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Cite as: April 2015 89 (4) LIJ, p.67

This month's reviews cover the death penalty and family violence.

Climate Change and Coastal Development Law in Australia

Justine Bell, Climate Change and Coastal Development Law in Australia, The Federation Press, 2014, pb $85

Justine Bell’s Climate Change and Coastal Development Law in Australia is part of the emerging scholarship on climate change adaptation. Bell’s work is narrowly focused on the legal and policy response and the involvement and role of the law in coastal erosion, which is predicted to be one of the most dramatic and apparent effects of warmer oceans. Her book is timely as Australian communities have begun to experience the kind of damage upon which Bell’s book is predicated.

Because Bell is dealing with the climate as experienced, she is able to sidestep the brouhaha about the Australian carbon price legislation and the activist-styled battles over laws mandating renewable energy targets and feed-in tariffs across the Commonwealth that have formed the headline stories of climate change law in Australia over the recent decade.

Bell is one of the lawyers, scholars and policymakers that have been asking – mostly out of the media’s gaze – how will strategic and statutory planning and the law respond to or be deployed in a world affected by climate change?

Bell’s book starts with the evidence that sea levels have been gradually rising around the world, and that tidal and storm surge events have become more severe. Bell argues that in light of the uncertainty about the future extent of coastal erosion risks there is a need for government action. She identifies that action might take multiple forms. There is discussion and explanation of attempts to alter planning regimes for new settlements in potentially affected areas; imposing planning restrictions on current developments to avoid the impacts of coastal erosion; responsibilities to build protective infrastructure like sea walls; and the planned retreat of existing development away from coastal hazard zones.

Though confined in scope, Bell’s book offers a comprehensive legal and policy analysis within its 250 pages. Bell sets out the relevant policy and planning law across all Australian jurisdictions. She brings the reader up-to-date with innovative policy approaches by using case study examples and then outlines possible legal risks in failing to act – including landowner compensation claims for loss of property or negligence on the part of authorities.

BRAD JESSUP Centre for Energy and Environmental Law Melbourne Law School, The University of Melbourne

This House of Grief: The Story of a Murder Trial

Helen Garner, This House of Grief: The Story of a Murder Trial, Text Publishing, 2014, pb $33

On Father’s Day in 2005, Robert Farquharson drove his car into a dam near Winchelsea. His three young boys drowned. He was charged with murder. For eight years, the criminal trials and various appeals rolled on.

Garner immersed herself in the proceedings; at once both voyeur and also participant in the collective grief that the case engendered in the community. While the principal question of concern to the law was Farquharson’s intent, Garner’s is an impressive book because of her steadfast commitment to grappling with the more fundamentally human question: How could he do it?

What colours her exploration is disbelief and the hope, one that many held on to, that it was a coughing fit which led the children to their death and not a deliberate act of vengeance by an estranged husband. Hers is not a meditation on evil. Rather, Garner explores the suburban mundane. She investigates how ordinary, pathetic figures like Robert Farquharson can do extraordinarily cruel things and what resides beneath the surface that prompts them to do so.

Perhaps the real achievement of Garner’s book is in her capturing of the squalls and (particularly) the doldrums of a lengthy and complex criminal trial. She unflinchingly describes the inhabitants of the charged atmosphere of the Supreme Court. Her breathless admiration for some of the players in the drama of the case can tend toward the cloying, while compared with the scorn she reserves for some. Her extraction of the pithy SMS messages she receives from a barrister friend is a distracting device by which to explain the legal manoeuvres of the case. On the other hand, her exchanges with a teenage companion are utterly compelling. Her portraits of the various actors in the courtroom are lyrically woven with vignettes of the world beyond.

Family violence is currently being given much needed prominence in the media and among policymakers. Particularly in this context, this book is an important contribution to an ongoing dialogue. However, one is left with the feeling that House of Grief does not see Garner at the height of her (considerable) powers. Not because we are left without an answer to Farquharson’s crime, but because there is a sense that she is sometimes trying to fill pages, in the same way that an observer fills time at court.


Banking Law in Australia

Alan Tyree, Banking Law in Australia (8th edn), LexisNexis Butterworths, 2014, pb $140

In what has become a classic, Allan Tyree’s 8th edition of Banking Law in Australia covers a wide range of topics within the area of banking law in a way that is structured and accessible.

Without trying to provide an exhaustive list, the work covers areas such as the regulation of the banking system, the relationship between banker and customer and their respective duties, a discussion of the major types of accounts provided by banks, the law relating to cheques and misappropriated cheques, consumer protection in the context of banking law, the different types of lending arrangements offered by banks, secured lending with respect to real property and personal property, the banker’s lien and Mareva Orders and documentary credits.

It is axiomatic to state that banking law exists within a wider legal context such as the general law of contract and the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)). The author succeeds in providing a synthesis between these different areas of the law, some old and some modern, and in the process provides a thorough and up-to-date treatment of banking law in Australia. A fine example of this is his discussion of unconscionable conduct under s21 of the Australian Consumer Law as one of the exceptions to the autonomy principle that applies to documentary credits.

Although the work is aimed at being used as a student textbook, it will certainly be a useful text for practitioners, especially as a first port of call from where further research can be done, if necessary. The legal principles are set out in a logical way that is easy to follow with relevant case law well integrated within the text to provide practical illustrations of how the principles have been applied. The writing style is clear and easy to read.

HUGO DE KOCK Barrister

The Construction and Performance of Commercial Contracts

SA Christensen and WD Duncan, The Construction and Performance of Commercial Contracts, The Federation Press 2014, hb $165

The immediate problem faced by many authors is: “How can I stand out from the crowd?”

In the field of contract law, there are a number of well-respected texts already in the marketplace, making the problem for prospective authors of a new text that much more difficult.

The answer, in the case of this book, is: “Specialise”.

The learned authors of the text focus only on commercial contracts, and then only on construction and performance of those contracts.

The authors’ stated aim is to select a variety of common “boilerplate” clauses for analysis, show how judges have interpreted them and provide some key points for drafts-persons moving forward.

In their introductory remarks, the authors note (p15) that the High Court has in more recent times re-emphasised the primacy of the written terms of the contract in commercial dealings where attempts by the courts to introduce restitutionary and other equitable remedies into cases which are ultimately held to be routine breaches of contract have failed. They conclude that: “Generally, where the commercial relationship is regulated by a formal contract, the courts will accept the allocation of risk by the parties and if it is certain, will give effect to it”.

The work separates the clauses being examined into five categories:

1. clauses which allocate commercial risk (termination, liquidated damages, exclusion clauses, entire agreement causes) and those clauses which deal directly with the passing of risk and force majeure;

2. clauses relating directly to performance of the contract (contingent conditions, time conditions, notice provisions, further assurance clauses and confidentiality clauses);

3. clauses which introduce new parties to the transaction (assignment, novation and nomination);

4. clauses that create liabilities in third parties by way of guarantees and indemnities; and

5. clauses relating to dispute resolution.

The primary role of the text seems to be to assist those charged with drafting commercial contracts to consider the boilerplate clauses they include in a contract more carefully. The result of such consideration should be improved drafting and the production of more sound commercial contracts.

The text should be a useful addition to the library of lawyers charged with drafting commercial contracts.

BILL STARK Barrister

Douglas and Jones’s Administrative Law

Roger Douglas and Michael Head, Douglas and Jones’s Administrative Law (7th edn), The Federation Press, 2014, pb $145

Much of the skill required to run an administrative review case involves first, placing a construction on the statute most favourable to your client, and second, critiquing the impugned decision to discover whether it was made within the metes and bounds of the statute as you have construed it. The former is a challenge, but the latter can be all encompassing. Sometimes a different perspective is needed.

This is where Douglas and Jones’s Administrative Law comes to the fore. Now in its seventh edition, it has been in production for 21 years. Over that time, intellectual giant Roger Douglas (together with Michael Head who joins as co-author for the new edition) has meticulously curated all sources of jurisprudence to produce a distinctive treatment of administrative law. Much attention is of course devoted to the major cases on a given topic. However, many of the cases and articles extracted are unique and do not appear elsewhere, and give the reader a different gloss. This gloss may be just what you need to advance your case.

The book is a complete treatment of administrative law. It displays its subject in its widest context. While judicial review and its grounds occupy the lion’s share of the book, discussion of merits review, ombudsmen, freedom of information, obtaining reasons, auditors-general, and whistleblowing appear first. This reflects the authors’ (correct) view that “judicial review is not to be undertaken lightly” when “there are processes at work which ensure that even people with objectively arguable legal cases usually refrain from applications for judicial review” (pp665-6). The book will be useful for practitioners who wish to consult all avenues before deciding on a strategy for their client.

Analysis is not compromised by the book’s breadth. While not every case is extracted, the cases are often supplemented by lengthy commentary to tie up the loose ends to each issue. That said, there are some improvements to be made in this regard. Cases such as Li, FTZK, SZMDS, Singh, MZYTS, and SZOOR probably necessitate a re-write of Chapter 13 (“Reasonableness, Rationality and Other Limitations to Decision Making”). Chapter 18 (“The Effect of Errors on the Validity of Decisions”) would benefit from a more thorough discussion of the increasingly generous rubric of jurisdictional error, and Timbarra is mandatory reading for the topic covered in Chapter 12 (“Duties in Relation to Findings of Fact”). But this should not detract from comprehensive, exacting and practical analysis offered by the authors’ on the various topics that encompass administrative law. It will be a valuable acquisition for those practicing in the area. l

LEIGH HOWARD Lawyer, Workplace Relations, Employment and Safety, Clayton Utz

Just Mercy

Bryan Stevenson, Just Mercy, Scribe Publications, 2014, pb $33

Australia has started talking about the death penalty again. Bryan Stevenson has been talking about it for 30 years.

Bryan Stevenson was a young student at Harvard studying for a JD and MPP when he undertook an internship working on death penalty cases at the Southern Centre for Human Rights in Alabama. He returned as an attorney in 1985 where he worked until going out on his own in 1989, setting up the not for profit private practice, the Equal Justice Initiative (EJI). He had found his calling.

The EJI began as a very small office dedicated to representing death row prisoners, but over the last 25 years has grown to include representing prisoners in other important matters.

At the centre of this gripping true crime is the story of one man, Walter McMillian, an innocent man sent to death row.

Stevenson weaves in stories of children who are tried and convicted in adult courts; those punished with life sentences, the so called “death in prison” sentences; the mentally ill who are left untreated and languishing in mainstream prisons, failed by the psychiatrists whose role it is to assess and report on their capacity; and the women charged with murder of their stillborn children.

It’s not all bad news. There are touching moments: an exonerated client’s joy on securing freedom – the result of Stevenson’s tireless work; a swim in the Gulf of Mexico following a hearing; and Stevenson’s account of moving a correctional officer by his words in court.

In the face of corruption and abuse, Stevenson worked for those lost in a justice system, victims of poverty and race.

Stevenson summed up that system and his struggles: “It was far too easy to convict this wrongly accused man for murder and send him to death row for something he didn’t do and much too hard to win his freedom after proving his innocence”.

Just Mercy is a very moving book. Moments of it are uncomfortable reading but it has, at its core, an important message for lawyers and students of the law – that of an indefatigable pursuit of justice.



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