Volume 28(1)
January 1999
ARTICLES
'Without Fear of Favour, Affection of Ill-Will': The Role of Courts in the Community, John Toohey AC (pp 1-12)
The Law of Restitution at the End of an Epoch, Peter Birks QC FBA (pp 13-64)
Principles of Disclaimer of Gifts, Neville Crago (pp 65-83)
Liability for Pure Economic Loss: Yes, But Why?, Bruce Feldthusen (pp 84-120)
The Duty of Solicitors to Give Tax Advice - A Reply, Gino Dal Pont (pp 121-131)
The Duty of Solicitors to Give Tax Advice - A Rebuttal of the Reply, Robert K O'Connor QC (pp 132-137)
Shelter from the Storm: Succession and Demarcation Issues under the ABM Treaty, David Hodgkinson (pp 162-170)
BOOK REVIEWS
Broken Lives, Estelle Blackburn (pp 171-175) Reviewed by Graham Pidco
Rethinking Law and Order, Russell Hogg & David Brown (pp 176-179) Reviewed by Paul Moyle
Overviews
ARTICLES
'Without Fear of Favour, Affection of Ill-Will': The Role of Courts in the Community (pp 1-12) 
John Toohey AC (Justice of the High Court of Australia 1987-1998; Visiting Professor, The University of Western Australia 1998-1999)
The judicial oath, requiring judges to dispense justice to all ‘without fear or favour, affection or ill-will’, can be traced to a statute enacted during the reign of Edward III in 1346. This article, which was first delivered as a public lecture in Perth in April 1998, reflects on the continuing importance of the oath for judges today.
What I want to do this evening is to try to convey the importance of the courts to the survival of the society in which we live. This is not a eulogy of judges who must expect criticism together with praise for what they do. But criticism based on hostility or even on misunderstanding can, if sufficiently sustained, undermine any institution. A society that lacks a strong and independent judiciary is in real danger of seeing its civil liberties disappear and ultimately of losing its freedom.
Sometimes, when listening to someone in full flight against the legal profession, reference is made to a passage in Shakespeare’s Henry VI, Part 2, in which the statement is made: ‘The first thing we do, let’s kill all the lawyers’. The words are often offered as evidence of the unpopularity of lawyers, even in Shakespeare’s day. The irony is that the statement was made to the rebel Jack Cade, in recognition of the fact that if society was to be overthrown the lawyers must go and they must go first. This is not because lawyers are by nature a particularly courageous lot; it is simply that the institution of which they are part exists not only to resolve disputes between individuals but to protect the citizen against excesses of State power. If the protection given by the courts is removed, it is hard to see what limits can be imposed upon the authority of the State.
I have taken, for the title of this address, some of the words of the judicial oath of allegiance. A Justice of the High Court of Australia swears or affirms that he or she — "
will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, [and] will well and truly serve Her in the Office of Justice of the High Court of Australia and … will do right to all manner of people according to law without fear or favour, affection or ill-will...."
The Law of Restitution at the End of an Epoch (pp 13-64)
Peter Birks QC FBA (Regius Professor of Civil Law, University of Oxford; Fellow of All Souls College, Oxford)
The law of restitution, so named by the American Restatement, has come of age. This article takes stock, developing four themes: (1) Restitution’s relation to unjust enrichment is not as was at first supposed. Restitution is multi-causal; unjust enrichment may be its most important but is not its only causative event. To escape misunderstandings it will be prudent in future to refer to the law of unjust enrichment by its own name, a practice which will also allow the law to escape misalignments such as ‘contract, tort and restitution’. (2) The mission of the law of unjust enrichment must be to perfect the typology of circumstances which render an enrichment unjust, the typology of ‘unjust factors’. That mission requires the full range of unjust factors to be kept constantly in view, and under review. Some leading cases, failing to do that, have stretched and distorted the particular unjust factor which they had directly in their sights. (3) Civil wrongs constitute the other principal genus of causative event triggering restitution. The law of restitution for wrongs — that is, of gain-based awards for wrongs as such — has been behaving erratically. The proper diagnosis of this unsteadiness lies in the subterranean persistence of the dogma that all non-compensatory awards for civil wrongs somehow offend the nature of private law. (4) The law relating to both restitution’s principal triggers is troubled by the difficulty of knowing when the restitutionary entitlement takes effect in rem, as a proprietary right in assets held by the defendant. The current hostility to proprietary restitution may be traceable to defective analysis of the rights in question.
This will seem to be an addition to the hundreds of millennial surveys with which the periodical literature will be plagued. It is not. Or only coincidentally. The epoch in question is differently marked. The life of the law of restitution divides neatly into three. In 1933, on 1 July, the American Law Institute commissioned Professors Austin Scott and Warren Seavey to produce the Restatement of Restitution, which was published four years later. The gestation before 1933, when there was still no law of restitution, or none under that name, merits close attention and will one day be the subject of an important work of modern legal history. The key players in that phase were Ames, Keener and Woodward.
In 1966, the American Restatement gave birth to English offspring. The first edition of Goff & Jones [The Law of Restitution, 1966] came out in that year. The Restatement had been warmly welcomed in England by influential reviewers, especially Lord Wright of Durley. It seemed clear to them that English law must follow the American lead. No doubt it would have done so rapidly but for the Second World War. Goff & Jones was the response, much delayed by that grim interruption.
To maintain the 33 year interval, the next marker should go down in 1999, but truth and symmetry are not always the best of friends. It falls one year earlier. The fifth edition of Goff & Jones was published in 1998 and, though there will of course be more editions, it happened that both its co-authors retired at midnight on 30 September 1998 — Lord Goff from his position as Senior Law Lord, Professor Jones from the Downing Chair at Cambridge. Professor Jones has been succeeded in that chair, once Maitland’s, by Professor John Baker, surely the Maitland of his generation; Lord Goff’s place as Senior Law Lord has been taken by Lord Browne-Wilkinson.
Even here in Australia, where there is now, among other works, Mason & Carter [Restitution Law in Australia, 1995], I think there will be no resentment against my taking this simultaneous retirement as marking the end of an epoch. The marker marks the end of the beginning, the end of the period in which this once backward subject put itself in order and achieved recognition, the end of the period in which it had to catch up those other subjects, such as contract and tort, with which it ought always to have been on equal terms. Taking this double retirement as the end of an epoch, those of us who work in the field may well share the sense of exposure which underlies Matthew Arnold’s elegiac ruminations in Rugby Chapel. We have been able to rest as under the boughs of a mighty oak and must now begin to face sunshine and rain as best we can.
Goff & Jones was not only the English response to the Restatement. It was also a rebirth. Much as the great book undoubtedly owed to the past, chiefly but not exclusively to the American past, the amazing subsequent vigour of the law of restitution in the common law world was due to its influence and only mediately to its predecessors. For a reason which has never been fully explained, the combined forces of the Restatement and Professor Jack Dawson failed to stir American lawyers and law schools to anything like the same degree to which Goff & Jones excited those of the Anglo side of the Anglo-American common law.
In Australia it now seems a long time since Pavey & Matthews v Paul [(1987) 162 CLR 221] and David Securities Pty Ltd v Commonwealth Bank [(1992) 175 CLR 353]. The landscape has changed. Sir William Deane is Governor-General. The High Court is no longer the Mason court. For our part we have to get used to a House of Lords without Lord Goff. Lord Mustill’s place had also not been filled. Lord Millett and Lord Hobhouse move up to complete what is now the Browne-Wilkinson court. In America another event may turn out to be an even more significant symptom of our entry into a new world. The American Law Institute has recently appointed a reporter for a new Restatement of Restitution. Scott and Seavey managed the first in four years. The job has become more complex. Professor Andrew Kull’s work cannot but take the larger part of a decade, but somewhere around 2005 we will see what will surely be the final celebration of the subject’s coming of age.
I have asked myself what four things most need to be said about the subject at this turn in its life. The available space stipulates not more than four. My choices are these. First, and much the most important because so fundamental, multi-causality: we must get used to the fact that the law of restitution responds to more than one causative event. Secondly, unjust factors: where the ground for restitution is unjust enrichment, the common law is historically committed to the requirement that the plaintiff identify a specific factual reason why there should be restitution. Awareness of that commitment implies a constant vigilance to improve the typology of unjust factors. Thirdly, restitution for wrongs: the instabilities in this field will become an embarrassment if we cannot more consistently identify and address the most pressing questions. Fourthly, proprietary claims: there are different models of proprietary restitutionary claim, whether arising from wrongs or from unjust enrichment. The law must make a reasoned choice between them....
Principles of Disclaimer of Gifts (pp 65-83)
Neville Crago (Associate Professor of Law, The University of Western Australia)
There are many circumstances in which a person may wish to reject (or 'disclaim') a proffered gift. This article considers the nature, requirements for, and the legal consequences of an effective disclaimer. It will be seen that these elements vary according to the nature of the gift and the type of property comprising it, and in particular whether the gift operates at common law, in equity by way of trust or under the provisions of a will. The article aims to identify the general principles of law applicable to these situations.
It is basic law that a person cannot, in any circumstances, be forced to accept a gift of property unwillingly. The general principle is that, unless and until a donee has assented to a gift, it may be rejected. The rejection of a proffered gift is called a disclaimer: to disclaim is ‘to renounce all claim to it or refuse to accept it’. The law, however, presumes a donee’s assent until disclaimer. The principle of presumed assent is, of course, ‘artificial, but [it] is founded on human nature’. A donee may reasonably be presumed to assent to that to which he or she in all probability would assent if the opportunity existed.
These principles were affirmed by Latham CJ in Cornell’s case:
An estate cannot be forced on a man …. He is supposed to assent to it, until he does some act to show his dissent. The law presumes that he will assent until the contrary be proved; when the contrary, however, is proved, it shows that he never did assent … and … that the estate never was in him.
There are in fact many reasons why a donee, instead of accepting a gift of unwanted property and converting it into money by sale, might wish not to accept it at all. Disclaimer will usually occur for one of two quite different kinds of reasons: those attributable to financial considerations and those based on principle or sentiment.
Disclaimer due to financial considerations may occur where a gift carries onerous conditions, as where its acceptance would entail uneconomic payments to a third party; where a lease containing unperformed onerous covenants is expiring; where shares in a failing company are not fully paid-up; where the property is an interest in a failing or debt-ridden partnership; where disclaimer is desirable for taxation reasons; or pursuant to a contract between parties affected by the terms of a will or settlement.
Disclaimer due to considerations of principle or sentiment may occur where the subject-matter of a gift represents an asset or source of wealth of which the donee disapproves; where money intended as a gift will only be accepted as a loan; where the donee has quarrelled with, or disapproves of, the donor; where acceptance of the gift could lead to a family dispute; or where the donee is bankrupt and wishes to avoid the property passing to creditors.
Whatever the reason or motive, an effective disclaimer will operate in law to defeat the donor’s intention to give the property to that donee under the terms of the particular disposition in question. This article considers the principles of law governing, and the principle consequences of, an effective disclaimer of a gift. It is not concerned with particular modes of making gifts nor with the legal requirements for vesting title to property in a donee.
Liability for Pure Economic Loss: Yes, But Why? (pp 84-120)
Bruce Feldthusen (Professor of Law, University of Western Ontaria, Canada)
This article discusses five distinct categories of claim for pure economic loss in negligence: misrepresentation, relational loss, defective buildings, discretionary public benefits, and the performance of services. It concentrates on a criticism of recent decisions of the Supreme Court of Canada, with brief and less critical reference to comparable decisions of the High Court of Australia. The article also sheds some light on the general question of how a court might best decide whether or not to recognise a novel duty of care.
The purpose of this paper is to describe critically the way in which the courts have analysed claims for pure economic loss in negligence. The main focus will be upon recent decisions of the Supreme Court of Canada and to a lesser extent comparable recent decisions of the Australian High Court. I will argue that the Canadian courts have seldom given meaningful attention to what ought to be the fundamental question in economic loss cases: the justification for recognition of a duty of care in the first place. Instead, Canada has a well developed set of rules to govern the recovery of pure economic loss and a virtual absence of any rationale to support them. On the whole, most of the High Court judgments cannot be subjected to the same criticism. One notable exception is the decision in Bryan v Maloney [(1995) 128 ALR 163].
There are two different sorts of criticism that may be made of the economic loss case law as it has developed over the past 35 years. The first is the failure of the courts to acknowledge that within the general description of pure economic loss claims there are to be found very different types of cases raising issues that have little or nothing to do with one another. There has been a tendency in the courts to generalise from one type of case to another as if they posed substantially the same issues. Save at the highest level of generality, this is not helpful. The reasons why an auditor might be held liable to a ‘non-privy’ investor tell us little about why a ship captain ought to be held liable to a railroad company unable to cross a damaged public bridge. Neither of these cases will shed much light on the question of whether a non-privy builder, let alone a local authority, ought to bear the cost of repairing defective house foundations.
The Supreme Court of Canada has explicitly abandoned this tendency to over-generalise. Instead, the court now recognises five distinct categories of claim, each to be analysed separately. They are:
1. Negligent Misrepresentation
2. Relational Economic Loss
3. Negligent Supply of Shoddy Goods or Structures
4. Independent Liability of a Statutory Public Authority
5. Negligent Performance of a Service.
This categorisation was a helpful development and one that ought to be adopted elsewhere. This article adopts this classification and deals with each category in the order given above.
The second criticism of the economic loss case law is more central to this article. It concerns the failure of the courts to articulate the substantial differences between claims for economic loss and claims for personal injury and property damage. At the risk of contradicting the comments above concerning the differences amongst the categories of economic loss, there are also a few important observations that apply generally in economic loss cases, although differently from type to type....
The Duty of Solicitors to Give Tax Advice - A Reply (pp 121-131)
Gino Dal Pont (Senior Lecturer, University of Tasmania)
The decision of Lightman J in Hurlingham Estates v Wilde & Partners has led some commentators to warn that solicitors now owe a duty to advise their clients on the tax aspects of whatever matter they are acting in. The author argues that the decision does not stand for such a broad proposition, the conclusion in that case being dictated not by an extension of principle but by its extreme facts.
In the last issue of The Review ,there appeared a piece by Mr RK O’Connor QC entitled ‘The Duty of Solicitors to Give Tax Advice: Recent Developments’[Vol 27, p 195]. Mr O’Connor, after analysing two recent cases, the first a decision of Lightman J in Hurlingham Estates Ltd v Wilde & Partners,2 the second an unreported decision of a Master of the Western Australian Supreme Court, concluded as follows:
Clearly, the position is that solicitors have a duty to advise their clients on the tax aspects of whatever matter they are acting in. Alternatively, they must obtain from another tax-competent practitioner the necessary specialist tax advice for the benefit of the client. Failure to do this could result in the solicitors being held liable to the client for negligence and/or breach of contract.
These are alarming words, especially that first sentence: solicitors have a duty to advise their clients on the tax aspects of whatever matter they are acting in. Given that there are few areas of civil law practice that are immune from the reaches of taxing statutes, and hence the need to furnish tax advice, if Mr O’Connor’s assessment of the case law is correct, the very complexity of tax law dictates that reference to a ‘tax-competent practitioner’ should be a standard procedure as a hedge against negligence actions.
The purpose of this article is to assess whether Mr O’Connor’s conclusion is indeed an accurate interpretation of the Hurlingham Estates case. As a precursor to, and as background for, making this assessment, the article first discusses the law relating to the scope of a solicitor’s duty of care and the requisite standard of care.
The Duty of Solicitors to Give Tax Advice - A Rebuttal of the Reply (pp 132-137)
Robert K O'Connor QC (Queen's Counsel)
The Editor has kindly provided me with the opportunity to respond to the reply written by a correspondent to my article ‘The Duty of Solicitors to Give Tax Advice: Recent Developments’.
That article was written for the information of practitioners who read Brief, the journal of the Law Society of Western Australia. The aim was to alert practitioners to the existence of the cases discussed, and to protect them in their practices by recommending that they take a particular course of action. If they adopted the course I recommended, they would not be held to be liable for damages. The editors of two other journals, CCH’s Tax Week and The University of Western Australia Law Review, asked for my permission to republish the article and that is how it came to be published in The Review, which presumably is principally a journal for academics. The article did not start out as one directed at academics but, as I have said, as one giving practical advice to legal practitioners.
Good Faith and Letters of Comfort (pp 138-161)
Jacqueline Lipton (Lecturer and Associate Director, Banking Law Centre, Faculty of Law, Monash University)
There has been considerable discussion in recent years in the context of Anglo-Australian law as to whether a duty of good faith is or should be accepted as part of the common law relating to the negotiation, performance and enforcement of contractual obligations. This essay considers whether such a duty, if accepted, would add anything to the current Anglo-Australian jurisprudence on letters of comfort, which have traditionally been seen as imposing moral, rather than strictly legal, obligations.
The notion of a duty (or, perhaps more accurately, duties) of good faith as part of the common law has been of considerable interest to commentators in relation to Anglo-Australian law in recent years. These commentators have looked to the United States and to various European civil code jurisdictions which embody codified duties of good faith by way of comparison with the Anglo-Australian position in order to determine whether such duties would be desirable within our own common law system.
The questions which have most often been asked in relation to good faith are these:
1. What is meant by a duty (or duties) of good faith?
2. Is such a duty, however defined, necessary in a modern legal system? (This question is often of most relevance to commercial contracts where the parties may be inclined to act in a particularly self-interested manner.)
3. Does a duty of good faith already underpin certain areas of Anglo-Australian law under the guise of various common law and equitable principles?
4. Is there a need to adopt an express duty of good faith in particular areas to add transparency to the law and/or to remedy perceived defects in the law?
As noted above, questions of good faith typically arise in relation to commercial contracts, especially in situations where one party is in a position to take an unfair or ‘immoral’ advantage over the other. A common context used for discussion of the duty of good faith is the commercial contractual negotiation process. The question arises whether any damages may be claimed by a party who has been disadvantaged by the sudden breaking-off of negotiations in circumstances where, for example, the way in which the negotiations were brought to an end was tinged with unfairness. An example might be where one party had been ‘stringing the other along’ while negotiating with a third party, a fact which was not disclosed to the other party.
If the concern is really with unfair, unreasonable or immoral conduct, one area in which good faith may be particularly relevant is that of commercial, unsecured lending transactions such as those involving bare guarantees, letters of comfort or negative pledges. This is because in such cases the lenders have fewer (or at least less valuable) rights to fall back on in the event that the loan is not repaid in a timely manner than in a transaction secured by an interest in property of the borrower or an associated party. In the absence of such proprietary security, a lender may arguably be more reliant on the good faith of the party giving the unsecured assurance that the loan will be repaid (usually a holding or associated company of the borrower or a director or other officer of the borrower company).
Some of the above questions about good faith will be addressed in the following discussion in the context of a case study concerning letters of comfort as a form of unsecured lending. Although the discussion will focus on past case law relating to the interpretation and enforcement of letters of comfort, its wider implications for other areas of unsecured lending and commerce generally will be noted where appropriate.
Transactions involving letters of comfort are an obvious example within the sphere of commercial law of arrangements where some measure of good faith or ‘commercial morality’ is generally involved. The following discussion is largely concerned with identifying the good faith characteristics inherent in the relevant cases on comfort letters, even though a particular case may have been decided expressly on the basis of contract or estoppel. The question for consideration in each case is the extent to which factors external to the letter itself may either expressly or impliedly have influenced the court’s reasoning. The factors in question appear to relate significantly to issues of commercial morality or good faith in a commercial context....
Shelter from the Storm: Succession and Demarcation Issues under the ABM Treaty (pp 162-170)
David Hodgkinson (Senior Solicitor, Freehill Hollingdale & Page, Canberra)
The recent nuclear tests conducted by India and Pakistan have once again focused public attention on the controversial Anti-Ballistic Missile (ABM) Treaty, first signed by the United States and the USSR in 1972. This article considers the consequences for the Treaty of the break-up of the USSR in 1991 and goes on to examine a recent problem of interpretation of the Treaty — namely, how to distinguish strategic anti-ballistic missile systems which come within the purview of the Treaty from theatre missile defence systems which do not.
The recent nuclear tests by India and Pakistan and reports of a test of a three-stage ballistic missile by North Korea have focused renewed attention on the ABM Treaty, a treaty which limits the rights of the parties to it to defend against ballistic missile attack. This note examines two issues which go to the continued existence of the ABM Treaty, namely (i) the succession on the part of the former Soviet republics to the ABM Treaty and (ii) the demarcation between the theatre missile defence systems permitted under the Treaty and the strategic anti-ballistic missile systems restricted by the Treaty. Demarcation of theatre missile defence systems would allow successor States to the Treaty, including the United States and Russia, to defend against ballistic missile attack from States such as North Korea.
On 26 May 1972, the United States and the Soviet Union signed two strategic arms control treaties, the Interim Agreement on Certain Measures with Respect to the Limitation of Strategic Offensive Arms (the ‘Interim Agreement’) and the ABM Treaty. A protocol to the ABM Treaty was signed two years later in Helsinki.
In signing the Interim Agreement both superpowers agreed for the first time to set limits on the number of offensive nuclear weapons they could deploy. Numerical limits were set on the number of strategic missile launchers, but not warheads, that could be deployed by both the United States and the Soviet Union. In contrast, the ABM Treaty is concerned with defensive nuclear weapons, that is, with anti-ballistic missiles (‘ABMs’). The most important provisions of the ABM Treaty for present purposes are Articles I(2), II(1), III, V(1) and Agreed Statement D.
Article I(2) provides that ‘each Party undertakes not to deploy ABM systems for a defense of the territory of its country and not to provide a base for such a defense, and not to deploy ABM systems for defense of an individual region except as provided for in Article III of this Treaty’.
Article II(1) defines such an ABM system as ‘a system to counter strategic ballistic missiles or their elements in flight trajectory....’ Article V(1) states that ‘each Party undertakes not to develop, test, or deploy ABM systems or components which are sea-based, air-based, space-based, or mobile land-based’. Finally, Agreed Statement D provides that ‘the Parties [to the Treaty] agree that in the event ABM systems based on other physical principles and including components capable of substituting for ABM interceptor missiles, ABM launchers, or ABM radars are created in the future, specific limitations on such systems and their components would be subject to discussion in accordance with Article XIII and agreement in accordance with Article XIV of the Treaty.’
The ABM Treaty ‘codifies’ an inherently defensive posture by coupling the survivability of retaliatory, second-strike forces with the vulnerability of populations. The theory is that if a State is exposed to attack by the second-strike nuclear forces of its enemy, that State would not willingly begin a nuclear conflict. Negotiation of the ABM Treaty represented a recognition of the value of mutual vulnerability in producing strategic stability. The Treaty clearly limits defensive weapons and it reduces incentives for the deployment of offensive systems. Given that the territory of one’s opponent is vulnerable to attack, there is no need to build more and more offensive missiles to ensure an effective second-strike.
Indeed, the United States sought to limit ABM deployment, for the most part, in such a way as to limit any race in building offensive strategic weapons. Both sides, however, were aware that deployment of a comprehensive ABM system could lead to an increase in the deployment of offensive weapons; strategic defences provoke cheaper, offensive counter-measures.8 The ABM Treaty limits defences against ballistic missile attack and reduces the incentive to deploy increasing numbers of offensive weapons.
In the late 1990s, with the resolution of certain issues concerning the interpretation of the ABM Treaty9 — issues which had dominated discussion of the Treaty since 198510 — the ABM Treaty faces new challenges. The disintegration of the Soviet Union and the rise of perceived ballistic missile ‘threats’ from States such as North Korea, and to a lesser extent India and Pakistan, have given rise to two issues: (i) succession on the part of Russia and other former Soviet republics to the ABM Treaty and (ii) the demarcation of theatre missile defence systems permitted under the Treaty from strategic ABM systems restricted by the Treaty. These issues are considered in this article.
BOOK REVIEWS
Broken Lives, Estelle Blackburn (pp 171-175) (Reviewed by Graham Pidco)
Despite its status as the capital city of Western Australia, Perth in the year 1960 was much more akin to a large country town than a bustling metropolis. Even today long-term residents reminisce about the ‘good old days’ when people could leave their houses unlocked, sleep on front verandahs on hot summer nights and walk the streets without fear. But in the early 1960s all this was to change.
This book begins by chronicling the life and crimes of Eric Edgar Cooke. During the period 1958 to 1963, Cooke was, on his own admission, responsible for causing the deaths of five Perth residents, causing serious injury to nearly a dozen others and committing innumerable burglaries and car thefts. Ultimately Cooke found a place in Western Australian history as the last person to die on the gallows of Fremantle gaol.
But this book is not just a chronicle of Cooke’s activities. Before he was apprehended, two men were charged and convicted of offences to which Cooke later confessed. The first and perhaps better known of these was a hearing and speech impaired youth named Darryl Raymond Beamish who was sentenced to death (later commuted to life imprisonment) for the wilful murder of Jillian Brewer in 1959. Subsequent to his apprehension in 1963, Cooke confessed to this murder, and declared that Beamish was innocent. As a result the then Minister of Justice referred Beamish’s conviction to the Court of Criminal Appeal; however, after hearing evidence from Cooke, the court concluded that there were no grounds to set aside the conviction and dismissed the appeal. The Beamish case was the subject of much controversy and gave rise to intense legal debate....
Rethinking Law and Order, Russell Hogg & David Brown (pp 176-179) (Reviewed by Paul Moyle)
Scarcely a day goes by in which the media do not seek to exaggerate and exploit the public’s perception that crime — and particularly violent crime — is spiralling out of control. Newspaper and other media proprietors are keen to fuel that perception and to point to the failure of governments to deal with it effectively. In a recent newspaper article entitled ‘Crime Hits Confidence’, a local reporter, Burns, stated that ‘Westpoll’ (a survey conducted for The West Australian) had found that —"
The Court government’s performance on law and order was rated as unacceptable by 51 per cent of voters surveyed, with just one per cent claiming the government had done very well in the fight against crime."
The Opposition leader, Dr Gallup, responded with the pitch that the public ‘had been let down by a weak government’.
It is this mind-set that concerns Russell Hogg and David Brown. Western Australia, like other Australian States, is in the grip of a political law-and-order frenzy in which the current Coalition government is seeking to increase the length of prison sentences and at the same time reduce community-based alternatives to imprisonment. Given that law-and-order is such a controversial issue, it is timely that this book has been published....
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