Melbourne Law School - Theses
Now showing items 1-12 of 347
The Victorian treaty process: towards an authentic and meaningful form of Indigenous self-determination?
This thesis offers a reflection on the transformative potential of the Victorian treaty process with regard to self-determination of the Aboriginal community of Victoria. It postulates that the creation of an Indigenous political constituency through the First Peoples’ Assembly, together with the preponderance given to Aboriginal voices throughout the treaty process and the collaborative approach observed by the Victorian government, testify to the emergence of a political culture based on the accommodation of the interests and aspirations of both Indigenous peoples and the Victorian state. In the meantime, it stresses the challenges of a consensual form of self-determination, which arise from the weak negotiating leverage of Aboriginal parties, the structural weaknesses of the treaty making process, as well as the dissatisfaction and disillusionment among a significant part of the Aboriginal community. Also, drawing on the treaty experience in countries with a colonial history close to Australia, as well as on the crucial and extensive work carried out by Indigenous advocacy, the thesis provides a set of key avenues for the elaboration of a treaty framework and the conclusion of subsequent agreements carrying an authentic and meaningful form of Indigenous self-determination.
Dope, Drugs and Devices: The Political Legitimacy of Therapeutic Goods Regulation in Australia
There is a paradox at the heart of the regulation of therapeutic goods in Australia. There is a broad acceptance that these goods – including medicines and medical devices – are safe and reliable, and that their regulation is therefore meritorious and uncontentious. This is consistent with the experience of many Australians that such products are part of the everyday prevention, treatment and cure of illness, disease, and disorders. However, there are also notable instances in which the regulation of specific therapeutic goods has been surrounded by public controversy and criticism. The purpose of this thesis is to investigate what this paradox tells us about the regulatory regime for therapeutic goods. In doing so, it contributes to the small amount of literature on the therapeutic goods regulatory regime and broader commentary regarding similar regulatory schemes internationally. The concept of political legitimacy is used as a tool to investigate the contrasting depictions of the therapeutic goods regulatory regime. An approach to political legitimacy called the ‘constant dialogic approach’ is developed as an easily applicable reformulation of the work of criminologists Anthony Bottoms and Justice Tankebe. Their work, in turn builds on the foundational framework of David Beetham. The constant dialogic approach is applied to three controversial case studies: the regulation of medicinal cannabis between 2014 to 2018; the control of the abortion drug RU486 between 1996 and 2012; and the events surrounding urogynaecological mesh devices between 1998 and 2019. The question that is asked in each instance is ‘what does this case study tell us about the political legitimacy of the therapeutic goods regulatory regime?’ Each case study reveals a significant challenge to the political legitimacy of the regulatory regime. This is explained by the regulatory regime’s failure to adopt a constant dialogic approach to political legitimacy. While the manifestations of this failure are different for each case study, commonalities are identified. In light of this analysis, two broad challenges are proposed to explain the deficiencies in the political legitimacy of the therapeutic goods regulatory regime. These challenges fundamentally reflect the dominance of the ideologies of scientism and technocracy on the development and continued operation of the regulatory regime. The first challenge is the regime’s ‘expert’ or technocratic character, and in particular its directive and unilateral approach to expertise. The second challenge is the regulatory regime’s near singular reliance on expertise of a scientific nature and the epistemic obstacles to political legitimacy that this creates. A case is made to resolve the deficiencies in political legitimacy, and the resulting paradox, which faces the therapeutic goods regulatory regime. What is proposed is an evolution in the ideological foundations of the regulatory regime which draws on Oren Perez’s notion of regulatory courage. Specifically, it is argued that the regulatory regime should embrace normative pluralism and a facilitative approach to expertise. The implementation of these changes through a subsequent program of reform will strengthen the regulatory regime’s ability to engage with potentially contentious cases in the future.
Whistleblower Laws: the other employment law
While there has been a considerable amount of research and writing on enhancing whistleblower laws to encourage whistleblowing and protect whistleblowers, little has been written on these laws’ impact on employers’ ability to manage employees. This paper, first, outlines how whistleblower laws impose restrictions and duties on employers dealing with employees’ alleged misconduct. Second, it critically evaluates these restrictions and duties, and advocates for changes. It argues for reforms to some public sector whistleblower laws to enable employers to discipline employees for making deliberately false and misleading disclosures. More importantly, however, it argues that requirements on employers in public sector whistleblower laws to investigate employee disclosures inappropriately interfere with employers’ ability to respond to allegations of employee misconduct. These requirements force employers to go through an ‘investigation’ process where other forms of management action are preferable; may discourage employees reporting wrongdoing; and impose substantial administrative costs. Alternatives models are considered.
Should physical features discrimination be prohibited?
This paper commences by outlining a framework for determining when the moral underpinnings of discrimination laws on ‘traditional grounds’ (such as race, sex, disability and age) can be applied to justify further prohibited grounds of discrimination. Applying this framework, and drawing on the psychological literature and experience in the only Australian jurisdictions with physical features discrimination laws (Victoria and the Australian Capital Territory), it considers whether physical features discrimination should be prohibited. It argues, first, for prohibiting discrimination on the ground of physical features that are ‘immutable’, in the sense they are not chosen and are difficult to change. Second, it argues against prohibiting discrimination on the ground of chosen physical features generally. Third, it argues for also prohibiting discrimination on the ground of physical features that represent attributes already protected by discrimination laws.
Of Blind People, Elephants and the Pacific Alliance Integration: Institutionalist Account and Proposals For Change
The Pacific Alliance (PA) presents itself as a sui generis ‘mechanism for regional integration’ comprising Chile, Colombia, Mexico and Peru. In this thesis, I examine the main institutional features of the PA, the factors that explain these institutional choices and to what extent its institutional framework is suitable to support the objectives of the PA in the long-term. The scope of the thesis is threefold: descriptive, explanatory and normative. I take an interdisciplinary and eclectic approach to study the institutional dimension of the PA. I base my analysis on insights from new institutionalisms — constructivist and rational institutionalisms — while following a legal orientation when reading and applying new institutionalisms. I also employ international institutional law to assess the international legal status of the PA. At the methodological level, the thesis uses qualitative methods — doctrinal and empirical analysis — to address the research questions. The core argument I develop in this thesis is that rational factors, such as cooperation problems and characteristics of the PA members in the aggregate, and ideational factors explain the PA’s institutional design. External institutional environments also contribute to explain PA’s institutional architecture. Institutional entrepreneurs have carefully crafted organisational and task-related decentralisation, the scope of issues covered, the rules for control, and the array of adjustability devices in its institutional rules. PA’s institutional design is also the result of the revisited neoliberal program amplified at the regional level through the open regionalism and deep integration programs and the frames of flexibility and pragmatism. I contest, based on empirical evidence, claims about the sui generis nature of the PA’s institutional model of economic regionalism. I also challenge established views about its non-political and non-ideological foundations. I demonstrate that the PA represents an informal intergovernmental institution (IIG). The PA is not an international organisation invested with international and domestic legal personality. Organisational structures in the PA follow a spectrum of formal and informal arrangements. These structures have, in many instances, responded to what I call demand-based or problem-based approaches in their establishment. Growth and specialisation of organisational structures take place through informal means, which evidences the effects of the ideas of flexibility and pragmatism that frame the PA and its regional integration process. The thesis shows that the PA relies heavily on soft-law reinforcing its political basis. Mandatory commitments or hard-law approaches refer primarily to the construction of a free trade area as of today while soft-law is predominant in several areas that comprise its large economic and non-economic cooperation pillar. I maintain that the PA’s current institutional framework does not equip it to respond to the needs for policy coordination and harmonisation, and the development of other regional public goods associated with the goals of its economic regionalism project. From a normative stand, as the PA evolves it will require institutional adjustments to deal with the tasks of (i) information production and management; (ii) decision making; (iii) administration; (iv) monitoring; (v) dispute resolution; and (vi) enforcement/punishment. The PA needs to introduce elements of centralisation and delegation, such as a Secretariat, to perform some of these tasks. This thesis has significance for policy entrepreneurs, government officials and academics by mapping and explaining the institutional approach that PA architects have taken, how it has evolved, and the benefits and shortcomings arising from it. The thesis is a tool to inform policy decisions regarding institutional changes to the PA. I test the explanatory power of rational and constructivist approaches from new institutionalisms, proposing an eclectic analytical framework to grasp better the PA’s institutions at the empirical level. With the restrictions of a case study for potential theory building, the thesis also speaks to the institutionalist literature. It makes incremental developments that extend rational institutionalism insights to explain some of the PA’s treaty provisions.
Forestalling nuclear proliferation and use through preventative uses of force
75 years after the cataclysmic nuclear strikes on Hiroshima and Nagasaki, nuclear weapons pose an existential threat to human civilisation. In spite of this fact, the international community has proven largely unable to peacefully halt the spread of nuclear weapons. With Iran’s nuclear intentions in question and North Korea now in possession of a small nuclear arsenal, a debate has ensued on the legality of States using force to forestall the proliferation or use of nuclear weapons. Using the Iranian and North Korean situations as case studies, this thesis enters the debate by analysing the legal permissibility of preventative uses of force. In particular, the thesis considers: (1) the traditional interpretation of anticipatory self-defence and its crucial ‘imminence’ requirement; (2) growing calls for a broader interpretation of imminence; and (3) the potential existence of a customary rule permitting pre-emptive self-defence in the nuclear proliferation context. After applying these concepts to the Iranian and North Korean situations, it is concluded that preventative strikes on these States’ nuclear programs would not be lawful at the time of writing.
Artificial intelligence and Article 36: Implementing minimum standards for reviewing artificially intelligent military systems
Artificially intelligent military technologies are being rapidly developed for use in the contemporary battlefield. Such technology includes drones, sentry-robots, and missile-launch systems, as well as surveillance, reconnaissance, and decision-making support systems. With such complicated and sophisticated systems in use, it is increasingly important to ensure that these systems comply with international humanitarian law (‘IHL’). Recent debates in international fora indicate that a specific and effective treaty governing the uses of artificial intelligence in the military context is unlikely. There is, nevertheless, a very real need to ensure that systems used in armed conflict comply with IHL. This paper proposes that the best way to monitor and regulate the development of artificially intelligent military technologies is to subject them to thorough testing, verification, validation and certification processes.
'I will fight for freedom until I die': international humanitarian law, international human rights law and the grey zone of regulating violence in cities
This thesis argues that international human rights law and international humanitarian law do not adequately govern the conduct of violence in cities, including violent protests, riots and civil unrest. Specifically, it is theorised that situations of violence in cities fall into a "grey zone" of international law insofar as neither international humanitarian law nor international human rights law provide clear and specific rules governing the conduct of violence in these contexts. While international humanitarian law is the field of public international law best equipped to govern the use of force, including the use of certain kinds of weapons and the protection of civilians from violence, modern situations of urban violence often fall below international humanitarian law’s threshold of application for non-international armed conflicts. Consequently, it falls to the international law of human rights to govern these types of violence. However, international human rights law’s ability to be derogated from, lack of specificity regarding permissible and prohibited means of use of force, and general lack of applicability to non-state armed actors, often means that it has limited utility in regulating such situations and effectively protecting victims. Consequently, there is a clear impetus for a policy-oriented approach based on norms found in both international humanitarian law and international human rights law to protect those affected by urban violence. Specifically, this thesis proposes the development of a “Basic Principles” style document to seek to set standards for the use of force, by both state and non-state parties to violence in cities.
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.