Law & Justice

Publication Search Results

Now showing 1 - 10 of 28
  • (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) 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.

  • (2022) Xiao, Zhenyu
    Thesis
    China is a key actor in global investment governance and has experienced incredible growth of inward and outward investment over the past four decades. It has also built a dense network of investment treaties. China’s engagement with the investor-state dispute settlement (ISDS) mechanism in investment treaties has followed a distinctive trajectory. This thesis is an attempt to explain the evolution of China’s ISDS policymaking over time. In particular, it seeks to explain why China expanded access to investor-state arbitration in the late 1990s and why that expansion of access involved integration with China’s domestic administrative review procedures. The thesis also examines subsequent changes in China’s approach to ISDS up to the present, paying particular attention to questions of whether the key policy shift of the late 1990s achieved its intended objectives and how Chinese policymakers’ concerns about domestic investment governance continue to shape the design of the ISDS mechanism in China. This thesis combines close analysis of primary and secondary materials, including newly uncovered government policy documents, with insights from semi-structured interviews with government officials and academics exposed to the policymaking processes. It finds that existing accounts of the key policy shift of the late 1990s, which emphasize China’s economic interests in protecting outward Chinese investments and encouraging inward foreign investments, are inadequate. Instead, an analytical framework incorporating China’s domestic investment governance and policymaking processes is necessary to build a new, more sophisticated explanation. This thesis argues that Chinese policymakers’ decision to expand access to investor-state arbitration emerged from an incremental internal reflection process that began with China’s accession to the ICSID Convention in the early 1990s. The objectives of this policy process were to understand the source of investor-state disputes in China and to develop a plan for how investor-state arbitration could be integrated with existing processes and structures of domestic investment governance. Chinese policymakers’ concerns about domestic investment governance, especially local governments’ interactions with foreign investors, shaped the drafting of ISDS provisions in China’s investment treaties in the late 1990s. The administrative review procedure was integrated with a stronger consent to investor-state arbitration, aimed at dispute prevention, dispute management and regulatory control over local governments. Despite the central role that considerations of domestic investment governance played in the policy shift of the late 1990s, this thesis finds that the policy change did not achieve its intended objectives. Concerns about managing the interface of domestic and international regimes of investment governance continue to shape the evolution of China’s approach to ISDS.

  • (2022) Cama, Elena
    Thesis
    Dating and hookup platforms have become a popular tool for seeking romantic and sexual relationships. While there are numerous benefits to making connections online, popular media and academic literature have begun to document how these platforms are implicated in the perpetration of sexual harms. Drawing on feminist and queer understandings of sexual violence and technology, this thesis provides a mixed-methods examination of sexual harms experienced in the context of online dating. Data collection included an online survey (N=527) and in-depth interviews (N=25) with adult Australians who use dating and hookup platforms. Findings indicate that experiences of safety and sexual harms and their impacts in the context of dating and hookup platforms can be complex and varied, with many experiences diverging from legal and normative understandings of sexual violence. Participants documented a range of harms, including unwanted requests for sex, unsolicited sexual images, harassment based on gender, sexuality, and race, and unwanted sexual experiences, among others. These harms were gendered and intersectional, with women and sexuality diverse participants disproportionately affected. Minimisation and normalisation of sexual harms appeared to be common, due to the sexualised nature of these platforms and largely unquestioned acceptance of a ‘hookup’ culture in online dating. Cisnormative and heteronormative discourses of gender, sexuality, sexual behaviours, and sexual violence were both (re)produced and resisted by participants, illustrating how socio-cultural and sexual norms may become inscribed within digital platforms, and alternatively how these platforms may be co-opted to resist or reject these norms. Existing reporting and response options from platforms to these harms were viewed as inadequate, with participants calling for greater transparency and accountability in reporting processes and tangible consequences for perpetrators of harmful behaviours. This thesis concludes with recommendations as to how platforms, law enforcement, and communities could better prevent and respond to these harms.

  • (2022) Frishling, Nana
    Thesis
    This 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.

  • (2022) Xie, Dan
    Thesis
    The thesis examines the interpretation and application of the due process defence under the New York Convention. It argues that the due process defence under the New York Convention should be interpreted consistently with the interpretative framework set out in the Vienna Convention on the Law of Treaties (VCLT) and, more specifically, by recourse to the general principle of audiatur et altera pars and subsequent practice of State Parties to the New York Convention. This interpretative approach ensures that due process under the New York Convention is a genuinely transnational standard distinct from any particular national legal system. In order to support this argument, chapter 2 establishes a particular understanding of the transnational approach grounded in the international interpretative rules contained in the VCLT. Chapter 3 shows that audiatur et altera pars is a well-accepted general principle of law and argues that its dimensions can concretise the normative content of the due process defence under the New York Convention. Chapters 4–7 explore relevant forms of ‘subsequent practice’ for the interpretation of the due process defence under the interpretative framework established by international law. The thesis makes three specific contributions to the theorisation and development of the transnational approach. First, arbitration scholars have talked about the importance of an autonomous approach to ensure predictability, but not fully articulated the scope and analytical possibilities of this approach. This thesis takes on this task via the VCLT, while also providing a structured way for domestic courts to consider and assess legal materials from beyond their own jurisdiction. It specifies a transnational informed approach to thinking about the general principle of audiatur et altera pars and subsequent state practice in interpreting and applying Article V(1)(b) of the New York Convention. Second, it shows how much of the arbitration scholarship on transnationalism can be recast within a public international law framework, thereby contributing to debates within international law about the decentralised interpretation of treaties by domestic courts. Third, the thesis’s preferred understanding of the transnational approach — one grounded in the public international law framework for treaty interpretation — resolves a range of practical questions about the precise content of the due process standard.

  • (2022) Harley, Tristan
    Thesis
    One 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.

  • (2022) Azad, Ashraful
    Thesis
    Rohingya are the largest stateless group in the world. Most Rohingya, originally from Myanmar, are stateless in their home country and in various states where they live as refugees and migrants. They are denied citizenship papers in Myanmar, and their movement is restricted there as well as in their main host country, Bangladesh. Despite these restrictions, many Rohingya have travelled overseas, including to Malaysia, Saudi Arabia and India. This thesis examines the agency of stateless people in unauthorised movements and access to documents amidst restrictions by the states, focusing on Rohingya in Myanmar, Bangladesh and Malaysia. To understand the scope and extent of the movement of Rohingya throughout the region, it is essential to understand the manner in which they exercise agency. The central research questions this thesis considers are (a) how do we best understand the phenomenon of stateless Rohingya migrants exercising agency to move across borders (domestic and international) in the Global South, despite the strategies adopted by states to restrict their movements? and (b) what does this phenomenon tell us about how we understand migration more broadly? Based on extensive empirical research through a grounded theory methodology, I identify several factors that are central to understanding how Rohingya exercise agency. Firstly, the scale and nature of their movements is determined by the states’ border regimes, geographic proximity to borders, and certain modes of transport. Secondly, they exercise agency by drawing on migration capital which comes from their identity—primarily the similarity and fluidity of their ethnic and religious identity with the host society, and shared community knowledge and culture of migration. Thirdly, the opportunity they have to draw on migration capital or exercise agency is dependent on actors who function in the middle space between states and migrants. I identify two key actors in the middle space of migration—corrupt government officials and migration brokers—who facilitate unauthorised movements and access to documents. This thesis contributes original empirical findings on migration and integration processes and the interdisciplinary theorisation of migration through a Global South perspective. It offers a critique of the border control measures under anti-trafficking efforts and biometric registration of refugees and highlights the protection capacity of unauthorised and informal practices.

  • (2021) Hodgson, Natalie
    Thesis
    This thesis explores the potential of international criminal law to resist state crime. Existing research recognises that law can provide civil society with methods and forums for challenging state power. This thesis aims to develop a greater understanding of the prospects and limitations of using law to resist state crime with a focus on international criminal law and the International Criminal Court (ICC). This thesis explores this topic through a case study of Australia’s offshore detention of asylum seekers. This thesis addresses four Research Questions: 1. How can offshore detention be characterised as state crime? 2. What aspects of offshore detention are formally criminalised under international criminal law? 3. To what extent can civil society access the ICC to resist offshore detention? 4. How can a criminological approach inform our understanding of the potential of international criminal law to resist state crime? To answer these questions, this thesis draws on criminological and legal methods. This thesis argues that offshore detention was a state policy of ‘degradation by design’; that is, offshore detention was a hostile environment designed to compel asylum seekers to ‘voluntarily’ return to their countries of origin. Using this criminological understanding of offshore detention, this thesis argues that aspects of Australia’s offshore detention policy are formally criminalised under international criminal law, constituting crimes against humanity. Thus, this thesis demonstrates how criminological knowledge can inform the interpretation of international criminal law in relation to state crime. This thesis recognises that there are difficulties in civil society accessing the ICC as a forum where state crimes might be prosecuted. Nonetheless, this thesis argues that international criminal law’s potential to resist state crime extends beyond prosecutions. International criminal law provides civil society with a normative language and communicative space for resisting state crime. By mobilising the stigma of international criminal law, civil society can send messages to local, national and international communities, expressing the illegitimacy of state conduct. Therefore, by combining knowledge from the fields of state crime and international criminal law, this thesis contributes to expanding existing knowledge of how law can be used by civil society to resist state crime.

  • (2023) Henry, Allison
    Thesis
    Over 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.