Law & Justice

Publication Search Results

Now showing 1 - 10 of 25
  • (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.

  • (2020) Hamper, Robin
    Thesis
    This 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.

  • (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.

  • (2021) Korosy, Zsofia
    Thesis
    This thesis makes two principal contributions. First, it shows how the specificities of geography shape legal conceptions of conservation. It demonstrates that the ways that law conceives of conservation are contingent on the ways that geography operates on the motivations and actions of the actors who impel and make that law. Second, it explains how conservation and commerce, far from being dichotomous imperatives, are deeply entangled and have been so for a long time. These findings have implications for understanding how law contributes to present crises of global ecological systems. This is because they help expose the variable and contingent nature of the inputs that inform law’s responses to environmental concerns. The thesis draws out these contributions from a detailed episodic historical examination of the development of the international legal frameworks governing the conservation and exploitation of the whales and fish of the Pacific Ocean. It begins with the activities of British agents negotiating legal authority to pursue whales in the Pacific Ocean around the turn of the nineteenth century, and ends in the contemporary era with Japan’s withdrawal from the International Whaling Commission. It examines key events in the development of international legal instruments, principally the International Convention for the Regulation of Whaling and the United Nations Convention on the Law of the Sea, which regulate the exploitation of marine living resources such as whales and fish. This examination illustrates how geography has shaped law’s conception of conservation in the Pacific Ocean. Drawing on disciplinary insights from geography, and particularly from the field of legal geography, it shows how this body of law is co-constituted with ideas of place in that ocean. Two key themes structure this episodic history: commerce, and science and technology. Both through and outside the state, commercial actors at various sites in the Pacific Ocean articulated self-interested conceptions of law regarding natural resource exploitation. Technological developments shaped the ways in which commercial actors exploited marine resources. Scientific study of these resources shaped both legal decision-making and commercial endeavours.

  • (2021) Mescher, Barbara
    Thesis
    The purpose of this thesis is to demonstrate that corporate lawyers’ professional ethics, known as legal ethics, requires greater moral content. The role of legal ethics is indicative of how lawyers practice law and is defined by the Queensland Law Society as 'principles and values which, along with conduct rules and common law, regulate a lawyer's behaviour [that give guidance] to ensure right conduct in the daily practice of law'. Legal ethics, therefore, has a vital role in lawyers' professional obligations: legal duties to the law and justice, fiduciary and confidentiality duties as well as discretionary rules such as integrity, practical wisdom, and judgement as well as professional codes of conduct. Legal ethics also refers to theoretical legal ethics (TLE), a generic term coming from philosophical theory, whose function is to provide guiding principles to lawyers when interpreting their professional role and obligations. Lawyers' current TLE, positivist TLE, is guided by a positivist philosophy which the thesis argues is no longer suitable for corporate lawyers and should be replaced. Its narrow scope does not adequately reinforce lawyers’ professional obligations, nor address ethical issues of 21st century corporate law practice. The thesis shows the situation faced by corporate lawyers and the problems with positivist TLE, by analysing the legal and ethical issues in the James Hardie (JH) case study. Here, commercial decisions made by JH, parent company of a company group, were later subject to a commission of inquiry initiated by an Australian state government. The thesis proposes a new TLE: Aristo-Kantian TLE, informed by the moral philosophies of Aristotle and Kant and applying them to legal practice issues. This is developed into a practical model that corporate lawyers (and indeed all lawyers) could use to formulate legal and ethical advice to clients. These moral philosophies are applied in three steps: Step I, Moral Sensitivity; Step II, Moral Reasoning; Step III, Lawyers' Dialogue with Clients, to present lawyers’ advice. The main research question is: Could Aristo-Kantian philosophies provide greater moral content for corporate lawyers’ professional obligations and theoretical legal ethics, with benefits for corporate clients, legal professionals and the public good?

  • (2021) Bai, Xue
    Thesis
    The research is an examination of the question of whether China, with a substantial number of State-Owned Enterprise (SOEs) active in the market, can effectively maintain a level playing field through the existing competition law and policy framework and, if not, what strategies or policies it could adopt in order to address this problem. The Thesis takes the position that the current competition law and policy in China have limited effect in ensuring a level playing field between SOEs and non-SOEs. To be clear, the Thesis does not suggest that the existing Chinese competition law and competition policy completely fail to address competition concerns caused by Chinese SOEs; on the contrary, there are cases that suggest that SOEs, like all the other market players, are under the scrutiny of Chinese competition law (the Anti-Monopoly Law ‘AML’) and will continue to be so in the future. Chinese competition policy is developing into a more comprehensive policy and the newly established Fair Competition Review System (FCRS) potentially addresses one aspect of competitive neutrality concerns caused by SOEs, the regulatory advantages of SOEs. Collectively, the Thesis argues that the application of AML and the FCRS cannot address all aspects of competitive neutrality problems caused by SOEs, leaving the problem of lack of competitive neutrality between SOEs and non-SOEs unaddressed in the market of China. Given the current reform of SOEs has increased pressure on Chinese SOEs to be more competitive, this Thesis argues that it is a good time for China to reconsider how level the playing field is between SOEs and non-SOEs. To ensure competition between SOEs and non-SOEs is based on efficiency, rather than on who can benefit from government ownership and political connections, the Thesis proposed to reform the AML. It also provides policy recommendations for China to consider when introducing a competitive neutrality policy in its regime. These measures, if adopted, would provide stronger domestic competition and would help Chinese SOEs to be more competitive in the market.