Instruction on the Great Depression used to come from our parents, our grandparents, and the History Channel. Now everyone has something to say about it. Economists tell us that the global financial crisis is the biggest economic reversal since the Great Depression, and governments in Washington, London and Canberra are likening their resolve to that displayed by President Roosevelt in the early days of the New Deal. If they were even half-way right, then these would be busy times indeed for administrative lawyers. Although they are wrong, the legislative and administrative responses to the current crisis include measures that should rekindle some of administrative law's deepest concerns about the democratic legitimacy of the administrative state. New banking laws, in particular, have transferred enormous discretionary powers to central government's regulatory authorities, and these pose real issues about protection from arbitrary power, and about the very process of making laws and holding the administration to account. In other areas, we are likely to see a more hands-on style of market and corporate regulation, but probably nothing so radical as to require us to dig out the history books.

The proscription of organisations has long been a central feature of legal regimes aimed at the suppression of terrorism. Australia is no exception. Going back many decades, the Commonwealth government has sought to meet the threat of political violence through the proscription of related organisations. In the wake of the September 11 terrorist strikes against New York and Washington, renewed efforts were made for the proscription of organisations in many national jurisdictions (for example, the United Kingdom, United States and Canada) as well as at the international level (for example, through the United Nations and the European Union.

In Australia, the Commonwealth looked directly to the justifications offered by the United Kingdom’s Lord Lloyd of Berwick and Paul Wilkinson just a few years before. In their major Inquiry into Legislation Against Terrorism, Lord Lloyd and Wilkinson presented three principal rationales to explain the role of proscription in the prevention of terrorism: ease of proof; providing a basis for the criminalisation of fundraising and other activities of terrorist groups; and as a clear symbol of ‘public revulsion and reassurance that severe measures [are] being taken’.

Most commentators agree that, if Australia is to adopt a charter of rights, such a charter should so far as possible involve a ‘minimalist’ form of constitutional change. It should both be enacted by ordinary statute and seek to preserve broad scope for the Commonwealth Parliament, in appropriate cases, to override the interpretation of non-Constitutional rights by the High Court. When it comes to questions of form and enforceability, the thinking is that it should be modelled on either the Human Rights Act 1998 (UK) c 42 ('UK HRA’), and the largely equivalent state statutory charters in the ACT and Victoria, or on the Canadian Bill of Rights, SC 1960, c 44 ('CBOR’).

Not only would a statutory charter of this kind be easier to adopt than a more entrenched model of charter, such as a charter modelled on the US Bill of Rights, the Canadian Charter of Rights and Freedoms 1982 (the second and later of Canada's two operative human rights charters) ('Canadian Charter’), or Constitution of the Republic of South Africa 1996.

In their majority judgment in the Work Choices Case, five Justices of the High Court endorsed a well known obiter dictum of Windeyer J in Victoria v Commonwealth ('the Payroll Tax Case’). The dictum concerns the Engineers’ Case, which famously repudiated the doctrines of implied intergovernmental immunities and reserved state powers, previously held by the Griffith Court to be entailed by the federal principle implicit in the basic structure of the Constitution. The Court in Engineers declared that both doctrines, and the reasoning on which they were based, were erroneous. But Windeyer J disagreed with this. He said that he had never regarded the decision in Engineers ‘as the correction of antecedent errors or as the uprooting of heresy': it ‘does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly.'

It has been an eventful year for the Criminal Code (Cth). Chapter 2 General Principles of Criminal Responsibility ('Chapter 2’) emerged unscathed, indeed reinforced, as a consequence of judicial scrutiny by the High Court in R v Tang and it was the subject of an extended exposition of the principles of statutory interpretation, incorporating elements of his McPherson Lectures, by Spigelman CJ in R v JS. The High Court decision is remarkable for the strict literalism of its interpretation of Part 2.2 The elements of an offence. The judgment of Kirby J, though dissenting in the outcome, provides a valuable addition to his earlier judgment in R v Barlow, on the principles of interpretation of legislation codifying the criminal law. Danger signs are apparent, however, in an equally literal reading of Chapter 2 by the Queensland Court of Criminal Appeal in Crowther v Sala, which will be discussed later in this essay. As appellate case law on Chapter 2 grows, stresses on its structure that were unforeseen by its framers have begun to accumulate. If Chapter 2 is to continue to guide Parliament and courts in the formulation and interpretation of criminal legislation it will require continuing legislative maintenance.

The concept of self-regulation in all of its forms has become a foundation stone in the theoretical and practical debates about the role and function of the modern ‘decentred’ regulatory state. In the decentred state, government, among other things, ceases to rely upon the old tool of ‘command and control’ regulation to achieve social policy goals. Instead, government relies on alternative systems developed by industry and others and faces the arguably more daunting challenge of trying to harness the internal regulatory capacity of these other regulatory systems, directing and steering them in a way that ensures they deliver the goods and services sought by society in accordance with accepted social values. Although the focus of the theoretical regulatory debate has started to shift to the meta-regulatory potential of law and the ability of government to ‘regulate self-regulation’, the question of how and why self-regulatory rule-making regimes actually emerge remains largely unexplored from an empirical standpoint.

In recent years, scholars worldwide have begun organising and developing a coherent framework and research agenda focused on the emerging field of ‘global administrative law’. This nascent body of law, unlike domestic or national forms of administrative law, does not operate within the bounds of unitary nation states, and unlike traditional accounts of public international law, it does not arise exclusively between nation states. Instead it operates in a transnational or global space occupied by a vast variety of administrative actors responsible for trans-governmental regulation and administration; the field of ‘global governance’. To combat growing concerns that there are crucial legitimacy, accountability and democratic deficiencies inherent in this system of global governance, numerous administrative law type mechanisms and principles have been developed by global administrative bodies. Global administrative law embodies the totality of these various mechanisms and principles.

Technological developments, particularly the advent of the Internet and the mobile phone, have spawned a vast increase in the volume, type and availability of telecommunications information. Mobile phones are now capable of sending and receiving SMS text messages and emails, accessing and downloading material from the Internet, taking photographs, streaming video and audio content and providing GPS navigation. National security and law enforcement agencies frequently wish to access telecommunications information for national security and law enforcement purposes. The desired information may be ‘telecommunications content’ — that is, the actual substance of a communication — or ‘telecommunications data’ — meaning information about a communication but not the substance of it.

The Great Barrier Reef is a vast area of enormous biological, including human, importance. In recent years the significance of the Great Barrier Reef has been growing because of the increased interest in global climate change and the role of the reef as a potential predictor of the impact of climate change, especially upon the marine environment. The Great Barrier Reef has also legally been important because of its status as a marine park and World Heritage site. To that end, the Great Barrier Reef has specifically been regulated by the Great Barrier Reef Marine Park Authority (‘GBRMPA‘) in accordance with the Great Barrier Reef Marine Park Act 1975 (Cth). Those parts of the reef within the Great Barrier Reef Marine Park (‘Marine Park’) have particular protections under the Act and activities within those parts ordinarily require permission from GBRMPA. Activities authorised by GBRMPA are exempt from the environmental assessment provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), the Commonwealth’s principal environmental legislation.

There is an assumption that government affects community action and implements its policy primarily through legal rules backed by sanctions. Reality however dictates that policy implementation occurs in a number of ways, one of the more significant being through the lure of money. Money has been utilised over the course of Australia’s history to impact a dramatic redistribution in federal and State power without constitutional amendment. Spending is also, by its very nature, less transparent than legislative regulation. There is growing disquiet about the unchecked and unaccountable nature of government spending which this article seeks to explore.

The legal distinction between work performed by an employee under a contract of service and work performed by an independent contractor under a contract for services is a central preoccupation in the field of labour law. This preoccupation has been traditionally focused on which workers fall within the common law definition of ‘employee’ (workers with a contract of service), which workers do not fall within the definition but should and what legal consequences follow from the inclusion of a worker within the labour law regulatory framework. Primarily the focus has been on ensuring that the labour law net encompasses those workers who are considered to be in need of the protections offered by labour law and debates over who those workers are. However, until recently, little attention has focused on the regulation of those workers who fall outside the definition of employee, where the worker's status as an independent contractor is uncontested.

This article provides insight into the emerging global-local and public-private nature of professional regulation. Specifically, it reports on recent cross-border interaction to modify professional regulation involving the recognition of qualifications, rights of practice and discipline and ethics. That interaction reveals how – loosely - the regulation of legal competence and conduct has been drawn into a web of global governance. A particular interest is the prominent role that Australian practitioners and officials have played in both multilateral and bilateral relations.

In characterising the way governance of regulation has gone global, Picciotto describes it as a networked field. The governance of regulation has spilled over national borders, yet it has not moved cleanly upwards into a regime of binding public international law. Global governance lacks a clear regulatory hierarchy. Regulatory relations extend out horizontally as well as vertically and they blur the boundaries between public and private regulators.

The purpose of this article is to examine Australia's regulatory system for the classification of publications, films and computer games, the National Classification System (‘NCS’), and to question whether its classification decision process is susceptible to political influence. Formed in 1995 as a cooperative scheme between the Commonwealth, States and Territories, the NCS was created to overcome problems associated with former classification schemes that operated on a non-national basis in each Australian jurisdiction. It is argued that, although the current system is superior to the ones of the past, it still allows, or at least perceivably allows, political influence in censorship decision-making, as was historically the case. This is because documents used by the Classification Board and Classification Review Board (‘the Boards’) to make classification decisions are ambiguous and often inconsistent, and, even with redrafting, would remain so without the benefit of judicial precedent. The ambiguity created by the classification documents legitimates the possible exercise of political influence through a variety of means.

This note will look at the litigation that arose in the lead-up to World Youth Day held in Sydney in July 2008. In Part II, the events that gave rise to Evans v New South Wales will be outlined and the reasons of the Full Court of the Federal Court for its decision briefly explained. The consequences of the Court applying the principle of legality in Evans — which lay at the heart of its reasoning and decision — will be explored in Part III. First, I will consider how it impacted upon the argument made by the applicants that the relevant legislation was invalid for infringing the implied freedom of political communication guaranteed by the Australian Constitution. And second, I will discuss whether the decision in Evans highlights a lacuna in the legal protection of freedom of expression in Australia — as some commentators have suggested — and whether a statutory charter of rights would remedy this. And finally, in Part IV, I will make some observations about the principle of legality and the judicial protection of rights more generally. Taken together, these observations lead me to conclude that the judicial role in the protection of rights in Australia may be best served through the application of the principle of legality rather than an interpretive obligation under a statutory charter of rights.

Our comprehension of the legal means and methods by which military forces are employed, controlled and — where considered necessary — immunised, is incomplete. Some questions are — in a jurisprudential sense — well settled, or at least evolving along a logical, comprehensible, and generally linear course. Thus the scope of the defence power under the Australian Constitution has, on the whole, been relatively consistently interpreted over time as an elastic power — expanding in time of large-scale conflict, contracting in time of profound peace, variably waxing and waning between these two poles in situations of uncertainty less than war but short of settled peace. There have certainly been some new developments in understanding the scope of the power — such as the High Court of Australia’s decision in Thomas v Mowbray (relating to the constitutional validity of the federal control order regime). In this case the majority held that components of the defence power are also exercisable through non-military organs such as the police. But on the whole, our understanding of the power has developed along conceptually and chronologically coherent and logical lines. Similarly, there is no question in the Australian context that this evolution has also been more generally coherent in terms of its interaction with related constitutional questions. Thus Thomas v Mowbray is, in many ways, a belated cross-referral allowing police and intelligence agencies to access authority under the defence power. This merely reflects and accompanies the long established principle that the military forces can likewise be used for law enforcement purposes — as confirmed in Li Chia Hsing v Rankin. It is perhaps justified to say that were we to apply a jus ad bellum / jus in bello approach (law of armed conflict based and thus formally inapplicable, but nevertheless useful) to the problem, the jus ad bellum issues — the when and why of use of military forces in law enforcement operations — are relatively settled, or at least evolving coherently and consistently with their history and precedent.

Bracketing his scholarship on administrative law and legal history, Michael Taggart is probably best known as the champion and chronicler of that genre of legal (and, more generally, scholarly) literature known as the ‘festschrift’. Despite the fact that this volume marks Mike’s very early retirement, because of ill-health, as Alexander Turner Professor of Law at the University of Auckland, the publication of a festschrift for the scholar who has done most to bring the genre out of the shadows is an event the reflexivity of which I am sure the honorand himself – being a man of wit and irrepressible joie de vivre – has found pleasing and amusing. The very title of the volume – a deprecatory self-description, we are told – echoes Mike’s interest in exploring the common law species of a genus which was, until recent years at least, much more popular in civil law than in common law countries.

The detention of David Hicks by the United States in Guantánamo Bay detention camp was an event which attracted significant attention in the Australian community. By the time Mr Hicks’ detention in that facility ended in early 2007, newspapers and other media were reporting it daily, the voice of dissatisfaction among human rights organisations and the broader community was becoming insistent, and politicians were beginning to act. And the lawyers, of course, were far from silent.

Since Mr Hicks pleaded guilty to the charge of ‘providing material support for terrorism', was repatriated from Guantánamo Bay to Yatala prison in Adelaide, and served out that portion of his sentence which was not suspended, the public debate surrounding his detention and treatment has died down. Some legal issues which the affair threw up, however, remain unresolved. One such issue is whether or not Mr Hicks can publicise his story for profit. Determining this issue requires analysis of Australian proceeds of crime legislation, and consideration of the circumstances in which it would prevent Mr Hicks profiting from publication of his story. It is this task which this paper takes up.