Law & Justice

Publication Search Results

Now showing 1 - 10 of 32
  • (2020) Blayden, Lynsey
    Thesis
    In recent decades Australian judicial review of administrative action has been characterised as having taken a different shape to review in countries with a similar common law heritage. One explanation given for this difference is an attachment to what has been called ‘formalism’ or ‘legalism’ in Australian judicial doctrine. This thesis argues that instead, the source of the difference lies in the different normative institutional values of the Australian system of law and government. This thesis is divided into two parts. Part I sketches the contemporary framework of judicial review of administrative action in Australia. It looks at three defining features of it, the constitutional separation of judicial power, the distinction between merits and legality and the concept of jurisdictional error. This part of the thesis draws out the ways in which these features can be recognised as the product of a notion of judicial power which is responsive to institutional context. Part II of the thesis turns to a consideration of the normative values that have shaped conceptions of institutional power in Australia. This part of the thesis argues that, owing to the period in which the Australian Constitution was adopted, and certain aspects of Australian history, the Australian conception of government is characterised by what can be termed ‘new liberalism’ or ‘progressivism’, giving what can be recognised as a ‘functionalist’ character to Australian public law. A key tenet of new liberalism was that freedom was to be achieved through the state. A further tenet was that the people should be ‘self-governing’. Both ideas can be distinguished from the classical conception of liberalism at the centre of the traditional Diceyan conception of constitutionalism. This thesis argues that the presence of these ideas in the decades before and after Federation can be regarded as having helped to shape a concept of judicial power, which operates to prevent arbitrary state action and protect the overall health of the constitutional system itself, but otherwise leave questions of public policy or morality for resolution by the people themselves through the political process.

  • (2020) Avgoustinos, Constantine
    Thesis
    Climate change poses a serious threat to the long-term structural integrity, if not existence, of the Australian constitutional system. This means that Australian government action worsening climate change poses a threat to this constitutional system. When government action threatens this system, even in a partial or incremental manner, the High Court may derive implications from the Commonwealth Constitution (‘Constitution’) to restrain such action. This is the reasoning underpinning the Court’s establishment of implied limitations such as the Melbourne Corporation and political communication limitations. Based on this reasoning, I explore in this thesis whether a doctrinal argument can be made for deriving a new implication from the Constitution that I refer to as the ‘ecological limitation’. This limitation, if established, would restrain some forms of Commonwealth or State legislative and executive action worsening climate change in the interests of preserving the Australian constitutional system. My methodology for assessing the doctrinal merits of this proposed implication is framed by the High Court’s ‘text and structure approach’ articulated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. This interpretive approach requires implications to be derived from the text and structure of the Constitution. I supplement this approach by drawing comparisons between the ecological limitation and established implications to gain further insights on what aspects of a proposed implication may be deemed acceptable and unacceptable by the Court. Finally, I tease out the operation of the ecological limitation by considering its hypothetical application in relation to a real occurrence. Namely, I consider how the limitation might apply to restrain Queensland government approval of a proposed coal mine – the Carmichael mine currently being pursued by Adani Mining Pty Ltd. By following this methodology, I arrive at the doctrinal argument for deriving the ecological limitation outlined above and assess the doctrinal arguments against its derivation that might be raised in response (such as concerns regarding the political decision-making judges would have to engage in if the limitation is established). I conclude that a compelling doctrinal case can be made in support of the ecological limitation that can withstand these counter-arguments.

  • (2020) Gooding, Bradley
    Thesis
    This thesis is a philosophical submission aiming towards the cultivation of a pluralistic jurisprudence. It is animated by the felt need for an equitable accommodation of social disagreement in legal reasoning. It attends this by focussing specifically on developing an account of value pluralism which can be judicially understood, not as a comprehensive ontology, but as a pragmatic structuring of normativity with its own distinctive ethos and conception of rationality. This distinctiveness necessitates a careful explanation, defence, and demonstration of viability within the literature of jurisprudence, as well as, critically, the construction of terms on which a normative conviction in pluralism could successfully be judicially and legally vindicated. To this end, the thesis is divided into two Parts. Part I works towards a normative account of pluralism, looking to capture what is politically/legally appreciable about the concept, as illustrated through the value pluralism of Isaiah Berlin (Chapter 1). But, recognizing critiques of that philosophy –specifically, the critique by Ronald Dworkin – Part I will also be concerned to refurbish the Berlinian account of plurality for greater legal appreciation by drawing on support from pragmatic epistemology, Elizabeth Anderson's expressivist value theory, and recent scholarship in 'satisficing' decision theory. These conjoin in the construction of a defensible instantiation of pluralism (Chapter 2). The inquiry of Part II, then, seeks grounds of both solidarity and criticality for Part I's pluralism within contemporary analytical jurisprudence. In particular, Part II looks to the motivational complexes and valuative patterns underlying Joseph Raz's exclusive positivism (Chapter 3), Ronald Dworkin's interpretivism (Chapter 4), and Richard Posner's legal pragmatism (Chapter 5). Part II's inquiry seeks jurisprudential tools suitable to mount a rational resistance against the monistic orthodoxy of legal thought, and in doing so will draw upon its three focal theorists in ways which reorient the critical appreciation of each. More than this, however, the sum of Parts I & II will point also to a critical transformation for pluralism, as an aspirational project in legal theory, if it is to be effectively – that is, pluralistically – mobilized in the conceptualization of law, legal theory, and the role of the judge.

  • (2020) Burton, Melanie
    Thesis
    Most studies examining child sexual abuse (CSA) involve samples of ‘detected’ perpetrators in criminal justice and/or psychiatric settings. As a result, there is very little information available about ‘undetected’ CSA, calling to question the generalisability of existing research to CSA that remains undetected. Intrafamilial CSA in particular, is characterised by significant underreporting by victims, possibly more so than other types of CSA. It is therefore unclear, whether and to what extent the perpetration of intrafamilial CSA is adequately captured in the existing CSA literature. This thesis aims to examine factors associated with undetected intrafamilial CSA, as identified by their victims. The findings generated will then be compared to the findings about these issues from previous studies conducted with detected perpetrators Twenty-six semi-structured interviews with adult survivors of intrafamilial CSA provided important qualitative insight into the ‘dark figure’ of intrafamilial CSA, providing detailed descriptions of perpetrators, CSA experiences, victim characteristics and familial contexts of CSA. While some overarching findings were consistent with what has been previously been reported in detected contexts, participants also provided information that: gave further insight into the factors that may be associated with the perpetration of intrafamilial CSA across multiple contexts; shown how the significance of these factors differ based on perpetrator type (e.g., sibling vs. paternal vs. external-family member) and; provided a conceptual framework to help explain the lack of disclosure of undetected intrafamilial CSA. Using an inductive methodology, factors that may be associated with undetected intrafamilial CSA were derived from participant descriptions and conceptualised within five contexts (community, family, perpetrator, victim & perpetration) using a multi-level ecological based framework. Factors found within the different contexts where CSA is perpetrated, appear to be associated with the maintenance of undetected intrafamilial CSA, contributing to the prevention of disclosure, reporting and the discovery of CSA. The extent to which these factors are associated with the onset of CSA requires future empirical investigation. Implications are made for prevention strategies at multiple points of intervention within the community, family, and individual contexts. Recommendations for future research into undetected CSA using larger longitudinal and corroborative samples are made.

  • (2022) Hush, Anna
    Thesis
    For 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.

  • (2022) Hopkins, Tamar
    Thesis
    This 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.

  • (2022) Guo, Belle
    Thesis
    Chinese 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.

  • (2022) Hartridge, Samuel
    Thesis
    The 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.

  • (2021) Qu, Xiaomeng
    Thesis
    The thesis investigates the adequacy of the current compulsory land acquisition regime in China. This issue has become one of the most researched topics in Chinese academic discourse for more than a decade. This thesis makes an original and significant contribution to the ongoing scholarly debate by offering a comparative review of the development of the Chinese compulsory land acquisition regime. As is the case with their Chinese counterparts, the tensions between public and private interests have generated considerate debate in the two Western countries chosen, leading to a significant body of recent case law and statutory reforms, as well as providing a large amount of empirical evidence about the effectiveness or otherwise of the reforms. The thesis argues that China has largely developed an adequate land acquisition regime in recent years, which has the potential to achieve a proper balance between public interests and private property rights. In comparing the three selected regimes, the thesis analyses their respective approaches to the control of compulsory acquisition power and the payment of just compensation to appropriated landholders. The thesis offers a critical evaluation of the remaining deficiencies in the Chinese regime and recommendations for improvement drawing on the approaches developed in the United States and Australia. It is submitted that these recommendations will contribute to achieving a better balance between public and private interests in China’s compulsory acquisition regime.

  • (2021) Li, Huiyang
    Thesis
    This thesis explores the problems as to orphan films in Australia. The orthodox conceptualisation of orphan works as a purely legal problem neglects the social properties of the positive law. Practically, it is largely memory institutions who play an important role as ‘gatekeepers’ that determine the use of or access to orphaned material, rather than the positive law as such. To identify whether there is a need for a law reform option to redress the problems with orphan films in Australia, it is necessary to identify how the existing law operates in practice in the first place. This thesis opens up that terrain, examining the real nature of this perceived problem, focusing on an exploration of the practical role of copyright law in regulating orphaned material. Three methodological tools are used to elucidate the nature of the problems as to orphan films in Australia. Doctrinal analysis is used to clarify the actual legal situation of orphan films under Australian legislation. Empirical analysis exposes how the existing legal policies as to the use of orphan films practically operate within Australian memory institutions. By examining the relationship between existing laws, policies, and current practices, the real nature of the problem as to orphan films in Australia emerges. After that, cost-benefit analysis is used to explain the consequences of this perceived problem. Based on the above-mentioned doctrinal, empirical, and cost-benefit analysis, it is ultimately argued that the problem with respect to orphan films in Australia is in nature a cultural problem that requires an improvement of relevant institutional practices, rather than a purely legal problem with a need for a legislative solution. A law reform option is not as necessary as the existing literature suggests.