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(2022)ThesisFor decades, feminists at Australian universities have fought to publicise and politicise the issue of campus sexual violence. These efforts have recently come to fruition, with universities publicly acknowledging the problem and undertaking various institutional reforms. However, there has been little scholarly attention paid to political struggles over sexual violence within universities. This thesis critically examines the politics of feminist activism against sexual violence at Australian university campuses. It situates this activism against the backdrop of the neoliberalisation of Australian universities, to reveal how feminists have challenged – and at times, acted in complicity with – these transformations in the landscape of Australian higher education. This analysis is both historical, drawing on archival material relating to the history of campus feminist politics, and contemporary, using data from interviews with students currently engaged in organising against sexual violence. It explores the strategies and tactics adopted by feminist collectives, the constraints on feminist mobilisation in the neoliberal university, and the shortcomings of these movements. This thesis makes two original contributions to knowledge. Firstly, it extends existing analyses of university sexual violence and contributes to the growing body of scholarship on this topic. Research on campus sexual violence in Australia has so far focused on policy analysis and prevalence data. While this provides an important basis for evaluating the scope of the problem and potential remedies, it is largely disconnected from political struggles over institutional responses to sexual violence, a gap this thesis seeks to fill. I offer an analysis of the historical and contemporary struggles that have created the conditions for institutional change, as well as the complex ways in which the neoliberal university undermines and constrains oppositional movements. Secondly, this thesis makes a theoretical contribution to the field of New and Feminist Institutionalism. It critically intervenes in the institutionalist field, drawing greater attention to the roles of macro-social contexts and actors in the form of social movements in processes of institutional change and proposing a framework that foregrounds these aspects of institutional politics. The findings of this research reveal significant limitations in Australian universities’ responses to sexual violence, with their actions falling short of both student demands and expert recommendations. I argue that these actions have largely functioned to consolidate managerial power and mitigate reputational risk, in doing so narrowing the space of political contestation. My analysis further illuminates the specific institutional constraints that bear upon student feminist organisers within the neoliberal university. This analysis offers strategic insights into feminist engagement with institutions, suggesting that student movements must develop the capacity to disrupt processes of institutional reproduction and challenge the reformist approach adopted by universities. A transformative response to campus sexual violence, I argue, will require broader and better-organised coalitions of staff and students in order to collectively challenge and overcome these constraints.
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(2022)ThesisThis thesis investigates the meaning of racial profiling and its application in Australia. Drawing on the conceptualisation developed by Epp, Maynard-Moody and Haider-Markel that racial profiling is the disproportionate use of unjustified police power against racial and ethnic minorities, this thesis asks: does racial profiling exist in Australia? I develop three methodologies to answer this question. In the first, I apply four concepts developed by Canadian courts to existing Australian cases to determine whether they enable the disclosure of racial profiling. For the second strategy, I conduct a survey of 981 people from Victoria, Australia who the police have subjected to a vehicle, pedestrian or cyclist stop. Drawing again on Epp, Maynard-Moody and Haider-Markel, I classify their experiences into variables that, through regression analysis, I can use examine whether police engage in racial profiling. My third strategy, using the same survey data, tests whether police more frequently use particular tactics on specific racial groups. If so, these tactics could be said to correspond to racial profiling under a test devised by Canadian judge Morden JA. in R v Brown [2003] OJ 1251. The result of each strategy discloses the existence of racial profiling in Australia. Firstly, I find that racial profiling is likely to have impacted 12 Australian cases I examine through the lens of the Canadian common law framework. Consequently, to make racial profiling more visible, this framework provides a useful guide for the development of police powers law in Australia. Secondly, I find strong evidence (p<0.05) that police in Victoria subject people of Aboriginal, African, Pasifika and Middle-Eastern/Muslim appearance to unjustified police stops and unjustified post-stop conduct more frequently than white people. This finding demonstrates that pro-active policing methodologies in Victoria are racially discriminatory. My third finding is that there is strong exploratory evidence (p<0.05) that police use 12 tactics against specific racial groups more frequently than white people. These findings start to reveal the institutionalised mechanisms that police use to target racial groups in Australia. As the first study of this kind in Australia, this thesis makes a major contribution to understanding racial profiling in Australia and how it may be evidenced.
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(2022)ThesisChinese listed companies are struggling to meet the continuous disclosure requirements of the Australian Securities Exchange (ASX) and have even been depicted as having poor corporate governance and transparency. Many get delisted from the ASX due to non-compliance in continuous disclosure or are rejected from listing because of continuous disclosure compliance concerns. This thesis addresses one overarching research question: What are the challenges faced by Chinese lawmakers, Chinese listed companies, Chinese companies’ external advisers and securities regulators in dealing with Chinese cross-border listed companies’ continuous disclosure in Australia — and how can these challenges be addressed? This thesis is theoretically founded on the divergent evolution and rationales for continuous disclosure requirements in Australia and China. The evolution of listed companies’ continuous disclosure requirements in Australia can be described as a market-driven process, the most theoretical underpinnings of which are market integrity and investor protection. In contrast, the fundamental rationale behind the presence or absence of continuous disclosure requirements throughout the history of the Chinese securities market is the service of the political economy in the corresponding period. This thesis investigates the research question through the following four dimensions based on such a theoretical framework. First, the application of continuous disclosure requirements for listed companies is composed of three elements in Australia and China: the non-general availability criteria, materiality thresholds, and timeliness requirements. Divergences regarding each element reflect weaknesses of the Chinese continuous disclosure rules. Second, deficiencies exist regarding the continuous disclosure compliance management regime within Chinese listed companies. Third, the obligation of due diligence surrounding external advisers’ monitoring role in Chinese listed companies’ continuous disclosure compliance has limitations. These limitations are manifested in two aspects of the due diligence obligation: the duty of care and the independence requirements. Last, there are also difficulties in respect of the Chinese securities cross-border supervision regime. This thesis thus proposes corresponding reform suggestions in respect of each of these challenges, with relevant experiences in Australia taken into consideration.
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(2022)ThesisThe fundamental aim of this thesis is to test three things. First, whether there can be a ‘rule of law’ in the international humanitarian law (IHL) and international human rights law (IHRL) rules that regulate the use of lethal force by state militaries (Rules of Targeting). Second, whether there should be such a rule of law, and third, whether there is one. These questions matter because they allow us to consider what is important about the rule of law and whether and, if so, how the rule of law can be applied within the context of an armed conflict. I have chosen to focus on targeting decisions by state militaries, in the context of international armed conflicts (IAC) – conflicts between two or more states. This is because it forms the paradigm case for which the law in question is designed. In this thesis I set out why there can be a rule of law regulating the use of lethal force in IACs, why – to a limited but non-trivial extent – there currently is such a rule of law, and why it is a worthwhile endeavour to attempt to apply the rule of law to such exercises of power.
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(2022)ThesisThis thesis is about multi-stakeholder initiatives that seek to regulate the human rights impacts of global apparel supply chains (Apparel MSIs). MSIs have the aim of improving human rights for millions of apparel workers worldwide, but after two decades they show little evidence of such improvement. Civil society critics argue that MSIs are ineffective, unreformable private regulation that is not fit-for-purpose and lacks legitimacy. This thesis argues that Apparel MSIs still perform a valuable regulatory function, however they must adopt new regulatory approaches. These include moving beyond social audit as a regulatory technique, expanding stakeholder participation and better measuring and communicating impact. MSIs must transform to realise their aim of improving apparel workers human rights and consequently preserve their legitimacy. To understand and contribute to this transformation the thesis method incorporates existing literature; it applies theoretical frameworks; and the insights of original empirical research. From the latter the voices of worker advocates, union leaders and academics reveal recent and promising regulatory innovations and changes in MSIs. Along with this empirical research, the original contributions of this thesis are to emphasise the interconnected nature of legitimacy criteria and assess the overall legitimacy of Apparel MSIs in the light of the functional model adopted by each MSI. This legitimacy analysis is supported by the regulatory theory of responsive regulation, which explicitly contemplates self-regulatory forms like MSIs. The original contribution of bringing responsive regulation to bear on Apparel MSIs, provides new insights into how they can bolster their regulatory effectiveness and legitimacy. Interviews undertaken with key stakeholders provide a sociological perspective to this analysis. Interview data also drive the final recommendations for reform which coming from MSI stakeholders point to recent innovations in private regulation as a more promising alternative. Given the opportunity to build a more just world after the Covid-19 pandemic, these recommendations could not come at a more critical juncture.
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(2022)ThesisThe concept of the dual-class structure listing (DCS listing) indicates the corporate financing and governance practice under which a particular listing firm issues two or more classes of common shares with different voting shares per class. The advantage of DCS concentratedly lies in the sufficiently safeguarding the founder’s idiosyncratic visions and protecting the long-term benefit maximization goal from the short-termism. Simultaneously, the latent defects of DCS consist of the volatility of the superiors voting rights holders’ personal attributes and the weighted voting power abuse risks. To a large degree, the DCS regulation within China’s institutional context can be a new issue. In comparison with the US history for over a century of DCS listing practice and regulation, China did not lift its ban on the domestic DCS listing until 2019. Among these jurisdictions in the Asian-Pacific region, the US, Hong Kong SAR, and Singapore might provide remarkable experiences. Chapter 1 will portray a general tendency of the rise of DCS listing worldwide and briefly comb the practical issues regarding DCS listing within the Chinese institutional context. Chapter 2 will try to clarify the conceptual boundary of DCS listing in terms of history and discourse evolution, this chapter will briefly retrospect China’s overseas and domestic DCS listing practices and the current DCS listing regulation framework as well. Chapter 3 aims at systematically delineate and retrospect China’s institutional environment involving corporate governance. Chapter 4 aims at examining both the empirical and on one hand, this chapter tries to review the existing empirical studies to evaluate the empirical evidence’s support for the question raised above. On the other hand, this section will come back to examine the theoretical corporate governance discussion on long-termism v. short-termism. Comprehensively, this part will try to retrospect the shortcomings of the short-termism rhetoric and simultaneously construct the legitimacy of long-termism discourse in terms of improving corporate governance patterns. Chapter 5 focuses on how to supply specific measures to improve both DCS listing practices and regulation. First, it will discuss the feasibility of mandating a time-based sunset provision. Also, it will evaluate the whether it is possible to use the time-phased voting to mitigate the latent defects of sunset provisions utilisation. Following, a brief conclusion is given.
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(2022)ThesisThis Thesis examines the situations in which the use of trade secrets can constitute an abuse of market dominance under China’s Anti-monopoly Law and considers how the law should be applied in practice. It is generally accepted that competition law and intellectual property law have the complementary goals of promoting competition. Trade secrets are regarded as a category of intellectual property and competition law applies when the exploitation of trade secrets leads to anti-competitive effects. There are some cases where Chinese competition authorities and courts have dealt with the abuse of dominance cases arising from the use of trade secrets, but the Thesis argues that the existing Chinese competition rules should be more specific in relation to the issue. In order to improve Chinese competition enforcement in this respect, the Thesis examines comparative competition experience from both sides of the Atlantic to analyse market definition, market dominance and some abusive practices with regard to trade secrets. It makes recommendations on an appropriate methodology for China. To keep a balance between the antitrust intervention and the use of trade secrets, and to make the application of Chinese competition law predictable, the Thesis recommends reforming Chinese competition rules to establish specific tests for determining the abuse of dominance in trade secrets. It suggests that China should consider the characteristics of trade secrets (as opposed to other forms of intellectual property) in the abuse of dominance cases when amending China’s anti-monopoly guidelines regarding intellectual property. These recommendations, if adopted, would provide Chinese competition authorities and courts with more specific guidance on dealing with the interplay between competition law and the exploitation of trade secrets in the future, and improve the enforcement of Chinese competition law in the area.
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(2022)ThesisOne of the most significant issues to emerge in international refugee law and policy in recent years has been the push to enhance the meaningful participation of refugees in decision-making processes. Around the world, refugee-led networks and organisations have advocated for refugees to be able to engage directly with states, international organisations and other stakeholders in decisions that affect them. Further, states have recognised the value of meaningful participation and have made commitments through new international instruments, particularly the 2016 New York Declaration for Refugees and Migrants and the 2018 Global Compact on Refugees, towards enabling the participation of refugees in designated responses to refugees and displacement. These developments represent a significant shift in thinking. However, for these developments to be implemented effectively, greater clarity is needed as to what meaningful refugee participation looks like and how the international law and policy framework governing participation can be best designed. This thesis provides a detailed socio-legal analysis of these issues. The thesis asks: what does participation in decision-making refer to in the context of the international refugee regime; in what ways and to what extent have refugees been included in different decision-making areas in practice; and how could the legal and policy framework be improved to enhance meaningful refugee participation. This thesis argues that despite recent commitments towards advancing the participation of refugees in decision-making processes, the international legal and policy framework governing refugee participation has insufficiently provided for this to occur. The thesis demonstrates how refugees have been restricted from fully participating in a variety of decision-making areas. These areas include law and policy reform; the implementation of durable solutions and other relocation decisions; and the delivery of programmes and services for refugees. Additionally, the thesis highlights the current limitations of international refugee and human rights law for ensuring meaningful refugee participation. To address these issues, the thesis proposes novel reforms to improve the international legal and policy framework. Central among these reform options is the proposal for a new international law instrument that more clearly commits states and others to ensuring that refugees are heard.
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(2022)ThesisThis thesis analyses the legal structure of open banking frameworks of the two leading common-law jurisdictions (Australia and the United Kingdom) to determine whether they should incorporate legal features equivalent to those which support efficiency and safety in banking payment systems. The analysis shows that legal assessment of open banking frameworks should include evaluation against banking law principles because of the functional equivalence of customer data and customer funds as valuable information. More specifically, this research addresses the question: Should open banking frameworks include the legal features for the sharing and use of customer banking data which are comparable to those included in banking payment systems for the payment and use of customer money? The thesis develops a conceptual framework to enable a functional comparison to be made between the laws which govern the transfer and use of customer data under open banking frameworks and those which govern the payment and holding of customer money under banking and payment systems, from the foundation that both are networks for the transfer of valuable infrormation. It uses this to compare the open banking laws and regulations of Australia and the UK by reference to the legal rights to share data, the legal responsibilities for shared data and the legal relationships in sharing data. The differences are evaluated against the legal features of banking payment systems which perform similar functions with respect to customer funds, to determine deficiencies in the frameworks' legal design. The risks that arise from these deficiencies are then identified and assessed, using a risk classification developed from communication systems and banking payment systems. From this analysis, it is concluded that the some of the legal features which support effectiveness and safety in the frameworks are impaired when evaluated against equivalent features in banking payment systems. Recommendations are made for improvements by reference to the legal features of banking payment systems. The thesis provides new principles for the legal design of open banking frameworks based on the laws which protect and promote banking payment systems. Their use can ensure that when customers are ‘banking on data’ under these frameworks they are supported and protected by legal rights, responsibilities and relationships equivalent to those which customers rely on to support and protect them when they are banking with their money.
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(2022)ThesisThere are few detailed studies on the pathways through the human brainstem and even fewer on those through the pons. This thesis aims to address this lack of fine detail, and used ultra-high-field magnetic resonance imaging (MRI) of human and macaque brains to identify and characterise fibre tracts connecting cortical and spinal areas as they traverse through brainstem and thalamic structures. The material in this thesis is based on a unique dataset of ultra-high-field (7 Tesla – Duke and 11, 7 Tesla – Johns Hopkins) MRI scans on postmortem specimens, on which deterministic tractography has been applied based on high-angular-resolution diffusion imaging (HARDI) and subsequently higher order tensor glyph models. The first results section of the thesis (Chapter 3) maps the descending fibre bundles associated with movement. From the motor cortical areas, the fibres of the internal capsule are traced through the crus cerebri, basilar pons and pyramids in three dimensions to reveal their organisation into functional and topographic subdivisions. While human cortico-pontine, -bulbar and -spinal tracts were traditionally considered to be dispersed, or a “melange”, I show here a much more discrete and defined organisation of these descending fibre bundles. Nine descending fibre bundles are identified and their anatomical location and terminations are described. A hitherto unknown pathway at the midline of the pons has been discovered and named herein as the Stria Pontis which connects the neocortex to the pontine tegmentum. Ten transverse fibre bundles connecting the pontine nuclei to the cerebellum are also identified. The second results section (Chapter 4) analyses the sensory pathways; the dorsal column - medial lemniscus pathway, the spinothalamic tract, the spinal trigeminal tract and the trigeminothalamic tracts. The third results section (Chapter 5) analyses the dentato-rubro-thalamic tract. The mapping identifies the superior cerebellar peduncle, the patterning of the fibres within the superior cerebellar decussation, the patterning of the fibres within the red nucleus and finally the projection of the dentato-rubro-thalamic tract from the red nucleus to the ventral lateral nucleus of the thalamus. Finally, I characterised 117 already known anatomical parts, areas and structures of the brainstem and thalamus in 3D.