Journal of Law, Information and Science
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Journal of Law, Information and Science |
|
by SHANE HENDERSON
Brisbane, Datalegal Publications, 1993, version 1.0. 190 pgs including index
This is a noteworthy publication for at least three reasons. First, the increasing importance and popularity of alternative dispute resolution (ADR) means that a mediation, arbitration or similar provisions will today be included in most commercial contracts, including contracts involved with the computer market for goods and services. Second, this is one of the few legal publications in Australia which is also available in electronic format. Note that this publication is version 1.0 and updates are planned which will also be available on disk. Finally, while the underlying theory of dispute resolution is not ignored, this text is to be commended for its practicality and usefulness.
The book has 11 main chapters. Chapter 1 presents a history and overview of alternative dispute resolution processes. Chapter 2 describes the various alternative dispute resolution processes, including mediation, conciliation, non-binding expert appraisal, expert recommendation, building expert determination, mediation hybrids, mini-trials and expedited arbitration. Chapter 3 gives readers an overview of conflict theory, while Chapter 4 covers the analysis of a dispute and selection of an appropriate dispute resolution process. Chapter 5 considers the question of how to act as a facilitator and Chapter 6 addresses how to prepare for and assist clients during ADR processes. The topic of negotiation is treated in Chapter 7 which, among other topics, introduces readers to the ground-breaking work of Fisher and Ury and interests based negotiation. Chapter 8 deals with how to act as a mediator and Chapter 9 considers the drafting of ADR clauses. Chapter 10 deals with special case mediations such as family law disputes, divorce, environmental and multi-party disputes. Finally, chapter 11 covers the important topics of codes of behaviour, ethics, and training.
The author, Shane Henderson, was one of Australia's earliest proponents of ADR, especially in the construction industry. An excellent feature of the book is its many useful appendices which include sample agreements, sample clauses for specific purposes, mediator's code of conduct, and various checklists. The text is well set out, easy to read and generally user friendly. The few minor criticisms of the book relate to: 1) its failure to do more with the electronic medium in the form of interactive tutorial questions, etc; 2) its underdeveloped theoretical background in parts; and 3) indexing and referencing, which could be more extensive. To be fair to the author, however, the publication succeeds in fulfilling its aim to be a useful handbook rather than an exhaustive treatise on ADR.
As governments become increasingly concerned about access to justice, the search for 'alternatives' to expensive and prolonged litigation has intensified. Indeed, it has been stated that the 'ADR Movement' is the most significant world legal development to occur in the last ten years.
Most law firms in Australia now offer various forms of alternative dispute resolution services and it is important that law students learn about them. The ADR movement has profound implications for the kinds of work lawyers will undertake in the future and the use of lawyering skills by business, government and other groups. These developments also suggest a major paradigm shift from lawyer as 'crises intervenor' to lawyer as 'planner and problem solver'. Shane Henderson's book makes a significant contribution to this rapidly emerging area of the law.
Review by Professor Eugene Clark, who teaches Litigation and Dispute Processing at the University of Canberra Law School
BOOK REVIEW
by A. TERRY AND D. GIUGNI
(Sydney, Harcourt Brace, 1994)
Business, Society & the Law is, according to its authors, intended for use as a text to be used by law students, but exactly what category of law student is not specified. However, from a general reading of the text it appears that the book is directed primarily at students of commerce, business and so forth who undertake a general law unit with the object of gaining a broad knowledge of the Australian legal system. As a result of the book’s market orientation the authors have sought to provide an introduction to the structure, processes and substantive law of the Australian legal system - the audacious scope of the book is breathtaking.
When writing a general text such as this the task of an author with particular expertise is a painstaking process of determining where to draw the line between a general introduction and a thorough examination of the subject matter in hand. Much of the book demonstrates the authors’ skill in this regard.
With a flying start in the first chapter the authors achieve something of a miracle - a brief discussion of jurisprudence (in just fourteen pages). The rapid pace continues with an examination of the law making and law enforcement processes in the Australian legal system - spanning political theory, constitutional law and administrative law in just one hundred and thirty pages. Without abatement of the pace, the authors whirl through the substantive law of crime, tort, contract, property and equity in just one hundred and twenty pages.
However, at this stage the pace slows and the authors linger, for two hundred pages, principally over the Trade Practices Act 1974, dealing with both the restrictive trade practice provisions and the “consumer protection” provisions of the Act. The reason for this relatively comprehensive treatment of just some aspects of “business” law is not apparent and is bewildering, particularly as the authors, perhaps with the end of the book in sight, whisk the reader through the law of associations, corporations, employment, bankruptcy, taxation (including just fourteen lines upon the modern Australian income tax) and business financing in less than one hundred pages.
Of course, this concentration upon some areas of law might be justified on the grounds of the need to conduct a casestudy of a particular area of the law in order to demonstrate to the reader how the law is created by both Parliament and the courts, how it evolves - the living tissue of the law that can only be understood in the context of a detailed discussion of a particular area of law. But the authors do not rely upon any such justification.
The message from this disparity of treatment appears to be that business people should focus upon the trade practices legislation and have a passing knowledge of other areas of the law. Any person with the least commercial experience would recognise the fallacy of this. This message is all the more deceptive given that the intended reader of the book is one who picks it up with only a layperson’s knowledge of the law - she or he will be unaware of the relative importance of a particular area of the law to a business person.
Given the unquestionable need for students undertaking business studies, commerce, accounting and other similar courses to have a broad understanding of the Australian legal system and the salient features of the substantive law landscape, there is clearly a market for textbooks which provide an overview of the Australian legal system. However, if such textbooks are to serve this function well, such unexplained selective concentration upon particular areas of the law must be expunged.
Other aspects of the book are annoying to a reader who wishes to pursue a particular point further. There is no footnoting and so the reader has no direction as to both the source of the information supplied and also where further reading upon a particular aspect of the law might be found.
This shortcoming is only exacerbated by the bibliography which is compiled at the end of the book and is arranged alphabetically according to author surname. A reader searching for references to material upon taxation, for example, is therefore compelled to scan through the bibliography in its entirety in order to identify what few sources are listed. After this effort it is disappointing to note that the leading general texts in the law of taxation, once again for example, are not even listed.
The Statutes Table is similarly disappointing in its reference to the laws of each state, reflecting an emphasis upon the law of New South Wales while much legislation dealing with topics covered in the book (even with respect to subject matter which is dealt with quite comprehensively, such as consumer protection) from other jurisdictions is not listed.
A further shortcoming of the book is inaccuracies and unsupported propositions which annoy a reader with some knowledge in the particular field being treated. Again taking income tax as an example, the authors assert that the first modern income tax in the United Kingdom was introduced in 1853 (at 568) - clearly wrong as William Pitt introduced a form of income tax in 1799 in order to fund the English participation in the Napoleonic war. This expired in 1802 but was subsequently modified and reintroduced in 1803 by Addington.[1] This early income tax was discontinued after the end of the Napoleonic wars. The modern English income tax was introduced in 1842.[2]
In moving to the Australian tax landscape, the authors state that:
“Income, of course, has become the main subject of taxation and the battle which took place between the taxpayer and the tax office in the 1970s displayed abundant movement, destruction and concealment of income, of an often ingenious nature. While, for a time, the revenue authorities were outmanoeuvred, within a decade the balance had been redressed. Until that time the relationship between the taxpayer and the Commissioner had been more cordial and large scale avoidance through schemes of a dubious nature had not appeared.” (at 568)
Once again, to a reader unfamiliar to the field the opening words ought not be assumed, perhaps a reference to a recent Annual Report of the Australian Taxation Office would have been helpful in demonstrating the preponderant reliance upon the income tax in Commonwealth tax revenue.
But the extract also contains those unsupported statements which help no-one, and certainly not a student new to the area. The remainder of the first sentence of the extract seems to suggest that tax avoidance was a creature of the post hippy era of the 1970’s, when in fact even a cursory glance through the Commonwealth Parliamentary Debates of the 1920’s demonstrates that tax avoidance was a robust child in the nascent years of the Commonwealth income tax (we will leave aside avoidance of the state income taxes which preceded the Commonwealth income tax).[3] In particular, Parliament regularly amended the provisions of the income tax legislation dealing with the retention of profits by companies for the purpose of taking advantage of the lower rate of tax imposed upon the company with respect to corporate income. Such conduct was regularly identified by members of Parliament as tax avoidance, and the failure of the Parliament to come to grips with the problem in comprehensive legislative language lead to such critical tax avoidance cases as W.P. Keighery Pty Ltd v Federal Commissioner of Taxation[4] and Federal Commissioner of Taxation v Casuarina Pty Ltd.[5]
The final sentence of the extract indicates that large scale tax avoidance only developed in the 1970’s. This may or may not be the case - in the absence of hard data (and to my knowledge no one has yet determined a means of quantifying tax avoidance today, let alone in the past) it is impossible to conclusively determine that the 1970’s was the only period of large scale tax avoidance. It may be that tax avoidance was only propelled into the public limelight during the 1970’s - it must be remembered that Keighery dates back to the 1950’s and that a reading of the Parliamentary Debates of the 1920’s and 1930’s indicates that tax avoidance was, at the least, perceived as a serious problem then. Even in 1852 there is evidence of considerable evidence of tax avoidance (as distinct from tax evasion).[6]
Notwithstanding these criticisms, the book has numerous qualities which enhance its effectiveness as a learning tool. The book is logically structured. There is a good table of contents and also a comprehensive index. The book is written in a very readable style and at least attempts to deal with some of the theoretical and practical difficulties of the Australian legal system.
Perhaps most importantly, the authors convey the fluidity of the law, a concept which many non-lawyers (particularly students of disciplines such as accounting who, in my experience, are accustomed to reaching a right or wrong answer) find difficult to grasp. This fluidity can be an immense source of frustration to those accustomed to the comforting certainty of right or wrong answers, but at the same time is a source of wonderment to many lawyers who revel in the construction of a novel argument (and even moreso if it is accepted by ones peers). References to legal history, policy choices made by Parliaments in constructing the form of a law, the processes of statutory interpretation and caselaw analysis and the authors’ critique of existing law with occasional suggestions for law reform all breathe life into this depiction of Australian law.
The book concludes with a chapter dealing with the resurgence of business ethics after the ethical twilight of the 1980’s. The authors draw the threads of the book together by pointing to the fluidity of the law which has allowed the legislative and judicial reform of the law with the object of curbing the excesses of the 1980’s. The law, the authors indicate, has played its part and is adapting to modern conditions, the rest is up to business people to adopt and comply with ethical standards. Such compliance with ethical standards would, according to the authors, obviate the need for excessive regulatory control and therefore remove many of the compliance costs which presently burden industry and commerce. Whilst not comprehensive in its treatment of the issues arising out of this appeal to the rebirth of ethical self-regulation, it is nevertheless commendable that the authors have ended the book on a note which leaves the reader pondering ethical issues in the commercial world.
Needless to say, to a trained lawyer much of the subject matter of the book, the exceptions already having been noted above, is treated in a cursory fashion. Understandably so, given the constraint that the book be of a reasonable size. As was stated at the commencement of this review, the task of the author of a textbook is to serve the needs of the reader for whom the book is written. This book is certainly a useful introduction to the Australian legal system for non-lawyers seeking the key aspects of that system, it is unfortunate that the absence of comprehensive footnoting and a usable bibliography stultifies any urge to read beyond this book.
Review by Mark Burton, Lecturer in Law, University of Tasmania
BOOK REVIEW
by MARTIN DIXON
Blackstone Press Limited, London 1993; XXV + 305 pages
Public International Law is usually regarded, at least by those who teach it, as a special subject in the Law curriculum. Most students approach it in their second or third year, replete with notions of legal systems appropriately equipped with executives, legislatures and judiciaries. On being confronted with International Law (and it surely is a confrontation), they have to adapt their ideas quite substantially if they are going to cope with the subject and understand its workings: no executive to speak of, no legislature in the sense in which hitherto they have understood the term, and a judiciary with exceptionally limited jurisdiction. The consequence is that selling the subject to students requires a certain amount of persuasion that law even appears in the course at all. This necessitates careful thought with regard to the presentation of the subject, especially at the beginning, and I will return to this point later in detailing one of my few criticisms of Dixon’s book.
Textbook on International Law may be seen as a worthy successor to Akehurst’s Modern Introduction to International Law. Its principal value is as a reader-friendly textbook for students coming to International Law for the first time. As such, it offers a useful introduction and serves as an appropriate text to accompany a general course on the subject. All of the topics one would expect to find are there; in fact there is more than one can sensibly cover in a one-semester course. Dixon’s style is accessible and straightforward; even very problematic areas are explained in such a way that the interested student is given much assistance in grasping the complexities. In other words, Dixon does not avoid problem areas; he tackles them and makes them comprehensible on a basic level, so that the reader may then pursue particular topics in greater depth with a sound footing in the area. To this end, suggestions for further reading are offered at the conclusion of each chapter.
It is here that I was a little disappointed, although my criticism is very much a personal one and perhaps inappropriate. All of the suggestions for further reading are restricted to English-language sources. The very essence of International Law is that it is international; it would have been pleasing to see some references to at least some of the very high quality work produced in German and French. On the other hand, English is very much the primary language of International Law, even if the International Court of Justice does hand down its judgments in English and French. Moreover, since the principal market for the book is the UK, it is perhaps reasonable, given the linguistically challenged nature of most British law students (who probably think that French is an adjective qualifying fries, kissing or letters), that Dixon sticks to the one language.
Textbook on International Law is ideal for a first contact with the areas it covers, and I would happily recommend it to students, especially if it were to be read in conjunction with a more complex, if less accessible (to the first time student of International law), work like Brownlie’s Principles of Public International Law. In fact I have recommended it to my own students. Having said that, the book suffers from a serious limitation in the Australian context. Because it is aimed at the UK market, certain topics are inappropriate for Australia in as much as they refer to domestic law. Thus the treatment of recognition, and the relationship between International law and Municipal Law, is less satisfactory from the Australian perspective. This of course is not Dixon’s fault; the book is not really intended for Australian students of International Law. Thus there is no reference to the Mabo case, no reference to the Australian practice on recognition (admittedly very similar to that of the UK). This is an indictment of Australian legal publishers, which have steadfastly failed to appreciate the need for indigenous product and have instead abandoned the market to the Dixons, Brownlies and Harrises of undergraduate International Law books. Fortunately this situation will be at least partially remedied in 1995.
I have deliberately avoided detailed comment on the actual text of Dixon’s book. This is not because I have not read it; I have. The reason is rather that I consider Dixon’s treatment of his subject to be excellent; it would be superfluous to seek out pieces here and there for criticism. But I would offer one comment. Too many general books on International Law (and, I suspect, quite a few courses on the subject), start by discussing “the nature of International Law” or some equivalent, then move on to sources, and follow a fairly predictable sequence. I have one problem with this, and it relates to my comment at the beginning that International Law really is something quite novel and challenging for most law students. It seems to me that the first chapter of an introductory book should be devoted to explaining the structure of the international legal system. This would include a discussion of the role of the United Nations in the international system since 1945, with analysis of the General Assembly, the Security Council and the International Court of Justice. Once students have some understanding of this, they would have a context in which to fit the rest of the course, and the complexities of sources of International Law should be more amenable to effective study.
Of course, there is more to this than just explaining the institutions of the United Nations, but that is certainly an important aspect of it. Martin Dixon does this, to an extent. He does discuss the United Nations and its institutions, and in doing so he gives the reader an appreciation of how the system works. His approach would not be mine, but then my approach probably would not be his.
In conclusion, this is the best introductory book on the market (at least for those who only read English), especially if you are studying International Law in the UK. The work has limitations as far as Australia is concerned, but that is no criticism of Martin Dixon.
Review by Dr Ryszard Piotrowicz, Senior Lecturer in Law, University of Tasmania
BOOK REVIEW
by DENNIS ROSE
Law Book Co., Sydney, 10th edition, 1994, 350 pages (HC $65.00, SC $45.00)
This text now in its tenth edition is still the standard text for Personal Insolvency courses in Australia. The book is intended “as an explanation of the principles of bankruptcy law, and as a guide to its details, for use by students, legal practitioners, trustees and other people concerned with bankruptcy, arrangements between insolvency debtors and their creditors, and related matters.” The monograph more than fulfils this aim. It contains a detailed analysis of the principles applicable to all areas of bankruptcy and Part X arrangements with further references to the statutory provisions, the decided cases and the other texts.
The book looks at the area of insolvency in chronological fashion beginning with an introduction to the purposes of the law of bankruptcy and the applicable legislation, both Federal and State. Chapter two examines the history of bankruptcy and chapter three the administration; the author explaining the role of the courts, officials and trustees.
Chapters four through eight examine the way in which a person may become bankrupt. The principles applicable to debtor and creditor’s petitions are outlined; with one chapter, chapter six, looking exclusively at the problems associated with bankruptcy notices. Importantly Rose provides not only the legislative provisions and the cases on the area, but also the applicable statutory rules governing the presentation and service of creditors’ and debtor’s petitions. The cases are not generally discussed in significant detail, rather the principal of the decision is given in the main text with a footnote reference to the case.
Chapter nine examines the effect of going bankrupt with chapter ten considering the lodgement of proofs of debt. The next three chapters outline procedures that occur upon going bankrupt, the meeting of creditors, the committee of inspection and the possibility of a composition or scheme of arrangement being proposed by the bankrupt.
The next seven chapters considers the important topic of the property available to creditors. Importantly an overview is given in chapter fourteen which provides the reader with an outline of what is to follow. In each of the chapters as with the rest of the book the reader is provided with a summary of the law together with a guide to the relevant decisions and statutory provisions.
Chapters twenty-one and twenty-two consider the recovery of property, twenty-one dealing with recovery from ‘controlled entities’ with the later chapter looking at the topic more generally. Subsequent chapters deal with the management and sale of the estate, the distribution of the estate, discharge and annulment of bankruptcy.
Separate treatment is given to second bankruptcies, deceased persons’ estates in bankruptcy and offences and contempt of court. In chapter twenty-nine the author outlines the principles applicable to Part X arrangements.
Throughout the book liberal use is made of headings, sub-headings and lists to guide the reader to the particular aspect that they wish to find. This book does fill that gap between the detailed looseleaf services on the area and the summary treatment provided to bankruptcy in most business law texts. Any text that is in its tenth edition has proved its popularity and worth, the latest edition will only continue the impetus for further updates.
Review by Lynden Griggs, Lecturer in Law, University of Tasmania
BOOK REVIEW
by PROFESSOR JAMES O’DONOVAN
Law Book Company, Sydney 1994, 250 pages, (SC $35.00)
McPherson’s Law of Company Liquidation (1987) is established as one of the principal, if not the principal text on liquidation in Australia. However it is essentially a practitioners’ text, a very detailed and comprehensive monograph on the topic of winding up. Because of this detail it was, in many ways, unsuitable for use as a student text within insolvency courses. For example within the unit Personal and Corporate Solvency at the University of Tasmania, this reviewer is required to look at the principles of Bankruptcy, Part X arrangements, Liquidation, Receivership, Voluntary Administration and Schemes of Arrangement. Obviously in the time constraints of a one semester unit it is not permissible to consider one topic such as liquidation in considerable depth. This made the use of the 1987 text as impractical; the depth of the monograph beyond what was required for the unit. However it is this fact that has made the student edition of The Law of Company Liquidation so invaluable. The detailed practitioners’ text is simplified, revised and rewritten to provide an outline of the basic elements of company liquidation.
The text as far as possible deals with the topic in the same chronological fashion as would happen in a liquidation. There are twelve chapters:
• Introduction,
• Voluntary Winding Up,
• Compulsory Winding Up: Grounds and Applicants,
• Compulsory Winding Up: Creditors’ Application,
• Compulsory Winding Up: Contributory’s Application,
• Commencement and Impact of Winding Up,
• Liquidators,
• Property Available for Division and Distribution,
• Discovery, Recovery and Division of Assets,
• Discharging Debts and Liabilities,
• Termination of Winding Up,
• Winding Up of Interstate and Foreign Companies.
Each of the chapters is divided into a number of small paragraphs with subheadings to enable quick and easy access to particular points. As is the nature of a student text there is little analysis of the leading cases, rather reference only is made to them. There is significant footnoting to enable further work should this be required.
The book will be invaluable to students of insolvency and will be utilised in the Personal and Corporate Solvency unit at the Law School at the University of Tasmania. One small point that would improve the book as a student text would be to include sample questions and answers and perhaps greater use could have been made of diagrams and flowcharts. Nevertheless the book is important in that it fills a void in legal publishing in Australia and should do quite well with the proliferation of insolvency courses within Australian law and business schools.
Review by Lynden Griggs, Lecturer in Law, University of Tasmania.
[1] For a study of the introduction of the income tax by William Pitt in 1799 and its modification by Henry Addington in 1803, see A. Farnsworth, Addington - Author of the Modern Income Tax (London, Stevens and Sons, 1951).
[2] The Income Tax Act 1842 (5 & 6 Vict. c.35); the income tax was modified and expanded in 1853 by 16 & 17 Vict, c.34.
[3] Just one example of such tax avoidance practices under the Commonwealth income tax was the retention of profits within the corporate form in order to take advantage of the lower tax rate applicable to undistributed corporate profits. For a lengthy discussion of the measures intended to prevent a taxpayer retaining profits within a corporate entity and thereby paying income tax at a lower rate, and the failure of the amendment to eliminate tax avoidance, see Australia, 109 Parliamentary Debates (Cth) pp.4869-4901 (30 September 1924); in the course of this debate Mr Scullin pointed out that the company tax rate of 1 shilling in the pound established by the Income Tax Act 1923 was well below the average individual income tax rate of 2 shillings fivepence in the pound (see p.4889).
[4] [1957] HCA 2; (1957) 100 CLR 66.
[5] (1971) 127 CLR 62.
[6] See the evidence presented by Mr C. Pressly, Commissioner of Inland Revenue to the Select Committee on the Income and Property Tax; United Kingdom, First Report from the Select Committee on the Income and Property Tax, 1852 (the Hume Committee). In response to one question, Mr Pressly replied “I made use of the word "avoidance;" a man having 160l. a year may charge his estate with an annuity of 20l a year to his child; I do not call that an evasion of the duty at all; I think it is perfectly legitimate; I think he avoids the payment of the duty."(at p.33). During the course of his evidence Mr Pressly gave other examples of what he defined as tax avoidance.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/JlLawInfoSci/1994/22.html