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Cite as: March 2013 87 (3) LIJ, p.64

This month’s reviews cover discrimination law, legal protection of religious freedom, administrative law and torts law.

Discrimination Law and Practice

Chris Ronalds and Elizabeth Raper, Discrimination Law and Practice (4th edn), 2012, The Federation Press, pb $74.95.

The fourth edition of Discrimination Law and Practice is a useful and generally well-written account of the main elements of discrimination law in Australia, with an emphasis on the federal anti-discrimination legislation and federal institutions. Its authors are two Sydney barristers who have had significant practical experience in the area.

The book covers all principal aspects of anti-discrimination law, including definitions of discrimination, how discrimination is made out and the principal areas in which persons are protected from discrimination; harassment, vilification and bullying; and vicarious liability and exemptions. Appropriately detailed treatment is given to the two main areas where complaints arise – discrimination in employment and in education. The book’s later chapters provide accounts of the processes for handling complaints, both through conciliation and through formal adjudicative processes. Practical issues like remedies and costs are given good treatment, making the book useful for employers and others trying to find their way around a complex legal area.

The chapters contain helpful case digests and generous extracts from key judgments that explain key concepts in discrimination law. The material is well-organised and for the most part the book is written in a clear and engaging style. The chapter on industrial laws is perhaps not as strong as the others. It provides only a cursory account of the burgeoning area of adverse action claims, which include adverse action by employers on a broad range of discriminatory grounds, and does not mention the important difference of opinion in the Federal Court about whether an employer’s reasons for treating an employee adversely are determined according to a subjective or an objective test. The matter was recently settled in favour of a subjective test by the High Court in Board of Bendigo Regional Institute of TAFE v Barclay (a decision that was handed down after the book was published). This chapter also does not explain clearly which employees are able to use the Fair Work Act provisions following the referral of powers by most states.

The book ends rather abruptly with a very brief chapter on bullying and would benefit from a general concluding chapter reflecting on key developments since the last edition.

Overall, practitioners, students and employers will find this book a useful guide to an important area of law and legal practice.

Dr Karen Wheelwright, Faculty of Law, Monash University

Legal Protection of Religious Freedom in Australia

Carolyn Maree Evans, Legal Protection of Religious Freedom in Australia, 2012, The Federation Press, pb $64.95.

Religious freedom is a fundamental human right. Religion, in one way or another, underpins our society.

The legal regulation of religion has the capacity to interfere not only with one’s external actions, but at its core, one’s most internal and profound thoughts. Legal regulation of religion also has the capacity to grant a benefit, for example, from obtaining a tax exemption or allowing the government to pay for chaplaincy in schools.

The way the courts have interpreted the law in relation to these interferences and benefits is a worthy and vast topic.

Carolyn Evans’ book is an introduction to the general concept of religious freedom by way of international instruments and the general themes of the domestic legal framework.

There is some discussion of the Catch the Fire Ministries case, the DOGS case and the Scientology case. However, practitioners may wish to review these cases and the relevant commentaries independently.

Further, although there is mention of Kruger and Cheedy on Behalf of the YindjiBarndi People v Western Australia within the framework of the scope of s116 of the Constitution, lengthier discussion of limitations on the religious freedoms of Indigenous Australians is noticeably absent.

The benefits of status as a religion and the support that a particular group may receive from the state can be socially divisive and controversial. It is controversial on the basis that one group may be preferred over another for financial support and indeed that any group may receive such support from the state. The most recent High Court consideration of this theme is the judgment in Williams v Commonwealth. Although the author had flagged the importance of this decision, the judgment was handed down after the publication of the book. The judgment and the proposed law reform as a result ought to be central to any further exposition of the way the government supports religion in Australia.

Tasman Ash Fleming, Barrister

Administrative Law: Context and critique

Michael Head, Administrative Law: Context and critique (3rd edn), 2012, The Federation Press, pb $64.95.

Administrative law is often regarded as a difficult area to understand because it is concerned with the exercise of power. In 2005 Michael Head wrote Administrative Law: Context and critique and it was warmly received as providing a concise overview of the relevant principles and processes. It stood out in the crowded marketplace for being easy to understand yet comprehensive.

The third edition maintains these distinctive qualities.

Statutory interpretation is an essential skill and the new edition not only identifies the requisite elements but relates them to contemporary events. It is through this technique that readers become engaged with the material and develop a deep appreciation of the significance of administrative law. Being able to discuss cases clearly, identify the facts and provide commentary with respect to how the law has developed is a difficult task but the author substantially achieves this.

Understanding the law is a difficult task, but with resources such as Administrative Law: Context and critique the process is greatly assisted. By itself, the book does not provide all the answers, but it outlines the salient principles and directs the reader where to go to find more information. Although directed at law students, it will be a valuable addition for those practitioners who lack a solid appreciation of administrative law. While there will be new editions of other administrative law books, Administrative Law: Context and critique will retain its place as a useful starting point for those embarking on the study of law with respect to administrative activities.

Christopher Brien, Lecturer, School of Law, Victoria University

Cases on Torts

Barbara McDonald and Ross Anderson, Cases on Torts (5th edn), 2012, The Federation Press, pb $95.

In the words of the authors, this book, now in its fifth edition, “provides a collection of cases illuminating the principles of Australian tort law”. The primary audience of the book is the law student.

The book contains, for the most part, extracts of Australian judicial judgments relating to the various areas of tort law. Each case extract is preceded by a succinct summary of the legal principles that the case stands for.

The authors have set out the content methodically and logically. The book is divided into 13 chapters. The first chapter briefly introduces the reader to the law of trespass. The book then logically takes the reader to cases concerning interference with the person, with land and with goods (chapters two to four). It then focuses on the law of negligence, taking the reader through each of the elements of the tort. Finally, it contains case extracts concerning issues of concurrent liability and damages (chapters 12 and 13).

The book achieves a number of the authors’ aims. It first identifies for the law student the current legal principles of Australian tort law in a convenient and accessible manner. The authors have achieved this by including pertinent case extracts from an extensive list of High Court decisions, as well as focusing on the decisions of state courts of appeal. Second, the book exposes the student to the essential skill of reading and comprehending judicial judgments. Third, it encourages the student to embark on their own research and assists in stimulating further discussion. For example, the student may wish to explore any underlying policy considerations or distinguishing factual circumstances that may have played a role in some judgments, as opposed to others.

The law student will find this book an excellent introduction to tort law, a useful supplement to their understanding and research of the area, and a helpful tool in preparing for examinations.

David Kim, Barrister


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