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(2021)ThesisThe complementarity principle that governs the International Criminal Court is a central discourse of international criminal law. It provides a legal basis to prevent international crimes and support accountability in domestic criminal jurisdictions. Thus, judges, lawyers, and academics have come to view the principle as a benevolent instrument of justice and accountability. Several Third World states have contributed to the development of this principle in significant ways. They have reinforced the principle in domestic jurisdictions, but have also challenged its parameters in ICC proceedings. Focusing on the Kenyan and Libyan cases at the ICC, this thesis rethinks the nature and function of the complementarity principle from a Third World perspective. Using a postcolonial practice of reading and textual analysis, it exposes the relationship between the complementarity principle and the legacies of colonial race discourse by highlighting how the discourse surrounding the complementarity principle reproduces Third World states as Other in divergent ways. The thesis develops a single yet dichotomous framework to make sense of how colonial race discourse shapes the complementarity principle and how ICC judges and the Prosecutor evaluate Third World domestic criminal proceedings along lines of racial difference. It raises the possibility of developing a politics of refusal, as opposed to a politics of transformation, through exposing and dismantling international criminal law's Western and Eurocentric form.
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(2020)ThesisIn 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.
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(2021)ThesisHarold Koh presents Transnational Legal Process (‘TLP’) as a discursive theory of international legal compliance whereby a variety of actors, in a variety of fora, make, interpret, and internalise rules of transnational law. Yet despite its process-orientation, TLP possesses a decidedly top-down character, suggesting that state behaviour trends towards legal compliance over time through a process of interaction, interpretation, and norm-internalisation, while largely ignoring the influence of street-level bureaucrats in interpreting, framing, and applying the law. If TLP generates compliance with legal norms over time, why do non-compliant legal practices persist when they should be corrected in jurisgenerative fora? And, if norm development is a discursive process, how might assumptions about the willingness of courts to preserve liberal conceptions of rights blind us to less-visible logics that structure policy debates and limit the range of legal action? The thesis develops a more nuanced understanding of 'norm internalisation' by examining implementation of the norm of non-refoulement in case studies of Australia and the United States. The work examines the process of ‘entry screening’ asylum seekers at Australian airports and the emergence of the practice of ‘metering’ asylum seekers at the US-Mexico border to advance a theoretical approach to international legal compliance that builds upon two major critiques of TLP theory: that it does not adequately identify the actors and processes of norm ‘internalization’ and that it does not sufficiently identify and describe norm creation processes. This thesis demonstrates that: (1) TLP’s internalisation thesis fails to account for the practices of street-level bureaucrats, who often prioritize competing norms, discourses, and non-compliant practices that influence or are assimilated into formal sources of law; and that (2) relational sites within the network of actors responsible for implementing norms present countless opportunities for contesting meaning and normative frames. This research reveals an overreliance on the role of courts in preserving the norm of non-refoulement and highlights that how we understand sites of lawmaking and legal contestation has real implications for people’s lives, for questions about how subsequent state practice might impact treaty interpretation, how obligations are prioritised in conflicting treaty regimes, or how international organisations interpret international law and where they make interventions.
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(2021)ThesisThis thesis examines the scope and content of article 16 of the 1951 Refugee Convention relating to the Status of Refugees. It asks: What obligations bind Contracting States to provide asylum seekers and refugees with access to courts under article 16 of the 1951 Refugee Convention, and do these obligations extend beyond those that otherwise bind States under international human rights treaties, customary international law, and general principles of law? The thesis identifies eight issues on which scholars’ views have evolved over time on article 16. These are (i) whether the term ‘refugee’ in article 16 encompasses the unrecognised asylum seeker; (ii) the scope of the term ‘courts’, and the provision’s application to refugee status determination proceedings; (iii) the geographic scope of the provision; (iv) whether ‘free’ access implies a guarantee of ‘effective’ access; (v) the appropriate definition of ‘habitual residence’, and whether legal residence is a prerequisite; (vi) the scope of the term ‘matters pertaining to access to the Courts’; (vii) the appropriate comparator for whether a ‘refugee’ is afforded ‘the same treatment as a national’; and (viii) whether article 16 obliges the Contracting State to create jurisdiction to hear a dispute where a court otherwise lacks competence. Through doctrinal analysis, the thesis investigates the historical origins of article 16; the extent to which its protections have been subsumed by international human rights law, customary international law, and general principles of law; and its ultimate scope. It concludes that gaps remain in the protective framework of international human rights law and general international law, but that the interpretative approach taken by courts and treaty bodies to the human rights treaties analysed – particularly regarding the principle of effectiveness – could usefully be adapted to interpret article 16. Applying an evolutionary, teleological approach to the interpretation of the 1951 Convention, the thesis then reaches conclusions on article 16’s scope and content that respond to the eight issues identified. It concludes that article 16 remains a relevant and robust source of protection for asylum seekers and refugees.
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(2021)ThesisThe aim of this thesis is to utilise transnational regulatory network (TRN) theory to examine the effectiveness of the regulatory framework promulgated by the International Organisation of Securities Commissions (IOSCO) — to address the activities of transnational hedge funds. Scholarship employing TRN theory has not previously accounted for the distinctive role that IOSCO — a body well-described as a TRN — has played in developing hedge fund regulation to prevent, identify and mitigate systemic risk related to transnational hedge funds. It is a gap that this thesis attempts to fill. This thesis asks whether and in what ways the IOSCO framework contributes to systemic risk mitigation in relation to transnational hedge funds operating at the global level. It does so to help academics and policymakers to better understand and appreciate the value, and overcome the limitations of IOSCO in this respect. Using the case studies of the failure of Long-Term Capital Management at the end of the 20th century and the demise of Bear Stearns’ hedge funds during the global financial crisis, it argues that it is the systemic hazards posed by hedge funds that make them merit extra regulation at both national and transnational levels. Deploying the findings of the TRN theory, it further demonstrates that the IOSCO framework for transnational hedge fund regulation holds not only advantages to be maintained but also shortcomings to be overcome in addressing these systemic hazards. The significance of this study lies in its contribution to advancing comprehension of the global regulatory framework for transnational hedge funds. It makes the advance by introducing a focus on systemic risk mitigation, hitherto lacking, and developing a critical, doctrinal understanding of the relatively understudied rules and standards under IOSCO.
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(2020)ThesisClimate 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.
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(2020)ThesisThis 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.
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(2020)ThesisMost 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.
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(2020)ThesisThis thesis examines some of the contractual legal risks to which security researchers are exposed in disclosing software vulnerabilities, under coordinated disclosure programs (“bug bounty programs”), to vendors and other bug bounty program operators. On their face, the terms of these programs are purported to offer an alternative to security researchers to publicly disclosing or selling discovered bugs, which have significant value and potential for harm if used maliciously, to purchasers who do not intend to use them in order to fix the underlying issues in software. Historically, vendors have deployed a range of legal measures to discourage or eliminate such disclosure. This thesis examines the terms of three popular bug bounty programs (Google, Department of Defence (hosted on HackerOne) and Facebook and considers their effect in the Australian jurisdiction. It examines issues including the application of unfair contracts legislation and unconscionability. It further examines three key case studies in which vendors have sought, or threatened to seek, legal remedies against researchers who have discovered and disclosed vulnerabilities to them under their programs or directly to them in the absence of one. It concludes that while bug bounty programs somewhat advance the previous uncertainty and potentially onerous legal regime, the terms remain asymmetric, largely non-negotiable and vendors may be able to depart from them in certain circumstances. In this context, a range of reforms are suggested in the concluding Chapter which may improve certainty for security researchers, impose greater responsibility on software vendors and, ultimately, create more secure software.
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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.