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Cite as: December 2010 84(12) LIJ, p.64

This month's reviews cover charity law, the pursuit of justice, anti-avoidance provisions in tax law and emergency law.

Law of Charity

GE Dal Pont, Law of Charity, 2010, LexisNexis Butterworths, hb $259.

Practitioners of charity law will appreciate this new version of Professor Dal Pont’s classic text on charity law. The previous version, published by Oxford University Press in 2000 and entitled Charity Law in Australia and New Zealand, is hard to find and is regarded as a collector’s item. Now released under a new name and with a new publisher the text has been reformatted and revised to include latest cases, statutory amendments and developments in academic comment.

The book begins with chapters on charity as a concept and the western history of charity. Professor Dal Pont acknowledges non-western concepts of charity such as the Islamic waqf. Subsequent chapters discuss the Pemselcategories of charity, and charity structure, administration, fundraising and fiscal privileges.

Some changes to the previous text are cosmetic only. For example, in the discussion on the Compton/Oppenheim Testthe previous version of the text read “ . . . led the Court to conclude . . . ”. The new version now reads: “ . . . their Lordships concluded . . . ”. However, other changes are more substantive. For example, Professor Dal Pont discusses the UK Charity Commission’s controversial view that independent schools should demonstrate “public benefit” by providing means tested bursaries to persons in financial disadvantage. He considers the Commission’s view to be “tenuously” supported by case law.

On what is regarded as an uncertain area of law, charities undertaking political activities, Professor Dal Pont’s discussion is less speculative in style compared to his previous text. He attempts to reach some conclusions around charities undertaking political activities, reflecting recent developments in case law and the considerable academic discussion on the subject.

Like all academic texts, Charity Lawcannot replace a thorough reading of primary sources, in particular case law. I suggest practitioners should also read other academic texts on trusts, bodies corporate, governance and meeting procedure. With those qualifications in mind, Charity Lawis an essential textbook that will fortify practitioners for the daily grist of charity practice. I recommend its purchase before it too becomes a collector’s item.

Derek Mortimer, DF Mortimer & Associates

The Quest for Justice

Ken Crispin, The Quest for Justice, 2010, Scribe, pb $35.

This book is a multifaceted, dynamic and unflinching analysis of the author’s “quest for justice”. Dr Ken Crispin has worked in the highest echelons of public office in the ACT: he is a former Queen’s Counsel, Director of Public Prosecutions, Supreme Court judge, president of the Court of Appeal and chair of the ACT Law Reform Commission. He also has a PhD in ethics.

Former High Court of Australia justice Michael Kirby contributed the book’s foreword. The book comprises five chapters on selected issues in the justice system: the law and values; the adversarial nature of the justice system; sentencing; Australia’s “war on drugs” and comparative jurisdictions; and the international and domestic “war on terror”.

The first two chapters cover the evolution of the law, the placement of values, ethics and rights, and the adversarial legal system. The author then discusses sentencing issues, personally reflecting on some of his cases, and highlights the need for effective preventative and rehabilitative measures for mentally ill and drug-dependent offenders. The book segues into the failure of the war on drugs, and canvasses reforms such as decriminalisation, regulation and control. The final chapter examines the erosion of human rights and civil liberties via legislative incursions utilised as counter-terrorism measures. Dr Crispin is courageous in his dissection of, and conclusions on, some highly contentious topics.

This book extends beyond the parameters of the law, and addresses social, political, historical and philosophical considerations. The author combats myths and misconceptions originating from oversimplified, or overtly politicised, views of the criminal justice system. Admirably, Dr Crispin possesses an authorial voice of empathy and compassion, particularly towards vulnerable participants in the criminal justice system: victims, marginalised offenders and their families.

The Quest for Justice is an essential read for practitioners, students and laypersons. Justice, at its conceptual core, touches everyone in society. This book challenges the reader to engage in constructive examination of justice, the law, the legal system and the judiciary. Dr Crispin advocates for an authentic pursuit of justice, a quest that necessitates the affirmation and protection of fundamental human rights.

Lise Lee, Legal Information Officer, Victoria Legal Aid

Tax Avoidance in Australia

GT Pagone, Tax Avoidance in Australia, 2010, The Federation Press, pb $125.

GT Pagone’s book is an examination of the general anti-avoidance provisions (GAAPs) in Part IVA of the Income Tax Assessment Act 1936 and Division 165 of the GST Act.

First, the differences between tax avoidance, evasion and minimisation are explained, then the text outlines how s260 (the precursor of Part IVA) was no longer fulfilling its purpose. The central part of the book deals with the pivotal pieces of Part IVA – “tax benefit” and “purpose” within tax avoidance schemes. Included is a detailed consideration of relevant cases in the development of the present judicial approach to particular sections of Part IVA.

These topics and the powers of the Federal Commissioner of Taxation to cancel tax benefits and the reconstructive provisions to impose tax liability on avoiders are explained with reference to relevant legislation, cases, taxation rulings and explanatory memoranda where appropriate, to build a clear picture of the current law.

The final chapter is a valuable reminder for practitioners about possible conflicting obligations between themselves and their clients. An obligation to tell the client how to avoid tax (whether a tax advantage is open to a client or not) may mean the practitioner bears the brunt of promoter penalties pursuant to Division 290 of the Taxation Administration Act 1953.

The author uses ample footnotes for easy reference to cases, articles and legislation. The footnotes are easy to follow and with the brief index, tables of topics, cases and statutes and the reproduction of Part IVA Division 165, allow easy reference. However, the book lacks a bibliography. Such an aid to follow up reading of articles, explanatory memoranda and the like would be useful. Another shortcoming is the lack of reproduction of the legislation with respect to promoter penalties and advisers (Division 290). Inclusion would have made this book a comprehensive resource on the topic.

In summary, the book contains a logically constructed examination of the income tax and GST GAAPs. It is an eminently readable and recommended text about tax avoidance in Australia.

Kim Harris, Harris & Chambers Lawyers

Emergency Law (3rd edn)

Michael Eburn, Emergency Law: Rights, liabilities and duties of emergency workers and volunteers (3rd edn), 2010, The Federation Press, pb $49.95.

I reviewed the second edition of this book in 2005. The third edition updates the law with reference to new legislation and case law up to September 2009.

The author, Dr Eburn, is an academic lawyer and member of the emergency services.

The text clearly and concisely analyses the law that applies in a civil emergency and to the Australian emergency services, as well as the rights and obligations of those who provide emergency care to the sick or injured, be they professionals, trained volunteers, neighbours or strangers who stop to help. It does not deal with emergencies that require a “law and order” or police response.

As the author states, “this book will reassure potential rescuers that the law is not out to punish them, but is sympathetic to the rescuer”. Rescuers need to focus on their role and not be fearful of the law.

Revised and expanded chapters include the basic legal principles (including the role of royal commissions and parliamentary inquiries), first aid and pre-hospital care, fire fighting and rescue, ambulance, fire and emergency services, disaster planning and response, liability of emergency services, driving emergency vehicles and compensation for rescuers.

As in the previous edition, the important legal concepts, such as the duty to rescue, consent to treatment, including the rights of children, assault, trespass, duty of care proximity, negligence, Good Samaritan actions, liability and exemption clauses, are explained with the author’s usual clarity.

An expanded discussion of the role of coroners and the question of whether or not an emergency service organisation is vicariously liable for the actions of volunteers are welcome additions to the third edition.

Once again this volume is a straightforward, and easy to follow, publication.

Emergency Law is an essential text for anyone entering the emergency services, be they paid or a volunteer, and for students or even lawyers as a useful reference.

Garry J Mann, Lawyer/mentor, Leo Cussen Institute

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