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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)ThesisChina is a key actor in global investment governance and has experienced incredible growth of inward and outward investment over the past four decades. It has also built a dense network of investment treaties. China’s engagement with the investor-state dispute settlement (ISDS) mechanism in investment treaties has followed a distinctive trajectory. This thesis is an attempt to explain the evolution of China’s ISDS policymaking over time. In particular, it seeks to explain why China expanded access to investor-state arbitration in the late 1990s and why that expansion of access involved integration with China’s domestic administrative review procedures. The thesis also examines subsequent changes in China’s approach to ISDS up to the present, paying particular attention to questions of whether the key policy shift of the late 1990s achieved its intended objectives and how Chinese policymakers’ concerns about domestic investment governance continue to shape the design of the ISDS mechanism in China. This thesis combines close analysis of primary and secondary materials, including newly uncovered government policy documents, with insights from semi-structured interviews with government officials and academics exposed to the policymaking processes. It finds that existing accounts of the key policy shift of the late 1990s, which emphasize China’s economic interests in protecting outward Chinese investments and encouraging inward foreign investments, are inadequate. Instead, an analytical framework incorporating China’s domestic investment governance and policymaking processes is necessary to build a new, more sophisticated explanation. This thesis argues that Chinese policymakers’ decision to expand access to investor-state arbitration emerged from an incremental internal reflection process that began with China’s accession to the ICSID Convention in the early 1990s. The objectives of this policy process were to understand the source of investor-state disputes in China and to develop a plan for how investor-state arbitration could be integrated with existing processes and structures of domestic investment governance. Chinese policymakers’ concerns about domestic investment governance, especially local governments’ interactions with foreign investors, shaped the drafting of ISDS provisions in China’s investment treaties in the late 1990s. The administrative review procedure was integrated with a stronger consent to investor-state arbitration, aimed at dispute prevention, dispute management and regulatory control over local governments. Despite the central role that considerations of domestic investment governance played in the policy shift of the late 1990s, this thesis finds that the policy change did not achieve its intended objectives. Concerns about managing the interface of domestic and international regimes of investment governance continue to shape the evolution of China’s approach to ISDS.
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(2022)ThesisDating and hookup platforms have become a popular tool for seeking romantic and sexual relationships. While there are numerous benefits to making connections online, popular media and academic literature have begun to document how these platforms are implicated in the perpetration of sexual harms. Drawing on feminist and queer understandings of sexual violence and technology, this thesis provides a mixed-methods examination of sexual harms experienced in the context of online dating. Data collection included an online survey (N=527) and in-depth interviews (N=25) with adult Australians who use dating and hookup platforms. Findings indicate that experiences of safety and sexual harms and their impacts in the context of dating and hookup platforms can be complex and varied, with many experiences diverging from legal and normative understandings of sexual violence. Participants documented a range of harms, including unwanted requests for sex, unsolicited sexual images, harassment based on gender, sexuality, and race, and unwanted sexual experiences, among others. These harms were gendered and intersectional, with women and sexuality diverse participants disproportionately affected. Minimisation and normalisation of sexual harms appeared to be common, due to the sexualised nature of these platforms and largely unquestioned acceptance of a ‘hookup’ culture in online dating. Cisnormative and heteronormative discourses of gender, sexuality, sexual behaviours, and sexual violence were both (re)produced and resisted by participants, illustrating how socio-cultural and sexual norms may become inscribed within digital platforms, and alternatively how these platforms may be co-opted to resist or reject these norms. Existing reporting and response options from platforms to these harms were viewed as inadequate, with participants calling for greater transparency and accountability in reporting processes and tangible consequences for perpetrators of harmful behaviours. This thesis concludes with recommendations as to how platforms, law enforcement, and communities could better prevent and respond to these harms.
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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)ThesisThe thesis examines the interpretation and application of the due process defence under the New York Convention. It argues that the due process defence under the New York Convention should be interpreted consistently with the interpretative framework set out in the Vienna Convention on the Law of Treaties (VCLT) and, more specifically, by recourse to the general principle of audiatur et altera pars and subsequent practice of State Parties to the New York Convention. This interpretative approach ensures that due process under the New York Convention is a genuinely transnational standard distinct from any particular national legal system. In order to support this argument, chapter 2 establishes a particular understanding of the transnational approach grounded in the international interpretative rules contained in the VCLT. Chapter 3 shows that audiatur et altera pars is a well-accepted general principle of law and argues that its dimensions can concretise the normative content of the due process defence under the New York Convention. Chapters 4–7 explore relevant forms of ‘subsequent practice’ for the interpretation of the due process defence under the interpretative framework established by international law. The thesis makes three specific contributions to the theorisation and development of the transnational approach. First, arbitration scholars have talked about the importance of an autonomous approach to ensure predictability, but not fully articulated the scope and analytical possibilities of this approach. This thesis takes on this task via the VCLT, while also providing a structured way for domestic courts to consider and assess legal materials from beyond their own jurisdiction. It specifies a transnational informed approach to thinking about the general principle of audiatur et altera pars and subsequent state practice in interpreting and applying Article V(1)(b) of the New York Convention. Second, it shows how much of the arbitration scholarship on transnationalism can be recast within a public international law framework, thereby contributing to debates within international law about the decentralised interpretation of treaties by domestic courts. Third, the thesis’s preferred understanding of the transnational approach — one grounded in the public international law framework for treaty interpretation — resolves a range of practical questions about the precise content of the due process standard.