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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)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)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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(2023)ThesisOver the past decade, the Australian university sector and regulatory bodies have implemented a range of actions to improve the management and prevention of sexual assault and sexual harassment in Australian university settings. Despite these concerted efforts, little progress has been made in reducing campus sexual violence or in achieving institutional accountability. To date, research on campus sexual violence in Australia has focused on the experiences of students and staff (such as prevalence surveys and the impact of sexual violence on educational outcomes) or institutional responses (such as policy frameworks, reporting mechanisms and support services). This dissertation offers a new perspective by taking a system-wide structural approach to consider the entire regulatory community. Through the lens of theories of responsive and smart regulation, this thesis critically examines the regulatory initiatives adopted by various actors during the period 2011-2021. Addressing a gap in the literature, I offer an analysis of how regulatory theory does not adequately explain the vital role of civil society activists in creating momentum and initiating reform in this area. Drawing on legislative reviews, analysis of primary documents and 24 interviews with representatives drawn from across the regulatory community, the dissertation reveals how a lack of political will and the absence of even a latent threat of genuine enforceable institutional accountability – a ‘benign big gun’ in responsive regulatory theory – has undermined regulatory efforts across the whole sector. This dissertation also identifies the role that regulatory ritualism has played in stymying systemic change to respond to and prevent sexual violence in the Australian university sector, extending the existing literature by proposing two new applications of regulatory ritualism, language ritualism and announcement ritualism, and providing examples of where this has occurred. This dissertation argues that substantive progress in tackling sexual assault and sexual harassment in Australian university settings has stalled due to an over-reliance on the self-regulating university sector to lead the reform effort, the failure of enforced self-regulation models led by regulatory agencies, the indifference of governments and sector-wide regulatory ritualism which has seen institutions adopt tokenistic rather than substantive responses. To address these factors and improve institutional accountability, I argue that genuine systemic reform will require political leadership, more robust application of existing legislative and regulatory tools towards effective enforcement, and innovative exploration of other legal and regulatory approaches.
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(2023)ThesisThe scramble for minerals, such as lithium, critical to renewable energy technologies is a feature of our race to decarbonise. At the same time, changing societal expectations are increasing pressure on companies to operate in a manner that respects human rights, including Indigenous Peoples’ rights. Situated at the nexus of these global trends, this thesis examines business and human rights (BHR) dynamics at rights-holder level in the context of extraction in South America’s ‘lithium triangle’. Examining how legal and non-legal factors translate to corporate behaviour and rights outcomes on the ground, the thesis addresses the research question: What are the key intersecting factors shaping corporate engagement with Indigenous communities and their rights in the lithium triangle? Based on extensive in-person empirical research in the region, it examines the complex dynamics between governments, companies and Indigenous communities. Empirical chapters reveal a broad range of factors influencing corporate engagement and thereby better rights outcomes. These can be distilled into four key themes: 1. Human rights pathways: state human rights commitments are transmitted to lithium triangle companies by more indirect means than traditional compliance with horizontal obligations would demonstrate. 2. Shifting dynamics: changing expectations of companies, particularly in the context of decarbonisation, has created a rapidly evolving landscape of pressure on companies from downstream customers and other actors in the lithium value chain. 3. Indigenous rights: Indigenous communities in the lithium triangle have become powerful advocates for their own rights, creating significant bottom-up influence and altering traditional corporate perceptions of risk. 4. State absence: partial absence and significant lack of capacity of the state has resulted in the effective ‘privatisation’ of certain rights, leaving companies to fill the gap. That lithium technology is potentially rights-enhancing at a global level while its extraction at local level may be rights-endangering is a juxtaposition foregrounding the need for a just transition and raising interesting questions about the realities of rights on the ground in the presence of a prevailing global economic imperative. The lithium triangle is a powerful case study highlighting the need for governments, companies and communities to work closely together to minimise negative rights impacts and maximise positive outcomes.
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(2023)ThesisClimate change poses serious challenges for forests and thus for sustainable forest management (SFM). The concept of resilience has been identified as a useful tool in minimising the impacts of climate change on forests. However, while the utility of the concept has been recognised generally in the literature, and seven principles of ‘Resilience Thinking’ have been designed, application of the concept in the context of SFM has yet to be examined. Under international commitments, Australia is obliged both to account for climate change impacts in SFM and to work to increase forest resilience in order to minimise those impacts and ensure the sustainability of forests into the future. Using the ‘Resilience Thinking’ principles as a framework, this thesis examines SFM legislation and policies in Tasmania and New South Wales (NSW) to ascertain the extent to which they support forest resilience to climate change. In particular, it assesses whether and how each principle is considered in the development and implementation of SFM systems. Four major challenges to the development and implementation of SFM legislation and policies capable of supporting forest resilience are identified: fragmentation of SFM systems; inadequate participation in forest decision-making; the absence of active adaptive management in forest reserves; and SFM legislation and policy mechanisms that fall short in dealing with both the short and long-term uncertainties of climate change impacts on forests. Reflecting on those challenges, the thesis proposes and examines possible solutions including: the application of an integrated landscape approach to SFM; options for improved participation by a more diverse range of actors in periodic goal setting and management actions; the application of active adaptive management aimed specifically at building resilience in reserve areas; and the incorporation of short and long-term goals into decision-making through adequate monitoring, reporting and evaluation systems utilising specific resilience criteria and indicators. In applying the ‘Resilience Thinking’ principles in the SFM context for the first time, the thesis lays the groundwork for further consideration of the challenges and solutions to implementing resilience beyond the case studies.
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(2023)ThesisCommunity sponsorship of refugees is an important mechanism to give refugees access to durable solutions through resettlement and ‘complementary pathways’. Around the world, states are following the pioneering model of sponsorship that has operated in Canada for over 40 years. They have made commitments in the 2016 New York Declaration for Refugees and Migrants and the 2018 Global Compact on Refugees towards implementing programs to enhance refugees’ access to durable solutions, including through community sponsorship. Despite an emerging international practice on community sponsorship, greater clarity is needed to understand how it works in different contexts and the barriers and enablers to success. Australia is unique amongst the countries with existing community sponsorship programs, owing to its long involvement in resettlement and previous attempts of community sponsorship dating back to the 1970s. It has much to learn from the experiences of other jurisdictions and vice versa, much to offer. This thesis undertakes a thorough socio-legal examination of Australia’s experience with community sponsorship spanning 1979 to 2022, consisting of three separate programs. This thesis examines whether the current parameters for community sponsorship are adequate to achieve the objectives of enhancing access to durable solutions for refugees, what lessons Australian policy makers can learn from historical experience, and what principles should guide future policy development in this area. It argues that the current policy parameters are inadequate to allow community sponsorship to meet its objectives, in part because policy makers have paid insufficient attention to historical perspectives. Drawing upon evaluations of Australia’s past and present programs — the Community Refugee Settlement Scheme, Community Proposal Pilot and the Community Support Program — the thesis presents a set of overarching principles to underpin future reform, including: the need to foster public-private partnerships; the need for clarity in policy framing around community sponsorship; and the need to engage and sustain widespread community involvement.
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(2022)ThesisIndigenous women in Australia have remained one of the most at-risk demographics for sexual violence victimisation since colonisation began. Indigenous women have historically been marginalized and excluded from accessing justice for sexual violence through the legal system. Changes to the justice system, including incorporating some Indigenous-focussed practices in sentencing, have resulted in inadequate access to justice for Indigenous women sexual assault victims. Some women who have not been able to find justice or validation in the legal system have sought other avenues for redress, including social media activism. The MeToo movement is one of the largest social media activist movements to date to address the issue of sexual violence. The MeToo movement has been seen as a means by which victims can take control of the narrative around sexual violence and seek recognition and justice outside the courtroom. Millions of women globally have participated in MeToo, but the movement has also been subject to critiques about its lack of inclusivity and its inability to respond to intersecting forms of oppression and trauma. Through MeToo, women have revealed the legal system has fundamentally failed victims of sexual violence, especially Indigenous women. The thesis asks: What does the MeToo movement in Australia reveal about the differences and similarities in narrative and process between the criminal justice system (CJS) and social media regarding sexual violence allegations and the potential for social media to act as an alternative to the CJS? This thesis responds to this question with a focus on a disenfranchised sector of Australian society, namely Indigenous women. By synthesising theories from the frameworks of decolonisation and critical race feminism, the thesis applies critically analyses the phenomena of spectacle and performativity. The thesis reveals several ways by which social media activism replicates the patterns of exclusion and discrimination present in the legal system, leaving Indigenous women substantially excluded from two major avenues for redress of inaccessibility to justice and related grievances. The thesis identifies the replication of patterns of exclusion and discrimination across three contexts: society, the legal system, and social media activism. The thesis concludes alternative justice seeking methods will struggle to succeed while the foundations of colonisation and patriarchy persist. It also reveals three overarching themes, and four conceptual tensions present at the intersection of sexual violence against Indigenous women and social media activism. The themes are: (1) voice, narrative, and visibility; (2) agency and self-determination, and (3) transnational/transcultural phenomena. The tensions are: (1) law and justice; (2) the criminal justice system and MeToo; (3) platforms and targets; and (4) commodification and resistance.
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(2023)ThesisA key feature of the material infrastructure of hate speech online on Facebook is virality – the rapid transmission of content over large distances through key nodes and actors on the platform. Virality is enabled by the bringing together of collectivities (crowds and publics) and connectivity provided by Facebook, which is accessed widely through Internet-enabled mobile phones. In contemporary India, increased connectivity provided by the material infrastructure of Facebook has reconfigured the relationship between crowds, publics and media, facilitated virality, and led to deadly illocutionary and perlocutionary effects such as inter-group violence and the subordination of minority groups. This thesis investigates how Facebook, through its content moderation policies and related institutional mechanisms and infrastructures, regulates the virality of hate speech online on the platform. Drawing on contemporary developments in India and the historical development of Indian hate speech doctrine, this thesis identifies emerging tensions between the global scale of hate speech regulation on Facebook and local context. These emerging tensions are visible in Facebook’s framing of its community standards on hate speech, and in the relationship between Facebook and national and subnational actors in India. These tensions are also visible in differences and contradictions in how actors who are part of Facebook’s governance model, including the Oversight Board, have approached the question of the regulation of hate speech online. This thesis employs mixed methods including a law-in-context reading of doctrine, documentary analysis and semi-structured interviews conducted with members of the Facebook Oversight Board, employees of Facebook and lawyers, academics and policy experts in the field. This thesis is part of a growing body of scholarship that examines the regulation of hate speech online and virality on Facebook through a non-United States and non-European lens.