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Cite as: (2007) 81(12) LIJ, p. 84

This month’s reviews cover war crimes trials, the culture clash between Ned Kelly and Sir Redmond Barry, tort law and the experiences of advocates for asylum seekers.

Law, War and Crime

Gerry Simpson, Law, War and Crime: War crimes trials and the reinvention of international law, 2007, Polity Press, pb $41.95.

The publicity surrounding the recent trials of Slobodan Milosevic and Saddam Hussein could convince one that this is the way war criminals and perpetrators of mass atrocities have always been dealt with. Not so, argues author Gerry Simpson, Professor of Law at the London School of Economics. The application of criminal law to international politics, and particularly to war, is a recent phenomenon, dating from the Nuremberg and Tokyo trials following World War II.

Professor Simpson’s scholarly work explores many of the key issues raised by war crime trials. Are such proceedings simply “show trials”, instances of “victor’s justice”? The Nazi generals prosecuted at Nuremberg cer-tainly argued so. Why wasn’t the United States prosecuted for deliberately killing thousands of innocent Japanese civilians at Hiroshima and Nagasaki? The extraordinary selectivity, in terms of who is prosecuted and for what actions, continues to raise large issues of legitimacy for war trials.

Notions of individual responsibility and autonomy are central to the operation of the criminal law; punishment cannot be justified otherwise. But can generals and political leaders be said to be acting autonomously in times of conflict? This work thoroughly explores the problems in focusing exclusively on “evil” individuals, rather than the deep structural causes of war, such as history and economic circumstances.

Although Professor Simpson questions the appropriateness of using criminal trials to resolve international disputes, his work gives insufficient attention to other means, such as truth and reconciliation commissions, negotiated peace agreements, and financial and other aid. The modern obsession with convicting and punishing wrongdoers is obviously inappropriate, when resources could be devoted to assisting individuals and societies to recover from the atrocities of war.

This work shows that in modern societies the criminal trial has become synonymous with delivering justice. In the aftermath of war, however, it is often used (and is highly effective) in legitimising the actions and motives of the victorious party. The book opens one’s eyes to the use and abuse of criminal law in the context of international politics and war.


Ned’s Nemesis

Graham Fricke, Ned’s Nemesis: Ned Kelly & Redmond Barry in a clash of cultures, 2007, Arcadia, pb $34.95.

Googling the words “Ned Kelly” reveals numerous books, several films, artworks and related memorabilia. Graham Fricke concentrates, in the words of the sub-title, on Ned Kelly and Redmond Barry in a clash of cultures. This engaging and well-researched publication could be made into a film script: commencing with a wide angle view of Justice Barry’s privileged home life in County Cork, Ireland as part of the Anglo-Irish ascendancy, panning to his legal education in London, then the journey to the Port Phillip district and ascension through the Victorian legal hierarchy.

Cut to Ned Kelly’s life with a Tasmanian ex-convict, bog-Irish father, his apprenticeship to a bushranger, and impoverished upbringing on marginal farms, assisting his widowed, Catholic mother. The social system victimised and brutalised his family.

These contrasting upbringings are skilfully interwoven into the political, economic and social life of the colony in the first eight chapters. Having sketched the background, the author zooms in on the trial in detail in chapters 9 and 10, entitled “On the Run” and “The Denouement”, with close examination of the issues of outlawry and self-defence.

Kelly devotees will be familiar with Ned Kelly’s Last Days by Alex C Castles (published by Allen & Unwin). The merit of Fricke’s book is that it examines the trial from the perspective of the judge as well as the accused. The relevance of societal antagonisms is a leitmotif.

In his epilogue, the author reflects on the present day parallels of this iconic strug-gle between com-peting values. Changes in the rights of accused persons, capital punishment, and the disappearance of sectarianism are noted. We might ask whether clashes of culture still occur within the legal system in immigration cases or in street violence between newly arrived refugee groups and mainstream Australian society, and how the legal system should deal with it.

A highly recommended, thought-provoking and timely publication, Ned’s Nemesis adds to the corpus of knowledge of our legal history and still resonates in 2007.


Cases on Torts (4th edn)

Barbara McDonald, Ross Anderson and Stanley Yeo, Cases on Torts (4th edn), 2007, The Federation Press, pb $85.

This is a useful text for those wanting an easily accessible introduction to Australian tort law. The layout of the book is one of its strongest features as it allows the reader to quickly gain some appreciation of the important signposts in each area of tort law. Each major area of study is broken down into further categories then illustrated by cases.

All the traditional areas of tort law are discussed. The book’s scope is further broadened by the ability of the reader to access edited versions of new cases that are decided subsequent to the date of its publication on the publisher’s website.

The law of negligence has moved on since Ipp J’s Final Report of the Review of the Law of Negligence in 2002. The government responses to this report brought about legislative changes to modify or abrogate the common law of negligence. However, the authors consider it is still necessary to have an understanding of the common law to interpret the relevant legislation. This is especially pertinent in establishing a duty of care. As the authors note, it is difficult to formulate a single comprehensive test for determining the existence of a duty of care because differ-ent classes of case give rise to different problems.

Further, the authors, relying on the authority of the High Court decision in Graham Barclay Oysters Pty Ltd v Ryan; Ryan v Great Lakes Council; New South Wales v Ryan state the proposition that after 70 years of judicial consideration of the test for determining the existence of a duty of care, perhaps Australian law has simply returned to the fundamental principle that “a duty of care will be imposed when it is reasonable in all the circumstances to do so”. Hence, to the extent that it is necessary in a given jurisdiction to establish the reasonableness of any particular duty of care, there remains a necessity for one to understand and have an appreciation for the common law.

This is a well thought out and structured book which will be of most assistance to those to whom it is directed – the student and the academic.


Acting From the Heart

Sarah Mares and Louise Newman (eds), Acting From the Heart: Australian advocates for asylum seekers tell their stories, 2007, Finch Publishing, pb $24.95.

In Acting From the Heart, editors Sarah Mares and Louise Newman lend their voices to those of 50 others in a series of harrowing first-hand encounters with the victims of mandatory immigration detention in Australia.

This is not a book about statistics or legislative debate, or a balanced weighing of the pros and cons of community release versus incarceration. This is a book of anger.

Regardless of the overall views of the contributors as to what the solution is, there is a clear consensus as to what the solution isn’t. You meet health professionals and others supporting the damaged during and after the chilling rigours of incarceration. For instance, a lawyer up against a battery of government briefs battling for a Federal Court order to stop a sick man seeing a doctor; a refugee advocate who finds years of frustrating inactivity suddenly interrupted by a last minute rush to court to stop her beneficiary being sent out on the 12pm plane in a Hannibal Lecter travel suit. In a very personal piece of writing, a young hospital worker at Woomera Base Hospital describes being forbidden the use of her Arabic skills (consisting of the words “hello”, “goodbye” and “peanut butter”).

There are frequent firsthand accounts of the lip sewing, water cannonades, and catatonic rocking of those whose lives are locked away but the book doesn’t stop behind the razor wire. In about every third story, the writer tells of the personal cost of their involvement in terms of sleepless nights, lost friends and obsessional behaviour. The Australian victims of this policy are not limited to the Cornelia Rau-type anomaly. Of course, many of the 4000 children under lock and key are Australian citizens too.

In a poignant epigraph to the book, the doctors quote “Advance Australia Fair” which informs: “For those who’ve come across the seas/We’ve boundless plains to share”.

Everything that follows paints that line as being as much an anachronism as the “With all her faults we love her still/Britannia rules the waves” bit that somehow also survived the final cut. David Smith



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