Melbourne Law School - Theses
Now showing items 1-12 of 369
Empowering customary land rights: can Indonesia rise to the challenge?
The struggle within Indonesia to resurrect strong customary tenure takes place within a highly contested legal landscape. Land administration is bifurcated, complex, uncertain and often contradictory. This paper analyses attempts to recognise and empower customary land rights in Indonesia's 2018 Draft Bill on Customary Legal Communities. It employs comparative analysis with another jurisdiction that has long grappled with the inherent compromises involved in enacting and empowering customary tenure: the Northern Territory of Australia. In doing so, it seeks to identify shared challenges as well as to highlight alternative responses to these challenges.
Rights, Risks and Rules: The Rise of Human Rights Due Diligence and Implications for Transnational Labour Governance
Over the last decade, the concept of human rights due diligence (‘HRDD’) has emerged as a dominant means through which to conceptualise and operationalise corporate responsibility for working conditions in transnational supply chains. This thesis applies a transnational labour law lens to HRDD. Proceeding from the observation that HRDD as originally articulated in the UN Guiding Principles on Business and Human Rights is open to multiple interpretations, this thesis examines contests that have taken place globally over the role and status of the concept as it relates to workers’ rights. It also considers the implications of HRDD’s ascension for transnational labour law, as a distinct field of law, scholarship and activism. Using conceptual and empirical analysis, this thesis argues that HRDD is not being institutionalised at either global or national level in a way that renders it a transformative or even robust mechanism of transnational labour law. This is despite the fact that the concept’s legalisation is being welcomed – indeed in part driven by – actors that believe it will broaden and deepen respect for workers’ rights in internal corporate processes and legal frameworks. This thesis further contends that the rise of HRDD is leading to subtle shifts in configurations of actors and institutions in transnational labour governance. Through its reframing of labour rights issues as matters for risk management, HRDD has facilitated the expansion within the field of for-profit actors such as management consultancies, risk advisory services and law firms. The proliferation of HRDD-related legislation at the national level is positioning courts to play a greater role in determining the nature and scope of corporate responsibility for workers’ rights in transnational supply chains. In addition, the rise of HRDD has enabled the Organisation for Economic Cooperation and Development (OECD) to consolidate its position as the leading global authority in the area of corporate accountability and labour rights. The OECD has successfully capitalised on the resonance of the HRDD frame with its apolitical working methods, and its technical expertise and formidable research capacity, to engage in an ambitious work programme on HRDD. In contrast, the International Labour Organisation (ILO) has struggled to establish itself as an authority on HRDD or to generate broad-based support for related standard-setting activities. This thesis makes an original contribution to transnational labour law by examining an increasingly influential concept that has yet to receive sustained examination from scholars in the discipline. It also makes a novel contribution through its empirical investigation of a stage in the regulatory process that tends to be overlooked in transnational labour law scholarship: how an international labour norm, subsequent to its adoption, is shaped, translated and contested, by whom and with what implications.
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.
Understanding the exploitation of temporary migrant workers in Australia: examining temporary labour migration from preFederation until 2020
This thesis concerns the treatment of temporary migrant workers in Australia. Within the last 20 years, migration programs have swung from facilitating and encouraging permanent settlement in Australia to embracing large-scale temporary labour migration. Certain sectors of employment have become reliant on temporary migrant workers — such as agriculture, hospitality, aged care, cleaning, security, and construction. This trend towards an embrace of temporary labour migration has been accompanied by growing concerns about the mistreatment of temporary migrant workers in Australia. Numerous reports, inquiries, and investigations have revealed widespread patterns of their abuse and mistreatment. The term ‘exploitation’ is routinely used to describe the abuse and mistreatment of temporary migrant workers in Australia, yet there has been little theoretical engagement with the concept of ‘exploitation’. It is rarely defined and is most often used to describe conduct that is already unlawful. I argue that there is a need to use the term with greater precision. I introduce the concepts of ‘transactional’ and ‘structural’ exploitation to examine the exploitation of temporary migrant workers in Australia, and to evaluate recent legal reforms. Additionally, the treatment of temporary migrant workers is seen as a very contemporary issue. It is seen as a departure from the norm of Australia as a nation of permanent settlers. Yet, there are important historical antecedents of contemporary temporary labour migration in Australia — the significance of which have been overlooked. I argue that Australia’s labour migration history foretells much about the nature of temporary labour migration today, especially concerning the role of the State in relation to the treatment of temporary migrant workers. Fundamentally, temporary migrant workers participate in the Australian labour market on an unequal basis. This is the case irrespective of whether their employers comply with existing workplace and other laws, or not. Temporary migrant workers are denied — to varying degrees, depending on the temporary labour migration program — access to social and economic rights which, I argue, are associated with social membership in the Australian community. This is not a contemporary phenomenon. As my thesis examines, temporary migrant workers have been subjected to various forms of exclusion from membership since before Federation. These are matters that pertain to the structure of temporary labour migration programs in Australia and concern the role of the State in relation to the treatment of temporary migrant workers, which I suggest have been underemphasised in recent literature on this subject. Accordingly, this thesis reveals the role of the State in relation to the exploitation of temporary migrant workers. I argue that the State enacts rights restrictions and exclusions based on their temporary migrant status that place temporary migrant workers under the threat of domination by their employers and other actors. This enables and facilitates exploitative transactions within the workplace. Further, the State enacts regulations that deprive temporary migrant workers from being able to develop and exercise their capacities as human beings, by treating temporary migrant workers as labour market inputs. This has occurred through the imposition of rights restrictions and exclusions, and prioritising the interests of employers and industry by favouring so-called ‘labour market’ imperatives. This thesis details the various ways that this has occurred, depending on the specific temporary labour migration program involved. Finally, this thesis explores Sarah Song’s ‘principle of reciprocity’ and suggests how this principle may be used to reorient discussions on how to address the exploitation of temporary migrant workers in Australia. This principle focuses on the relationship between the State and temporary migrant workers and concerns the question of how to ensure that temporary labour migration provides an authentic and sufficient benefit to the workers themselves.
Two Worlds, One Forum: Investor-State Arbitration and Indigenous Rights
Investment treaties and investor-state dispute settlement (‘ISDS’) have been seen to have a significant effect on the rights of indigenous peoples, which has led to development in regards to both the substantive rights of investors in investments treaties (such as the inclusions of ‘carve out clauses’ which are intended to preserve the rights of indigenous from foreign investors) and how arbitral tribunals deal with the rights of indigenous peoples when adjudicating investor-state disputes. Accordingly this paper seeks to further examine developments in this niche jurisprudence and discuss the implications of these developments. This paper will firstly consider the various rights of indigenous peoples that are seen to be at play in an international law context, and various legal instruments in which some of those rights are reflected in and derived from. Secondly, this paper will examine a selection of relevant investment treaties which have provisions affecting the right of indigenous peoples that have been considered by tribunals. More recent investment treaties that have more developed provisions which affect the rights of indigenous peoples are also considered. Thirdly, this paper will examine how the rights of indigenous peoples have been applied by tribunals in investor-state arbitrations. Fourthly, this paper will explore how the rights of indigenous peoples may be further applied in investor-state arbitrations and consider the practical application thereof. Finally, this paper will briefly explore how ISDS reform may affect the rights of indigenous peoples being applied in investor-state arbitrations. In doing so, this paper argues that the development of ISDS jurisprudence in cases concerning the rights of indigenous peoples, indicate an openness to considering, incorporating, and applying the rights of indigenous peoples in investor-state arbitrations.
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.