Journal of Law, Information and Science
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BY PETER RUSH
Butterworths, 1997, 456 pages
Peter Rush’s Criminal Law makes a valuable contribution to the pool of resources available for those engaged in the study of criminal law. Rush is a Senior Lecturer in Law at Deakin University and this experience is reflected in the production of a text that is both explanatory and challenging.
Criminal Law is designed as a companion to be used in conjunction with any criminal law casebook. It is refreshing in its approach as it aims to move away from the traditional style of questioning - ‘questions [with] ready-made answers.’ It aims to moves towards questions that do not have a ready answer and questions that encourage us to think about the underlying nature of the law and the assumptions on which it is based. Its objective is to ‘ask and reask the question of the value of the law’. Rush’s audience is ‘those readers who are willing to confront the problems of criminal law’.
The text deals thoroughly with the various doctrines of criminal law and challenges the reader with insightful questions about the doctrines. The style of Criminal Law is both accessible and thought provoking. It is written in a conversational style. It links the theory of the law to its practical operation.
In the first three chapters it considers the criminal subject, institutional procedures and general principles of criminal responsibility. The remainder of the text addresses specific offences (property offences, assault, rape, violent crimes of property and homicide, including attempts) and various defences available in the criminal law (provocation, self-defence, duress, necessity, insanity and intoxication).
The structure of Criminal Law enhances its accessibility to the reader. It is well-structured. Each chapter commences with a preview that provides an introduction to the topic and an outline of the learning objectives for the chapter. Each chapter provides a concise and useful summary of the law. Understanding of the law is facilitated by the questions contained in each chapter which encourage the reader to critically access the law. References to leading cases are included throughout the chapters, together with questions that assist the reader to critically analyse the case.
Each chapter concludes with a series of review questions and recommended further readings. The review questions vary from those which require a summary of the material dealt with in the chapter to problem style questions. Some review questions are designed to extend the reader’s thinking as they encourage critical reflection on the particular doctrine of criminal law. The questions encourage the reader to draw links between the various doctrines of criminal law.
The further readings suggested are quite comprehensive. These include references to Law Reform reports, textbooks and journal articles. The further readings address some of the theoretical issues raised and enable students to pursue the analysis of the law encouraged by the text.
The text predominantly deals with the common law, however those studying criminal law in Code jurisdictions will also find it useful. Criminal Law has a lot to offer the student. Its perceptive questioning encourages active participation in the learning process. It aims for more than superficial learning. The style and content of the text will assist the reader’s reflective thinking and the development of deep understanding.
Review by Rebecca Bradfield, Postgraduate Student, Law School, University of Tasmania.
BY RB VERMEESCH & KE LINDGREN
Butterworths, 1998, 9th edition, 1427 pages including index, table of cases, table of statutes, glossary and comparative legislation table.
This monograph, now in its 9th edition, remains a popular prescribed text for business law courses throughout Australia. It is a comprehensive work, totalling 1400+ pages with chapters not only covering the well-known areas of contract, torts, property and criminal law but the lesser known subjects such as banking, guarantee and suretyship, succession and trusts, securities and futures, and law and society. Written by a number of contributors, all specialists in their chosen field, and compiled by the principal authors, the text brings together the expertise and experience of a number of people. The text also features a comprehensive table of cases and table of legislation and a detailed glossary. Improvements since the last edition include the restructuring of the book to make it more user-friendly. Features include more paragraphing, cross-referencing and the substantive material in the main text, with detail being placed in the footnotes. These improvements can only lead to greater and more beneficial use of the book.
This massive work deserves its place at the forefront of business law texts. Indeed, given its long history, it is a difficult process to critically review any text so widely used and regularly republished. It is an impressive and detailed account of business law principles. Any lecturer considering prescribing a detailed black-letter law based textbook with an accurate and principled treatment of the many areas affecting business law would be well served by it.
Perhaps if there is to be a criticism, and arguably it is not a criticism, the text is now too large and substantive to be adequately utilised as a monograph for business law studies. Units such as commercial law, business law etc may only occupy 13 weeks or one semester in the university calendar. Typically there may only be 2 lectures or seminars per week. If this is the case what chance has the lecturer of utilising all 33 chapters of the text? Quite possibly the text has become so substantial that some of its competitors in business law, which are around half the size, may be more appealing to the academic looking for value for money for her/his students.
The other point about the text is its heavy concentration upon contract law. Indeed of the 33 chapters, 11 (approximately 270 pages) concentrate upon contractual principles. Whilst this reviewer accepts that contract law is a central feature of business law, possibly its emphasis here is at the expense of other areas which may be of equal significance to business today, such as Trade Practices/Fair Trading legislation. It could also be said that greater use could be made throughout the book of tables or diagrams (such as presently exist in chapter 23) to assist the reader in understanding the principles. Similarly the principles are stated without any active questioning being imposed on the undergraduate - though admittedly the text can be obtained with a workbook to assist in this process.
The final point that I would make about the text is that law courses are tending to decry straight black-letter law teaching and increasingly to move towards a consideration of the legal principles in the context of social, political and economic aims. This text does not attempt that sojourn to any great degree and whilst that is not a criticism, it is a point that would be considered by an academic analysing whether to prescribe it.
As an academic the final question that must be addressed is whether I would prescribe Business Law of Australia. For a one year unit on Commercial Law concentrating on the principles of the law, the answer is yes. However if I was looking to teach a one semester unit with a heavy concentration upon the examination of business law principles within the society, I suspect that I would look elsewhere. Despite this it is a monograph worthy of its excellent reputation and consideration as the prescribed text for any commercial or business law course.
Review by Lynden Griggs, Lecturer in Law, University of Tasmania.
BY R.G. KENNY
Butterworths, 1997, 297 pages
This is the fourth edition of Kenny’s standard work on Criminal Law in the Code States. Since the third edition was published in 1990 there have been many changes to the Criminal Law. There are now comprehensive schemes for dealing with young offenders. In Queensland important amendments relating to sexual offences have been introduced to the Code. In Western Australia there have been changes made to the law relating to property offences. In 1995, Queensland lawyers endured the passing (and subsequent repeal in 1996) of a new Criminal Code. A new edition of Mr. Kenny’s work is thus both timely and relevant.
This is the first edition that Mr. Kenny has written without the assistance of his “partner in crime” (forgive the pun), Jim Herlihy. Mr. Herlihy is now a Queensland Magistrate.
This book is modest in its aims, presenting a text of an introductory nature suitable to students, law teachers and practitioners. The book far exceeds expectations.
The book is divided into 15 chapters. In the introductory chapter, the history of criminal law in Australia is discussed, and the principles of interpretation unique to codes are canvassed. There are also chapters on the trial courts and trial process, appeals, classification of offences, the onus of proof, special pleas, criminal responsibility, parties to offences, special categories of liability, preliminary offences, homicide, offences against the person, sexual offences and offences relating to property. The text (including indexes) comes to 297 pages.
The exposition of the principles of criminal law is clear and concise. Mr. Kenny is not satisfied with glib mention of the names of cases with a footnote reference for the curious reader. Often he summarises the cases - a real boon for student readers. The text is impeccably referenced and, importantly for readers coming afresh to criminal law, the index is extensively cross-referenced. The law is stated as at November 1996.
Criticisms of this work are few in number. The ordering of topics perhaps needs some reconsideration. This writer would prefer classification of offences to pre-date consideration of the trial courts and trial processes. The font size chosen for the text is also problematic. The main text is small in size, the quoted text simply far too small for easy reading. These, however, are very minor matters.
Overall, Mr. Kenny’s text is a first class book to use in teaching criminal law and an invaluable reference tool for practitioners. It richly deserves its tag as the leading text on Queensland Criminal Law.
Review by John A Devereux, Professor of Law, University of Tasmania.
EDITED BY GRAHAM HILEY QC
Butterworths, 1997, 229 pages
Few legal controversies have gripped Australia in recent years like that surrounding Aboriginal land rights. Mass media scrutiny began with the High Court's judgment in Mabo v Queensland (No.2)[1], and subsequently moved on to the debate surrounding the Native Title Act 1993 (Cth), and the overruling of Western Australia's native title legislation in 1995.[2] Most recently, attention has focused on the High Court's decision in The Wik Peoples v Queensland[3], which dealt with the relationship between pastoral leases and native title, and the likely impact of the case on agricultural and mineral resource activities across much of Australia.
The content and implications of the Wik Case as explored in this work edited by Graham Halloo QC. The book's structure is unusual, as it consists of a series of 11 vignettes on different aspects of the decision and their ramifications, and then extracts the entire judgment (complete with original page references) from the Australian Law Reports. A publisher's note indicates that the this permits readers to have direct access to the case, and to refer to the case itself without the inconvenience of having the reports to hand. Given the raison d'être of the book is the Wik Case, and all the individual authors' references to it use the ALR references, this is an innovative way of aiding the reader and is worthy of commendation.
The selection of authors is also unusual. All but one of the 11 pieces were written by individuals who were directly involved in the case itself, and from all sides of it. This means the individual articles deal with the critical issues of the case, and in a measured and balanced way - which is always advantageous with such an emotive subject. On the downside, the articles are rather short, the longest being 13 pages and the shortest being a mere 3 pages. Given the value of each author's contribution, it is disappointing that longer and more detailed analyses of the case were not undertaken.
Each piece examines a particular aspect of the decision, or the ramifications of the decision on particular interests. After a brief but succinct introduction by Graham Hiley, Philip Hunter gives a neat history of the case, and breakdown of the principal legal issues involved. John Bottoms gives an account of the High Court's views on the related Thayorre claim, heard contemporaneously with Wik, while Peter McDermott summarises the impact of Wik on the doctrine of tenures. Paul Smith gives an analysis of the Court's attitude to pastoral leases co-existing with native title, effectively tackling the subject area most often misrepresented or misunderstood in the community at large.
Other articles focus on the impact of the case on particular interests. Consequently, Mark Love, who appeared for the pastoralists in Wik, gives a short piece on the "Farmgate Effect". Similarly, Simon Williamson considers the implications of the case on the minerals industry. Even more specific impacts are considered by Greg McIntyre, who considers the effect of the decision on Western Australia, and by Raelene Webb and Kenneth Pettit, who examine the likely consequences flowing from the decision on a lease permitting Aboriginal access to a pastoral holding. The latter identify such leases as an area that needs to be scrutinised carefully by the courts, and could probably be the core issue for the next significant native title case.
An interesting alternative to the strictly legal articles in the book is the small piece by Jonathan Fulcher examining the use of historical evidence in Wik. Of all the articles, this one suffers most from the abridged nature of each piece, and given the obvious relevance of it, it would have been much better served over possibly double the length. The articles conclude with three authors giving their joint opinion as to the potential difficulties of any Commonwealth or State based solutions to the questions raised in Wik. In this case, the authors would have benefited from access to the now famous 10 point plan put forward by the Prime Minister, but at the time of writing the plan was in formation and not available.
In all, the book represents a useful starting point for those who would wish to consider Wik deeply, and a convenient summary of the core issues and impacts for those who would wish only to make themselves familiar with the judgment. In either instance, it should be on the shelves of practitioner and lay person alike who would wish to participate in an informed manner on the issue of native title in Australia today.
Review by Stuart Kaye, Senior Lecturer in Law, University of Tasmania.
[1] [1992] HCA 23; (1992) 175 CLR 1
[2] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373
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