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Cite as: (2003) 77(10) LIJ, p.86

Social justice for indigenous communities, state constitutional reform, corporate secrecy and transparency are the subjects of this month’s book reviews.

Larissa Behrendt, Achieving Social Justice: Indigenous rights and Australia’s future, 2003, The Federation Press, paperback $29.95.

The fundamental assumption underpinning this work is the idea that the formal notion of equality under the law will not ensure substantive equality for indigenous persons under Australian law. This is a significant claim, resting as it does on certain assumptions about how the legal system works and how it impacts on indigenous communities. In this manner there is much in the work which is likely to provoke debate. According to the author the basis for the “gulf” in practice between the principles of a liberal legal order (for instance, equality under the law, rule of law and rights) and their application to indigenous persons is directly connected to the manner of occupation of Australia by the British and the fictitious claim that the land, in fact, was terra nullius. In short, the contemporary dispossession and reduced life opportunities of indigenous persons is the product of a colonialism that treated indigenous communities as merely ancillary to the development of the Australian nation-state. As such the law in this account is not separate or beyond the residual effects of such colonial power relations.

According to Behrendt, the failure by the legal system to guarantee just outcomes for indigenous communities in all areas of the law has a direct historical continuity with the fact of that dispossession. Great weight is placed on this particular perspective of Australian history and on the idea that the non-indigenous community and, in particular, the legal system has failed to take into account the aspirations of indigenous persons. Put simply, liberal neutrality is not what underpins the legal system, but is merely an ideology that justifies the continuance of colonial practices in a modern, neo-colonial form.

Although this critique is central to Behrendt’s argument, there is substantial treatment of possible reforms that would lead to the development of greater rights protection for indigenous communities through constitutional reform as well as greater self-determination. Other reforms include the need for indigenous communities to jettison welfare dependency for an approach that encourages greater economic self-determination.

The book suggests a way forward in the application of the law to indigenous communities but also highlights the need to situate the law in its proper context. In particular, “rights” are put forward as being critical to the development of a more inclusive jurisprudence as well as being agents of widespread social and economic change.

Thus the reform of the law and its relationship with the first peoples of the nation requires a new relationship between indigenous and non-indigenous communities.

In Behrendt’s view that may only be achieved by a new understanding of “democracy” in a post-colonial society such as Australia and the articulation of a more equitable “vision” of law. Whether that is likely to occur is, of course, a separate question.

Richard Edney
Solicitor and Lecturer in Law, Deakin University

Peace, Order and Good Government

Clement Macintyre and John Williams (eds), Peace, Order and Good Government: State constitutional and parliamentary reform, 2003, Wakefield Press, paperback $39.95.

This book is an edited collection of some 20 papers presented at a conference sponsored by the Attorney-General’s Department of South Australia, Johnson Winter and Slattczy, the Australian Association of Constitutional Law and the University of Adelaide. Although most of the discussion centres on the South Australian Constitution, much is pertinent to other states and indeed federally. The constitutions of other jurisdictions, notably South Africa, New Zealand (1990 Bill of Rights), Switzerland and some of the American states make interesting comparisons in the context of reform.

In the foreword, Mick Rann (Premier, South Australia) draws attention to the distinguished history of his state in the areas of land rights, universal suffrage and parliamentary and constitutional reform. Geoffrey Lindell, when discussing South Australia’s record for constitutional innovation quotes from Sir Henry Jenkyns’ British Rule and Jurisdiction Beyond the Seas (1902) referring to “a colony whose constitutional enactments are especially worthy of study for the sake of their boldness and ingenuity in other respects”. Rann also reminds us that the constitutions of the states, unlike that of the Commonwealth, have been more open to modification and change to meet contemporary challenge. Waugh mentions that, as in the US, state constitutions have their own political dynamics.

In “Lessons to be learned from Australian Capital Territory self-government model”, Lindell points out that this unicameral model combines the functions of both state and local government and has some novel features worth considering for the rest of Australia including the absence of Vice-Regal office – “a partial road to republicanism in the seat of government”. The model “shows how the functions formally vested in the Crown’s representative can be re-assigned to other agencies”.

Geoffrey de Q Walker, Gary Humphries and Lisa Hill discuss the citizen-initiated referendum (CIR). This procedure has been operating in many countries and in 26 American states. Hill is less enthusiastic about CIR mainly because of our compulsory voting system and says, “Though Switzerland is often held up as the paragon of CIR practice it also stands as the shining example of how to wear out your voters”.

Also noted as significant is the fact that in no country or state, where direct democracy exists have the people ever attempted to abolish or contain it.

Brad Seiway deals with “The ‘vision splendid’ of ministerial responsibility versus the ‘round eternal’ of government administration” – a look at individual ministerial responsibility and accountability and at the collective responsibility of Parliament. “It is the mechanism by which the executive is accountable to the voter under the Westminster system of government.”

Finally, and I quote John Williams writing on inter-constitutional relations, “whether or not South Australia in the 1850s was, or the year 2003 is, a ‘paradise’ and/or a home of ‘dissent’ is an open question. It is, however, the case that much is made of its utopian aspirations and its sense of difference from other colonies with their convict stain, naked ambition and drinkable water”.

Joan Berwick
Retired Solicitor

The Transparent Corporation

David Uren, The Transparent Corporation: Managing demands for disclosure, 2003, Allen & Unwin, paperback $45.

In The Transparent Corporation, David Uren has chosen for himself a very topical subject to write on – particularly in light of corporate collapses such as Ansett, HIH and One-Tel in Australia, and of course, Enron in the US. The concern which has accompanied such corporate disasters has accompanied and indeed accelerated an increase in requirements from many parties regarding how much and what sort of information companies have to disclose.

Indeed, as Uren notes, Royal Dutch Shell’s comment on the changing views of investors and regulators of corporations reflected “a move from a ‘trust me’ society to a ‘show me’ society”.

The major theme underlying Uren’s book is of reconciling two competing interests. On the one hand there is the corporation’s desire for secrecy, based on a number of factors which are neatly set out, ranging from the “golden goose” argument to protect trade secrets such as the recipe for Coca Cola, to the “dark secret” and “embarrassment” arguments which can also affect share price. On the other hand, there is the requirement of regulators that companies “bare their souls”, informing the stock exchange of anything that may affect share price.

What Uren does is illustrate how companies have sought to achieve this reconciliation. In doing this he presents a great dealing of interesting – if sometimes disturbing – information.

For example, the imaginative ways profits can be “created” range from simple matters of timing to the fraudulent practice of simply altering returns from retailers if they don’t look good enough.

In addition to this issue of playing with the numbers or “the earnings game” (as Uren describes it), there are other matters discussed, including the position and function of auditors, the way communications should be managed, and how disclosure regimes in companies should be improved.

It is very illuminating. However, readers should be aware this is not a legal textbook dealing with corporate regulation, and Uren does not purport to be writing a legal treatise. He is not a lawyer and it is unlikely he is seeking to write for lawyers. (In fact, the publisher’s description on the back cover groups lawyers with regulators who are to be “kept at bay”.) Rather, Uren is an investment consultant, and was formerly the editor of Business Review Weekly. Accordingly, his style is clearly different, and certain features of his book, such as the author’s not infrequent lack of attribution for a number of statements as a way of protecting his sources (even if it deprives those statements of a certain degree of gravitas), reflect the hallmarks of such writing. Thus, we shall never know, for example, who was the un-named CEO of “one of Australia’s leading corporations” who said “If I could find out the _ _ who said that, I’d rip his _ _ lungs out and feed them to the yabbies”.

This is not to say that this book is without value. It is, in fact, a useful volume and frequently provides well sketched introductions to the motivations and problems facing corporations and investors in numerous situations involving the disclosure of information.

Andrew Field
Lecturer, Department of Business Law & Taxation, Monash University

books@liv.asn.au


Reviewers Wanted

The LIJ is always looking to increase its database of book reviewers. Keen readers with specialist knowledge who are willing to write 400-600 word reviews should contact Alison Shield at ashield@liv.asn.au. Reviewers for legal business texts, including practice management, business development and information technology for law firms, are particularly welcome.

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