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(2021)ThesisThe 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.
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(2021)ThesisThis 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.
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(2021)ThesisThis 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.
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(2021)ThesisThe 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?
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(2021)ThesisThe 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.
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The Implications of International Human Rights Law on China's Protection of Minority Language Rights(2021)ThesisThis thesis analyses how international human rights law (IHRL) influences China’s domestic protection of minority language rights by dissecting the factors obstructing its application and providing an alternative pathway in soft law to overcome these impediments. Using a desk-based and documentary analysis methodology, the thesis’s unique standpoint examining human rights development as a dialectic, evolutionary process contributes to the understanding and promotion of minority linguistic rights not only in China, but also in other multiethnic countries. The thesis argues that soft law, due to its inherent ‘softness’, provides a realistic, if less than optimal, pathway to integrate IHRL in a totalitarian State. The thesis’s contribution is significant as it challenges the canon perception that mere narratives can bring no concrete progress to a State’s human rights situation. The thesis shows that soft law provides a strong narrative function that creates and develops compelling counter-narratives to State-propagated notions of nationalism and international oversight, informing public opinion and creating public space for academic discussion that is essential to the integrating process of IHRL. The thesis first presents the conflicting interests and the inability to provide mitigating mechanisms to reconcile domestic and international commitments in IHRL and China’s current legal systems. It finds that illiberal trends in politics, combined with the inherent hostility of China’s polity towards cultural diversity, mean that direct incorporation of IHRL is impossible. China’s three National Human Rights Action Plans are examined as proof of the viability of soft law to function as the mitigating mechanism needed to overcome the inadequacies of both the domestic and international systems. The thesis refutes the common critique that only hard law reform can provide human rights development due to its punitive nature in the face of violation. As the Xinjiang case study demonstrates, without the necessary democratic architecture, any law, hard or soft, suffers from a lack of restraining power. The inherent softness of soft law is therefore not necessarily a defect, but an advantage to help it manoeuvre around unfavourable domestic circumstances, eventually facilitating the domestic influence of IHRL to protect minority language rights in China and other illiberal systems.
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(2021)ThesisDecentralized governance is recognized as an effective mechanism to reduce the risk of disaster impacts. However, the forced movement of people from their homes in the context of disasters and the impacts of climate change – described in this thesis as ‘disaster displacement’ – warrants increased scholarly attention. Geography, history, and culture have shaped forms of governance in Pacific Island Microstates which are characterized by formal and informal structures that are strongly influenced by customary authority. This thesis therefore asks: how does decentralized governance influence the capacity of Pacific Island Microstates to respond to disaster displacement? To address the research question, this thesis analyses the scholarship on disaster displacement and decentralized governance and examines its implications on the ground through a fieldwork-based case study of the Republic of Palau. The thesis considers how the idea of decentralized governance could be conceptualized in the Pacific. It examines the tension between the view that Pacific Island Microstates lack the capacity to respond to disaster impacts because they are ‘small’, ‘powerless’ and ‘isolated’, against the continuous resilience demonstrated by Pacific peoples. The thesis argues that while common characteristics of Pacific Island Microstates, such as population and geographical size, and a heightened risk of disasters and climate change impacts, do limit the physical and human resources required to address effective disaster risk reduction (DRR) and displacement, the resilience of Pacific peoples can compensate for these limitations. The thesis proposes that to enhance disaster resilience and maximize the capacity of Pacific Island Microstates to address disaster displacement, assumptions underlying both the assumed lack of DRR capacity, and historic Pacific resilience, need to be challenged. The thesis concludes that due to the historic status and social influence of customary authorities, the forms of decentralized governance existing in Pacific Island Microstates contain mechanisms to increase the effectiveness of DRR and disaster displacement outcomes. Additionally, the informal and social elements of Pacific Island Microstate governance are crucial to DRR and displacement outcomes. Finally, the thesis concludes that due to the constraints of limited habitable land, issues concerning the regulation of land tenure, including land laws and customary tenure, will require a radical reassessment by Pacific Islanders and Pacific Island Microstate governments if displacement is to be effectively addressed.
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(2021)ThesisThe extent to which the state should regulate the internet has long been a key topic of internet studies. Scholarship in this area is dominated by debates and insights pertaining to the Global North, due in part to the internet origins, while the experiences of countries from the Global South remain under-researched. This dissertation offers insights on how and why internet regulation changed over time in Indonesia. Extending the analytical framework of the field developed by Pierre Bourdieu into law-making, this dissertation considers internet regulation as a site in which actors from government, business, civil society organizations and academia compete for power to regulate the internet. To capture the contending regulatory visions promoted by different actors, from code-based rules to state-based regulation of the internet, the research presented here combined textual analysis of court decisions, legislative proceedings and media reports with in-depth interviews of key actors in policy-making, including former ministers, representatives of business associations, and civil society organizations. This dissertation reveals the historical trajectory of internet regulation in Indonesia, shaped by competition between various actors centered around the making and enforcement of the law. This competition has been influenced by strong patrimonialism in politics and the pivotal role of the bureaucracy in law-making. The internet has evolved from an academic project to an advanced system of interconnected networks in which regulatory power is concentrated in the hands of the Ministry of Communication and Informatics, the culmination of a complex struggle for power involving actors such as digital platform companies. The focus of regulators has shifted from control of critical infrastructure such as internet protocols to digital content such as information and applications. Two illustrative case studies on content decency and on regulatory debates surrounding the ride-hailing app, GoJek, demonstrate the role of symbolic capital in the actors’ attempts at challenging the legitimacy of the state’s governing power over the internet. This study enhances our knowledge of the contesting power that has shaped the development of the internet in Indonesia and demonstrates the potential of Bourdieusian analysis outside of the European context, particularly in revealing asymmetric power relations and capital accumulation among actors that shape internet regulation
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(2021)ThesisOne of the critical inheritance challenges faced by Muslim women in Indonesia is Kalala. This principle applies where a parent dies without a surviving son, which has a profound impact on women. It reflects the very different treatment of men and women in inheritance affairs and has the potential to bring serious hardship for women. This thesis examines the experiences of Banjar women in encountering this issue, specifically in the context of legal pluralism of Indonesia, where Islamic law, Adat law, and state law coexist and interact with each other. It poses the question of how Muslim women perceive their experience regarding this issue, what are the contributing factors in the formation of women’s legal consciousness about their inheritance rights, and how they navigate between the available legal orders to address their inheritance dilemmas. The thesis adopts an empirical approach in order to capture the complexity of experiences of women regarding their inheritance rights. The analysis is based on a qualitative method with the fieldwork conducted in three districts of South Kalimantan, Indonesia: Banjarmasin, Banjar, and Hulu Sungai Tengah. This socio-legal study offers insights not only into how Muslim women access justice in both the formal and informal justice systems in a practical sense. It also examines their legal consciousness and its transformation in the emergence of inheritance disputes. It argues that women’s choice to access or not to access justice does not appear out of a vacuum. Their legal consciousness, in the context of legal pluralism where patriarchal values persist, helps to structure the process of inheritance distribution. The research has revealed that women’s access to justice is significantly influenced by their legal consciousness, which in turn is shaped by certain factors including historical, religious-cultural context, the notion of kodrat (God’s will, the power of nature, or natural destiny), and the presence of authoritative men in the family. It concludes that, although the informal justice system, in the form of Adat Badamai, provides religious assurance and legitimation for women, more women should be able to access the formal justice system, embodied by the Religious Court, as the forum most suited to deliver justice in the resolution of disputes.
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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.