Preece, Alun A --- "Moens and Biffot: The Convergence of Legal Systems in the 21st Century: An Australian Approach " [2003] IntTBLawRw 14; (2003) 8 International Trade and Business Law Review 427

• Book Reviews
• Edited by Garrick Professor Gabriël A Moens and Dr Rodolphe Biffot, The Convergence of Legal Systems in the 21st Century: An Australian Approach,

Book Reviews

Edited by Garrick Professor Gabriël A Moens and Dr Rodolphe Biffot, The Convergence of Legal Systems in the 21st Century: An Australian Approach,

Copyright Publishing Company Pty Ltd, 2002, ISBN 1 876344 09 1

The modern study and practice of comparative law is to a large extent recognised as having begun in 1900 at the International Congress of Comparative Law held in Paris. This was the beginning of a series of such conferences—which are now quadrennial— with the 16th Congress of the International Academy of Comparative Law being held just over a century later, in July 2002, at the University of Queensland (hosted by the Australian Institute of Foreign and Comparative Law, located in the TC Beirne School of Law). In conjunction with the conference, the principal organisers brought out this edited compilation of articles compiled by leading Australian legal experts.

In 1900, the conference Zeitgeist was an optimistic faith in progress, a strong desire for mastery of one’s fate, and the forging of a common destiny. The founders talked of a common law of mankind, a world law created by the comparative legal method. In 2002, the conference theme was Convergence of Legal Systems in the 21st Century, and this compilation deals with the Australian approach to this concept.

After a brief introduction by the editors, the book is sub-divided into collections of articles on the topics of six of the main conference sessions: E-commerce, Constitutional Law, Legal Philosophy and Theory, Criminal Law, Commercial Law and Dispute Resolution. While no book of practicable length could be comprehensive in its choice of topics, this is an excellent selection in covering most of the main areas of legal knowledge, including those where current developments are most active. There is no doubt that the book is and will remain a very valuable research tool.

In their introduction, the editors justify the choice of theme on the basis of it being appropriate, at the commencement of a new century, to reflect on the similarities of the major legal systems of the world. They also furnish a very useful short guide to the contents of all the articles included. Although all authors are Australian, only a few articles relate to matters of current or recent controversy in Australia: notably Lynne Barnes’ article on ‘Sentencing’, which in large measure relates to the issues raised by particular provisions for mandatory sentencing in Western Australia and the Northern Territory of Australia, which have since been repealed following changes of government. The only flaw in this otherwise comprehensive discussion is that it completely ignores the wide range of mandatory sentences imposed for matters such as motoring offences. The article also discusses the issues and difficulties raised by guideline judgment legislation in New South Wales, and mentions the recent imposition of minimum sentences at federal level to combat ‘people smuggling’ in the wake of the late 2001 crisis precipitated by the MV Tampa episode. It also touches upon the underlying constitutional issues of separation of powers between the legislature and judiciary.

In the other articles grouped under heading of ‘Criminal Law’, Richard Refshauge furnishes an excellent account of the history and practice of prosecutorial discretion in Australia, making very interesting comparisons with the United Kingdom, and the other three articles involve constitutional and international issues. Carolyn Evans has provided a very comprehensive account of the law bearing on the criminal liability of ministers, governors and governors-general in Australia, identifying such murky issues as the uncertainty over whether customary international law applies in Australia. The article contributed by Alexis Goh and Steven Freeland is complementary in that it discusses the International Criminal Court established on 1 July 2002. It also explicitly mentions the tension between national sovereignty and international law, which underlies most of the acute current legal and political controversies. Professor David Lanham has supplied a comprehensive account of the use of Australian criminal law and its international offshoots in fighting corruption.

Also in the fields of constitutional and international law, John Trone is an acknowledged expert on all aspects of the constitutional treaty making powers of the Government and Parliament of the Commonwealth of Australia. He has brought his very considerable expertise to bear in formulating a comprehensive analysis of constitutions and treaty on contractual rights and freedoms. Simon Evans and Stephen Donoghue have contributed a veritable tome on the issue of standing in constitutional cases, including a discussion of the justiciability of such matters as seeking to restrain a double dissolution of Parliament.

Jenni Whelan and Christine Fougere discuss ‘The Proscription of Hate Speech in Australia’. It is a well documented history of the law in this area, but explicitly one-sided in unashamedly advocating greater restrictions on free expression. There is no consideration of arguments for greater freedom of communication Of course, no article can currently answer the question to what extent, if at all, the implied constitutional protection of freedom of political communication will invalidate such proscriptions. Professor Richard Bartlett discusses comprehensively The Status of Indigenous People in Australia’ and its history during the period of European settlement. He is very critical of the attitudes of settlers and Governments, as he is in many of his other writings.

In a much less controversial—but probably far more important—area of the lives of most people and businesses, Alexander Reilly has carefully analysed the financial and budgetary arrangements in the Australian Federation, providing much very useful statistical information in the process. Figures are given for the last year before the introduction of the Goods and Services Tax as part of a major taxation reform on 1 July 2001, as well as for later periods, providing a very interesting comparison. He has identified problems arising for the pronounced vertical fiscal imbalance, such as the consequent reluctance of States to privatise utilities.

The consequences of privatisation are also ably discussed by Martin Klapper, in the context of administrative law, in the ‘Legal Philosophy and Theory’ section, where Iain Stewart makes many exceedingly interesting and well argued and supported observations in discussing The Structure of the Australian Legal System’. Public finance and privatisation are also relevant in Keturah Whitford’s incisive discussion of issues relating to ‘Insolvency of Public Entities in Australia’. Finally, in this section, Klaus A Ziegert discusses ‘Australian Families and their Law’, analysing the changes in both Australian family law and comparative law itself over the 20th century.

Business and economic issues are very well covered, with articles in the ‘Commercial Law’ section on ‘Liability for Defective Products’ (Professor Peter Gillies); ‘Present and Future of Real and Personal Securities’ (Anne Wallace); ‘Limits and Control of Competition with a View to International Harmonisation’ (Paul Latimer); ‘Rights of Minority Shareholders’ (Keith Fletcher); and ‘Collective Agreements and Individual Contracts of Employment’ (Andrew Frazer).

Also, the section on ‘Dispute Resolution’ comprises an analysis of developments in Mediation in Australia by Professor Tania Sourdin, and dispute resolution in sport by Saul Fridman and Chris Davies. Apart from this, commercial issues are well represented. In ‘E-commerce’, Annelies Moens and John Selby discuss the current issues of electronic transactions and privacy legislation, and interactive gambling. Clive Turner, a leading authority on intellectual property, provides an account of the effect of the recent copyright legislation dealing with digital issues, notable for its conciseness and clarity.

Alun A Preece