Law

The cover design for this book features a painting by Indigenous artist Johnny Bulun Bulun. It is an appropriate choice, given that it was this artist who in 1988 spearheaded the first major action in an Australian court against the unauthorised reproduction of Aboriginal works for commercial purposes, and in so doing set a precedent in establishing the existence of copyright in Aboriginal art. The case concerned the use of works of art on T-shirts. It was followed by one against the Reserve Bank of Australia, which had reproduced an Aboriginal image on the bicentennial $10 note without permission, and the famous ‘carpets case’ against a company that imported carpets made in Vietnam that contained some well-known Aboriginal artworks in their design.

William Willshire was Officer in Charge of the Native Police in Central Australia from 1884 to 1891, when he was charged with the murder of two Aborigines. He was acquitted, but was regarded by his superiors from then on as something of a liability, ending his career in an uneventful posting in Cowell on the Yorke Peninsula. He wrote three books about his life as an outback hero, glorifying himself as an anthropologist and sentimental champion of the people he had policed with ignorant brutality.

Chester Porter QC retired as a barrister in June 2000. Several weeks previous, the Bar Council appointed Porter a life member of the New South Wales Bar Association ‘for his exceptional service to the Bar Association and the profession of law’. The Council’s decision was unanimous (I know this because I wrote the minutes of that meeting). There was, and is, no dispute that Porter was one of Australia’s foremost advocates. Porter retired from the Bar, but not from passionately advocating justice for those caught up in our criminal justice system, including those members of society many of the community would be happy to have rot behind bars.

What role should international law play in the domestic legal sphere? The author of the Institutes of Justinian stated that ‘[e]very community governed by laws and customs uses partly its own law, partly laws common to all mankind’. Nevertheless, a certain view propounds that international law is an unstable or subversive intrusion into the processes of democratic sovereignty and the pedigree of national law. Such a stance, while persistent, denies social fact; the reach of international legal regulation is unprecedented and national bureaucracies increasingly operate beyond state boundaries. Such is the reality of the ‘Fluid State’ which, the editors of this volume suggest, will alter orthodox understandings of the interrelationship between international and national law.

Alexander Downer, when asked on the ABC in February 2003 about the legality of military measures against Iraq, was keen to emphasise Australia’s fidelity to international law: ‘We’ve reached a point where you either take international law seriously and ensure that Iraq does comply with international law or else you abandon the whole concept, at least in this case, of trying to enforce international law.’ But only a month after these comments, the federal government demonstrated its commitment to ‘enforcing’ international law by participating in an invasion characterised as illegal by the preponderance of states and international lawyers.

Geoffrey Robertson, the author of The Tyrannicide Brief, enjoys the same high public profile as those old lags who constitute the élite of Australian expatriates in London: Clive James, Germaine Greer, and Barry Humphries. In his case it is as a leading international human rights lawyer, the author of Crimes against Humanity (1999) and The Justice Game (1998), and host of the popular television series Hypotheticals.

The prodigious effort that went into the compilation of Dowling’s Select Cases was entirely consistent with his own approach to judicial office, including producing the copious writings that found their way into the book. As Dr Bennett put it in his biography of James Dowling (2001), industry and perseverance were the hallmarks of Dowling’s accomplishments. To produce the chronicle now published, the editors and their helpers followed Dowling’s notes through his nine volumes of cases, cross-referencing many to his 268 judicial notebooks. The cases were recorded by Dowling by hand and required considerable typing. They are arranged chronologically and according to subject matter. The book will not be a threat to Harry Potter but will endure as of considerable interest to lawyers and historians.

According to Aristotle, rhetoric is ‘the ability, in each particular case, to see the available means of persuasion’. In today’s parlance, the term is often used pejoratively, connoting an obfuscation of truth. This would come as no surprise to Aristotle, whose treatise on the topic, Rhetorica, demonstrated an acute awareness of the dangers posed by the adroit manipulation of the means of persuasion for dubious ends.

He said, she said. Is there any way to talk about this sad subject without taking sides? And a thought for a reviewer: how to resist the temptation to find a book a ‘good book’ if you agree with its arguments, and a ‘bad book’ if you disagree? I disagree with most of what John Hirst has to say in Kangaroo Court: Family law in Australia, but I’m trying to be fair. The essay is lucidly written (indeed, its message could hardly be clearer); it is extensively, if selectively, researched; and it raises important matters that we, as a society, need to think about.