Volume 26(1)
July 1996
ARTICLES
WESTERN AUSTRALIAN FORUM
BOOK REVIEWS
A Radical Tory — Garfield Barwick’s Reflections and Recollections, Sir Garfield Barwick (Reviewed by Peter Johnston)
Australian International Law: Cases and Materials, H Reicher (ed) (Reviewed by Donna Starr-Deelen)
International Trade Law: Commentary and Materials, M Pryles, J Waincymer & M Davies (eds) (Reviewed by Donna Starr-Deelen)
Legal Anthropology, Norbert Rouland (Reviewed by Emma Hawkes)
Overviews
ARTICLES
Equity in the Modern Law: An Exercise in Taxonomy (pp 1-99) 
Peter Birks (Regius Professor of Civil Law, All Souls College, Oxford)
It is essential in modern society that the law be closely and cogently reasoned. Access to the courts is extremely expensive. An expensive palm tree is no use to the people. The law must be so stated as to facilitate prediction and advice. It would otherwise be impossible to plan with confidence. And it is impossible to know when to litigate. In the context of litigation, law which is intellectually disorderly plays into the hands of the rich and powerful, whether the power and wealth be private or public. Power goes hand in hand with uncertainty. The more uncertain the law the better it can be used in terrorem and the easier it would be to force the weaker party into a settlement. It is said to be in the interest of society that quarrels be ended and litigation minimised. In Latin this seems to be put beyond doubt: interest reipublicae ut sit finis litium. The proposition should not escape examination. It is equally true that members of society have entitlements, and that the courts are there to ensure that they are not elbowed out of them…. Justice takes no pleasure in settlements compelled by needlessly uncertain outcomes. These are the routine ends which legal certainty has to serve, and legal certainty is impossible if and so long as taxonomy is neglected.
Goodbye to Law Reviews (pp 100-107)
Fred Rodell (1907-1980; formerly Professor of Law at Yale University, 1939-1973)
The author takes a critical look at the usefulness of law reviews and suggests that the average law review writer is 'peculiarly able to say nothing with an air of great importance'. This article was first published in the University of Virginia Law Review (1936) vol XXIII, 38. Do the author’s criticisms still hold good today? We leave the reader to judge.
Dispossession by the National Native Title Tribunal (pp 108-137)
Richard Bartlett (Professor of Law, The University of Western Australia)
The National Native Title Tribunal (NNTT) was supposed to be a just and informal body that would facilitate the determination of native title and ensure that, whatever the sorry past, future grants would be made in a context that afforded equality to Aboriginal people. The administration by the NNTT of the future act process and the right to negotiate is critical to ensuring such equality. But to date the NNTT has failed dismally in its role. It is only judicial correction of the NNTT’s errors by the Federal Court and the High Court that has prevented that body from becoming a mere facilitator of pre-Mabo style dispossession.
Proportionality in Administrative Law: Wunderkind or Problem Child? (pp 138-159)
Peter Johnston (Visiting Fellow, The University of Western Australia)
Over the last decade courts and commentators in Australia have debated whether proportionality is or should be an independent ground of judicial review in administrative law or whether it should continue to be located in the traditional ground of ‘unreasonableness’. This article explores the debate in a comparative law context. It concludes that proportionality can function, in different ways, both independently of, but also within, traditional unreasonableness. It also proposes a role for proportionality in merits review.
Inkeepers Liability in Western Australia: Tourist Accommodation Operates Under Uncertain Laws (pp 160-168)
Trevor Atherton (Director of the Centre for Tourism Law and Policy, School of Law, Bond University, Queensland)
Throughout Australia the law governing the relationship between hotels and guests is a confusing mix of ancient common law rules and piece meal statutory amendments. In Western Australia the confusion is compounded by uncertainty over the extent to which the common law rules still apply following the repeal of the 1970 statute which extinguished inkeepers’ duties and liabilities. The need to clarify the position presents the legislature with the opportunity to join an Australia-wide approach towards a uniform Tourist Accommodation Act which meets contemporary needs and international standards.
WESTERN AUSTRALIAN FORUM
Consensual Fist Fights and Other Brawls: Are They a Crime? (pp 169-189)
George Syrota (Editor, The University of Western Australia Law Review)
Two men who have been drinking heavily in a pub get into an argument. They decide to settle their differences by a fight. In the ensuing brawl one of the men, D, breaks the other man’s jaw. D is charged with an assault occasioning bodily harm. Can he plead, as a defence to this charge, that the other man consented to take part in the fight with him? Despite the commonplace nature of this scenario, the answer is far from clear.
The ‘Specific Triggering Incident’ in Provocation: Is the Law Gender Biased? (pp 190-206)
Stella Tarrant (Lecturer, The University of Western Australia)
The traditional interpretation of the defence of provocation under the Western Australian Criminal Code is challenged by the author who argues, on the basis of the New South Wales case, R v Chhay (1994), that no specific triggering incident is required. In the alternative, the author claims that the requirement of a triggering event is in effect discriminatory towards women and may thus contravene section 22 of the Sex Discrimination Act 1984 (Cth) and be Constitutionally invalid.
Sentences for Wilful Murder and Murder (pp 207-222)
Irene Morgan (Lecturer, The University of Western Australia)
Capital punishment was formally abolished in Western Australia in 1984. Since then, State Parliament has enacted a series of measures which have made the penalties for murder and wilful murder conviction progressively more harsh. This article traces the history of murder and wilful murder sentences and argues that the current scheme is unnecessarily complicated and inflexible and in urgent need of review -- 'ideally, the distinction between wilful murder and murder should be abolished...'. Against this background, it is suggested that the recent High Court decision in R v Mitchell was both predictable and defensible.
Oppression, Fraud and Consent in Sexual Offences (pp 223-240)
Neil Morgan (Senior Lecturer, The University of Western Australia)
This article explores the circumstances in which intimidation and fraud will vitiate consent in the context of sexual offences. It is argued that, in the wake of recent reforms to the law of sexual offences, different principles should apply in the two situations. In the case of intimidation (or oppression), the question of consent should be left to the jury, as a question of fact. In contrast, there must be legal limitations to the circumstances in which fraud will vitiate consent. This article examines those limitations and their ramifications, and makes proposals for reform.
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