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.

Gypsy Jokers v Commissioner of Police (‘Gypsy Jokers’), at least in the Western Australian Court of Appeal, concerned the application of the so-called Kable v Director of Public Prosecutions (NSW) (‘Kable’) principle (or principles). That is, the principle restricting the State legislatures’ powers to confer responsibilities on State courts vested or capable of being vested with federal jurisdiction, especially State Supreme Courts, as would be incompatible with the exercise of that federal jurisdiction. Kable's focus has been sharpened and narrowed in subsequent cases to refer to theories of the ‘institutional integrity’ of State courts, or their actual and apparent ‘independence and impartiality’.

On appeal to the High Court, Gypsy Jokers dramatically shifted from a development of relatively novel and volatile constitutional principles into an application of canons of statutory construction, followed by a conclusion of constitutional validity that bypassed the leading tests.

Mr Priestley disagrees with the view expressed by Dr Hookey in his article “The Gove Land Rights Case”, that to a limited extent the common law recognized native communal title to land. Instead he suggests that the decision in Johnson v. M’Intosh which Dr Hookey regards as an exposition of this common law position, was an exposition of the law of Virginia as it had developed to the end of the 18th century. As such it may give guidance in the development of Australian law but similar conclusions should be drawn only in circumstances of sufficiently similar commencement and development. Mr Priestley concludes that in Milirrpum v. Nabalco Pty Ltd there was not evidence of such similarity before the court.

John Locke defined political power·in part as “a Right of making Laws with Penalties of Death, and consequently all less Penalties ... ”. Capital punishment, and a wide range of barbaric penalties, are no longer with us. Of the forms of punishment that remain, imprisonment is generally recognized as the most serious. Although generally overlooked deportation must rank not far behind. Like imprisonment, deportation can result in considerable hardship and suffering, not only to the person subjected to the measure, but to his or her family and friends. Losing the right to live in what one regards as one’s homeland can be seen as even more serious a deprivation than losing one’s liberty.

Given the significance of the measure, it is necessary to consider not just the specific conditions under which the state is entitled to deport someone, but more fundamentally, who it is entitled to deport. As a constitutional issue, debate in Australia has centred on the question of how the Commonwealth’s immigration power is to be interpreted.

There has recently been considerable discussion of the law concerning parallel importing of copyright materials. Yet the legality of parallel importing of trade marked products has still to be decided at an appellate level in Australia despite a number of Australian single judge decisions2 on the issue.

The term ‘parallel importing’ can be applied to a number of different activities. However, it usually involves the application in an overseas country of an Australian trade mark (Australian in the sense of being physically identical to the Australian mark) to products manufactured overseas. The application of the mark and the subsequent sale of the product in the overseas country is undoubtedly lawful but some of the marked products are then imported into Australia without the express consent3 of the Australian registered proprietor. This importation in competition with the Australian registered proprietor is parallel importing.

This article provides an analysis of people smuggling prosecutions in Australia from 2008 to 2011. Based on the available case law, the article develops a profile of ‘typical’ people smuggling offenders, examines sentencing trends, and analyses the role of smuggled migrants. The article concludes that current prosecutorial and sentencing practice have had no success in deterring people smuggling and develops a number of recommendations for law reform and policy change.

In 1971, FA Trindade argued that the doctrine of extraterritorial legislative incompetence (hereafter the doctrine of extraterritoriality) no longer applied to Australian State Parliaments. His general thesis was that the doctrine no longer applied, either because it had virtually ceased to exist at common law after the Privy Council decision in Croft v Dunphy in 1933, or because the doctrine had been impliedly repealed so far as the States were concerned by s 5 of the Colonial Laws Validity Act 1865 (UK) (CLVA). Since 1971, the High Court of Australia has had occasion to consider the extraterritoriality rule several times, and now the topic has received express legislative provision in the Australian Commonwealth and United Kingdom statutes that are collectively known as the Australia Acts 1986. The overall purpose of these statutes is to eliminate any residual legislative, executive, or judicial authority of the United Kingdom over Australia and its States. Part of this legislative plan involves the extraterritoriality doctrine as it applied to the Australian States. It is the aim of this article to examine the impact of the Australia Acts upon the extraterritoriality principle.

It has been clearly established in the common law world for a long time that foreign penal and revenue laws are unenforceable in a forum court. Dicey and Morris state the rule thus: “English courts have no jurisdiction to entertain an action for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State”. While the first two categories of foreign laws are well established, there is considerable doubtt outside of Australiat as to whether the third residual category of “public laws” can be justified.

The High Court in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (which will be referred to in this article as “Spycatcher”), was called on to decide whether it would allow a claim of the British Government to be heard in Australia. One of the arguments raised against allowing the action to go ahead was that it would potentially involve an Australian court enforcing a foreign penalt revenue or other public law. In the course of rendering its decisiont the Court reformulated the principles stated above into a broader principle. The Court stated that Australian courts will not enforce the “governmental interests” of a foreign sovereign. By this, the Court meant “the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government”. This rule or principle will be referred to, in this paper, as the “non-enforcement principle”.

Legal safeguards for individuals of employment or income will be one part of a government’s reaction to fluctuation and change in industries. Mr Arup examines present federal asssurances of security of employment and income and capacities to implement further assurances in line with overall economic rationality. He concludes that there are limitations both in present assurances and capacities which require changes in the law.

Australian lawyers are assessed and admitted to practise at a state and territory level. An important part of that assessment is an applicant's ‘suitability’ for professional practise; also referred to as the ‘character test’ of personal morality. This test requires applicants for admission to disclose relevant information about themselves including past conduct and (in at least one state) mental health status. Very little information about the process of admission is available. Around the country, we do not know how the character test is currently administered, how many applicants reveal past conduct, and how many are refused admission.

This article focuses on the three largest jurisdictions of New South Wales, Victoria and Queensland. It traces their varying approaches to admission; from legislative provision, court interpretation to administrative approach. It also examines some rare data about disclosure patterns on applying for admission. The resulting analysis raises concerns about a range of matters relating to admission to legal practice in Australia. It is argued that the secrecy of process is unjustified; and there is lack of confidentiality, certainty, and possibly fairness, ensured for applicants, particularly where issues of mental health arise. Finally, it is argued that there is a great difference in law and process between the states considered. While the ostensible goal of protection of the public is the same, the approach is far from that.

Justiciability is a central concept in administrative law. It is used to define the limits of judicial review, limits drawn in terms of “judicial conceptions of the proper relationship between the cowts and the executive”. This paper examines the limits on judicial review of one part of the criminal process.

Decisions made at a criminal trial can be challenged by statutory avenues of appeal ort less usuallyt by judicial review. Decisions earlier in the criminal process, however, are generally unreviewable at common law. For a variety of reasons, they have “enjoyed a special immunity from judicial review.” The discretions to prosecute, or to discontinue a prosecution, have been regarded as non-reviewable exercises of prerogative powers. Where equivalent powers have been conferred by statute, the unlimited terms in which they are granted has similarly meant they are unreviewable. Even with moves to greater review of prerogative powers in Australia and overseas prosecution decisions continue to be regarded as unreviewable. As they involve a wide and unstructured discretion, with a large policy component, they are said to be more appropriately accountable to Parliament than to the courts.

The separation of judicial power from executive and legislative power has long been recognised as an important measure for guaranteeing individual liberty and for safeguarding against tyranny. As Winterton has noted, '[d]ividing governmental power is the oldest device for restraining it, and thereby protecting liberty'. However, it has also been widely recognised, particularly in recent years, that by entrenching the separation of federal judicial power, Chapter III of the Australian Constitution may offer individual guarantees beyond the arbitrary exercise of executive or legislative power. Consideration of exactly what these guarantees may include has significantly contributed to the recent interest in Chapter III of the Constitution. As one commentator proclaimed in 2001, the move of Chapter III to centre stage has been 'one of the defining features of the last decade of Australian constitutional law'. This trend has raised many questions relating to the nature of judicial power and judicial independence, and the extent to which it does, and can, protect individual liberties.

The author examines development through the cases of recognition by the common law of the doctrine that customary traditional native law and native title is recognized in colonies settled by the British, She concludes that at common law when the British Crown acquires sovereignty over a territory, pre-existing property rights are preserved and that a clear expression of intention to the contrary is necessary to extinguish them. She then notes a number of relevant United States and Canadian cases on the issue of the land rights of their aboriginal inhabitants. The decision in Millirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia is subjected to critical scrutiny and it is concluded that the decision does not concur with the established common law. Finally, some of the legal problems involved in the recognition, by statute, of aboriginal land rights are discussed.

In Britain the Attorney-General is free from Cabinet control in deciding whether or not to initiate prosecutions or to terminate criminal proceedings. This article discusses the question whether the British rule applies in Australia. It examines the Mercantile Bank case (Victoria, 1893), the termination by federal authorities of the proceedings against John Brown in 1929, and evidence provided by federal Cabinet minutes before 1946. It seems that the British rule was not established in Australia before World War II. If Australian Attorneys-General are now regarded as exercising an independent authority, this is probably a case of importing a British convention after it had evolved in the United Kingdom. When the federal Attorney-General, Mr Ellicott, resigned in 1977, both he and the Prime Minister stated that Cabinet should not interfere with decisions to start or discontinue criminal proceedings. It would, however, be premature to regard this as a firmly established convention and it is clear that there were grave differences between Mr Ellicott and his colleagues as to some practical implications of the rule.

Family Law — Property settlements — Companies own matrimonial assets — Interim injunctions — Whether the position of third party shareholders is a relevant consideration — Family Law Act 1975 (Cth) s. 114

Rhetorically and ideologically, the nineteen eighties has been a decade in which the individual has held centre stage. From American Express advertisements to the assumptions of neo-classical economists (and back again), Western society is imagined to be, and justified as, a society of autonomous self regarding individuals. Yet for all that, we remain a society of institutions. We live our lives largely in (and, to a significant extent, through) the institutions where we grow up, work, play and procreate. Institutions dominate virtually every area of social life and simultaneously sustain and infuriate us by providing the best and the worst experiences of our daily lives. We seem to be forever complaining about them and often seek to change or supplant them. But few believe that we should, or even could, do away with them and recreate a society of free willing individuals without institutional links and ties. Those who want to get rid of the family generally want more egalitarian and supportive structures.

Three very different books published in close succession combine to highlight and dramatise the unresolved issues presented by the need that all governments feel to engage in security and intelligence activities within with an borders.

For most of the twentieth century, this Earth has been the arena for a titanic infrontation between democracy and tyranny, between free debate and the great, between the rule of law and the tendency of people to disappear from the feets. The votaries of democracy, freedom and the rule of law have not always been possessed of absolute virtue and have at times been forced, or have chosen, adopt some of the methods of their adversaries. One of these is the practice of ercising surveillance over persons or activities that are judged to constitute a reat to national security. These threats are normally classified in three legories: terrorism, espionage and subversion.

Human treatment of other animals has been the subject of intense scholarly and more general public deliberation for many years, especially in the wake of the 1975 publication of Australian philosopher Peter Singer's book Animal Liberation. In the United States, this debate has permeated the discipline of law to the extent that there are now more than 90 animal law courses conducted in universities around the country, a significant and growing scholarly literature, multiple edition textbooks and dedicated law journals. Despite the Australian provenance of a major contributor to the contemporary philosophical debate, the Australian legal academy has shown relatively little interest in this important area. The aim of this article is to contribute to the fledging Australian legal scholarship in animal law by critically analysing the respective roles of the Commonwealth, States and Territories in the regulation of animal welfare, focussing principally on the welfare of companion and farmed animals.