Editors --- "Bits" [2002] AltLawJl 61; (2002) 27(3) Alternative Law Journal 153

• BITS
• Raging Partners: Two Worlds, One Friendship
• District Court decisions and the Internet
• Regulatory penalties - criminal, civil, administrative

BITS

Raging Partners: Two Worlds, One Friendship

by 0. Smith and D. Plater; Magabala Books 2000, Broome; $21.95.

In Raging Partners Ollie and Diana tell the true story about their friendship as it developed over several decades. Diana Plater is a journalist and Ollie Smith is a Timorese/Aboriginal woman who has worked in various government Aboriginal agencies. The women originally met when Diana, who had become interested in Aboriginal issues and was working in Broome, became involved with Ollie's younger brother, Pudding. The relationship with Pudding lasted only a few years but the friendship that developed between Ollie and Diana has endured over the decades. Ollie and Diana narrate their own stories and provide a different perspective on the events and periods of each other's story.

Each woman's life story unfolds during a period of involvement in Aboriginal celebration and political activism. These events and a group of common friends continually draw them together and their friendship evolves and deepens over the decades even though they spend long stretches of time living in different places.

As the reader gets to know about Ollie, you realise her story is about the discovery of her family and identity. It is awe inspiring to find out about Ollie's life. How she goes in and out of an orphanage, how she grows up to become a nurse, mother and a successful career woman who is then driven to try and understand why her mother placed her in an orphanage. In the process she finds that the father she had never meet, a Timorese pearl diver, was forced to leave Australia because he was co-habiting with an Aboriginal woman.

Diana's story is also about her personal development through her work and interaction with Aboriginal Australia. After successfully delivering her first child, Diana's 'grief' comes with two miscarriages late in the pregnancies. As a result Diana writes a self-help book called Taking Control, and is rewarded with the successful arrival of her fourth child.

Although in many ways Ollie and Diana have very ordinary lives, there is something intriguing about the depth of their friendship and the uniqueness of their individual lives that makes the book interesting. Both women have had a long-term interest and involvement in achieving justice for Aboriginal people and over time they discover who they are and what they want out of life, but it is the depth of their friendship that holds them together even when a continent divides them.

HELEN MACDONALD

Helen Macdonald is native title adviser and community relations manager for Newmont Australia.

District Court decisions and the Internet

As with all judges, those of the NSW District Court come under criticism for their decisions. Often the question is asked: 'how did they get there?' The question should be: 'how do they get to stay there?' For NSW District Court judges the answer would be easier if there was free access via the Internet to their decisions so they would not be read in isolation.

Two recent NSW Court of Appeal decisions highlight the problem: Agostino v Pham [2002] NSWCA 114 (26 April 2002) and Bugeja v Hatgiantounino [2002] NSWCA 132 (3 May 2002). Both involve appeals against District Court decisions, both involve the same judge and both concern motor accidents legislation.

The original decisions were over­ turned and new trials ordered, thereby imposing an additional cost on the par­ ties to the proceedings. In Agostino the Court of Appeal found there had been a failure to give proper reasons, an apparent failure to properly consider evidence and no attempt to assign responsibility to either defendant. In Bugeja similar criticism was made and the Court observed:

In general it may be said that the reasons for judgment are ill-ordered, very short of reasoning at key points, affected by admitted mathematical error which led to a significant outcome in point of costs from the plaintiff's point of view and redolent of an unfamiliarity with both the legislation and the field generally. [para7]

Ouch. In order to properly study justice at such an important judicial level, especially in view of the increased jurisdiction of the District Court in recent years, access to decisions is essential to allay any suggestion such appellate

observations might apply in other than isolated instances. Jeremy Bentham would approve I'm sure.

PETER WILMSHURST

Peter Wilmshurst is a Sydney lawyer.

Regulatory penalties - criminal, civil, administrative

Australian Law Reform Commission.

The ALRC released its discussion paper, Securing Compliance: Civil and Administrative Penalties in Federal Regulation (DP 65), at the end of May. Its brief was to look at the 2400-odd federal regulatory penalties -criminal, civil and administrative-and propose guidelines for procedures and protections which should apply under each category. Civil penalties are a growing feature of federal regulation: they include multi-million dollar penalties under the Trade Practices Act, for instance. The regulator does not have to prove the matter to the criminal standard or follow criminal court procedures; there is also no finding of criminal liability and no criminal record.

Key issues discussed in the DP include the need for clearer guidelines on appropriate protections, rights of appeal, and requisite culpable mental states, and the importance of fairness, consistency and parity across the federal system. It may be far more serious for a social security recipient to lose 26 weeks benefit, administratively imposed by Centrelink, for moving to an area with fewer jobs, than for a business executive to receive a $100,000 civil penalty for a trade practices contravention.

The DP is available from the ALRC or online at <www.alrc.gov.au>.

Submissions close on 31 August 2002.

BRONWYN NAYLOR

Bronwyn Naylor teaches law at Monash University.

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