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Cite as: (2008) 82(9) LIJ, p. 70

The Trouble with Tradition

Simon Young, The Trouble with Tradition: Native title and cultural change, 2008, The Federation Press, hb $125.
In 1998 Olney J of the Federal Court declined to recognise the Yorta Yorta people’s claim for native title by invoking a “tide of history” test, finding that the claimants’ interests had been “washed away” when they were dispossessed of their lands and ceased to observe their traditional laws and customs. The strict interpretation given to “tradition” by Olney J sat uncomfortably for some researching in the field of native title, including Dr Young.

Dr Young began researching this book at about the same time the High Court upheld Olney J’s decision and at the height of the development of native title jurisprudence in Australia. Dr Young’s book revisits and critiques that jurisprudence.

In The Trouble with Tradition, Dr Young offers an alternative understanding of tradition and culture for native title law. He suggests that a less specific interpretation of tradition and cultural change could have been, and may still be, drawn from the experiences of the US, Canada and New Zealand and the Mabo decision. He is critical of the reluctance of Australian courts to employ a comparative analysis on the question of tradition and culture and demonstrates how the accepted doctrine from Mabo has been overly simplified and selective.

In offering his alternative view, Dr
Young recharts well-explored precedent but with a novel narrow field of inquiry
that presents new insights into native title legal scholarship.

The Trouble with Tradition is highly academic, extensively footnoted and densely analytical. It is a type of law book that is infrequently produced: one with a simple message on a particular but highly important aspect of a specific area of the law.

Dr Young’s message can only be appreciated by dedicating the time to read the book in full and succumbing to the narrative within which he frames his argument. This book would be particularly relevant to researchers engaged in critical interpretation and analysis of native title law, students of native title and judges faced with native title claims.

Brad Jessup
Teaching fellow, ANU College of Law

Principles of Australian Succession Law

Ken Mackie, Principles of Australian Succession Law, 2007, LexisNexis Butterworths, pb $82.50.
It was the tenth anniversary of the Wills Act 1997 on 20 July 2008. A lot has happened in the areas of wills and estates during the past ten years since the introduction of
that Act in Victoria. This publication is therefore timely.

The author is a senior lecturer in law and sub-dean at the Law School, University of Tasmania. The title obviously suggests that the book deals with all states and territories, but this does not detract from the fact that it provides the reader with up-to-date legislative changes and current judicial authorities relevant to Victorian lawyers.

The primary focus of the book is wills. Topics covered include: the making of wills; revocation; republication; ademption; construction; gifts by wills and intestacy. Not only does it deal with these fundamental topics well, but it also covers side issues such as mutual and joint wills and privileged wills. There are also chapters providing interesting commentary on wills as distinguished from other transactions and relationships and contracts relating to wills. The scope of matters covered is therefore quite broad.

The remainder of the book is devoted to family provision claims, grants of representation and rights, duties and obligations of legal personal representatives. It deals with both solvent and insolvent estates and includes chapters dealing with the liabilities of an estate and the distribution and completion of an estate.

This book provides a useful overview of the current law in all states and territories relating to succession as well as practical examples of various legal issues.

In summary, Principles of Australian Succession Law contains a wealth of information on succession law and would be a very handy and useful addition to the library of any practitioner working in the areas of wills and estates.

Ken Collins
Wills & Probate Victoria – Lawyers

Lawyers’ Responsibility and Accountability

Ysaiah Ross and Peter MacFarlane, Lawyers’ Responsibility and Accountability: Cases, problems and commentary (3rd edn), 2007, LexisNexis Butterworths, pb $115.
Now in its third edition, this comprehensive work sets out to fill a niche – that of a case book which delivers limited commentary around set problems arising from those cases. The objective is often achieved, particularly in its discussion of lawyer-
client communication, competence and
confidentiality. Cases are amplified by regulator, law reform commission and government reports, newspaper opinion (though no diagrams) and model rules galore. In this sourcebook sense, the niche is well-filled.

But there are some problems. Law students are the market but the book is priced at
$115 and is also expressly intended to be read in conjunction with Ross’ other major work, Ethics in Law (4th edn) (Butterworths, 2005). Together they are an expensive package and since Ethics in Law is currently two years behind this text, there is also potential for one to get behind the other. In comparison to the other Australian text which takes an encyclopaedic approach to legal ethics
(Gino Dal Pont, Lawyers’ Ethical Responsibility and Accountability in Australia and New Zealand), Lawyers’ Responsibility and Accountability and Ethics in Law together may be cumbersome to use as well as of confusing provenance, compared to the single volume Dal Pont.

Content is also a concern in some places. Although there are many extracts from a variety of ethical codes, students are not pointed to the overarching risks of relying on codes at the possible cost of their ethical consciousness. Thus at page 12, in a terms definition section dealing with methods of moral analysis, there is no reference to virtue ethics. This reinvigorated strand of moral philosophical thought is now prominent in dealing with ethical complexity; indeed, contentious issues (for example, in relation to the ethical issues of MDPs
at pages 91-96) tend to be exposed only via the opinions of others rather than discussed by the authors, leading on occasion to a
sense of superficiality. And racially stereotypical “Chinese walls” still abound here: we see no reference to the “information barriers” and law society guidelines which are replacing them (though not of course
with any greater impermeability). A sharper edit is required to fix such problems.

Adrian Evans
Associate Professor, Faculty of Law,
Monash University

Crime in the Port Phillip District 1835-51

Paul R Mullaly, Crime in the Port Phillip District 1835-51, 2008, Hybrid Publishers, hb $95.
Our early criminal justice system is brought vividly to life by this scholarly, yet eminently readable, publication. The author has painstakingly researched the records of the Victorian Public Record Series and the Royal Historical Society of Victoria as well as the case books of early judges to compile 764 pages about judges, juries, criminals and advocates in pre-separation Victoria.

Mr Mullaly, a former County Court judge and author of the Victorian Trial Manual and Victorian Sentencing Manual, divides his topic into chapters covering the social and historical background of the law in this period, followed by sections on pre-trial and trial procedures. In a similar classification system to that in his Sentencing Manual, he groups crimes into offences against the person, property, justice and, interestingly, sectarian offences. Each category of offences begins with a brief description of the then applicable law, followed by examples from contemporary newspapers or court depositions.

The chapters on Aborigines and the law, sectarian offences and the competence of witnesses reveal themes and societal concerns which resonate today. An interesting old English practice, which might be recycled in our multicultural society, was to allow an accused who was “alien born” to apply to be tried by a jury de medietate linguae – a jury comprising one half selected from the country or continent from which the accused came and the other half local citizens.

Brief biographies of the resident judges in Melbourne and the criminal Bar enliven the later quotes from judgments of the court and provide insights into colonial society’s mores.

Australian legal history, apart from a few books such as Alex Castles’ An Introduction to Australian Legal History (LBC, 1971) has been a neglected field of scholarship. Older practitioners will recall studying the well-researched publications on English legal history with their minutely indexed and cross-referenced primary sources. This pioneering work of our own legal inheritance sets a benchmark for historical methodology and conceptual analysis of curial archives.

The recent enactment of the Victorian Charter of Human Rights and Responsibilities provides an impetus to review the underpinnings of our criminal law. This publication greatly assists in that process.

Alan Ray
Solicitor and Adjunct Lecturer
The College of Law Victoria

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