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Cite as: (2003) 77(4) LIJ, p.78

Crime, technology contracts, the dissolution of legal theory and employment law are the subjects of this month’s reviews.

Crime, technology contracts, the dissolution of legal theory and employment law are the subjects of this month’s reviews.

Crime – A-Z guide

David Ross, CrimeA-Z guide, 2002, Lawbook Co, paperback $110.

Criminal law practitioners should welcome the publication of Crime by David Ross QC into book form (it was previously published as a looseleaf service). For practitioners who may be short of time to thoroughly research matters that arise in the course of practice, it will be of great use.

It is presented in almost encyclopedic form with discrete areas of substantive and procedural criminal law listed alphabetically. This presentation is a shift from the normal practice of arranging legal texts according to topics. The difficulty with the traditional style of presentation is that a practitioner may spend considerable time trying to locate a legally correct answer.

In contrast, David Ross allows a practitioner to proceed quickly to the desired subject and be provided with a succinct and authoritative answer. For example, a client may request an adjournment of their case. A practitioner will locate under “Adjournment” a statement of the principle of the discretion to adjourn.

In addition, the leading authorities will be cited, as well as any relevant statutory rules governing the area. There will be illustrations of the principle with practical examples that have arisen in the area of law under consideration.

Finally, there are references to other cases, relevant textbooks and journal articles if the practitioner requires further analysis.

The content is not exclusively confined to Victoria, although the primary focus is that state. All states and territories are considered, as is commonwealth legislation and authorities. Substantive and procedural aspects of the criminal law are covered in a comprehensive manner.

This work is highly recommended and any practitioner with a substantial area of practice in criminal law ought to have a copy.

Richard Edney
Criminal lawyer


Technology Contracts: A handbook for law and business in Australia

Margaret Calvert and Ian Reid, Technology Contracts: A handbook for law and business in Australia (2nd edn), 2002, LexisNexis Butterworths, paperback $120.

How does a writer “hook” his or her audience? They try something unexpected on the first page, which is exactly what Margaret Calvert and Ian Reid do when they open their volume on Technology Contracts with “Climate affects business and people everywhere, and is the subject of study and research worldwide”.

“What has climate to do with technology contracts?”, you ask yourself – an intended response which is, of course, the authors’ opening to tell the reader that technology exists to monitor and measure, forecast and understand weather. They expand on this, pointing out that in an international context this involves collecting data from the ocean depths, collecting and transmitting information via satellites in space, and making it available within hours of collection. They also explain how this information can be sold, licensed, or made freely available, and then used for a multitude of other purposes. The crucial point being made is that there are a number of significant contractual issues which can arise in this area which is dominated by the use of modern technologies.

The authors’ aim is to provide a single book which identifies the major legal issues in negotiating and drafting technology contracts. The structure is straightforward, beginning with basics, “Making a contract”, and then progressing through to more complex areas, “Protecting technology”, “Other issues” – including competition and tax issues – and “Risks”.

Each part is supported by discussions of case law and statutory regimes, as well as notations as to uncertainties in particular areas and how these might be catered for.

In addition, the structure of the work takes a broader view than is usual in legal texts. It gives suggestions as to how this law should be applied, not merely leaving the material in the lawyer’s domain but clearly being intended for non-lawyers as well, and includes topics with headings such as “How to involve staff” when discussing risk management.

This noted, it would be wrong to describe this text as a “how to” guide, because that suggests a lack of depth and that is clearly not the case with the authors’ work. One of the really useful features of this text is the provision by the authors of examples of “standard” clauses for contracts and precedents dealing with all manner of situations ranging from employee obligations to confidentiality obligations, from licence rights to assignment of intellectual property rights and from dispute settlement clauses to choice of law clauses.

This is clearly a text which has been produced with practical benefits in mind, designed to be regularly used.

Andrew Field
Lecturer, Department of Business Law and Taxation, Monash University


Asking the Law Question: The dissolution of legal theory

Margaret Davies, Asking the Law Question: The dissolution of legal theory (2nd edn), 2002, Lawbook Co, paperback $68.25.

“Boring”, I hear you say as your eye moves on to the next book review. Wait a moment, because this text contains some topical and stimulating material. Jurisprudence is usually relegated to an obscure optional subject in a few traditional universities, yet deserves a greater place in the curriculum and among practising lawyers.

Margaret Davies acknowledges the reputation of her discipline in the first chapter by addressing the question: “What is it?”. For those interested in the history of legal philosophy, chapters 2 and 3 summarise the classical common law theory and natural law and positivism. Here will be found the answer to the perennially relevant question of the distinction between law and morality.

The remaining five chapters contain the more innovative and stimulating material.

Critics of the Family Court and its alleged gender bias and opponents of the recognition of same sex relationships would do well to peruse chapter 6, which explores the issues of feminism and gender in legal theory. With readings from authors such as Irene Watson and several extracts from Catharine McKinnon, a range of views is examined. Linking them all, Davies, writing in the first person, concludes that:

“...moving beyond sex-based oppression will, in my view, involve a transformation in the social perception of sex/gender and, possibly, the recognition of plural, non-hierarchical versions of gender and sexuality.”

With recent High Court decisions on native land title and even the consideration by the Victorian Law Reform Commission of oaths in court in our multicultural society, chapter 7 is recommended reading. Entitled “Race and colonialism: legal theory as white mythology”, Davies divides race theory into three sections:

  • colonialism and post-colonialism;
  • whiteness; and
  • race consciousness.

The application of these concepts to practical issues before the courts, legislature and law reform commissions becomes referable to these theories.

The overall aim of this book is to challenge our perception that law is an “end” in that it imposes constraints of how we think and act. The author concludes: “...the concept of law which predominates in Western thought is not the only concept of law: law is itself a plural concept and cannot be reduced to a single perspective.”

I endorse the publisher’s description of this second edition as an accessible, original and highly readable account of legal philosophy. It deserves to be read by all who are concerned about where the law is going and how it can better serve our contemporary community.

Alan Ray
Springvale Monash Legal Service Inc


Employment Law in Principle

Rohan Price, Employment Law in Principle, 2002, Lawbook Co, paperback $60.50.

This is an excellent textbook for those requiring the fundamentals of employment law. The book is divided into four main parts, commencing with an introduction of the principles and history of employment law, including a discussion of the different classes of workers, basic rights and freedom of contract. The following parts deal with the various aspects involved in the actual contract of employment and an examination of legislation, awards and other regulations governing employment law. The final part of the text examines discrimination in employment and the laws providing protection to the employee.

The text is well laid out, organised and covers all the main topics that could be of relevance to professional practice.

The book’s objective is to provide general background material on employment law by extracting principles from recent cases and familiar authorities and placing them in a context that makes the law understandable. These things not only give the text extra authority, but make it easy to go further when one needs to look at a particular issue in more detail. The information is presented in a clear and concise format.

One of my favourite aspects of this book was the many flow-charts and diagrams used throughout the text to illustrate the main concepts. These set out legislative and regulatory requirements in a step-by-step guide and aid greatly in understanding the different interpretations of employment law that have been made by the courts.

The author presents an excellent list of tutorial questions and essay topics at the conclusion of each chapter. There is a short dot-point summary at the start of each chapter, preceded with some recommended reading, and further reading materials set out at the end of each chapter. These references are excellent selections and add to the book’s value, making it a useful tool for both the student and the professional.

Although this book is aimed primarily at the student, I believe it should appeal more widely to practitioners of employment law and it comes highly recommended.

Miriam Karelsky
Corporate Lawyer, National Australia Bank


Reviewers Wanted

The LIJ is always looking to increase its database of book reviewers.* Keen readers with specialist knowledge who are willing to write 600-word reviews should contact Michele Frankeni, tel 9607 9349 or email mfrankeni@liv.asn.au.

* Reviewers get to keep the copy of the book they review.

books@liv.asn.au

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