues that the Family Court of Australia, through the exercise of its welfare jurisdiction under section 67ZC of the Family Law Act 1975 (Cth) to authorise medical treatment for children diagnosed with gender dysphoria, has denied those children their decisional privacy rights. It also argues that recognising children’s substantive right to decisional privacy requires attendant procedural rights that facilitate children’s meaningful participation in decision-making about their best interests. This thesis demonstrates that negotiating the tensions between children’s rights, parental responsibilities and state duties in relation to children’s best interests, lies at the core of understanding children’s right to decisional privacy. It gives adults who make decisions that impact children’s lives an opportunity to reflect on how they make those decisions, and how children can play a more meaningful role, and be heard, in decision-making processes.
Constitutionalism as Postwar International Law
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.
Proprietary Fixed Trusts and Administrative Discretionary Trusts: A Pluralist Account
Express trusts are not all the same. They are found in different contexts, have different purposes and the rules of trust law do not apply uniformly to them all. Nevertheless, the cases and scholarship retain a strong commitment to a central unity in trust law. This commitment is the idea that trust law is unified by the unique legal form of a duty to hold assets for the benefit of others. However, the integrity of this unique form is challenged by the unrelenting rise in discretionary trusts. Discretionary trusts contain doctrinal differences that challenge the archetypal legal form and the conceptual monism at the heart of trust law. This challenge requires us to ask what it means for trustees to hold assets for the benefit of others and how that meaning has changed. The object of this thesis is to answer these questions using an interpretive analysis of the legal materials. This thesis argues that there are two distinct answers to what it means for trustees to hold assets for the benefit of others. It presents two distinct models of the legal form of the trust. Fixed trusts are explained by the traditional proprietary model of trusts, which is defined by beneficiaries’ distributive entitlements. Fixed beneficiaries are entitled to be distributed specific benefits from the trust assets and those entitlements are immune from divestment at the volitional choice of another person. In contrast, discretionary trusts fit an administrative model of trusts, which is defined by beneficiaries’ procedural entitlements. Discretionary beneficiaries are not entitled to distributions but are entitled to have trustees follow procedures in making decisions about distributions. The thesis argues that the distinction between these two trust models is well established in the case law. Moreover, the administrative discretionary trust model accounts for trustees with mere powers of appointment as well as trustees with imperative trust powers. However, the thesis argues that development of the administrative model remains incomplete because the law on discretionary beneficiaries’ procedural entitlements is inconsistent and uncertain. That is, the internal core of the administrative model — the rights and duties that regulate trustees’ distributive discretions — is incoherent and beset by numerous areas of uncertainty. This has produced a spectrum of different types of discretionary trust that range from low-accountability trusts, where the discretionary beneficiaries have weak procedural entitlements, to high-accountability trusts, where they have much stronger procedural entitlements. The lack of internal coherence in the administrative trust model can be traced back to deep disagreement about the meaning and purpose of discretionary trusts. This thesis argues that the future development of discretionary trusts may be usefully inspired by public administrative law. Public law can inform a purposive theory for the regulation of discretionary trusts that produces a more coherent administrative model than that promoted by the currently dominant contractarian theory.
Aesthetics of Image in International Environmental Law
Environmental treaties often require judgements of aesthetic value yet how these judgements are made is not well understood. This thesis argues that images, particularly photographic images, are central to such judgements but that neither current practice nor scholarship properly account for the significance of images to decisions made under international law. Drawing on debates about aesthetic conceptions of the environment in the visual arts, and in the philosophy of environmental aesthetics, this thesis develops a critical understanding of image and aesthetic value in international law. My aim is to produce a jurisprudence of aesthetics adequate to the task of making image and aesthetic value meaningful in international environmental law. In the thesis, I undertake doctrinal interpretations of aesthetic value for three international environmental treaties – the World Heritage Convention, the Whaling Convention, and the Biodiversity Convention. I find that aesthetic value is conflated and displaced with other environmental values in treaty practice. Aesthetic value is, for example, combined with natural beauty, cultural and ethical values, and overlooked in favour of scientific and economic values of the environment. I consider these practices to compromise reasoned decision-making and, ultimately, the protection of the environment under those treaties. Referencing Anglo-American aesthetic philosophy, I engage visual art to reflect critically on the meaning of aesthetic value from photographs of the environment that I identify as artefacts used in treaty decision-making processes. I employ eco-critical perspectives to examine aesthetic values of natural beauty, the sublime and the picturesque in 19th century landscape art of Western Europe and Britain. Relying on the philosophy of environmental aesthetics, I conceive aesthetic value instead in terms of sensorial experiences of nature shaped by imagination, emotion and knowledge from different cultures. I maintain that this ‘now world’ aesthetic value of the environment can be understood from photographs as important, distinct and capable of protection in international law. I contend that the interrogation of images by international bodies would facilitate the proper judgement of aesthetic and other environmental values to justify the cooperative efforts of a plurality of states in environmental protection. Yet I find that photographs are treated as records of fact in international decision-making processes. They are not formally recognised as representations with layered meanings. To ignore or refuse the place of representational images in international law is improper in jurisprudential terms and inconsistent with the good administration of justice. It also denies international legal practice the concepts and methods required to exploit images for their rhetorical purchase. I conclude that aesthetic methods for the visual arts must be repurposed to articulate meanings for images in the making, implementation and enforcement of international law. In giving close attention to photographs used in treaty decision-making processes, I introduce the philosophy of environmental aesthetics to the interdisciplinary study of law and image, expanding the role of images in international law. I also make the environment’s aesthetic value visible to the practice of international environmental law in the face of indifference, from so many nation states, to the precious nature of the planet.
Decentralisation, Law, and the Failure of Palm Oil Licensing
This thesis seeks to understand why the Indonesian central government has been unable to ensure local government compliance with the national laws and regulations that govern the licensing of palm oil plantations. Using a socio-legal methodology, it finds that the central government’s failures are rooted in a poor legal framework, a lack of supportive institutions, and the absence of political will. These findings have implications for decentralisation, the sustainability of palm oil, and the management of natural resources in Indonesia. Theoretically, decentralisation of government is seen as the key to improve democracy, security, and development, as it promises to bring government ‘closer' to the public. Embedded in this concept is a more inclusive decision-making process. Thus, in the context of natural resources management, decentralisation is said to improve fairness in benefit distribution as well as the sustainability of natural resources. Yet, almost 20 years after decentralisation began, the management of natural resources has still not improved, as the proliferation of irregular palm oil licenses demonstrates. Much research has tried to explain why the promises of decentralisation have not fully materialised in Indonesia, and most look at local level actors. However, in a unitary state like Indonesia, the central government is the ultimate expression of sovereign power responsible for governmental affairs. The few scholars who have investigated the central government’s role usually argue that it has been reluctant to let go power, and that is why problems have dogged decentralisation. While that is largely true in some other natural resources sectors, such as forestry, this research has only limited application to the palm oil industry. As this thesis shows, the Ministry of Agriculture, the portfolio ministry, does not try to assert its power over local governments, and, in fact, remains inactive in the face of problematic licensing. Further, the central government does not try to take ‘advantage’ of problematic palm oil licensing by withdrawing the licensing power from local governments, as it has in other sectors, such as mining and forestry. In short, the existing scholarship does not explain the nature of the central government’s role in managing natural resources, particularly palm oil. My research finds that while the central government has an important constitutional role, there are at least three interrelated factors that hamper optimal implementation of its role in the decentralisation of palm oil licensing. Legally, the regulatory framework for its role has been very weak, particularly monitoring and oversight of local government licensing powers. This is worsened by the nature of the sectoral approach to natural resource management in Indonesia, which is characterised by vague and conflicting legal frameworks. Institutionally, the ministry of agriculture has not developed an appropriate structure for monitoring and overseeing palm oil licensing, and as a result, there is no national database of palm oil licenses. The third factor, which underlies the other two, is the absence of political will to ensure palm oil licensing is sustainable.
Indonesia as a weak state? Bank restructuring after the Asian Financial Crisis
This thesis presents an original case study of the Indonesian Bank Restructuring Agency (IBRA), which was established to manage virtually all interventions into Indonesia’s banking system during the 1997-1998 Asian Financial Crisis. Although a seminal moment in Indonesia’s economic history, there is limited scholarship and even less popular understanding about the crisis and IBRA’s work to overcome it. This thesis is interested in how the state goes about defining, legitimising, and executing its responsibilities. Often, the state, or, more accurately, its actors and organisations, seems to work at cross-purposes to its ostensible policy objectives. Indeed, sometimes the state becomes more a site for different groups or actors to contest these actions. Examined closely, these contests reveal much about the nature of power in a society. To conceptualise these tensions, this thesis uses the analytical framework of a ‘weak state’, at the centre of which is understanding of the institutional factors that make some states less effective. This thesis surveys sociology, political economy, and economics literatures to synthesise its own definition of a weak state, that is, a state reliant on informal, negotiated, and ad hoc strategies to accomplish its objectives. Frequently these strategies are at odds with the established legal or procedural tools at its disposal. They are, as the thesis shows, historically and institutionally embedded. The thesis applies the weak state premise through its original research on IBRA. This analysis uses data collected through interviews and audits of the agency. In particular, the thesis closely examines IBRA’s work to conclude contracts, known as Shareholder Settlement Agreements, with two owners of major private banks it took over during the crisis. These contracts were ‘out of court settlements’ designed to trade legal release for the bank owners for the transfer of assets that could be quickly sold to recover part of the government’s spending on the rescue. This analysis shows how despite initial aspirations, IBRA made most progress within the modalities of a weak state, including negotiated and ad hoc strategies. Indeed, the very essence of this work and the actual procedures used to accomplish these settlements were highly informal. Moreover, IBRA’s progress generated considerable controversy and opposition within the state. This continues to have implications today, as evidenced through the corruption conviction – and unprecedented acquittal – of former IBRA Chairman Syafruddin Temenggung for actions related to one of the Shareholder Settlement Agreements. Ultimately, as the thesis shows, it was not only IBRA’s strategies that were highly contested, but even the state’s attempts to adhere to a transparent and legal approach in dealing with private bank owners. Ultimately, although IBRA recovered but a fraction of the funds spent rescuing private banks – a finding confirmed by this research – the thesis challenges whether this really was a poor outcome in light of the institutional problems confronting the agency.
The state of knowledge and knowledges of the state in Pakistan
The subject matter of this thesis is the Pakistani state in its early years of founding. A broad ranging study of the conditions and discourses that organized the offices of the state, offices inherited and or formally authorized by an outgoing colonial power, has mostly been absent across studies that have found a great deal of other matter to investigate in reference to the Pakistani state and nation. In fact, as attention is often directed at a state that operates above and below as well as through the law in a manner that elides the imposition of limits on it’s powers, this lacunae is significant. Understanding the quality of interaction between branches of government or between the state and its citizenry requires a a slowing down of analysis to take account of these founding conditions; specifically, that representative government was chimerical at best and administrative office holders and members of the high executive acted with considerable latitude in a context of crisis and against ever present fears of national disintegration. In this thesis I argue from the premise that the actualization of governmental order simultaneous to the formal announcement of founding is a central aspect of post-colonial state formation. Furthermore, the priority of sovereignty and the challenges posed to its specific articulation make visible the logics and techniques to mark a dominant site of power in the new state. While it is tempting to see the primacy accorded to administrative offices thereafter merely as a hangover of colonial rule, by which the processes and hence the possibilities of popular sovereignty are denatured, it is my argument that more complicated operations were at play at this moment. To develop this argument I have taken four sites at which definite and deliberate choices were made to give shape to the administrative state. These are: the appropriation of colonial governmental forms and technologies; the promotion of aspirations related to a dominant Muslim nationalism and the quelling of other ideological programs; the alignment of territory and population to enable a concurrence between them in reference to identity and ideology; and the management of Pakistan’s relations with other states to bolster the powers of certain offices and officeholders. These sites enter into fields of operations by which early office holders, as evidenced by a record of their deliberations on a range of issues, engineer a novel governmental order The larger part of this thesis is focused on the early years after 1947 and situates a record of cabinet and executive documents from this time in a broader history of local and global events. This record of speeches, meetings, exchange of memo’s and correspondence traverses a vast field of governmental activity including economic and defense planning, foreign affairs, legislative drafting and relations with provinces. In addition, the presence of documents pertaining to private individuals, including intelligence files shared between governmental departments shows how coercive operations upon persons and groupings complemented the innovation and emergence of more diffuse governmental means. Altogether, the governmental operations within these sites are inter-related and emphasize practices of government in relation to the establishment of the state as an entity separate from nation, in the elaboration of a paradigmatic sense of internal security and in the practices of border-marking for the emergent state.
International Law Applicable to the Use of Nanomaterials in War
This thesis examines existing international law applicable to the use of nanomaterials during war. Although much has been written about the regulation of nanotechnology per se over the past decade, very little has been written about the regulation of individual ‘means or methods of warfare’ containing nanomaterials. This thesis analyses applicable international law by reference to three specific ‘means or methods of warfare’ that utilise the properties of nanomaterials, namely thermobaric weapons with nanomaterials, optogenetics and genetic modification. A full review of the legality of each use of nanomaterials under international law is considered, as would be required by Article 36 of Additional Protocol I. On the basis of this analysis, it is concluded that international law applies to the use of nanomaterials in war. By carefully examining the applicability of international law to these three examples of specific uses of nanomaterials at differing stages of use or development, it becomes clear that there is ample room for interpretation of the existing law to comprehend and include new technologies harnessing the properties of nanomaterials. In order for international law to function to the fullest, States should always conduct Article 36 reviews when any ‘means or methods’ of war include nanomaterials. Moreover, by conducting Article 36 reviews, States will generate commentaries and interpretations to support further reviews of all uses of nanomaterials to be used in war. Supplementary to Article 36 reviews, this thesis recommends that States strengthen existing law by including nanomaterials in official statements and expert advice provided to the treaty advisory bodies. Additionally, in some areas, such as international environmental law, new treaties are required to safeguard against the particular properties and unknown long-term health effects of nanomaterials. This research has relevance not only for future ‘means or methods of warfare’ including nanomaterials, but also for the complexity and breadth of law that should be considered for legal review prior to the use of any new and emerging technology or technologies in war or in peace.
Making the world safe for investment: the protection of foreign property 1922-1959
This thesis studies the creation of the field of international investment law from 1922 to 1959. It investigates how the building blocks for an international legal regime for the protection of foreign private property came into being, understanding investment law as a practice, a way of doing things and attaching meaning to them, rather than as a conceptual framework. This approach leads to a shift in focus on two levels. First, the thesis studies the period before the contemporary instruments governing the field, bilateral investment treaties and the ICSID Convention, came into being. Second, the shift leads to a focus on the formation of rules, rather than their application. Sharpening the focus on what I argue are the events, which background what is traditionally taken to be the origin of the field, the thesis identifies the way particular preferences were stabilised into apparent necessities through the development of novel legal doctrine. A key site of the analysis is the assertion of jurisdictional authority over concession agreements, contracts for large-scale infrastructure projects and natural resource exploitation, in particular investor state arbitrations and attempts at codification. While concession agreements in the 1920s were considered exclusively a matter of domestic law, in the 1950s a powerful community of scholars and practitioners argued that they should fall under an international legal order and be called ‘economic development agreements’. This internationalisation was a claim for the universality of ideas propagating private property and the sanctity of contract, and a rejection of the authority of socialist and anti-colonial policies to redistributive ends. Western industry, former imperial governments, and liberal thinkers of law and of economics successfully claimed the international sphere for building a new legal order. The authority for such an international legal regime was based on a temporalisation of difference that relied on concepts like ‘civilisation’ and development to downgrade challenges to the rules of property protection by locating such challenges in the past. This was a process of self-authorisation through legal practice and academic writing, laying the groundwork for the later emergence of the regime of international investment law. The aim of this thesis is to pluralise understandings of legality in international investment law by drawing out the way that the ‘universal’ primacy of rights of property protection, which underpins the field today, emerged historically from a particular view of the world, and continues to privilege the interests associated with that world view.
The Privilege against Self-Incrimination and the Compelled Production of a Password
Over the past decade, the use of encryption to protect electronic devices, including smartphones and computers, has become commonplace. Most people use encryption daily, often unwittingly. This has consequences for law enforcement, which increasingly finds itself unable to access data on encrypted devices, even where a warrant has been obtained to search that device. A common response to this problem is for law enforcement officials to seek an order compelling a suspect in a criminal investigation to produce the password to the encrypted device. In response, suspects have argued that providing that information would infringe the privilege against self-incrimination as it might reveal incriminating information. This thesis considers whether the privilege against self-incrimination can prevent the granting of an order to produce the password. It does so by asking whether an order compelling the production of a password – what this thesis terms a compelled production order – falls within the scope of the privilege; by examining how Australia’s understanding of the scope of the privilege compares to that adopted by courts in Canada, England and the United States; and by assessing how Australia, and the three comparator jurisdictions, have addressed this issue. This thesis adopts a doctrinal approach. It identifies how courts in the four jurisdictions have previously established the boundaries of the privilege when considering related cases, being cases that are concerned with similar issues to compelled production order cases. Such cases include those involving orders for bodily samples and single question reporting obligations such as those imposed on motor vehicle drives. Once the scope of the privilege is identified through those related cases, and the reasoning behind those decisions analysed, the thesis considers whether compelled production orders fall within that scope and if they have been resolved in a manner consistent with those earlier cases. This thesis does not, therefore, engage with the various proposed rationales for the privilege but instead has a more pragmatic focus. Recently, alternative means of accessing encrypted data, such as hacking powers for law enforcement and the power to compel a telecommunications company to remove encryption from their products, have received growing attention. In England and Australia, such alternative encryption workarounds are, like compelled production orders, authorised by statute. Those statutory provisions, however, require that the order sought, be it a compelled production order or one authorising the use of an alternative encryption workaround, must be proportionate – a requirement that demands that the measure used is the least intrusive of the effective means available. This creates a symbiotic relationship between compelled production orders and the alternative encryption workarounds, one that has consequences for the scope of the privilege. This thesis finds that while compelled production orders in Australia may fall outside the scope of the privilege in instances where the privilege has been abrogated, the use of a proportionality requirement in the relevant statutes means that the scope of the privilege has a fluid form and will contract or expand depending on the availability of an alternative encryption workaround.