Melbourne Law School - Theses
Now showing items 1-12 of 328
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.
A Soldier By Any Other Name: a reappraisal of the "Citizen in Uniform' in light Part IIIAAA of the Defence Act 1903 (Cth)
Use of the military domestically, whilst aiding the civil authority, has been subject to sporadic commentary due to its limited use in Australia. With the statutory reforms in 2019, it is likely that the Australian Defence Force will increasingly be used. This thesis canvasses the citizen in uniform doctrine, and asks whether it is still appropriate in light of the powers and circumstances surrounding Part IIIAAA of the Defence Act 1903. Finding that it is no longer appropriate, and that an extra-legal status should exist, the thesis then addresses the question of jurisdiction for prosecutions.
Mental Health Law: Abolish or Reform?
As mental health law involves state-sanctioned coercion, and mental health care has a history of neglect and abuse, it has always been controversial. But, it is only since the entry into force of the Convention on the Rights of Persons with Disabilities (CRPD) in 2008 that the call for the abolition of mental health law, particularly involuntary detention in hospital and psychiatric treatment, has started to gain real momentum. Since then certain scholars, international human rights bodies and disability and human rights advocates (whom I call abolitionists) have been increasingly critical of mental health law on the grounds that it is discriminatory and an unjustified deprivation of liberty and bodily integrity. Instead, abolitionists argue that persons with mental impairment should be offered support to make their own decisions and where that is not possible, after substantial efforts have been made, decisions should be made by a supporter or facilitator based on the best interpretation of the persons will and preferences, rather than in a person’s objective medical best interests. However, the text of the CRPD does not explicitly ban mental health law or substitute decision-making because States Parties would not agree to this during the CRPD negotiations, and many States Parties, such as Australia and Canada have given interpretive declarations to that effect. Abolitionists nonetheless insist that the CRPD ought to be interpreted in a way that requires the abolition of mental health law and continue to criticise States Parties for retaining mental health law, even though many States Parties have reviewed and reformed, or are in the process of reviewing or reforming their mental health law. Against this contentious background, my thesis explores the question of whether mental health law should be abolished or reformed. I do so by using the CRPD and international human rights law as my conceptual framework, including the interactive social model of disability. Rather than take a purely doctrinal approach, I have also adopted a socio-legal methodology which aims to understand the development of mental health law and the call for the abolition of mental health law within its socio-historical context drawing on theoretical and empirical research. As part of my analysis, I have developed what I call the ‘interpretive compass’ which explores the scope and meaning of inherent dignity, equality, and participation which are core human rights concepts underpinning the CRPD. I then present a more moderate interpretation of the CRPD which supports significant legal, systemic and social reform, rather than the abolition of mental health law. Specifically, it is my thesis that mental health law should not be abolished but be reformed by decreasing coercion and increasing social support to persons with mental impairments to maximise their dignity (including autonomy), equality and participation in accordance with the overall object and purpose of the CRPD. I also use the ‘interpretive compass’ to analyse three models of mental health law reform: (1) the Abolition with Support, (2) Mental Capacity with Support, and (3) Support Except Where there is Harm models. Of these, I argue that the Mental Capacity with Support model is presently the most consistent with the interpretive compass of the CRPD.
A Conduct of Conversations: Sex Worker Activists, Legal Academics and Indian Feminist Jurisprudence
This thesis demonstrates that Indian feminist jurisprudence is a diverse field that is not solely the domain of legal academics, but is developed in relationship with non-lawyer activists. In doing so, it argues that diverse experiences of mutual law–life relations, at varied locations, contribute to the productions of a field of feminist jurisprudence in contemporary post-colonial India. The thesis grounds its argument by conducting conversations with two sets of interlocutors— legal academics Upendra Baxi and Ratna Kapur; and sex worker activist groups Durbar Mahila Samanwaya Committee (DMSC) and Veshya Anyay Mukti Parishad (VAMP). It reads a select set of texts authored by the sex workers’ collectives and the legal academics and, to engage with these materials, it develops a localised practise of adda—an activity of reciprocal conversations—as a scholarly methodology. Adda refers to the everyday action or activity of engaging in reciprocal conversations (as verb), and to a meeting place (as noun). The thesis adapts and shapes the practice of adda as a living act and activity of reading and interpreting texts in reciprocal conversations with the authors, for the specific purpose of situating and relating their experiences of life and law. The focus of the method and argument of this thesis lies in illuminating how a field of Indian feminist jurisprudence is experienced and produced as a body of knowledge, through reciprocal relations. In this regard, both the argument and the method of the thesis are of value. The demonstration of the argument helps to know about the conscious experiences of mutual law–life relations, which, although significant for understanding how law is lived in post-colonial India, have remained undocumented in scholarly projects of Indian feminist jurisprudence. Adda as a method works against a structural disparity that exists in the field of intellectual labour in India with respect to who can be counted as knowledgeable or experienced in law, and by speaking from where. Adda works to render the practice of research as a creative and an imaginative exercise of conducting conversations in a manner that enables reciprocal ties with, and amongst, the interlocutors in the thesis, who are disparately located both socially and in terms of the field of legal knowledge production per se.
Crown copyright ownership in Australia: Curing an incomplete reform process?
This thesis concerns itself with the ownership of copyright by the executive government of Australia. There are two sources of copyright ownership under the Copyright Act 1968 (Cth). These are s 8A of the Act, which preserves the copyright prerogative, and Part VII of the Act, which houses a series of ownership and usage rights in favour of the Crown. This thesis argues that the reform process around government copyright in Australia is incomplete and can only be adequately completed by following a series of steps. Namely; (i) determining that the Crown under Part VII of the Copyright Act refers only to the employees, agents and entities of the executive government and amending the Act so that the Crown has no recourse to Part VII where it acts in trade or commerce; (ii) addressing the interpretive issues around ss 176-179 of the Act and contemplating minor amendments therein; (iii) adding a good faith requirement to s 176-178 so as to safeguard the best interests of those who deal with the Crown; (iv) clarifying the exact nature of the copyright prerogative that is preserved under s 8A of the Act; (v) assessing whether the use of Creative Commons licences is sound practice in light of their suggested contractual nature; (vi) determining whether there is in fact a valid theory under which Creative Commons licence that are offered online could form the basis of a contract; (vii) creating a modest ownership scheme in favour of the Crown with regard to works of artificial intelligence. The adoption of these measure would result in a state of Crown copyright in Australia that is fair, robust, and useful and strategic.
The Judicial System and Demographic Change: Preparing for Australia’s Population Futures
In the late 1960s, an explosion in global population and the attendant threat of widespread famine spawned a new field of legal scholarship, known as ‘population law’. Its central concern was to use the law as an instrument of public policy in tempering population growth by reducing fertility. However, after a brief flowering—and as global rates of population growth began to slow under the impact of the ‘demographic transition’—academic interest in population law began to wither. This thesis seeks to reinvigorate this field of socio-legal inquiry by reinvestigating the relationship between law and demography. But, in contrast to the pioneering scholarship, this study turns in a novel direction by examining how population change can affect the legal system, rather than the converse. Specifically, the thesis analyses the impact of demographic change on the judicial system, with a geographic focus on Australian courts. Although governments increasingly recognise that demography is a potent force in shaping the political, social, and economic life of nations, legal policy has been slow to respond to the challenges posed by demographic change. Addressing this gap, the central questions of the thesis are: (a) how does demographic change impact on Australia’s judicial system; and (b) how should Australia’s judicial system adapt to embody a greater preparedness for the demographic changes that lie ahead? The first is a positive inquiry that seeks to ascertain verifiable truths about the real world; the second is a normative inquiry based on judgments about what ought to be. Analysis of the research questions proceeds by way of four case studies, which together form a collective case study. They examine the impact of: (i) declining mortality on models of judicial tenure; (ii) population ageing on judicial pensions; (iii) population redistribution on the work of lower courts; and (iv) population composition on judicial diversity. The case studies have been chosen for the way they reveal the impact of different demographic attributes (population growth, components of change, composition, and spatial distribution); and for their relevance to core values of the judicial system (judicial independence, access to justice, quality of justice, public trust, and cost effectiveness). Answering the normative inquiry, the thesis makes recommendations for reform in order to enhance the population preparedness of the judicial system. The reforms include: extending the mandatory retirement age for judicial officers, in conjunction with regular capacity assessment; recalibrating the parameters of the judicial pension schemes to make them more cost effective; allocating judges and magistrates to appropriate geographic locations to meet the changing demand that arises from spatial redistribution of the population; and closing the ‘diversity deficits’ between the composition of the judiciary and the composition of an increasingly heterogeneous population. In advancing the case for a renaissance of ‘population law’, the thesis reinforces the need for pluralism in the modalities of change, and the desirability of accommodating differences across the Australian judicial system. Yet reform is needed if the core values of the judicial system are to be maintained in the face of ineluctable forces of demographic change.
When data flows across borders: Aligning international trade law with internet policy objectives
With the rapid digitalisation of the economy, cross-border data flows have become essential for the functioning of different sectors of the economy, including the digital services industry. However, governments often restrict cross-border flows through various laws, regulations, policies and administrative measures (or ‘data-restrictive measures’) to achieve internet-related policy objectives such as regulating online content, protecting online privacy of internet users, and cybersecurity protection. These measures typically interfere with the architecture of the internet and the technical protocols/designs of digital services, resulting in economically and technologically inefficient outcomes. Further, as data-restrictive measures constrain cross-border supply of digital services, they constitute trade barriers, and therefore may violate provisions of the General Agreement on Trade in Services (‘GATS’) of the World Trade Organization (‘WTO’). This thesis investigates how GATS applies to data-restrictive measures and whether its rules can balance trade and internet policy objectives. It first highlights the complementary relationship of the three fundamental principles of internet governance applicable to cross-border data flows, namely internet openness, privacy and security. It then proposes a theoretical framework whereby GATS can be aligned with these three principles to support both an open and predictable framework for digital trade and robust internet policies. The thesis applies this framework to three common types of data-restrictive measures, namely online content regulation measures, privacy-related data-restrictive measures, and cybersecurity-related data-restrictive measures. This thesis finds that GATS can be thoughtfully applied and interpreted to align with principles of internet openness, privacy and security. For example, commitments of Members in their GATS Schedules of Commitments can be interpreted in a technologically neutral manner to facilitate both trade liberalisation and internet openness. Further, GATS obligations on non-discrimination, domestic regulation and market access (subject to Members’ relevant commitments and exemptions) generally facilitate an open market for cross-border data flows, thereby supporting internet openness. Finally, under GATS exceptions, Panels can distinguish protectionist data-restrictive measures disguised as cybersecurity/privacy/content regulation measures from measures genuinely necessary to achieve these objectives. To conduct a holistic assessment of data-restrictive measures under GATS, Panels should use both legal and technical evidence, including relying on internet technical and policy expertise. However, the extent to which GATS aligns with the principles of internet openness, privacy and security is constrained by the lack of multilateral consensus on internet policy issues and the somewhat outdated architecture of GATS. Therefore, in addition to interpreting existing GATS provisions more meaningfully, this thesis proposes a multi-pronged approach to further strengthen alignment of GATS with internet openness, privacy and security. This approach requires: meaningful use of GATS provisions on transparency and mutual recognition; introducing reforms in WTO law to incorporate relevant disciplines on cross-border data flows; and exploring options outside traditional multilateral mechanisms including developing a non-binding WTO declaration on data flows and facilitating stronger regulatory cooperation on data governance in relevant international/transnational institutions. This thesis concludes that although international trade agreements such as GATS cannot resolve all challenges pertaining to data flows, they can and should play a more proactive role in balancing trade and internet policy objectives.
International civil litigation: Balancing foreign interests and private rights
Foreign elements, expressed in the form of laws, judgments and jurisdictional claims, should be given equal recognition to local interests in the adjudicative process but not so as to thwart the legitimate vindication of private rights. Hence, when defining the boundary of substance and procedure in private international law, procedure should be confined to matters of court process to give wide operation to foreign laws and in the context of jurisdiction, courts should decline to adjudicate where the defendant or action has slender links with the forum. Where however foreign interests operate to defeat the pursuit of legitimate private rights, such as in the case of state immunity and embassy employees or defendants who are victims of fraudulent court judgments abroad, then such interests should be accorded less deference.
The Palestinian constitutional court: a critical assessment of its independence under the emergency regime of the West Bank
This thesis assesses the de jure and de facto independence of the Palestinian Constitutional Court since the coup in July 2007 that brought the Fatah regime to power in the West Bank. It argues that the Court has failed to perform its fundamental function, namely upholding the Basic Law in the face of authoritarian actions by that regime, and that it is highly unlikely to resolve this problem while the state of emergency continues. This thesis offers a case study on how constitutional courts in authoritarian regimes fail to fulfil, and even obstruct, the promises of rights protections contained in constitutional texts.
Reimagining international law of privacy in the digital age
This thesis examines the question of how international law should respond to the challenges of securing digital privacy. Driven mainly by the transnational nature of privacy threats involving private actors as well as States, calls are increasingly made for an ‘international’ privacy framework to meet these challenges. The thesis investigates such recurring calls from the perspective of two global privacy initiatives that posit a progressive vision for the right to privacy in the digital age. Using Internet Bill of Rights (IBRs) and the ongoing United Nations (UN) discourse on the ‘right to privacy in the digital age’ as case studies, it examines the role of emerging initiatives in reimagining current international law of privacy in the digital age. Scholarship investigating IBRs, the (data) privacy literature and the broader field of international law are yet to interrogate the role of, or situate, such initiatives in international law. Nor has international law’s role in addressing the ‘privacy problem’ in the digital environment been considered in the literature. In response to this lacuna, the thesis takes the novel approach of exploring the role of IBRs and the evolving UN privacy discourse in making international privacy law better-equipped in the digital age. The thesis begins by examining whether current international law of privacy is equipped to address the challenges presented by the digital age. It finds that because of historical antecedents, the normative and institutional structures of international privacy law are ill-equipped to address the ‘privacy problem’ in the digital age. The thesis then examines the role of IBRs and the UN Privacy discourse in making the international law of privacy better-equipped in the digital age. It demonstrates that the ‘freestanding’ and ‘contributory’ roles of these initiatives are negligible, but they possess a ‘catalytic’ role which may shape the normative and methodological directions of a more practical reform. Adopting a pragmatic approach, this thesis argues that addressing the privacy problem in the digital age requires reimagining the law along the direction charted in those initiatives but through an approach that is incremental, practical, multifaceted and programmatic. Mapped onto the overarching international human right to privacy framework and drawing upon global privacy initiatives, the thesis then proposes two layers of privacy law reform. It, first, presents the case for a soft law approach towards addressing normative gaps, and secondly, argues for a dialogical approach towards lessening institutional-structural gaps in international privacy law.
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.
Public and private enforcement of securities laws in Australia: an examination of the continuous disclosure regime
Continuous disclosure is an approach to securities regulation that mandates relevant regulated entities promptly disclose material information to the securities market on a continuing basis. The aim of continuous disclosure is to enhance the integrity and efficiency of capital markets by ensuring that the market is fully informed, and to promote investor protection. Australia has traditionally relied on a public regulator, the Australian Securities and Investments Commission (ASIC), to enforce its securities laws, and since 1994, the enforcement of its continuous disclosure regime. However, shareholder class actions whereby private litigants pursue claims for contravention of the continuous disclosure regime, have become a growing phenomenon in the Australian legal landscape. The advent of the shareholder class action has given rise to overlapping enforcement of the continuous disclosure laws by the public regulator and private citizens. The above developments have motivated two main questions for examination in this thesis. The first question is to inquire as to the effectiveness of ASIC enforcement and the shareholder class action, vis-à-vis each other, in achieving deterrence and compensation in relation to the continuous disclosure regime. The focus on deterrence and compensation is chosen because these are the areas where ASIC and the class action overlap. As the thesis is interested in the co-existence of ASIC enforcement and the shareholder class action, the approach to effectiveness is comparative rather than absolute. The second question asks what the ramifications are of ASIC enforcement and shareholder class actions co-existing in relation to the continuous disclosure regime from the perspective of regulatory process and the values of a ‘good’ regulatory process. The values identified are: (1) legislative authority, (2) the public interest, (3) accountability, and (4) efficiency. The consideration of the regulatory process is necessary to determine if desirable regulatory values are complied with or promoted by ASIC enforcement and the class action. Moreover, consideration is given to how action by ASIC and the class action may impact each other, that is, whether they help or hinder each other. In summary, the first question focuses on outcomes, namely deterrence and compensation. The second question focuses on process and process values. The answers to these questions are pursued through the development of an analytical framework and the use of case studies. The development of an analytical framework and the empirical work done to compile the case studies are the original contributions to knowledge made by this thesis. The thesis presents a multi-dimensional understanding of deterrence, compensation and regulatory process; these are explored through the detail and nuance of the in-depth case studies, including interviews with participants. The thesis does not seek to give a single answer to each of the research questions, but rather to produce a sophisticated account of the various factors that interact and mediate both outcomes and processes, so as to demonstrate that any answer is complex and contingent on a number of influences and circumstances.