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The Great Depression, this Depression, and Administrative Law

Published online by Cambridge University Press:  24 January 2025

Mark Aronson
Mark Aronson*
Affiliation:
Law Faculty, University of New South Wales
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Extract

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.

Type
Research Article
Information
Federal Law Review , Volume 37 , Issue 2 , June 2009 , pp. 165 - 203
Copyright
Copyright © 2009 The Australian National University

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Footnotes

The author would like to thank Emilios Avgouleas, Keven Booker, Ross Buckley, Peter Cane, Phil Cooper, David Dixon, David Dyzenhaus, Arthur Glass, Matthew Groves, Carol Harlow, Martin Krygier, Janet McLean, Keith Mason, David Raper, Mike Taggart, and Greg Weeks.

References

1 The so-called ‘dustbin of history’ is almost empty. Barzun attributed the phrase to Augustine Birrell, an English MP, not (as commonly supposed) Karl Marx: Jacques, Barzun, From Dawn to Decadence: 500 Years of Western Cultural Life — 1500 the Present (2000), xviiiGoogle Scholar.

2 For example, Australia's future Prime Minister, Mr Rudd, spoke from the Opposition benches in strong support of a number of government Bills tightening immigration controls. He repeatedly emphasised the Bills’ importance to national security since 9/11. See Commonwealth, Parliamentary Debates, House of Representatives, 19 September 2001, 30942–3. The indefinite detention laws which the House of Lords struck down in A v Secretary of State for the Home Department [2005] 2 AC 68 had applied only to foreigners; indeed, that was the reason for their invalidation. Australia's mandatory detention laws had been on the books for a decade before 9/11, but the Federal Court had found an interpretive way around them until the High Court disagreed in Al-Kateb v Godwin (2004) 219 CLR 562.

3 See Edward C Page, Governing by Numbers: Delegated Legislation and Everyday Policy-Making (2001) 1-18.

4 Carol, Harlow, ‘The “Hidden Paw” of the State and the Publicisation of Private Law', in David, Dyzenhaus, Murray, Hunt and Grant, Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (2009), 75-98, 83Google Scholar, noting that talk of ‘decentred regulation’ can be quite misleading.

5 Ibid 75-98.

6 Parallels might be drawn with police law and practice. Prime Minister Thatcher preached the virtues of small government and reduced red tape, but her most important reform of police law (the Police and Criminal Evidence Act 1984 (UK)) did two things; it radically widened police investigative powers, and introduced a raft of regulations which for the first time offered genuine protection to criminal suspects. Prime Minister Blair's government broadened the focus to pre-emptive interventions, not against those suspected of crime but those likely to commit it. The protective regulatory environment has retreated in consequence. There is always a time lag, but Australia has followed suit. See David, Dixon, ‘Authorise and Regulate: a Comparative Perspective on the Rise and Fall of a Regulatory Strategy', in Ed, Cape and Richard, Young (eds), Regulating Policing: the Police and Criminal Evidence Act 1984 Past, Present and Future (2008) 21Google Scholar.

7 Dicey's term: see Albert, Venn Dicey, Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century (1905), 259-302Google Scholar.

8 See especially Frederic, William Maitland, The Constitutional History of England: A Course of Lectures (1908) 505–6Google Scholar.

9 His version of the rule of law required such disputes to be adjudicated in the ‘ordinary courts': Albert, Venn Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) 193Google Scholar.

10 See, eg, William, R Wade and Christopher, F Forsyth, Administrative Law (10th ed, 2009,) 857-904Google Scholar.

11 See Keith, Puttick, Challenging Delegated Legislation (1988)Google Scholar; Page, above n 3; Daniel, Greenberg, Craies on Legislation (9th ed, 2008)Google Scholar chs 3 and 6. For a comparative survey, see Theodore, Th Ziamou, Rulemaking, Participation and the Limits of Public Law in the USA and Europe (2001)Google Scholar.

12 Wade and Forsyth, above n 10, 765.

13 Paul, Craig, Administrative Law (6th ed, 2008)Google Scholar ch 22.

14 Carol, Harlow and Richard, Rawlings, Law and Administration (3rd ed, 2009,)Google Scholar chs 4 and 5.

15 The standard account has the judges going up and over the trenches with the decisions in the great quartet of Ridge v Baldwin [1964] AC 40; Conway v Rimmer [1968] AC 910; Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; and Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. See, eg, Wade and Forsyth, above n 10, 12-18.

16 Wade and Forsyth, above n 10, 13-14.

17 Peter, Leyland and Gordon, Anthony, Textbook on Administrative Law (6th ed, 2009) 14Google Scholar. It is difficult but not impossible to square that explanation with the thesis advanced by others that the judges were upper class warriors bent on the protection of property rights. See Patrick, McAuslan, ‘Administrative Law, Collective Consumption and Judicial Policy’ (1983) 46 Modern Law Review 1Google Scholar.

18 Judicial review eventually overcame its reluctance to supervise ‘administrative’ decision-making, but it has never wholly overcome its sense that judicial review of subordinate legislation is exceptional. Lord Hodson said in McEldowney v Forde [1971] AC 632, 645 that unless there is evidence of bad faith, courts are reluctant to ‘interfere with the exercise of wide powers to make regulations'. In a comment that might reflect poorly on the quality of argument, Lord Guest said (at 649) that anyone challenging the validity of a statutory instrument bore a heavy onus, and (at 648) that he had been unable to find any precedent of such a challenge since R v Halliday [1917] AC 260.

19 Wade and Forsyth, above n 10,14.

20 Lord, G Hewart, The New Despotism (1929)Google Scholar.

21 Lord G Hewart Not Without Prejudice (1937) 96. He was undoubtedly influenced by the fact that until 1915 (with the publication of Albert, Venn Dicey, ‘The Development of Administrative Law in England’ (1915) 31 Law Quarterly Review 148Google Scholar), and grudgingly even then, Dicey had denied the existence of droit administratif (he could not for most of his life bring himself to say it in English). See H W, Arthurs, ‘Rethinking Administrative Law: A Slightly Dicey Business’ (1979) 17 Osgoode Hall Law Journal 1Google Scholar.

22 Committee on Administrative Tribunals and Enquiries, Franks Report (1957) Cmnd 218.

23 Wade and Forsyth, above n 10, 13.

24 Labour law disputes were standard fare in the High Court's judicial review jurisdiction under s 75(v) of the Constitution.

25 The abolition was done in piecemeal fashion, the last tie being cut by the Australia Act 1986 (Cth) s 11.

26 See, eg, K H, Bailey, ‘Administrative Legislation in the Commonwealth’ (Pt 1) [1930] 4 Australian Law Journal 7Google Scholar; K H, Bailey, ‘Administrative Legislation in the Commonwealth’ (Pt 2) [1930] 4 Australian Law Journal 38Google Scholar ; Herbert, Vere Evatt, ‘The Judiciary and Administrative Law in Australia’ (1937) 15 Canadian Bar Review 247, 262–3Google Scholar; R, Else Mitchell, ‘Delegated and Sub-delegated Legislation‘(1943) 17 Australian Law Journal 75Google Scholar.

27 The creation and remit of the Senate Standing Committee on Regulations and Ordinances were directly attributable to the stir caused by Lord Hewart's books. That Committee dates back to 1932, and is the Senate's oldest Standing Committee with a remit beyond matters of internal parliamentary management.

28 Huddart Parker Ltd v Commonwealth (1931) 44 CLR 492; Roche v Kronheimer (1921) 29 CLR 329.

29 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73. As noted below, the United States still has, in theory, an ‘intelligible principles’ requirement of legislative authority to make subordinate legislation, but the requirement is a dead letter.

30 Michael, Taggart, ‘From ‘Parliamentary Powers’ to Privatization: the Chequered History of Delegated Legislation in the Twentieth Century’ (2005) 55 University of Toronto Law Journal 575, 590–600Google Scholar.

31 20 & 21 Geo C, c 17, s 136(1)(a).

32 Poor Law Amendment Act 1834 (UK), s 15.

33 21 & 22 Geo 5, c 42; 23 & 24 Geo 5, c 31; 24 Geo 5, c 1.

34 20 & 21 Geo 5, c 34.

35 See, eg, Milk Act 1931 (NSW); Dairy Products Act 1933 (NSW); Dried Fruits Act 1933 (NSW); and Wheat and Wheat Products Act 1936 (NSW).

36 Section 9 of the Prevention and Relief of Unemployment Act 1930 (NSW) empowered the government to issue declarations that stipulated the terms and conditions of employment in any occupation. Declarations had the force of law, and overrode any pre-existing contract or any pre-existing State industrial award or agreement. Declarations did not have to be tabled in Parliament and were therefore not subject to disallowance by negative vote in either chamber.

37 Wheat Products (Prices Fixation) Act 1938 (NSW) appears to have been exceptional. Clauses authorising such subordinate legislation are known as Henry VIII clauses: see below.

38 Transport Workers Act 1928–1929 (Cth), s 3, upheld in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.

39 Taggart, above n 30, 613–20.

40 So far as it deals with subordinate legislation, Australia's public law literature seems to be pitched to a practitioner market, confining itself to an outline of the legal and regulatory frameworks for framing, debating and promulgating subordinate legislation; see, eg, Dennis, Pearce and Stephen, Argument, Delegated Legislation in Australia (3rd ed 2005)Google Scholar.

41 Johnston Fear & Kingham & the Offset Printing Co Pty Ltd v Commonwealth (1943) 67 CLR 314, (Rich J), citing William, Alexander Robson, Justice and Administrative Law: A Study of the British Constitution (1928)Google Scholar; and Frederick John Port Administrative Law (1929) — the first two English books with ‘administrative law’ in the title. His Honour's outlook might best be captured by his statement at 327: ‘It is no part of the Court's duty to approach regulations with a desire to destroy them, especially if a provision, the subject of attack, be one of ordinary prudence and fairness.'

42 Wolfgang, Friedmann, Principles of Australian Administrative Law (1950)Google Scholar.

43 Evatt, above n 26. This was originally an address given in Sydney the previous year to a State branch of the Institute of Public Administration.

44 Ibid 269.

45 Ibid 269.

46 Peter, Bayne, ‘Mr Justice Evatt's Theory of Administrative Law: Adjusting State Regulation to the Liberal Theory of the Individual and the State’ (1991) 9 Law in Context 1Google Scholar.

47 Peter, Cane and Leighton, McDonald, Principles of Administrative Law: Legal Regulation of Governance (2008) 1-43Google Scholar.

48 Ibid 4, referring to Commonwealth Administrative Review Committee Report (Parl Paper No 144 (1971). See also John McMillan, ‘Parliament and Administrative Law’ (Research Paper No 13, 2000–01), which is an extensive history specially commissioned for the centenary of federation; it, too, saw the Kerr Report as the pivotal moment of Australian administrative law, and made no mention of the Great Depression.

49 E, Gellhorn and G O, Robinson, ‘Perspectives on Administrative Law’ (1975) 75 Columbia Law Review 771, 772Google Scholar.

50 See Frank, Johnson Goodnow, Comparative Administrative Law: an Analysis of the Administrative Systems, National and Local, of the United States, England, France and Germany (1893) 6–7Google Scholar; Ernst, Freund, Cases on Administrative Law: Selected from Decisions of English and American Courts (1911)Google Scholar; Felix, Frankfurter, ‘The Task of Administrative Law’ (1927) 75 University of Pennsylvania Law Review 614Google Scholar.

51 ALA Schechter Poultry Corp v United States 295 US 495 (1935); and Panama Refining Co v Ryan 293 US 388 (1935).

52 Kenneth, Culp Davis and R J, Pierce Jr, Administrative Law Treatise (3rd ed, 1994) vol 1, p 12Google Scholar.

53 Daniel, Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (1993)Google Scholar.

54 See President's Committee on Administrative Management in the Government of the United States, Report of the Administrative Management in the Federal Government (1937) (known after its chair as the Brownlow Report); Attorney General's Committee on Administrative Procedure, Final Report of Attorney General's Committee on Administrative Procedure (1941). The American Bar Association's Administrative Procedure Database Archive has the 1941 Report; that database is housed at Florida State University College of Law <www.law.fsu.edu>.

55 Richard, B Stewart, ‘The Reformation of American Administrative Law’ (1975) 88 Harvard Law Review 1667, 1670Google Scholar:

Increasingly, the function of administrative law is not the protection of private autonomy but the provision of a surrogate political process to ensure the fair representation of a wide range of affected interests in the process of administrative decision. Whether this is a coherent or workable aim is an open issue. But there is no denying the importance of the transformation.

56 Hewart, The New Despotism, above n 20, 17.

57 Taggart, above n 30, 578, citing (respectively) Lord, Devlin, Easing the Passing: the Trial of John Bodkin Adams (1985) 92Google Scholar, and R F V, Heuston, Lives of the Lord Chancellors, 1885–1940 (1964) 603Google Scholar.

58 The report of R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259, has Hewart CJ making the famous statement that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ One State Chief Justice, however, believes that Hewart should have acknowledged Lord Sankey as the original author of that proposition; J J, Spigelman, ‘Seen to be Done: the Principle of Open Justice — Part 1’ (2000) 74 Australian Law Journal 290, 290–2Google Scholar.

59 See Mark, Aronson, Bruce, Dyer and Matthew, Groves, Judicial Review of Administrative Action (4th ed, 2009) 977–79Google Scholar.

60 Statute of Proclamations 1539 (Eng), 31 Hen VIII c 8.

61 R E, Megarry, ‘Administrative Quasi-legislation’ (1944) 60 Law Quarterly Review 125Google Scholar.

62 The Australian arrangements are described in Pearce and Argument, above n 40.

63 See: Legislation Act 2001 (ACT); Subordinate Legislation Act 1992 (Tas); Subordinate Legislation Act 1994 (Vic); Subordinate Legislation Act 1989 (NSW); Statutory Instruments Act 1992 (Qld); Legislative Instruments Act 2003 (Cth).

64 Ian, C Harris, Bernard, C Wright and Peter, E Fowler (eds), House of Representatives Practice (5th ed, 2005), 398–9Google Scholar.

65 See, eg, Corporations Act 2001 (Cth), s 655A. Henry VIII clauses are unconstitutional in America: Clinton v City of New York, 524 US 417 (1998), striking down a clause empowering the President to disapply ('veto’) particular items in an Appropriation Act.

66 See, eg: European Communities Act 1972 (UK) c 68 ss 2(2), 2(4), sch 2; Human Rights Act 1998 (UK), c 42 s 10, sch 2 para 1; Legislative and Regulatory Reform Act 2006 (UK) c 51.

67 Bill of Rights 1688 (Eng) c 2, s 1 (emphasis added).

68 Lord G Hewart, The New Despotism, above n 20, 22-36.

69 Lon, L Fuller, The Morality of Law (1964) 33-94Google Scholar.

70 Martin, Krygier, ‘The Rule of Law: Legality, Teleology, Sociology’ in G, Palombella and N, Walker (eds), Relocating the Rule of Law (2009) 45, 49Google Scholar.

71 Taggart, above n 30, 594–600.

72 Edward C Page, above n 3, 1-18.

73 Mistretta v US, 488 US 361 (1989); Touby v US, 500 US 160 (1991). See also Schoenbrod, above n 53.

74 Immigration and Nationalization Service v Chadha, 462 US 919 (1983).

75 Stewart, above n 55.

76 Peter, L Strauss, ‘From Expertise to Politics: the Transformation of American Rulemaking’ (1996) 31 Wake Forest Law Review 745Google Scholar.

77 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.

78 Western Australia v Commonwealth (1995) 183 CLR 373, 486.

79 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513.

80 Ibid (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), quoting from Commonwealth v Grunseit (1943) 67 CLR 58, 82 (Latham CJ). See also Kable v DPP (NSW) (1996) 189 CLR 51, 76, where Dawson J (in dissent) noted an argument that in the general sense of the term (as opposed to its constitutional sense), a ‘law’ has to conform to an Austinian ‘command'.

81 Cf Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73, 102, where Dixon J seemed to say that were it not for Australia's inheritance of a long-established English tradition of treating subordinate legislation as truly ‘legislative', one might have been able to argue that subordinate rules should not be characterised as a manifestation of ‘true legislative power’ wherever they were subject to repeal by a higher legislative source.

82 Edward, Rubin, ‘Law and Legislation in the Administrative State’ (1989) 89 Columbia Law Review 369Google Scholar.

83 The example comes from a response to Rubin by Peter, Strauss, ‘Legislative Theory and the Rule of Law: Some Comments on Rubin’ (1989) 89 Columbia Law Review 427, 428–30Google Scholar. Strauss compared railroad safety legislation passed in 1893 with automobile safety legislation passed in 1966. The differences were huge and went far beyond the former being transitive and the latter intransitive. Members of Congress used to be directly involved in formulating an Act's content, which they debated amongst themselves. That sort of work these days is left to huge congressional bureaucracies supervised by staffers.

84 Although Rubin largely avoided the terminology of ‘rule of law', he assumed the normativity of ‘law', and his intransitive statutes are amenable to rule of law analysis: Strauss, above n 83; M Krygier, above n 70, 56–7; and David Dyzenhaus, ‘Accountability and the Concept of (Global) Administrative Law’ (Working Paper No 2008/7, Institute for International Law and Justice, 2008).

85 Rubin, above n 82, 397–408.

86 Banking Act 2009 (UK) c 1, ss 75 (empowering the amendment of any Act other than the 2009 Act itself), 135, 156, 168.

87 Office of the Press Secretary, Transcript of Press Conference by President G W Bush on January 12, 2009 (2009) The White House: President George W Bush <http://georgewbush-whitehouse.archives.gov/news/releases/2009/01/20090112.html> at 29 July 2009.

88 ‘I believe this — the phrase “burdens of the office” is overstated. You know, it's kind of like, why me? Oh, the burdens, you know. Why did the financial collapse have to happen on my watch? It's just — it's pathetic, isn't it, self-pity.': Ibid.

89 See Evidence to Committee on Oversight and Government Reform, Congress of the United States (House of Representatives), Washington DC, 23 October 2008 (Alan Greenspan) <http://oversight.house.gov/documents/20081023100438.pdf> at 29 July 2009.

90 Evidence to Committee on Oversight and Government Reform, Congress of the United States (House of Representatives), Washington DC, 23 October 2008, 2 (Henry Waxman, Chairman) <http://oversight.house.gov/documents/20081023100359.pdf> at 29 July 2009.

91 Evidence to Committee on Oversight and Government Reform, Congress of the United States (House of Representatives), Washington DC, 23 October 2008 (Alan Greenspan) <http://oversight.house.gov/documents/20081024163819.pdf> at 29 July 2009.

92 Kevin Rudd, ‘The Australian Response to the Global Financial Crisis’ (Speech delivered at the Federal Labor Business Forum, Sydney, 3 October 2008) <http://www.pm.gov.au/node/5548> at 29 July 2009. He said on an earlier occasion: ‘We simply don't have to choose between Hayek and Brezhnev': Kevin Rudd, ‘Address to the Centre for Independent Studies’ (Speech delivered at the Centre for Independent Studies Consilium, Queensland, 3 August 2008) <http://www.pm.gov.au/node/5666> at 29 July 2009.

93 See Kevin Rudd, ‘The Global Financial Crisis', The Monthly (Melbourne), February 2009, 20.

94 Opposition members naturally deny the charge of ‘neoliberalism', or profess puzzlement as to its meaning. As to the charge of regulatory failure, they deny it, saying that Australia had the best regulatory system in the Western World. See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 4 February 2009.

95 Rudd, ‘The Global Financial Crisis’ above n 93, 21.

96 Ibid (emphasis in original).

97 Legislation has long underpinned the secrecy surrounding regulatory interactions with banks; see, eg, Australian Prudential Regulation Authority Act 1998 (Cth) ss 56-7; and Banking Act 1959 (Cth) ss 11CF and 69D. Financial journalists in Britain were able to detect that something was seriously wrong with the Northern Rock Bank after reading the Bank of England's weekly accounts. Those accounts need no longer be published. Similarly, charges provided to the Bank of England need no longer be registered at Companies House. See Banking Act 2009 (UK) c 1, ss 245, 252 respectively. There had been some concern before the latter Act that the EU Market Abuse Directive (MAD) required immediate disclosure of emergency liquidity assistance even where that would have been entirely counterproductive; see Emilios, Avgouleas, ‘Banking Supervision and the Special Resolution Regime of the Banking Act 2009: The Unfinished Reform’ (2009) 4 Capital Markets Law Journal 201, 212–3Google Scholar.

98 Emilios, Avgouleas, ‘The Global Financial Crisis, Behavioural Finance and Financial Regulation: In Search of a New Orthodoxy’ (2009) 9 Journal of Corporate Law Studies 23Google Scholar. See also John, Simon, ‘Three Australian Asset-price Bubbles’ in Anthony, Richards and Tim, Robinson (eds), Asset Prices and Monetary Policy (2003) 8, 12Google Scholar, accessed online at <http://www.rba.gov.au/PublicationsAndResearch/Conferences/2003/Simon.pdf>, quoting from a letter to The Times 12 July 1845: ‘There is not a single dabbler in scrip who does not steadfastly believe — first, that a crash sooner or later, is inevitable; and secondly, that he himself will escape it.'

99 That is the sub-text of Lorraine Conway and Timothy Edmonds, ‘Banking Bill: Bill 147 of 2007–08’ (Research Paper No 08/77, House of Commons Library, 2008) 31–5; and Lorraine Conway and Timothy Edmonds, ‘Banking Bill Committee Stage Report’ (Research Paper No 08/85, House of Commons Library, 2008) 21–2, which appears to discuss principles-based regulation as on the brink of major reevaluation.

100 For example, the Migration Act 1958 (Cth) provides a regulatory scheme for migration agents, but s 315 allowed the government to entrust its operations to an industry body. The government will now assume direct control of the scheme: Chris Evans, ‘New Body to Regulate Migration Agents’ (Press Release, 9 February 2009) <http://www.minister.immi.gov.au/media/media-releases/2009/ce09014.htm> at 29 July 2009.

101 Chinese sovereign wealth funds seeking greater ownership of Australia's mining companies are likely to encounter some resistance via the government's discretionary powers under the Foreign Acquisitions and Takeovers Act 1975 (Cth).

102 See Treasury Committee, UK House of Commons, Banking Crisis: Dealing with the Failure of the UK Banks (2009), 83-90. The exceptions are inevitable. For example, the Committee's report noted (at [108]) that Chancellor took personal responsibility for ordering a significant modification of the nationalised Northern Rock Bank's policy objective of paying down its debts to government as soon as possible, a policy that conflicted with the government's exhortations to all banks to resume volume in the mortgage market.

103 Peter, Drucker, The Age of Discontinuity: Guidelines to our Changing Society (1969) 212-42Google Scholar.

104 See Steve, Letza, Clive, Smallman and Xiuping, Sun, ‘Reframing Privatisation: Deconstructing the Myth of Efficiency’ (2004) 37 Policy Sciences 159–83Google Scholar.

105 See Harlow, above n 4, 7.

106 See Alfred Aman, Jr, ‘Politics, Policy and Outsourcing in the United States: The Role of Administrative Law', and Richard, Rawlings, ‘Poetic Justice: Public Contracting and the Case of the London Tube', in Linda, Pearson, Carol, Harlow and Michael, Taggart (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (2008) 205Google Scholar and 223 respectively.

107 See Ombudsman Act 1976 (Cth), ss 3(4B), 3BA, 8(11), 9(1AA), 14, 35(3).

108 There is an occasional exception by statute; see Public Access to Government Contracts 2000 (ACT). Governments can also make administrative arrangements to publicise major contracts; for example, Victoria's major contracts are available at <www.tenders.vic.gov.au>.

109 See Kate, Owens, ‘The Job Network: How Legal and Accountable are its (Un)employment Services?’ (2001) 8 Australian Journal of Administrative Law 49Google Scholar; Rachel, Bacon, ‘Rewriting the Social Contract? The SSAT, the AAT and the Contracting Out of Government Services’ (2002) 30 Federal Law Review 39Google Scholar; Rachel, Livingstone, ‘Contracting Out of Employment Services in Australia and Administrative Law’ (2003) 10 Australian Journal of Administrative Law 77Google Scholar; Richard, Mulgan, ‘Government Accountability for Outsourced Services’ (2006) Australian Journal of Public Administration 48Google Scholar; and Rachel, Harris, ‘Avoiding the Worst of All Worlds: Government Accountability for Outsourced Employment Services’ (2007) 54 Australian Institute of Administrative Law Forum 3Google Scholar.

110 See Griffith University v Tang (2005) 221 CLR 99, 128–9; Aronson, Dyer and Groves, above n 59, 82–84, 138, 143–46.

111 New South Wales Treasury: Office of Financial Management, Working with Government: Private Financing of Infrastructure and Certain Government Services in NSW (2000)Google Scholar i.

112 New South Wales Treasury: Office of Financial Management, Working With Government: Guidelines for Privately Financed Projects (2006) 1Google Scholar.

113 See Auditor General (NSW), Report to Parliament 2008 (2008) vol 4, 121–2Google Scholar; and Evidence to General Purpose Standing Committee No 1, Legislative Council of New South Wales, Sydney, 9 October 2008 (John Pierce, NSW Treasury Secretary).

114 See New South Wales, Parliamentary Debates, Legislative Assembly, 11 Novermber 2008, 11078 (Eric Roozendaal, Treasurer).

115 See General Purpose Standing Committee No 3, Legislative Council of New South Wales, The Privatisation of Prisons and Prison-related Services (2009).

116 Postal Services Bill 2009 (UK), withdrawn in July 2009.

117 A referendum defeated the government's proposal in 1944 to extend the Commonwealth Parliament's powers over a number of areas for 5 years after the cessation of hostilities. The ‘no’ case said that one of the extensions ('employment and unemployment’) amounted to ‘civil conscription', which would be run by ‘the Government's “Brains Trust“', mostly made up of ‘men who, for the most part, have never had to organize or control a successful pie-stall! ‘: Wong v Commonwealth (2009) 236 CLR 573, 587 (French CJ and Gummow J).

118 Treasury Committee, UK House of Commons, The Run on the Rock: Fifth Report of Session 2007–08 (2008) vol 1, [375]Google Scholar.

119 The Federal Housing Finance Agency put Fannie May and Freddie Mac into conservatorship pursuant to the Federal Housing Finance Regulatory Reform Act of 2008, Pub L No 110–289, 122 Stat 2654 (2008) and the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, 12 USC §§ 4501 et seq (1992).

120 See Ben, Jackson, ‘Revisionism Reconsidered: ‘Property-owning Democracy’ and Egalitarian Strategy in Post-War Britain’ (2005) 16 Twentieth Century British History 416Google Scholar.

121 The State Banks of Victoria and South Australia were on-sold to other banks in the early 1990s after massive capital injections from their State governments.

122 Bryan Fitz-Gibbon and Marianne Gizycki, ‘A History of Last-resort Lending and Other Support for Troubled Financial Institutions in Australia’ (Research Discussion Paper No 2001-07, Reserve Bank of Australia, 2001) 1.

123 Ibid 9–10.

124 Stephen Martin, Labor and Financial Deregulation: the Hawke/Keating Governments, Banking and New Labor (Ph D thesis, University of Wollongong, 1999) 75-114. The writer accessed this thesis via the Australian National Library's thesis database at <www.anl.gov.au>. Its author was in the federal Labor governments from 1983 to 1996, eventually becoming Speaker of the House of Representatives.

125 Section 51(xiii) of the Constitution gives the Commonwealth Parliament the power to legislate with respect to ‘Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money'.

126 See Martin, above n 124, chs 5, 6, 7 respectively.

127 The UK Treasury's scheme did not seek legislative authorisation: see Her Majesty's Treasury, UK House of Commons, Budget 2009: Building Britain's Future (2009) 54–5. To its credit, the Australian government sought legislative authorisation in its Australian Business Investment Partnership Bill 2009 (Cth). The Senate rejected that measure, and it was not known at the time of writing whether the government would try again.

128 London's special political status had long been clear. For example, the Commonwealth Bank Act 1911 (Cth) was amended in 1924 to establish a London Board of Advice, whose members were not to be drawn from the banking industry.

129 For the Premier's dismissal, see Republic Advisory Committee, An Australian Republic: The Options (1992) vol 2, [260]Google Scholar. For the banking history, see Fitz-Gibbon and Gizycki, above n 122, 39–49.

130 Commonwealth, Royal Commission Appointed to Inquire into the Monetary and Banking Systems at Present in Operation in Australia, Final Report (1937). This is known as the Napier Report.

131 Ben Chifley (later to become Prime Minister) was Labor's representative on the Royal Commission. He wrote a minority report advocating the nationalisation of the banks, but his argument was brief and undeveloped: David Day, Chifley (2001) 321–5.

132 See National Security (War-Time Banking Control) Regulations 1941 (Cth) cl 9, passed pursuant to the National Security Act 1939 (Cth).

133 Banking Act 1945 (Cth) s 48.

134 Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

135 Banking Act 1947 (Cth) s 13.

136 Banking Act 1947 (Cth) s 46.

137 Opposition to nationalisation was ferocious, extremely well-organised, and wide-spread across the country — there could be no doubting the measure's unpopularity. For the full account, see A L, May, The Battle for the Banks (1968)Google Scholar. The government's defence of the measure was half-hearted. See: Day, above n 131, 456–65. See also Selwyn, Cornish, ‘Sir Leslie Melville: An Interview’ (1993) 69 The Economic Record 437Google Scholar; Bob, White and Cecelia, Clarke, ‘Cheques and Balances: Memoirs of a Banker’ (1995) 109 Australian Banker 283Google Scholar; and H W, Arndt, ‘Bank Nationalisation: Only 50 Years Ago?’ (1997) 85 Canberra Bulletin of Public Administration 59Google Scholar.

138 Bank of New South Wales v Commonwealth (1948) 76 CLR 1 (High Court); and Commonwealth v Bank of New South Wales (1949) 79 CLR 497 (Privy Council). The reports are 400 and 147 pages long respectively.

139 See Julius, Stone, ‘A Government of Laws and Yet of Men: Being a Survey of Half a Century of the Australian Commerce Power’ (1950) 25 New York University Law Review 451, 475–96Google Scholar.

140 For example, it was obvious that s 92 bound the States. However, whether it also bound the Commonwealth was an open question until resolved in the affirmative by James v Commonwealth (1936) 55 CLR 1. See more generally Geoff, Lindell, The Australian Constitution: Growth, Adaptation and Conflict — Reflections About Some Major Cases and Events (1999) 25 Monash University Law Review 257, 266–73Google Scholar.

141 Latham CJ, and McTiernan, Starke and Dixon JJ.

142 Commonwealth v Bank of New South Wales (1949) 79 CLR 497, 641 (Lords Porter, Simonds, Normand, Morton and MacDermott).

143 As to government monopolies, see Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29.

144 Cole v Whitfield (1988) 165 CLR 360.

145 Ibid (1988) 165 CLR 360, 403 (per curiam).

146 Section 51(xxxi) of the Constitution empowers the Commonwealth Parliament to pass laws with respect to the ‘acquisition of property on just terms from any State or person for any purpose in respect of which the [Commonwealth] Parliament has power to make laws'.

147 Banking Act 1947 (Cth) s 44(5) ('1947 Act’).

148 Constitution s 75(iii).

149 Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 339–41 (Dixon J).

150 Jonathan Kearns and Philip Lowe, ‘Promoting Liquidity: Why and How?’ (Research Discussion Paper Series No 2008–06, Reserve Bank of Australia, 2008) <www.rba.gov.au/rdp/RDP2008-06.pdf> at 25 August 2009.

151 Ibid 31. One should add that an Australian bank in a position that is not quite so dire might expect to receive assistance from the other Australian banks, pursuant to ‘certified industry support contracts’ under the Banking Act 1959 (Cth) ss 11CA–11CG.

152 Banking Act 1959 (Cth) ss 9(9), 9A(8).

153 Banking Act 1959 (Cth) s 11CA(1)(k).

154 Banking Act 1959 (Cth) pt II, div 2AA, inserted into the Act in 2008.

155 Banking Act 1959 (Cth) s 11CA(5A).

156 Banking Act 1959 (Cth) s 15.

157 Banking Act 1959 (Cth) s 14A(5).

158 Banking Act 1959 (Cth) s 14AA.

159 Banking Act 1959 (Cth) s 14AB.

160 Banking Act 1959 (Cth) s 69E.

161 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, ETS 5, art 1 (entered into force 18 May 1954).

162 Sporrong and Lönnroth v Sweden (1983) 5 EHRR 35, 54; Lithgow v United Kingdom (1986) 8 EHRR 329; James v United Kingdom (1986) 8 EHRR 123; and Holy Monasteries v Greece (1994) 20 EHRR 1, 30.

163 Emilios, Avgouleas, ‘Banking Supervision and the Special Resolution Regime of the Banking Act 2009: The Unfinished Reform’ (2009) 4 Capital Markets Law Journal 201, 206Google Scholar.

164 SRM Global Master Fund LP & Ors v Commissioners of Her Majesty's Treasury [2009] EWCA Civ 788 (Unreported, 28 July 2009).

165 Ibid [8]-[11], [61]-[66] (Laws LJ).

166 Banking (Special Provisions) Act 2008 (UK) c 2, s 2(3)(b) (emphasis added).

167 Banking (Special Provisions) Act 2008 (UK) c 2, ss 5(5)(b), 7(4)(b)(emphasis added).

168 Banking Act 2009 (UK) c 1, s 257.

169 Banking Act 2009 (UK) c 1, s 57(3).

170 Conway and Edmonds, ‘Banking Bill: Bill 147 of 2007-08', above n 99, 31–5; and Conway and Edmonds, ‘Banking Bill Committee Stage Report', above n 99, 20–2.

171 The Banking Act 2009 (Restriction of Partial Property Transfers) Order 2009 (UK), SI 2009 No 322.

172 Banking Act 2009 (UK) c 1, s 60.

173 Banking Act 2009 (UK) c 1, s 58.

174 Banking Act 2009 (UK) c 1, s 61.

175 Banking Act 2009 (UK) c 1, s 55(6).

176 Having said that, the UK Treasury has an ‘Asset Protection Scheme’ which is not tied to the banking sector. The scheme bears some worrying similarities to the American government's assumptions of toxic risks, and some commentators fear it might develop into a ‘bad bank'. See Treasury Committee, Banking Crisis, above n 102, 173.

177 Banking (Special Provisions) Act 2008 (UK) c 2, s 2(2).

178 Banking Act 2009 (UK) c 1, s 7, referencing the ‘threshold conditions’ as defined by the Financial Services and Markets Act 2000 (UK) c 8, s 41(1).

179 Banking Act 2009 (UK) c 1, s 8(2).

180 Banking Act 2009 (UK) c 1, s 9.

181 Banking Act 2009 (UK) c 1, s 4.

182 Banking Act 2009 (UK) c 1, s 5.

183 Ross, Cranston, Principles of Banking Law (2nd ed, 2002) 94–7Google Scholar.

184 The Federal Deposit Insurance Corporation (FDIC); see now 12 USC ch 16.

185 Most of the historical literature concerning the New Deal banking reforms concentrates on the so-called Glass-Steagall Act, which was in fact only part of the Banking Act 1933. Variously praised and condemned, that part quarantined investment banking from commercial banking, on the theory that traditional banking should not chase the high-risk profits of investment banking. The same Act introduced the FDIC, whose success is not as contested. It must suffice here to refer to: Noelle, T Heintz and Robert, M Travisino, ‘What is Past is Prologue: Why Congress Should Reject Current Financial Reform Bills and Breathe New Life into Glass-Steagall’ (1998) 13 St John's Journal of Legal Commentary 373Google Scholar; Dalvinder, Singh, Banking Regulation of the UK and US Financial Markets (2007)Google Scholar; and Ellen, D Russell, New Deal Banking Reforms and Keynesian Welfare State Capitalism (2008)Google Scholar.

186 This paragraph is based upon Roger, L Roots, ‘Government by Permanent Emergency: The Forgotten History of the New Deal Constitution’ (2000) 33 Suffolk University Law Review 259Google Scholar.

187 Emergency Banking Relief Act, 15 USC §§ 51a-51c (1933).

188 America's wars on poverty, drugs and terrorism are obvious examples. ‘War’ may not be so easily misused elsewhere, but Prime Minister Rudd's demand for an unquestioning acceptance of his stimulus package was premised on the existence of crisis precluding the normal niceties of Parliamentary scrutiny; see below Part F.

189 Banking Act 2009 (UK) c 1, s 61.

190 Kelo v New London 545 US 469 (2005).

191 Timothy, J Dowling, ‘Kelo as Trojan Horse: How the Property Rights Movement is Misusing the Kelo Decision to Advance a Radical Agenda’ (2007) 54 The Federal Lawyer 46Google Scholar; and Andrew, S Han, ‘From New London to Norwood: A Year in the Life of Eminent Domain’ (2008) 57 Duke Law Journal 1449, 1451–52Google Scholar.

192 The court was able to avoid the issue in Griffiths v Minister for Lands, Planning and the Environment (2008) 235 CLR 232. That case involved an Act of the Northern Territory which, like the States, has no constitutionally entrenched restrictions upon compulsory acquisition. Kirby J (dissenting) gave the Kelo debate extended consideration, at 266–9.

193 See Bank of New South Wales v Commonwealth (1948) 76 CLR 1; and Newcrest Mining (WA) Ltd v Commonwealth (1996) 190 CLR 513.

194 Banking Act 1959 (Cth) s 69E.

195 The constitutional protection might not apply if the government's intervention powers were characterised as ‘a genuine adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity'; see Australian Tape Manufacturers Association Ltd v Commonwealth (1991) 176 CLR 480, 510 (Mason CJ, Brennan, Deane and Gaudron JJ); and Capricorn Diamonds Investments Pty Ltd v Catto (2002) 5 VR 61, 88–92. Another exception to the scope of the constitutional protection applies where the rights acquired ‘are inherently susceptible to modification'. This appears to be most relevant to rights deriving solely from statute, and especially so if they are dependent upon government funding: Health Insurance Commission v Peverill (1994) 179 CLR 226, 237 (Mason CJ, Deane and Gaudron JJ). See also: Scott, Evans, ‘When is an Acquisition of Property Not an Acquisition of Property?’ (2000) 11 Public Law Review 183Google Scholar; and Rosalind, Dixon, ‘Overriding Guarantee of Just Terms or Supplementary Source of Power?: Rethinking s 51(xxxi) of the Constitution’ (2005) 27 Sydney Law Review 639Google Scholar.

196 Combet v Commonwealth (2005) 224 CLR 494; and Pape v Commissioner of Taxation (2009) 257 ALR 1.

197 41 USC ch 4; and CFR, title 48.

198 Combet v Commonwealth (2005) 224 CLR 494. The majority treated appropriations that are described in both ways as if they were simply output items for the relevant Department, and the expenses at issue were undoubtedly for Departmental purposes. For the three judges who treated the relevant expenditures as having to conform to an ‘outcome', the question was whether a massive advertising campaign to promote the government's intention to introduce legislation reducing union power could be said to be for the purpose(s) of achieving ‘higher productivity, higher pay workplaces'. Two of those three judges rather quaintly found (McHugh J, at 554–5, and Kirby J, at 607–8) the advertisements wanting for their failure to say anything specific, thereby overlooking the whole point of such advertising, which is to promote a feel-good mood to overcome the product's biggest weakness. American constitutional law has no a priori position against government-funded speech: Pleasant Grove City, Utah v Summum 129 S Ct 1125 (2009).

199 Combet v Commonwealth (2005) 224 CLR 494, 523 (Gleeson CJ).

200 Evidence to Senate Committee on Finance and Public Administration, Parliament of Australia, Canberra, 19 January 2007, [7] (Geoffrey Lindell).

201 Pape v Commissioner of Taxation (2009) 257 ALR 1, [65] French CJ.

202 Appropriation (Nation Building and Jobs) Act (No 1) 2008–2009 (Cth); and Appropriation (Nation Building and Jobs) Act (No 2) 2008–2009 (Cth). Constitutional considerations require that ordinary expenses (salaries, buildings and so on) be in a separate Bill from ‘administered’ expenses, being the costs of providing programs which agencies administer. The Senate cannot amend the former.

203 Emergency Economic Stabilization Act of 2008, Pub L No 110-343, 122 Stat 3765. See Archit, Shah, ‘Emergency Economic Stabilization Act of 2008’ (2009) 46 Harvard Journal on Legislation 569Google Scholar.

204 American Recovery and Investment Act of 2009, Pub L No 111-5, 123 Stat 115.

205 American Recovery and Investment Act of 2009, Pub L No 111-5, 123 Stat 115 gave the National Aeronautics and Space Administration an extra US$400m for ‘Science', an extra US$150m for ‘Aeronautics', and an extra US$400m for ‘Exploration', with no more detail than that.

206 American Recovery and Investment Act of 2009, Pub L No 111-5, 123 Stat 115 established a range of accountability structures, including the Recovery Accountability and Transparency Board and the Recovery Independent Advisory Panel. Email from Susan Rose-Ackerman to Yale's Comparative Administrative Law List, 26 February 2009. The email is archived at Susan Rose-Ackerman, Comparative Administrative Law List (2009) <http://mailman.yale.edu/mailman/listinfo/comp-admin-law>.

207 See Charles, Lawson, ‘Re-Invigorating the Accountability and Transparency of the Australian Government's Expenditure’ (2008) 32 Melbourne University Law Review 879, 913-21Google Scholar.

208 Krygier, above n 70.

209 Supplemented by input from a very active civil society; see www.stimuluswatch.org.

210 American Recovery and Investment Act of 2009, Pub L No 111-5, § 3(a), 123 Stat 115, 115–16 provides that the Act's purposes include: ‘(1) To preserve and create jobs and promote economic recovery. (2) To assist those most impacted by the recession. (3) To provide investments needed to increase economic efficiency by spurring technological advances in science and health. (4) To invest in transportation, environmental protection, and other infrastructure that will provide long-term economic benefits. (5) To stabilize State and local government budgets, in order to minimize and avoid reductions in essential services and counterproductive state and local tax increases.’ § 3(b), 123 Stat 115, 116 then provides: ‘The President and the heads of Federal departments and agencies shall manage and expend the funds made available in this Act so as to achieve the purposes specified in subsection (a), including commencing expenditures and activities as quickly as possible consistent with prudent management.'

211 Mitchell, H Rubinstein, ‘Obama's Big Deal; The 2009 Federal Stimulus; Labor and Employment Law at the Crossroads’ (2009) 33 Rutgers Law Record 1Google Scholar.

212 41 USC ch 4; and CFR, title 48.

213 See American Recovery and Investment Act of 2009, Pub L No 111-5, § 1610, 123 Stat 115, 304–5.

214 American Recovery and Investment Act of 2009, Pub L No 111-5, § 1605, 123 Stat 115, 303.

215 That is the practical effect of American Recovery and Investment Act of 2009, Pub L No 111-5, § 1610, 123 Stat 115, 304–5; see Steven, L Schooner and Christopher, R Yukins, ‘Tempering “Buy American” in the Recovery Act — Steering Clear of a Trade War’ (2009) 51(10) The Government Contractor78Google Scholar (Public Law and Legal Theory Working Paper No. 462, The George Washington University Law School).

216 Schooner and Yukins, above n 215.

217 Ibid.

218 See Re HIH Casualty & General Insurance Ltd [2008] 1 WLR 852 (HL). The extent of the discretion to depart from this default position remains unclear.

219 Banking Act 2009 (UK), c 1, s 39. See Avgouleas, above n 163, 232.

220 See HM Treasury's Financial Sanctions Notice of 17 October 2008, explaining The Landsbanki Freezing Order 2008 (UK) SI 2008 No 2668.

221 Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, s 4(2)(a).

222 Brendan, O'Leary, ‘What Should Public Lawyers Do?’ (1992) 12 Oxford Journal of Legal Studies 404Google Scholar.

223 ‘Inevitably arbitrary’ according to Avgouleas, above n 163, 231.