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at common law after the Privy Council decision in Croft v Dunphy in 1933, or because the doctrine had been impliedly repealed so far as the States were concerned by s 5 of the Colonial Laws Validity Act 1865 (UK) (CLVA).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.

I shall begin with a riddle, in fact three riddles:

1. 1 What sort of interest in land is held as an estate in fee simple but is inalienable?

2. 2 What sort of interest in land is held by a registered proprietor who has no power to make decisions relating to it, except with the consent of another, and who must act at the direction of that other?

3. 3 What sort of interest in land does not carry with it ownership of minerals but can preclude mining thereon?

The answer to each of these questions is — Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”).

The purpose of this paper is not to trace the course of judicial history in this country, from the robust assertion of the Privy Council that the colony of New South Wales “consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions” to the judgment of Blackburn J in Milirrpum v Nabalco Ply Ltd.

The exclusion of judicial review of assessment decisions by the Federal Commissioner of Taxation (the Commissioner) through the privative clause ins 177 of the Income Tax Assessment Act 1936 (Cth) (the Assessment Act) was challenged and found wanting in David Jones Finance Investments Pty Ltd and Adsteam Finance & Investments Pty Ltd v Federal Commissioner of Taxation (David Jones Finance). The decision has affected the interpretation of the effectiveness of the privative clause and has potentially opened up a new mechanism for appeaiing against decisions of the Commissioner.

One hundred percent pasture-fed beef production has been suggested as a promising approach for sustainable ruminant farming, due to the potential benefits that can accrue across a range of sustainability domains. This study aimed to investigate the impacts across the four domains of sustainability of a wholesale switch from conventional to 100% pasture-fed beef production in the UK. We used fuzzy cognitive mapping (FCM) as a method for extracting knowledge from multiple stakeholders to create representative systems models of both conventional and pasture-based beef production systems. We then conducted a scenario analysis to assess how a switch to a pasture-fed system could affect components of sustainability in the UK beef sector. The FCMs indicated that vegetation quality, grass use efficiency, and soil health were central components of the pasture-fed approach, while economic and regulatory aspects, and climate change targets were more central to mainstream production approaches. The most marked changes under the 100% conversion scenario were an increase in income from subsidies (27.3%) in line with ‘public money for public goods’, a decrease in ability to export beef (unless advice to reduce consumption of animal protein is followed) (23.5%), a decrease in land used for farming vs other uses (e.g., natural capital) (11.23%), and a decrease in the use of feed from agricultural co/byproducts (7.5%), freeing up these feed sources for more sustainable monogastric production. Therefore, the mapping and scenario analysis suggests that while upscaling the pasture-fed approach may reduce productivity, it would likely increase public goods provision and reduce feed–food competition in the UK.

The relationship between courts and social change can be viewed from at least two perspectives. The first, frequently explored in the literature, invites consideration of how courts respond to social change, real or apparent. The second directs attention to whether the courts themselves can bring about social change.

Many of the terms the Constitution uses to define Commonwealth legislative powers are legal terms or at least terms well-known to the law with legally defined meanings in 1900. The ordinary meaning of some of these terms is dependent on, and derived from, their legal meaning. Therefore, it is reasonable to assume that their constitutional meaning is consistent with their legal meaning. This poses a problem: what is the legal meaning of a legal term? One answer may be that the legal terms are shorthand for the bundle of legal rights and duties and practices associated with that term. On this view, for example, copyright is shorthand for the legal rules and practices which make up the law of copyright.

In every freedom on information (FOI) law there is a tension in the opposition between, on the one hand, the expression of a “right” to information accompanied by objects provisions which promote a generous interpretation of this right, and, on the other, the depth and breadth of the grounds for exemption which government is permitted to claim as reasons to resist disclosure of a document.

Dispute between applicants and agencies at the external review stage most often concerns a question (or a number of questions) about whether a document is exempt. The external review body must adjudicate in a manner typical of any application of the law. The body will take a view of the facts, isolate the relevant legal principle or rule (being the relevant exemption provisions), apply that principle or rule to the facts and then decide whether or not the document is exempt. Of course, the process is not so straight-forward as this suggests.

Reflecting on the involvement of High Court judges in extra-judicial activity, former Chief Justice Murray Gleeson recently observed that ‘[w]ar seems to create special cases’. The historical record confirms this assessment. While High Court judges have, in peacetime, periodically engaged in government work outside the courtroom, most instances of extra-judicial service by our top judges have occurred during war. Thus, it is only during World War I that members of the Court have conducted Royal Commissions. In 1915, Justice George Rich inquired into the controversy – long forgotten today, but a source of much public concern at the time – over conditions at the Liverpool Military Camp, near Sydney. More surprisingly, in 1918 – only months after the Australian people had, for the second time in little over a year, rejected conscription at referendum – Chief Justice Sir Samuel Griffith inquired into the recruitment levels needed to sustain the Australian Imperial Force. By contrast, between the wars, the Court received many requests from the Commonwealth Government for a judge to serve as Royal Commissioner. These requests were uniformly refused.