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Cite as: July 2015 89 (7) LIJ, p.66


This month’s books cover the referendum to recognise Indigenous Australians, human rights, criminal procedure and insurance.
Everything you Need to Know about the Referendum to Recognise Indigenous Australians
Megan Davis and George Williams, Everything you Need to Know about the Referendum to Recognise Indigenous Australians, New South, 2015, pb $20

At the heart of the book are two stories. The first is used to bookend the book, a story of Aunty Beryl Gambrill, who was arrested for protesting in 1967 in favour of the successful referendum that year. Aunty Beryl passed away shortly after advocating for further change to recognise her people in 2011, more than 40 years after that first change. The second story is a national one. It is a story of Australia, its Constitution and the nation’s relationship with its first peoples.

Davis and Williams deftly describe the agitation for constitutional change from Indigenous Australians and their non-Indigenous allies over the past century to remove discriminatory and exclusionary provisions of the Constitution. This work culminated in the 1967 referendum. However, as Davis and Williams highlight, the 1967 referendum did not deliver all it promised and it is “only once the modest legal scope of that referendum is understood, including the fact that it removed all references to Aboriginal people without inserting anything positive in their place, that it becomes clear [there is] unfinished business”.

The two key problems they identify is that there is no positive recognition of Aboriginal and Torres Strait Islanders in the Constitution and that there are still provisions that are racially discriminatory. Such a situation seems at odds with a modern Australia, which should be proud of its first peoples’ unique contribution to the nation and rejects racism.

All national major and minor parties are in favour of constitutional recognition. But as the book asks: what is recognition? Indigenous leaders, who have been demanding further change since it was clear the 1967 referendum had left a promise not completely fulfilled, argue for meaningful change. The authors set out the various options for change, including the deletion of s25 (which contemplates states banning people from voting on the basis of race) and s51(xxvi) (the power of the federal legislature to pass special laws for the people of any race), along with potential inclusions to protect against racial discrimination. The book also explodes some common myths surrounding the proposals, from whether it would divide the nation on race or hinder aspirations for sovereignty or a treaty. The question remains in what form any proposal for a referendum will be. Whatever it may be, our nation owes people like Aunty Beryl, who fought for change over a period of 50 years, a meaningful answer.

Timothy Goodwin, barrister
Human Rights in Closed Environments
Bronwyn Naylor, Julie Debeljak, and Anita Mackay (eds), Human Rights in Closed Environments, (Law in Context Vol. 31), Federation Press, 2014, pb $59.95

Since its conception in 1998, the Law in Context academic journal has been a regular source of high-quality and searching critiques on a range of socio-legal matters. This issue is no exception.

Recent times have seen individual human rights coming more and more into forceful collision with frameworks that deprive people of their liberty. Poor conditions and overcrowding plague the Victorian (and national) prison systems. The true effects of the Mental Health Act 2014 are still being gauged. Asylum seekers continue to languish in offshore detention centres. There has been a dire need for analysis of criminal, mental health and migration policies and laws at the level of sophistication contained in this special issue.

The papers in this collection examine a range of closed environments, including prisons, police cells, forensic psychiatric institutions, closed mental health and disability units and immigration detention centres. The analysis is guided by “three interlinked and mutually reinforcing pillars” (as set out by the terms of the Australian Research Council Linkage Grant from which the work arises) – regulatory frameworks, independent monitoring and culture change.

The analytical lens of each of these pillars will usefully inform the interpretation and application of Australia’s obligations under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Optional Protocol. Moreover, it is the range of closed environments that makes for particularly compelling reading when the papers are taken as a whole. The analysis in each paper informs that of the others and provides the springboard for engaging comparative analysis.

While the papers in this issue will principally be of interest to scholars, policymakers and stakeholders, they will also bear interest to the wider legal community as they ought reinvigorate the assessment and critical evaluation of the frameworks confronting advocates.

Adam Chernok, barrister
Criminal Procedure in Australia
Francine Feld, Andrew Hemming, and Thalia Anthony, Criminal Procedure in Australia, LexisNexis Butterworths, 2014, pb $125

This book has evolved from seven editions of Litigation: Evidence and Procedure, which was originally written by Mark Aaronson. Nevertheless, according to its preface, the current text “is a new book which, although hatched out of Litigation II, flies with its own wings”. Its current authors are from Sydney (Feld and Anthony) and Southern Queensland (Hemming). They are academics but they have kept theorising to a minimum. They cover criminal procedure from investigation to pre-trial, trial and post-trial. The table of cases occupies 17 pages of tightly set print, and many of the cases are Victorian. The chapter on interrogation reminds us of the former police practice of “verballing”, vilified in the Beach Report in 1976, and the improvements introduced by the requirement of taping police interviews.

The book is practical, with boundary vertical and horizontal lines surrounding notes of important cases. Chapter 1 deals with issues in police investigation; chapter 2 covers arrest and bail; chapter 3 covers interrogation; chapter 4 deals with searches and seizures; chapter 5 covers identification evidence; chapter 6 involves pre-trial issues; chapter 7 covers trials and evidence; chapter 8 covers issues of proof; chapter 9 deals with rights of the accused; chapters 10 and 11, both new chapters, are involved with post-trial appeals and sentencing issues.

The authors deal with the trend towards lengthy trials. The take-no-prisoners approach of some advocates has led to extraordinarily lengthy trials such as Wilson & Grimwade (just under two years) and Higgins (where one witness was cross-examined for four months at the committal). These abuses have led to some reforms, (such as the Crimes (Criminal Trials) Act 1999) and no doubt there will be further reforms, since no jury can be expected to function properly in the face of such protracted trials.

Graham Fricke, retired County Court judge
Sutton on Insurance Law
Ian Enright and Robert Merkin, Sutton on Insurance Law (4th edn), volumes 1 and 2, Thomson Reuters, 2015, hb $295

Professor Kenneth Sutton’s first edition of Insurance Law in Australia and New Zealand was published in 1980. Since then it has been a seminal text for Australian insurance lawyers. The third edition was published in 1999, and Professor Sutton was working on a new edition when he passed away in 2004.

The authors of this fourth edition are highly respected and widely known in the insurance industry. In their preface, they have acknowledged their debt to Professor Sutton, stating that they have retained much of his previous text, including his unpublished amendments, while drawing upon a mass of new material. This much is clear. The third edition was contained in one sprawling volume, but the new edition is so large that it has been spilt into two elegant hardback volumes. It is also available as an e-book.

In the previous edition there were 18 chapters, and now there are 24, including new chapters specifically devoted to regulation of the insurance market, as well as property, life, marine and liability insurance. In addition, the existing chapters have been extensively rewritten and updated. The text is clear and well organised, with a helpful table of contents for every chapter and a detailed index. There are extensive footnotes for further reference.

The authors acknowledge the Honourable Michael Kirby as their consulting editor. Over the course of his career, he has in various different capacities significantly influenced the development and reform of Australian insurance law, and his involvement adds to the authority of this edition.

This long-awaited edition of Sutton is excellent, and is indispensable for all insurance practitioners.

John Tesarsch, barrister


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