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By Law Institute Journal


This month’s books cover interlocutory appeals, superannuation and insurance, sentencing, DNA evidence and Australia as an international citizen.

Total and Permanent Disablement in Superannuation and Insurance

John A Riordan, Wolters Kluwer/CCH Australia, 2016, $70

This book deals with the law pertaining to claims for total and permanent disablement benefits under superannuation deeds and insurance policies. It is divided into 13 concise chapters. It first introduces the fundamental principles and underpinning law concerning the power of superannuation trustees and insurers to accept or deny such claims (Chapters 1 to 4). It then considers the legal construct of “disablement” (Chapters 5 and 6), and examines the processes that a claimant may need to consider and/or go through to successfully challenge a denied claim (Chapters 7 to 15).

Throughout there is comprehensive discussion of Australian case law and succinct summaries and conclusions dispersed at appropriate junctures. Extensive use of quotes from judicial decisions is of immense value.

The book is suitable for academics, practitioners and decision-makers.

David Kim, barrister

Sentencing in Australia

Mirko Bagaric and Richard Edney, (3rd edn), Thomson Reuters, 2016, $153 ($137.70 for members through Law Books)

Not everyone has the time, money or inclination to wade through Mirko Bagaric and Richard Edney’s encyclopaedic loose-leaf service on Australian sentencing law (more than 2000 pages at last count), which is why the compendious, single-volume Sentencing in Australia is such a valuable resource. Now in its third edition, the book offers a comprehensive survey of Australian sentencing law, both at the level of principle and in terms of its practical application. While this new edition will no doubt be a helpful first port of call for students and researchers, its primary audience is the practitioner.

The opening chapters offer a brief treatment of the overarching aims of the sentencing exercise and a discussion of recent important trends in Australian sentencing jurisprudence, such as the use of statistics in sentencing and the increasing resort to guideline judgments. The true value of the book, however, is in the 300-odd pages exhaustively enumerating the circumstances and factors that are capable, under statute and at common law, of aggravating and mitigating an offence.

Julian R Murphy, judge’s associate, High Court of Australia

Interlocutory Criminal Appeals in Australia

Greg Taylor, Thomson Reuters, 2016, $79 ($71.10 for members through Law Books)

A key principle that has underpinned criminal trials under Australian criminal law is that disputed legal issues that occur in the “running” – that is, during the trial – should be determined after the trial has concluded by way of an appeal against conviction. So the law has stood against the “fragmentation” of the criminal trial process by interlocutory appeals and, in fact, discouraged such appeals.

Notwithstanding that reluctance, in Victoria – following the introduction of the Criminal Procedure Act 2009 – a right was provided to the prosecution and the accused to appeal against interlocutory decisions that occur in the currency of a trial. Interlocutory decisions have wide scope and would appear to embrace all procedural, evidentiary and substantive matters that would arise in a criminal trial.

It was a significant reform, guided by a desire to ensure miscarriages of justice could be prevented before they occur by, effectively, correcting an error or errors, that may have led to a substantial miscarriage of justice. In short, it offered a “prophylactic” against potential injustice. It was also a reform that was wider than similar provisions in NSW where there could only be an appeal against interlocutory judgment or orders.

The coverage of interlocutory appeals in Victoria is particularly deep and expressed clearly and concisely.

Richard Edney, barrister

DNA Evidence in the Australian Legal System

Marcus Smith, LexisNexis Butterworths, 2016, $89 ($80.10 for members through Law Books)

This book deals with a large amount of material while remaining succinct, accessible and useful. Both the forensic/scientific side of DNA evidence, and the treatment by the courts of evidence gathered are dealt with to cover the gamut of legal, ethical and other policy considerations. Included are descriptions of the scientific bases for DNA use, collection methods, analysis and database management and use as well as admissibility, correct interpretation and other evidentiary issues.

A background to the complex scientific principles underpinning the use of DNA evidence is provided by understandable explanations. Post-trial use is also covered briefly in the final chapter.

The author well conveys the rapidly changing nature of evolution in the science surrounding DNA evidence and the responsive reaction by courts and legislators to deal with the resultant evidentiary idiosyncrasies that have arisen. The results are mixed, the so-called “prosecutor’s fallacy” being one example of the difficulties and potentials for missteps involved.

The citations in the book range from reform reports to philosophical writings, reflecting the depth of consideration of all aspects of relevant legal interaction. Frequent reference to other major common law jurisdictions is made throughout the book, giving a perspective on alternative or novel approaches to the issues.

Douglas J James, barrister

Australia as a Good International Citizen

Alison Pert, Federation Press, 2014, $125 ($112.50 for members through Law Books)

Can a state be considered to be a good international citizen? Is there a standard to measure the reputation of a state, and if so how does one go about evaluating it in a meaningful way? Australia as a Good International Citizen answers these questions with a comprehensive and fascinating analysis of Australia’s role in the international legal community.

It considers Australia’s role with an international law lens. The author argues that core attributes of being a good international citizen revolve around compliance with international law, supporting multilateralism and having morality and leadership. The ability of Australia to lend support towards international tasks is also a key attribute and provides context for Pert to follow Australia’s engagement with various international instruments and legal bodies from the time of Federation in 1901 through to the recent Rudd and Gillard governments.

Pert’s specific focus on two key attributes of a good international citizen, namely compliance with international law and support for multilateralism allows her to measure the State against a criterion of established international law standards and expectations such as the concept of doing good for the greater community. Treaty making, overseas aid and nominations for world heritage listings are examples of Australia being good international citizens, while protection of human rights and in particular Indigenous rights are areas that require extensive engagement.

Samaya Borom, Charles Sturt University

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