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Cite as: December 2012 86 (12) LIJ, p.66

This month’s reviews cover homicide laws, VCAT procedures, the work health and safety regime, and family law.

Homicide: The laws of Australia

Paul Fairall, Homicide: The laws of Australia, 2012, Thomson Reuters (Professional), pb $119.95.

This book is a conversion of the author’s chapter on homicide from the Laws of Australia into book form. It is a comprehensive and detailed exposition of all the laws relating to homicide in Australia.

The scholarship is of a high order. The writing is erudite. And it is clear and accessible to any practitioner who is required to advise a client on the most serious of the crimes in the criminal calendar.

The structure of the book allows a practitioner to deal logically and clearly with the law related to homicide at each step of the curial process, which is one of the book’s key strengths.

So it commences with a treatment of general principles – such as jurisdiction and state of mind – and then moves to the “conduct” elements of homicide. The section on “omissions” is outstanding. It then shifts to the mental element required for murder. Partial defences are then considered. And finally manslaughter is given its own separate consideration.

Usefully, the work concludes with a chapter on the procedural and punishment aspects of homicide. In this way, every stage of the curial process – apart from appeals – is dealt with.

Although the work does not delve too deeply into some of the more controversial aspects of particular homicide laws, such as defensive homicide in Victoria, there is sufficient reference to secondary material for those practitioners who wish to investigate further the deeper, jurisprudential aspects of the treatment of homicide under Australian criminal law.


Pizer’s Annotated VCAT Act

Jason Pizer, Pizer’s Annotated VCAT Act (4th edn), 2012, JNL Nominees Pty Ltd, $195.

As the Victorian Civil and Administrative Tribunal enters its fifteenth year of operation (in 2013) the question remains: is VCAT really the “people’s court” or is it a lawyer’s playground? Since its inception in 1998 VCAT has been specifically directed to deal with disputes quickly, efficiently and informally. VCAT was always intended to be different to the courts, to be more accessible to those requiring its services. This approach has been a great success: other states have established tribunals like VCAT, and Parliament has given VCAT jurisdiction in many new areas. VCAT deals with many more disputes each year than the other three Victorian courts combined.

Now in its fourth edition, Pizer’s Annotated VCAT Act remains the leading text on VCAT’s powers, processes and procedures. It remains indispensable for all those who have reason to appear before VCAT.

The new edition incorporates the many changes that have been made to the Act, regulations and rules in the last five years. It also incorporates many recent VCAT and Supreme Court decisions regarding VCAT’s powers and procedures. (In Director of Housing v Sudi [2011] VSCA 266 the Victorian Court of Appeal held that public housing tenants could not raise human rights issues when they were being evicted from their home and could only raise such issues in the Supreme Court. This decision prevents members sitting in the Residential Tenancies List of VCAT – VCAT’s busiest list – from dealing with all the relevant issues in the one forum. Obviously a legislative amendment is needed to remedy this serious problem.)

The new edition of Pizer is thicker and heavier than the last, as VCAT’s procedures have inevitably become more technical and complex. However, as with previous editions, the layout is organised, concise and user-friendly. By explaining VCAT’s procedures in simple, non-technical language this book ensures that VCAT remains accessible to the ordinary Victorians for whom it was originally established.


Work Health and Safety Law and Policy

Richard Johnstone, Elizabeth Bluff and Alan Clayton, Work Health and Safety Law and Policy (3rd edn), 2012, Thomson Reuters (Professional), $135.

On 1 January 2012 the new harmonised work health and safety (WHS) regime was ushered in for the Commonwealth and for half of the states and territories. Tasmania will implement the model legislation in 2013 and at the time of writing there are good prospects of implementation in South Australia and Western Australia in the near future.

Victoria, noticeably, stands alone in its clear position that the model legislation will not be implemented, leaving national businesses with Victorian operations with the difficult and costly task of complying with two sets of legislation, regulations and codes of practice. Taking a long perspective, it is difficult to see how Victoria can hold out against the tide of national WHS reform.

The 2012 edition of Work Health and Safety Law and Policy therefore comes at a propitious moment, just as WHS practitioners need to update their knowledge on health and safety law. This book, while expressed to be principally for university students, would nevertheless be an important reference book for the practitioner on the key changes.

Interspersed among extracts from legislation, cases and reviews, together with comparisons between the old and new regimes, the authors provide their own commentary and summarise some of the key literature on health and safety issues and policy matters.

While the key focus is on WHS standards, processes and enforcement under the model law, there are also valuable chapters on historical developments, compensation for work-related injuries and rehabilitation.

As a textbook the theoretical and technical aspects of the area are well-covered. However, WHS law, as a law imposing general standards, is often best understood in the practical context in which it operates so the book would have benefited from a close examination of the practical application of WHS law in the workplace.

An area of increasing concern, for example, is bullying and such an area could have been subject to an in-depth case study analysis to illustrate the preventative and enforcement aspects of WHS law. Such an approach would have assisted students and practitioners to obtain a feel for the area.


Family Law

Eithne Mills and Marlene Ebejer, Family Law (5th edn), 2012, LexisNexis Butterworths, $99.

This volume engagingly outlines and also questions the law relating to the formation and breakdown of all types of family relationships with its associated social, philosophical and ethical underpinnings.

Chapter 1, dealing with the changing face of the family, highlights the relevant jurisprudence for the topical issues of same-sex marriage, covenant marriages and de facto rights, which are treated in detail in chapters 3 and 9. The cases cited in the chapter on nullity focus on the courts wrestling with old concepts to make them applicable to the contemporary and culturally sensitive issue of forced marriages.

The carefully chosen chapter heading of “Violence within the Family”, rather than the usual “Family Violence”, reflects the authors’ insightful analysis of the types of abuse and reasons for family violence, as well as the current legislative response. The remaining chapters cover the traditional categories of children, child support, spousal maintenance and property division. The chapter on financial disputes between de facto partners contains the latest decisions on this developing topic, including the relationship between statutory and general law rights.

The authors, who are academics at Deakin University, utilise a problem-solving approach to their teaching, with each chapter containing a realistic situation which could have been drawn from family court files. A model answer is provided which gives a précis of the legislation and case law which has been set forth in the preceding pages.

The “further discussion” points at the end of each chapter enable students to engage with the issues through reflecting on the broader social consequences of the topic and possible future direction for the legislation.

Extracts from international conventions, World Health Organization reports and sociological data place our legislation in a broader context. The use of numerous sub-headings and boxed formatting make this crisply written text inviting and easy to navigate. The only improvement might be a list of internet sites for the Gen Y student.

This is a valuable aid for students of all disciplines whose work brings them into contact with this ever-evolving branch of the law.



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