Guardianship laws either for intellectually disadvantaged people alone, or for anyone with diminished functional capacity (such as victims of brain trauma), are now popular in Australia (other than in Western Australia and the Australian Capital Territory) and New Zealand. These laws are based on North American experience, particularly that of the Dependent Adults Act 1976 (Alberta). The common thread is that it permits a guardian to be appointed to manage the property or the personal affairs of the disadvantaged person, or to make one or more of the multitude of decisions lying within these two broad areas of human living.

Contemporary legislation is notable for three things. First, partial orders are permitted (in place of only plenary orders). Indeed they are positively encouraged where any intervention at all is called for (the normalisation principle). Secondly, personal guardianships have been revived (having existed all along under cumbersome equity jurisdictions of – or associated with – superior courts).

Digital currency is a ‘disrupter’ of financial services and currency markets, and as such presents new regulatory challenges. International regulatory responses to digital currency range from being largely ignored in some jurisdictions to being banned in others, with most jurisdictions charting a middle course of ‘wait and see’ while attempting to deal with pressing issues (such as taxation liability and potential money laundering and terrorism financing issues). This article explains digital currency, its benefits, its problems, its risks and the regulatory response so far. It analyses the extent to which the Australian Securities and Investments Commission (ASIC, the national securities regulator) may or may not have regulatory power and jurisdiction under existing Australian law, and the role of other relevant regulators and institutions. It concludes that digital currency may well be a ‘financial product’ under Corporations Act 2001 (Cth) s 763A (though many suppliers/issuers of that product will be website operators located outside Australia). If it is a financial product, ASIC would also have jurisdiction over issuers and markets that trade in that product. This conclusion could easily be fortified by legislative confirmation; however, it is suggested that ASIC should in all events test its powers to determine whether any legislative change is needed. Regulation by ASIC would add to recent moves to deal with digital currency by the Australian Transaction Reports and Analysis Centre (AUSTRAC) and the Australian Taxation Office (ATO). In all cases, this article argues that the time has come for Commonwealth regulation of digital currencies by ASIC as the relevant regulator. This would then trigger the obligations set out in the Corporations Act and the ASIC Act, including Australian Financial Services Licensing, Australian Market Licensing, standards of efficiency, honesty and fairness, disclosure provisions, possible market offences and corporate regulation generally. The suggested jurisdiction of ASIC would build on its existing role as well as the roles of the Australian Competition and Consumer Commission, the ATO and AUSTRAC.

"The Common Law abhors infiniteness"

The common law has had considerable difficulty in identifying a principle or principles by which to explain the role of the courts in reviewing administrative action. In this article it is argued that that principle is necessarily a constitutional principle and that the starting point for its analysis in Australian law is the Commonwealth Constitution. It is then argued that the Commonwealth Constitution, and in particular the separation of judicial power within it, necessarily limits the extent of permissible judicial review. In particular, the separation of judicial power justifies and requires the distinction between jurisdictional and non-jurisdictional errors and the distinction between invalidity and merit review in Australian administrative law. This constitutional basis for judicial review, combined with the discipline of a written Constitution, also explains why recent developments in English and New Zealand common law in relation to judicial review are not appropriate or applicable to Australia.

For the last 40 or more years, academic administrative lawyers have advocated an ever-more expansionary role for judicial review of administrative action, and their urgings have usually been well-attuned to similarly expansionist tendencies on the part of the judges. Expansionists grew accustomed to being on the winning side, both in Australia and England, but we in Australia are beginning to learn that nothing lasts forever, even while the English expansions continue at almost break-neck speed. Three High Court cases are especially noteworthy. They are Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam ('Lam’); NEAT Domestic Trading Pty Ltd v AWB Ltd ('NEAT Domestic’); and Griffith University v Tang ('Tang’).

There was published in the University of Chicago Law Review some years ago a debate between Professor Dworkin and Judge Posner in the course of which Judge Posner drew a distinction between “top down” and “bottom Up” reasoning. He accused Professor Dworkin of being a “top downer” and professed himself to be an unashamed “bottom upper”.

Let me explain the distinction. In “top down” reasoning the judge or legal analyst adopts a theory about an area of law. The theory is then used to organise and explain the cases; to marginalise some and to canonise others. In “bottom up” reasoning the judge or legal analyst starts with the mass of cases or the legislative text and moves only so far as necessary to resolve the case at hand. According to Judge Posner “[t]he top downer and the bottom upper do not meet”.

The distinction is useful although the dichotomy is not complete. The “bottom upper” would be lost in the wilderness of the single instance without some organising theory.

Patents are growing in importance. Patenting rates worldwide have increased significantly in recent years: between 1992 and 2002, the number of patent applications in Europe, Japan and the US increased by more than 40 per cent. Patent coverage has also been extended to include new kinds of inventions, like genetic technologies, software, and business methods. A wider range of participants are also using patents, with universities being encouraged to increase their patenting activity. And there has been a dramatic increase in patent litigation, at least in the US. These facts have given rise to international debate on the costs and benefits of the patent system and how its effectiveness in encouraging innovation might be improved.

To inform these debates, policymakers have called for more hard data on how the system is actually working in practice. Enforcement forms an important part of how the patent system ‘works’. Patents are designed to encourage innovation by providing innovators with legal protection against expropriation of their innovative products and processes by third parties.

The Constitution of Australia embodies a liberal political theory that the freedom of the citizen is dependent on the separation and distribution of the powers of the state between different institutions - legislative, executive and judicial. With the possible exception of a democratically elected legislature, none of these institutions should dominate the way in which the powers of the remainder are exercised. For the safeguard of personal liberty, each should act as a check and balance against the over-exercise of power by the remainder, and especially by the executive government of the day.

This principle - the separation of powers - was inherited originally from England but developed considerably in the United States. It has been regarded as a fundamental element of the Constitution since the act of federation in 1901. Recognition of the principle reputedly reached a high point in Boilermakers, a decision of the High Court of Australia in 1956.

With increasing use of skilled temporary migration by employers and its significant influence upon Australia's permanent migration intake, the 457 visa has far-reaching implications — both for the domestic labour market and for the long-term composition of the Australian population. The scheme was introduced in 1996 to facilitate the temporary migration of skilled overseas workers to alleviate domestic skill shortages. Predicated upon a premise of business demand, the scheme allows employers to sponsor overseas workers whose occupations are on the Consolidated Sponsored Occupation List. Verification of whether the employer's attestation of a skill shortage is genuine is provided through employer-conducted labour market testing for certain occupations and the market salary rates requirement. This article questions whether these regulatory mechanisms are effective for ensuring the 457 visa program meets its objectives.

This article examines whether Australia's regulatory settings for temporary migrant labour are working effectively and argues that a backdoor currently exists which permits the entry of low skilled migrant workers on visas which are not for a work purpose, namely the international student visa and the working holiday maker visa. We propose that an explicit visa pathway be created for low and semi-skilled workers so that the working conditions of these visa holders are more appropriately monitored and to enable Australia's temporary labour migration program to better meet skill shortages in the economy.

This article exposes how disparity in the immigration rules of different visas combines with poor enforcement of labour standards to produce a segmented labour market in the Australian horticulture industry. We argue that the precarious work norms of the horticulture industry result in a ‘demand’ on the part of employers for harvest workers to perform precarious jobs. Such demand has been met by the workers supplied through different segments of temporary migrant labour who may be a particularly attractive form of precarious labour because of the conditionalities they experience as a result of their visa class. Our analysis demonstrates that not only do growers make preferences between local and temporary migrant workers, but they also make preferences between different types of temporary migrant workers. In identifying segmentation between temporary migrant workers on different visa categories, the article makes a significant contribution to the labour market segmentation literature, which hitherto has focused on segmentation between migrant workers and non-migrant workers.

A wide range of state and federal laws recognise and regulate intimate and familial relationships. Such laws include inheritance, immigration, guardianship and superannuation as well as the areas that we traditionally think of as ‘family law’: property division and disputes over children following relationship breakdown.

There is no reliable demographic data on how many adults identify as lesbian or gay in Australia, but there is information to indicate that many lesbians and gay men live in long-term relationships, some of which include children. The Australian census has never asked individuals to identify their sexuality, but in 1996 and 2001 invited people to record if they are living in a same-sex relationship. These figures underestimate the numbers of couples for a variety of reasons: in 1996 the question itself was confusingly worded, and many people were unaware that they were able to record their relationship for the first time. The census does not record couples who do not cohabit. In addition, there are still many same-sex couples who would not feel comfortable recording their relationship on an official document such as a census.

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.

Judicial reasons often include general statements about the nature and behaviour of people and institutions and the nature of the world and society. These statements might be called social facts (‘SF’) and are made as part of judicial development and general application of law. The presence of SF statements in judicial reasoning in Australian cases has been acknowledged by commentators and judges. However, there has been little empirical examination of this phenomenon. This article discusses a content analysis study of SF in negligence cases in the Australian High Court. This study confirms that judges do refer to SF in their judicial reasoning and that SF play a range of roles in judicial reasoning. This includes predicting social, economic and behavioural consequences of legal rules, as part of setting a context or background to judicial reasons, and as a tool to evaluate adjudicative facts. SF do not generally dominate judicial reasoning. However, they appear to have a significant role to play in certain complex and more important cases. While there were overall commonalities in the way judges used SF, some individual differences between judges emerged. Judges do not use SF in all cases in the same way. Judges referred to SF more in high significance cases, and cases with multiple separate judgments. Judges also referred to SF more in single and dissenting judgments than in joint and majority judgments. Most SF referred to by judges were not sourced or referenced in any way and reference to empirical research was very rare. Where a source or reference for a SF was given by a judge it was usually to a legal source. Most SF appeared to source from judicial ‘common sense’ with the potential dangers this brings to the accuracy and legitimacy of judicial reasoning.

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’.

The subject of corporate political donations is highly topical in several countries. The Australian Democrats have called for greater disclosure of donations made by companies to political parties, and for the introduction of a shareholder-approval rule where the donor is a public company. According to Democrat Senator Andrew Murray, ‘ever since the first political donation changed hands, money has been used to influence electoral outcomes and the process of government’.

The problems potentially associated with political donations are probably as old as democracy itself. Where the institution of democracy is coupled with and gives its imprimatur to relatively free market economics, the market for votes takes on characteristics not unlike those of the markets for goods and services. Free commerce and free elections give rise to the possibility of political exploitation and manipulation. Where political power depends on commercial attractiveness, commercial interests can be advanced by contributing funds to those political interests which promise the best commercial returns. Consequently, allegations of wealthy citizens – corporate or otherwise – buying political influence are not uncommon where their capacity to donate to political parties (and the parties’ correspondent capacity to accept) is relatively unhindered.

Agitation for parenting reform has become a prominent feature of family law policy debates in recent years. Many countries, such as England and Canada, have proceeded cautiously in response to such demands. Australia, on the other hand, opted for a bolder step and enacted a suite of shared parenting amendments in 2006, including a presumption of ‘equal shared parental responsibility'. The Shared Parental Responsibility Act was designed to facilitate substantial, if not equal, involvement by both parents in children's lives following separation, provided this is safe. While conversations about the implications of this move continue to take place, the first empirical evidence of its impact on post-separation parenting patterns has now been published. Its data suggest the reforms have been successful in producing an increase in ‘substantially shared care arrangements’ since the legislation came into force. At the same time, however, the research indicates that a significant number of these arrangements are characterised by intense parental conflict, and that shared care of children is a key variable affecting poor emotional outcomes for children.

Justifying judicial review of legislatures and executives in western democracies has become a controversial business. Those aspects of rule of law theory which appear to justify judicial review are attacked as undemocratic, in that they tend to replace the will of the people with the will of the judiciary. Where review is based on a set of constitutionally entrenched rights, those rights themselves are regarded as undemocratic; even supporters of rights-based judicial review have tended to concede that the rights, however desirable in some ways, are restrictions on democratic processes, rather than essential parts of democratic constitutional institutions. This seems unnecessarily defeatist. This article seeks to defend judicial review of executive action and of parliamentary legislation, on the basis of a conception of democracy which embodies certain rights rather than being in a state of tension with them.

The argument will take the following shape. A sketch of some relevant democratic considerations in Section 1 will conclude with a description of the model of democracy which will form the basis for the remainder of the argument Section 2 will argue that the function of law in providing powers for governments to use entails legal enforcement of the limits of those powers.