Melbourne Law School - Theses
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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.
Non-charitable purpose trusts and the beneficiary principle
The thesis discusses whether the existence of valid trusts for purposes is conceptually consistent with the content of the beneficiary principle.
Governing from Above: A History of Aerial Bombing and International Law
The advent of aircraft in the early twentieth century brought significant changes to human society, from transportation and infrastructure to surveillance and warfare. This technology provided a new way of seeing the world from above – an aerial perspective – with its assumptions and frames of understanding space, peoples and objects. In armed conflict, airplanes facilitated interventions in foreign places and attacks directed at cities and civilians, leading to significant changes to military strategy and to legal and political discourses on how wars should be pursued. This thesis studies how the rise of aerial bombing transformed the central concepts of international law of armed conflict. The focus is on the concepts of aerial territory, civilian population, military objectives, and the principle of proportionality. I argue that these core concepts of the laws of war emerged from or were substantially transformed by the emergence of aerial warfare. The thesis covers the period of 1899 to 1977. It begins with the first considerations by international lawyers of how international law should respond to the introduction airplanes in war and ends with the conclusion of the Additional Protocols to the Geneva Conventions, where the concepts and ideas that had emerged in the preceding decades were codified. I argue that the central debates and paradoxes of the contemporary laws of war can be traced back to the ideological, material and institutional transformations that took place as a result of aerial bombing in the period between 1899-1977. This thesis aims to shed light on the early history of aerial bombing and international law, a period often forgotten or ignored in scholarship on the laws of war. It uncovers the politics and assumptions behind international humanitarian law in its relation to aerial bombing. I challenge the universality and assimilation of the core concepts of international humanitarian law, exposing how legal discourse has played a central role in the legitimation of aerial violence. The thesis explores what alternative views have been articulated in the past and what could be gained from grasping the possibilities and arguments put forward by international lawyers throughout the rise of air power. This historical inquiry has substantial repercussions for current debates on drone warfare, autonomous weapons and new military technologies, which it claims are the culmination of a much longer history of international humanitarian law embracing a view from above.
An Empire of Conduct: On the Jurisprudence of Criminal Procedure
Criminal procedure describes the conduct of lawful conduct. This thesis addresses how criminal procedure came to be the preponderant way through which the conduct of law was expressed and represented. A jurisprudential shift in procedure was accompanied by the recruitment of the criminal law into the administration of the British Empire. The argument of the thesis is that this emergence and subsequent transformation is a product of the practical involvement of a series of jurists of criminal law with imperial administration. These jurists include Jeremy Bentham, Thomas Macaulay, Henry Maine, and James Fitzjames Stephen. The thesis follows the jurisprudential writings of these thinkers and their involvements with various styles of imperialism to re-describe their contributions to the development of criminal law in light of this proximity to the government of empire. 'An Empire of Conduct' argues for an increased sensitivity to criminal procedure in thinking about the conduct of empire and the government of lawful conduct. Procedure describes not only how the rules of law apply to those subject to them, but also how those procedures were part of a process to re-organise the holding of office in the administration of law, colonies and government. To this end, the thesis looks at criminal procedure as an example of governmentality, concerned with how styles of conduct, rule and administration were shaped and then in turn shaped the holding of public office. By paying attention to questions of officeholding, it argues that the office of the jurist changes its political valence with respect to procedure: the thesis narrates changes in authorities, autonomies and privileges of office as the ascendency of legislative form, and how hierarchically imposed rules of official and juristic conduct contribute to changes in how law is administered. This thesis contends that criminal procedure is best understood as first inspired and then refined through jurists’ involvement with imperial administration, and simultaneously, as a vector for the development of strategies of government that both facilitated and constrained the emerging British Empire. As a jurisprudence, it accounts for a relationship between procedure as a mode of conduct that standardises the administration of law while providing an idiom for styles of modern government. To this end, the economic structure and material technologies of empire impose themselves in this story: as shipping, commodities, and labour all pose questions that a steadily accreted know-how of procedurally organised criminal law is increasingly marshalled to address.
The Structure of Human Rights: A Philosophical Investigation
There is a tendency for human rights bodies—at the international, regional, and national level—to take each human right to correspond to multiple duties. It has become almost a mantra of human rights institutions that human rights correlate with duties to ‘respect, protect, and fulfil’. This view of the structure of human rights—the Multiple Duty View—is echoed in much of the philosophical literature on human rights—and particularly the accounts of Henry Shue, John Tasioulas, and Rowan Cruft. These philosophers reject outright the claim that there is a one-to-one relationship between human rights and their duties. Instead—on their accounts— correlating to each human right are any and all of the duties that it takes to guarantee the substance of the right or to protect the interests or other features of the right-holder. In this thesis, I present a challenge to the Multiple Duty View. I claim that it struggles to make sense of important cases of waiver of human rights because it does not match each human right with a single duty of identical content. On the Multiple Duty View each human right correlates with multiple duties. So, when a right-holder releases the duty-bearer from just one (or, at least, not all) of the duties correlative to a single human right the Multiple Duty View cannot explain what happens to that right. It can only say that that right is either waived or retained, and neither properly captures the situation. I present an alternative picture of the structure of human rights that addresses this problem—the Individuation View of human rights. The Individuation View takes each human right to correspond to one duty only. As such, it registers that for every duty that a duty-bearer is released from a human right is also suppressed. I consider and address some objections to the Individuation View, including that it is inconsistent with human rights practice and leads to a proliferation of human rights by positing the existence of many more rights than the Multiple Duty View.
The interpretation of the use of force by international legal advisers
What do international legal advisers think about when they think about the interpretation of the use of force? For the most part, these discussions have been canvassed in terms of the application of a rule (i.e., Article 31 of the Vienna Convention on the Law of Treaties or Article 38 of the ICJ Statute), but little attention has been paid to interpretation as a philosophical enterprise (i.e. philosophical hermeneutics). Even though hermeneutic scholarship is not commonly cited in international legal theory, some work reflects many of the same sensibilities. For example, much of the contemporary scholarship on the role of history in international law has shown similar movements to the hermeneutical tradition that flourished in Germany in the late eighteenth century, particularly on the importance of historiographical methodology. In addition, interpretive philosophy challenges some epistemic predicates upon which much of the existing, mainstream legal theory on the use of force is built. Some traditions within the world of interpretation highlight that there are alternatives to our way of conceiving reality – and our access to it – as a subject-object mediated relationship. In this context, I discuss how recasting international law as an experience rather than a discipline can articulate some of the possibilities overshadowed by existing discourses. This raises some serious objections to the way we use the past to justify recourse to the use of violence and brings back the political stakes to the argumentative arsenal that the legal adviser has at her disposal. Although the result is a seemingly unfettered argumentative freedom, I argue that the perception of unrestrained rules to guide these interpretive endeavours can be mitigated by the role of disciplinary tradition. By challenging historiographical methods and epistemic predicates, interpretive philosophy further highlights the legal adviser’s uniquely existential position. This means that the situation of advising – the existential moment where the adviser fuses her own horizon of expectations with that object of interpretation, and thereby engages in the experience of international law – essentially incorporates the interpreter’s normativity. Although this subjectivity of interpretation is not new to legal theory, its treatment in interpretive philosophy can provide some insight into the theory of action of a legal adviser when confronting a situation of the use of force. More than insisting on the invasion of bias into decision-making, I argue that prejudice is not only part of any interpretive engagement but one of the most exciting hermeneutic opportunities. Finally, I discuss how the existing expressions of hermeneutic sensibilities in international law as related to history, epistemology, and situatedness can challenge some mainstream narratives on the use of force in international law. By casting legal discourse related to the use of force in international law in the post 9/11 world in terms of its interpretive distortions, interpretive philosophy provides a way to conceive the role of the legal adviser as both critical and normative.
The whole story: Intimate partner homicides, legal rules and the news production process
Feminist empirical work criticises the media for presenting violence against women (‘VAW’) and, in particular, intimate partner homicides (‘IPHs’) as isolated incidents disconnected from the broader social problem. This representation occurs despite the reality that IPHs, more than any other crime, typically arise out of a history of controlling, violent behaviour and in an environment where gender inequality is ingrained in social, cultural and organisational structures and practices. However, what has not been adequately considered in these critiques is the question of how legal rules, processes and restrictions impact the media’s ability to contextualise individual IPHs. This is the overarching question of my thesis which I respond to by adopting an interdisciplinary approach, integrating feminist socio-legal and media perspectives into an analysis of a criminal trial, media coverage of the trial and the news production process. The main focus of this research is the impact of the law sub judice contempt which prevents the reporting of prejudicial or extraneous material while legal proceedings are on foot, and the legislative restriction on reporting family violence intervention orders. I also consider the impact of legal rules and processes which first shape the legal narrative told in court. Employing the methods of court observation, journalist interviews, content analysis and a case study, the thesis aims to understand how the law contributes to the media’s problematic reporting practices or, alternatively, how the media could do better. The findings to emerge from the empirical evidence demonstrate how the law acts as an initial filter on the raw material available to journalists to report, significantly filtering information about prior violence and social context from the IPH narrative. The media’s ability to report prior violence and social context is also directly impacted by publication restrictions that constrain what can and cannot be reported. In turn, these publication restrictions are vague and uncertain, leading to inconsistent approaches by the media. Also demonstrated is the way news values, journalistic practices and the current media landscape, in which we are seeing fewer dedicated court reporters, contribute to the problematic reporting of IPHs. Despite these constraints, my thesis provides evidence of good practice journalism and opportunities for the media to do better. Recommendations include reform of sub judice contempt to ensure greater clarity and consistency in its operation, and legislative amendments to the restriction on reporting intervention orders when a domestic violence victim has been murdered. Any changes to the law must also be supported by education of journalists in both the relevant law and VAW. More certainty in how IPHs can be reported could see to increased coverage of individual IPHs that (legally) highlights the broader social context surrounding the incident and society’s role in preventing VAW. Finally, my thesis recommends future research to address other elements of this problem that fall outside the scope of my thesis and to help pave the way for more ethical, accurate and effective media reporting of VAW.
Persisting Tensions: The Framing of International Legal Debates on Foreign Fighting
The issue of foreign fighting is approached today within a predominant framing of counterterrorism and security. Yet, international legal debate over the twentieth century to today demonstrates a grappling with richer debates and histories surrounding private individuals participating in “other people’s wars”. By carefully considering the alternative framings and international legal responses surrounding a broader range of foreign fighting, this thesis reveals the powers and limits of the present counterterrorism framing of foreign fighter issues. Not only has a counterterrorism approach proven problematic in its operation, but the continued participation in warfare of foreign fighters of different categories and persuasions means that a framing focusing solely on counterterrorism risks over-extension or reaches limits in terms of providing satisfactory responses to broader questions surrounding foreign fighting. This thesis argues that those working with international law are not limited to a counterterrorism framing of foreign fighting; that there is a richer repertoire of possible argument available within international law than may at first be appreciated. This argument is made by stepping back to consider three selected moments of foreign fighter regulation between 1907–2014, namely, neutrality law and the response to foreign volunteer fighters during the Spanish Civil War, the definition and attempted criminalisation of mercenaries following the conflicts linked to decolonisation, and the Security Council’s 2014 definition of foreign terrorist fighter. This study demonstrates how in each setting, legal debate, assessment of the key issues at stake, and resultant determinations took place within a powerful predominant legal framing of the foreign fighter issue, affecting the scope and focus of legal argumentation: neutrality and abstention at the beginning of the century, self-determination during decolonisation, and counterterrorism in the twenty-first century. At the same time, the thesis makes visible how red threads of debate surrounding foreign fighting reoccur across time and setting, and continue to resonate today. These include questions about the public and private, about foreignness, about ideological motivations and the commercialisation of force, about groups and individuals, abstention and intervention, harm and required levels of diligence. What emerges from this project is a view of both the change and the stasis in international law surrounding foreign fighting: changes, such as legal determinations made within alternative framings in different moments and the resultant definitions of categories of foreign fighters, and tensions — red threads — that persist throughout the debates. The tensions are always there but are argued and settled differently in different situations in line with the dominant framing of the moment. This thesis suggests the complementary explanatory power offered by paying attention to the operation of the counterterrorism framing; what it allows and what it obscures, and by thinking more generously and creatively about the shape of debates across different phenomena of foreign fighting, and, thus, the concerns and values beyond terrorism upon which determinations about foreign fighting could be based.
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.