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By Law Institute Journal

Justice Native Title Personal Property Workplace Relations 

In_print This month’s books cover workplace bullying, miscarriages of justice, crimes that have shaped the law, rescission, personal property securities law and native title. Workplace Bullying Joseph Catanzariti, Keryl Egan, Workplace Bullying, LexisNexis, 2015, pb $110 Government regulators and inquiries in recent times have made it clear that bullying at work is not to be tolerated. Legislative responses have given individuals tools to redress bad behaviour by colleagues, albeit these tools have not been beyond criticism. This book, written by a vice-president of the Fair Work Commission (FWC) and a psychologist, offers a combined psycho-legal perspective, an attractive approach for both legal practitioners and HR managers requiring a deeper insight into why bullying occurs, together with the tools to identify and manage such behaviour. On the legal side, the book is heavily weighted towards the FWC’s anti-bullying jurisdiction which commenced operation on 1 January 2014. This is to be expected given that one of the authors is a senior member of the FWC and the jurisdiction is a recent creation. The heart of the book, however, is the psychological side of bullying covering the mechanism of bullying; the personality, motivations and strategies of the bully; the contexts, causes and consequences of bullying; and managing, intervention and prevention of bullying conduct. The book focuses on the “Dark Triad” range of personalities, covering subclinical narcissism, Machiavellianism and subclinical psychopathy, all of which correlate with undesirable bullying conduct. In short, the psychological side of the book would help a manager better identify a bully, understand what motivates the bully, and intervene to deal with the adverse and damaging conduct of the bully. The legal side is no less important, particularly in understanding what particular conduct the law regulates. Too often workers, managers and commentators loosely and unfortunately apply the description of “bullying” to a wide range of misconduct, often in a subjective and emotional way. As much as there may be a broad range of workplace conduct that is inappropriate, not all of it fits within the definition of bullying, and practitioners need to be vigilant in properly identifying bullying conduct, lest the word loses significance through misuse. While the book could have omitted the FWC forms for the bullying jurisdiction (they are readily available on the website), it nevertheless provides a timely guide to both legal and non-legal aspects of bullying conduct in the workplace, a topic relevant to workplace relations practitioners, if not the broader workforce. Chris Molnar, partner, McKean Park Lawyers Miscarriages of Justice: Criminal Appeals and the Rule of Law in Australia Bibi Sangha and Robert N Moles, Miscarriages of Justice: Criminal Appeals and the Rule of Law in Australia, LexisNexis Butterworths, 2015, pb $130 The appeal right in Australia has been interpreted to mean only one appeal. The existence of the statutory petition referral procedure enabling an Attorney-General to refer a case to the Court of Criminal Appeal for further consideration was often provided as a reason why it was unnecessary to allow for a second or subsequent appeal. The authors, two distinguished academics, have thoroughly researched cases of miscarriages of justice and explained what can and should be done to reduce the chance of wrongful convictions, to reverse them when they do occur, and the legislative changes which have already been introduced in South Australia and Tasmania. It is clear from this book that the steps to improve the appeal process in those two states are only just the beginning of a fairer process. For more than a century, the criminal appeal rights in Australia have been in “common form” (statutory appeal provisions copied from the UK’s Criminal Appeal Act 1907) and accompanied by the proviso that if a point raised by an appellant on an appeal was successful, the appeal might nevertheless be refused if it was thought that the error at trial did not lead to a substantial miscarriage of justice. The UK has since abolished the proviso. One reason why the proviso was necessary in Britain was because there was, at the time of its introduction, no right to order a retrial. The first half of the book looks at coherence and consistency in appeals with the second half concerning compliance (obligations of investigators, prosecutors and expert scientific witnesses). The many referenced inquiries, articles, reports and cases give the reader ample material to further deepen their knowledge of miscarriages of justice. This book should be read not only by criminal law practitioners, police, judges and parliamentarians, but by anyone who abhors injustice. Simon Lee, barrister Crimes that Shaped the Law David Field, Crimes that Shaped the Law, LexisNexis Butterworths, 2015, pb $39 One of the great strengths of the common law is its ability to change and adapt as new ideas are tested. In that regard it’s like a patchwork rug handed down through the generations, with each generation adding its own contribution for the next generation. These crimes that shaped the law are some big and important patches. There are classic chapters on battered women’s syndrome, M’Naghten’s rules, Nuremberg trials among others – all important stuff. The format is accessible and engaging. I would suggest this to a motivated later high school student of legal studies or a distracted university student you are hoping to steer towards the law. It is definitely fun and not at all daunting to read. Legal ideas are formed both inside and outside formal legal education. Aside from the classics mentioned above, there are the downright notorious such as the chapter titled “Germany Calling” which has parallels in contemporary society. A young man turned his ideas towards hate and began cultivating support for this hatred. He was an American citizen who fraudulently applied for a UK passport before emigrating with his wife to Germany where he became a naturalised German citizen. William Brooke Joyce, nicknamed “Lord Haw Haw”, would broadcast to the UK Nazi propaganda in English from Germany. Following the end of World War II, Lord Haw Haw was hunted and captured in Germany and sent back to England where he was tried, convicted and hanged for treason. It’s hard not to show some discomfort with this. I wonder whether a different outcome would be arrived at today. More importantly, should a different outcome be arrived at today? It is a great luxury that we have a record of the past which we can absorb and reflect upon. Hopefully young lawyers and policy makers will read this and be able to identify ideas and principles of law which should and should not belong in the common law. Tasman Ash Fleming, barrister Ong on Rescission Denis SK Ong, Ong on Rescission, The Federation Press, 2015, hb $125 Ong on Rescission joins Professor Ong’s preceding four titles Ong on Subrogation, Ong on Specific Performance, Trusts Law in Australia and Ong on Equity. Professor Ong, a UK law graduate admitted in the UK, is a professor at Bond Law School and a former head of the Law School at Macquarie University. The book is a traditional monograph on rescission with a distinct Anglo-Australian focus. It revisits the lessons of the classics in some detail such as Alati v Kruger, Bell v Lever Brothers, Leaf v International Galleries and McRae v Commonwealth Disposals Commission. There are few recent references (one is Independent Trustee Services from the UK in 2013) and few media-neutral citations from Austlii and equivalents. There is one reference from Canada, two from New Zealand but none from the US, and little if any citation of legal literature from any jurisdiction. The author uses a lot of italics to stress his point. You may need your dictionary to check unnecessary language such as tenebrific and marmoreal exegis. Chapter 1 sets out the distinction between rescinding a transaction ab initio and terminating a contract, including discussion of Hurst v Bryk (at pp17-18 not pp16-17 as stated in the index). Chapter 2 explains the distinction between restitution at common law and restitution in equity. Chapter 3 sets out the concurrent and exclusive jurisdiction of equity in relation to restitution. It also includes discussion of rescission legislation in the ACT, NSW and South Australia. Chapter 4 introduces intention-based election and estoppel-based election to affirm or to disaffirm a transaction. Chapter 5 examines the impact of third party interests on the distinction between void and voidable transactions. Chapter 6 deals with the concept of partial rescission, chapter 7 deals with the effect of misrepresentation on executed contracts, and chapter 8 concludes the book with a study of the grounds for rescission, namely, mistake, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. There is no mention of the growing developments under the Australian Consumer Law. Ong on Rescission provides a compact Australian hardback focus, and will be a worthwhile addition to the shelf. Dr Paul Latimer, Department of Business Law and Taxation, Monash University Australian Personal Property Securities Law Anthony Duggan and David Brown, Australian Personal Property Securities Law (2nd edn), LexisNexis Butterworths, 2016, pb $99 The first edition of this book was published in mid-2012. During the intervening period there have been numerous decisions of the courts dealing with aspects of the Personal Property Securities Act 2009 (PPSA) that commenced on 30 January 2012. This edition appears to have been prompted by the need to explain and analyse the case law to date. It also deals with aspects of the Statutory Review Report undertaken by Bruce Whittaker released on 18 March 2015 that was provided for by s343 of the PPSA. Various chapters of the text have been rewritten because the authors have changed their views on some of the provisions due in part to the approach taken by the Australian courts. The approach was not clear at the time of the first edition as the PPSA differs in a number of aspects from the New Zealand and Saskatchewan legislation. Also, the drafting in many sections is substantially different. According to the authors, those concerns have not been met as the Australian courts have relied upon and followed New Zealand and Canadian cases and secondary sources. The rewriting of a number of chapters and discussion in large part also appears to be due to the deep understanding of PPSA law and the policy underlying it, particularly on the part of Professor Duggan who has taught the subject for more than 15 years in Canada as well as Australia and New Zealand. This scholarship is reflected in this new edition. The insolvency chapter has been beefed up with a discussion of the cases dealing primarily with s588FL of the Corporations Act and vesting of unperfected security interests. An additional chapter on the Cape Town Convention dealing with aircraft has been included. The text reflects the law as at 31 July 2015. The readability of this new edition has been greatly improved by the publishers printing the text in a larger type size than that used in the first edition. It is also available in hardback and e-book. This book is without peer in the Australian context. It should be on the bookshelves of judges, practitioners and law schools as the first point of call when faced with a PPSA problem. David C Turner, barrister, Monash University senior fellow Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? Sean Brennan, Megan Davis, Brendan Edgeworth and Leon Terrill (eds), Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?, The Federation Press, 2015, hb $165 It is nearly a quarter of a century since the momentous High Court decision in Mabo (No 2) v The State of Queensland was handed down. That decision – recognising the existence of native title – remains an important milestone in the history of Indigenous and non-Indigenous communities of Australia. In this timely work, the editors have assembled an impressive array of distinguished authors in the disciplines of law, history, anthropology, economics, community development and Indigenous history and culture. The result is a nuanced and rich description, not only of the jurisprudential history of native title, but of the wider social, political and economic context in which native title subsists and the opportunities it offers for Indigenous advancement. The work is divided into two parts. The first part – Legal Dynamics in the Development of Native Title – is concerned with detailing and reflecting on the legal history of native title following Mabo. For anyone whose knowledge of native title starts and finishes with Mabo, this is an excellent primer on how native title has developed since that decision. The second part of the book – Native Title as a Vehicle for Indigenous Empowerment – is concerned with the important question of how the recognition of native title may be linked to, and lead to, the advancement of Indigenous communities. It is a vexed and unresolved question given the momentous act of dispossession that is at the core of the foundation of the Australian nation state. Personally, I found this the most interesting part of the book. And it makes crystal clear that native title is not the panacea to reckon with the legacy and enduring effects of colonial dispossession on Indigenous communities and any advancement remains gradual and is part of a wider political context. Richard Edney, barrister

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