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Cite as: (2004) 78(4) LIJ, p.74

This month’s reviews cover the law relating to directors, the Refugees Convention, bail law and South Australia’s first judge.

Law for Directors

Geoffrey Gibson, Law for Directors, 2003, The Federation Press, hardback $75.

I once heard an experienced practitioner quip that the real criminals before the Supreme Court were among the litigants in the Commercial List. He was referring in part to those cases where directors who had succumbed to greed had breached their duties to a company.

Directors are in a position of trust. They are expected not only to manage a company diligently, but also to ensure that their own interests do not conflict with those of the company.

Many directors of companies are intelligent and trustworthy. They are hardworking people of integrity who deserve and sometimes receive our admiration. In those cases where temptation leads directors to breach their duties, sometimes I suspect that the breach is born not so much of evil but perhaps more of ignorance.

There are many books for directors about their duties but Law for Directors is not just another one. Few such books are written by so experienced a practitioner as Geoffrey Gibson and even fewer are written in such a readable and good-humoured style.

Law for Directors is a slim volume comprising two parts.

The first part discusses the law which directly relates to directors. This includes topics about appointment, remuneration, duties (appropriately the longest chapter of the book), liabilities, meetings, related third party transactions, oppression of minorities and insolvent trading.

The second part summarises in a very “broad brush” style general areas of the law which may affect directors.

These include competition law, confidentiality, contract, equity, media law, negligence and taxation. The second part of the book may seem too ambitious, especially for a book of 214 pages, but as the author explains in the introduction, it is meant only to present basic concepts to enable directors to assess the specialist advice that they receive.

I enjoyed reading Law for Directors. Geoffrey Gibson writes extremely well. While not really designed for the legally trained director, it is nevertheless a handy summary of the relevant laws. The Federation Press has done well in publishing this book and many directors will do even better if they read it.

Matthew Harvey
Barrister

The Refugees Convention 50 Years On: Globalisation and international law

Susan Kneebone (ed), The Refugees Convention 50 Years On: Globalisation and international law, 2003, Ashgate Publishing Ltd, hardback $169.40.

The Refugees Convention 50 Years On: Globalisation and international law is a collection of essays arising from a workshop held in Melbourne on the eve of the 50th anniversary of the Refugees Convention to review and critique the Convention, its history and its future place and direction in both our Australian and global society.

Contributors to the book include a range of academics from Australia and abroad, as well as a barrister practising in immigration and refugee law and the likes of Robert Illingworth, assistant secretary to the Onshore Protection Branch of the Refugee and Humanitarian Division of DIMIA, and Jose Gonzaga, a legal officer with the UN High Commissioner for Refugees (UNHCR), Canberra.

The book covers a number of topics and issues pertinent to the Convention and whether it provides an adequate framework of protection in the context of globalisation and a developed international law regime.

For example, Jose Gonzaga provides a reasoned evaluation of the role of the UNHCR and its interpretation of who constitutes a “refugee”. His essay assesses the approach of some states to adopt harsher refugee policies in response to perceived shortcomings under the Convention as well as criticisms from refugee advocacy groups that the Convention too narrowly defines refugees and thereby excludes many people who should rightfully fall within the class of persons which the Convention was established to protect.

Other essays address issues such as the relationship between refugee problems and broader issues of globalisation, possible solutions for refugee status determination, the reaction of western governments to the refugee problem, the relationship between the Convention and other related international instruments such as the International Covenant on Civil and Political Rights and the Convention Against Torture, and the rise of sexuality as a ground for refugee status.

While the contributors come predominantly from an academic background, the essays engage extensively with real life experience and data in assessing the key issues relevant to refugees, globalisation and international law. At a time when refugees continue to dominate government policy, electoral campaign platforms and daily newspaper headlines, this book provides a useful backdrop to understanding the key issues – legally, socially and politically – which confront this important international Convention.

Brook Hely
Minter Ellison

Bail Law in Victoria

George Hampel and Daniel Gurvich, Bail Law in Victoria, 2003, The Federation Press, paperback $39.95.

George Hampel, former Supreme Court judge and now a professor at Monash University, and Daniel Gurvich, a Melbourne criminal law barrister, have penned a useful reference book for bail applications made in a variety of different jurisdictions with relevance to Victorian practice. The book is unassuming, accessibly written and well-organised.

Bail Law in Victoria is divided into logical sections which systematically set out the legislative framework and the general principles in relation to the grant, refusal and continuation of bail; bail at committal, trial and on appeal; bail for federal offences and in the Children’s Court; and evidence, practice and advocacy in bail applications.

The authors note the Full Court decision in Beljajev v DPP (unreported, VSCA, 8 August 1991) where it was held that a bail decision “must necessarily be to a very considerable extent a matter of impression or an instinctive synthesis of the considerations involved”. Nonetheless, there is a considerable amount of case law and practice that pertains uniquely to bail applications. Moreover, practice and law differ from jurisdiction to jurisdiction.

Certain common scenarios for bail require the accused in Victoria to “show cause” or even to establish “exceptional circumstances”. A series of decisions is reviewed by the authors about when delay in a trial or a committal constitute “exceptional circumstances”, as well as issues such as poor health of the accused and weakness in the prosecution case. This is very useful material for solicitors and barristers alike in organising their arguments and in providing advice in what can often be the tense situation of an accused and their family desperate for a (successful) bail application to be made.

A further element in bail applications is the consideration of whether there is an “unacceptable risk” (see Mokbel v DPP (Vic) (No 2) (2002) 132 A Crim R 290) that the accused will fail to answer bail at trial, commit offences while on bail, interfere with prosecution witnesses or otherwise obstruct the course of justice. The onus for showing such a risk is on the prosecution. A little more might have been said by the authors about the common issue raised against the accused that he or she is substance dependent and likely to “continue” offending if released on bail. However, once again this portion of the book helpfully and straightforwardly reviews the relevant authorities on the subject.

The practical sections in Bail Law in Victoria on evidence, practice and advocacy in bail applications are helpful and constructive. They might usefully be developed further so as to provide additional strategic and practical guidance to practitioners.

The authors comment that “It is interesting, though unfortunate, that advocates and judges do not have the guidance of the approach taken by other judges in similar cases” (p67). Bail Law in Victoria effectively addresses this deficit. It should lead to more precedent-influenced decision making and better structured and planned arguments by defence and prosecution representatives about whether bail should be granted to persons arrested for suspected criminal offences.

This book should be regarded as an obligatory purchase for Victorian criminal law practitioners.

Dr Ian Freckelton
Barrister

Lives of the Australian Chief Justices: Sir Charles Cooper

Dr JM Bennett, Lives of the Australian Chief Justices: Sir Charles Cooper, 2002, The Federation Press, hardback $49.50.

Sir Charles Cooper was not only South Australia’s first Chief Justice, he was South Australia’s first judge. He was appointed in 1838 when the colony had a population of 2800. Supreme Court sittings were held at his residence and sessions were dominated by crimes committed by visiting convicts and civil disputes between prominent individuals in the parochial colony. Dr Bennett describes the controversy over the judge’s application of the criminal law to Aboriginal people: if the defendant had had no appreciable contact with Europeans, English law or language he could not be tried according to English law.

Dr Bennett has an interesting style, which combines a recounting of historical and biographical details in a straightforward narrative style with legal analysis of significant cases. Altogether, a surprisingly fascinating and accessible work.

Mary Sevdalis
Barrister


Reviewers wanted

The LIJ is looking for reviewers for legal business texts, including practice management, business development and information technology for law firms. Keen readers with knowledge in these areas who are willing to write 400 word reviews should contact Alison Shield at ashield@liv.asn.au. Reviewers get to keep a copy of the book they review.

books@liv.asn.au

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