Authors: George Williams and David HumePublisher: NewSouth PublishingReviewed by Brian Morgan
I was surprised to find out how many referendums I had voted in since being added to the electors’ roll. By my count, there have been 45 since 1900 in 20 polls and I have voted in 8 of that 20.
In that period of time, quite obviously, we have gone from communications’ infancy to the digital age. Imagine, if you can, a newspaper today, writing in these terms:
“Last night’s protracted sitting thoroughly demoralised the House of Representatives. A handful of Opposition members, a little knot of Labour members, and one or two ministerialists, maintained the semblance of a deliberative assembly, whilst the other members whose physical presence was necessary for the maintenance of a quorum, bandaged their eyes as protection against the electric light, and slept away the time on the benches” (Text page 146-7).
The authors take us through a history of referendums in Australia, those that voted “yes” and those which voted “no”, with detailed explanations for the results.
One point in particular stood out because it was clear to me that it has become more frequent as time has passed. That is, “Truth is one of the first casualties in any referendum campaign … Referendums are often characterised by a heavy reliance on material that is demonstrably false”. (Text page 295).
The authors give us a deep insight into the more recent referendums but, for now, I will confine my comments to “the Voice” referendum of 2023 as it should be fresh in all of our minds.
The amount of money poured into this referendum has been assessed by the Australian Electoral Commission at more than $336,600,000. Just think what we got for this massive expenditure. That sum alone is the cost of the referendum including over $M10 to produce the yes/no pamphlet, $M12 for the NIAA and the Museum of Australian Democracy for neutral public civics education and awareness activities, $M10.5 to the Department of Health and Aged Care to increase mental health supports for First Nations people during the period of the referendum and $M5.5 to the National Indigenous Australians Agency for consultation, policy and delivery connected to holding the referendum.
The 1999 referendum by way of example, cost $M66.
We probably remember that the 1999 Referendum focussed on the proposal for Australia to become a Republic. . The investigation by the authors of the respective sides of this debate is almost amusing in hindsight. For instance, one advertisement in November 1999, said, “This Republic: Don’t risk it … If you want to vote for the President, Vote NO to the Politician’s Republic”.
On the other hand, the proponents of the “yes” vote argued that Australia’s relations with its neighbours were being impaired by its continuing ties to the monarchy.
And you may recall there was not even a consensus prior to the Referendum as to which type of republic was better. The “no“ vote took advantage of this by comments such as “the Politician’s Republic” referring to whether the President would be appointed and dismissed by the Parliament or the people.
There is an extensive appraisal of the 2023 Referendum. Let me ask you this simple question: “Can you describe in a few sentences the detail of what was proposed in last year’s referendum?” I have tried this question on a number of people whilst preparing this review. Virtually nobody gives an identical answer and most answers don’t agree with my answer. One person had been heavily involved in promoting the “yes” vote, working with a Teal member of the House of Representatives. Her understanding of “the Voice” bore little relationship to what the Prime Minister said.
Perhaps, to explain this, if, for no other reason, reading this book is particularly useful. I think it demonstrates that, even now, Governments continue to make the mistakes that they should have identified in prior referendums, mistakes such as not explaining in simple and coherent terms, what is intended. This referendum was not the first time, for instance, that the Parliament proposed to retain a role in determining the manner in which a successful referendum would be implemented.
I suspect that most of us would feel uncomfortable in suggesting to a jury that, if they found our client guilty, they may determine what punishment should be meted out without any guidance from us. Similarly, prospective voters could well be uncomfortable in giving the Parliament a power over which we, the voters, have no say in how the vote or votes given for change will be carried out.
Summary: I suppose it is obvious to readers that I remain deeply interested in the law, and the laws. Australian Constitutional Law was a favourite subject of mine as an undergraduate, nearly 60 years ago. This book has provided a great insight into the provisions of the Commonwealth legislation which control referendums, why so many have failed, suggestions by the authors as to what should change in that process and why, as well as thought provoking comments from which we leave the book with a host of questions over which to ponder.
This is a really useful insight into referendums in Australia and, if you have the slightest interest in the process, I encourage you to read and digest this first rate book.
Author: Jeff FitzgeraldPublisher: The Federation PressReviewer: Brian Morgan
Hard Cover 505 pages.
What an honour I have been given to review this book. What an insight it provides to one of our greatest lawyers of the last fifty years. The author’s note at its commencement is, in itself, revealing as it paints a picture of what Sir Gerard wanted and didn’t want, including his reluctance to have a biography written about him and a desire that his personal life remain private.
Fortunately for the reader, it soon became evident that the book could not be written without referring to Sir Gerard’s family and understanding his relationship with them. In particular, his wife, Pat, like so many lawyers’ wives, basically, ran the family during the frequent and prolonged absences of her husband caused, inter alia, by the requirement that he spend substantial periods of time away from Queensland, where his home was at that time. But as is evident from the book, Pat’s contribution to Sir Gerard and their family went far beyond that. Pat was truly Sir Gerard’s partner in life. They became, if anything, closer, as Pat’s health deteriorated leading to Sir Gerard assuming many of the domestic tasks that she had previously done.
I want to digress from the text for a moment and make a plea to all young people who are at the Bar or considering life at the Bar to read this book as a means of opening their eyes to what a barrister’s life really entails. I well remember interviewing prospective candidates to be my reader. On one occasion, a young man entered my Chambers and handed me a list of his requirements, which included working hours of 9.30am until no later than 5.30, no night work, no weekend work, six weeks vacation, each year, and an income well beyond that which a young barrister might expect to earn during his training. I stood up and offered him my seat explaining that terms such as this suggested he should be the master and I the underling. He never completed his training for the bar and, as far as I can determine, never entered practice. And, did I mention that he demanded one afternoon off per week to play sport?
The book being reviewed shines a light on the only way, of which I am aware, to succeed at the bar, namely, to work long hours, be prepared to be overworked, be respectful to the Courts and your colleagues and fully prepare your work.
I did not know that Sir Gerard’s father had been a Supreme Court Justice in Queensland. Nor did I know that Sir Gerard was, initially, refused Admission to the Bar by the Chief Justice due to a technicality on which no one wished to rely, except the Chief Justice. Another counsel at the bar table removed his wig and spoke loudly enough to be heard, suggesting that Sir Gerard was being punished for the “sins of the father” who had not been overly popular with the bar or, for that matter, with some of the Judges in Queensland. The decision to refuse his admission was quickly reversed due to the intervention of one of the other judges sitting on the Admissions Applications.
Sir Gerard was a highly intelligent and a lateral thinker and, as one sees many times throughout the book, he had the uncanny ability to re-consider older and long accepted cases, to dismantle them into fundamentals and replace them with a conclusion that has since stood the test of time.
But, although the book purports to focus on Sir Gerard, it presents far more than that. The relationship between Sir Gerard and various High Court justices over the years matured to permit genuine friendships to develop even while frequent deep disagreements concerning legal principles arose in their judicial work. It is to the credit of each person involved that such differences on principle did not interfere with the mutual respect of the justices for each other.
Sir Gerard was, whether on the Bench or in his private life, a down to earth person. He valued his family, his Church (he was a Catholic), First Nations people, the practice of the law and the importance of getting things right.
He found time to be a volunteer for the St. Vincent de Paul Society and, with his wife, would distribute fruit and vegetables to the needy on a Sunday night, introducing himself as “Gerry from St. Vincent de Paul”. It may have been a sign of the times that eyebrows were raised when Sir Gerard was observed sitting talking to First Nations people. The reality of Sir Gerard Brennan, however, was that he treated all people equally.
I particularly enjoyed the short outlines of the personalities of other justices who sat with Brennan as I knew some of them sufficiently well to have one pull up at a red light in a car bearing an L plate, one Sunday morning and, from the passenger seat, give me a very obvious greeting and another who told me that they could always tell when pleadings had been settled by me, from the first page, as they were too voluminous! I also managed to have a heated but not unfriendly discussion on a legal topic with Michael Kirby during a legal convention in Adelaide in the mid 70’s.
Sir Gerard emerges from the pages of the book as remaining a humble man, to his final days.
This book makes for riveting reading by anyone, lawyer or otherwise, who seeks to better understand the workings of the High Court of Australia.
I will conclude this review by quoting the comment of another great Queensland lawyer, now former Chief Justice of the High Court, Susan Kiefel, who said that Brennan regarded:
“The absence of unjustified discrimination, the peaceful possession of one’s property, the benefit of natural justice, and immunity from retrospective and unreasonable operation of laws” as of critical importance … he saw them as values which served to explicate and illuminate the common law, tempered by the need for the law to develop incrementally and in accordance with precedent, the judicial method and the separation of powers. Unprincipled judicial discretion was anathema to him. What was necessary was consistency and predictability”. [2022] HCATrans 135, cited at page 483 of the text.
Author: David Topp[1]Publisher: Connor Court PublishingReviewer: Brian Morgan
I read this book whilst looking for reasons to work inside as we have had unrelenting rain since January. As I start this review, we have had 43mm today.
Thus, one readily recognises that our weather appears to be changing, changing for more frequent flooding episodes.
This book is not so much a story but a study of the two most recent severe rain periods that we have endured in the Brisbane area, 2011 and 2022.
I vividly recall experiencing the aftermath of the 1960 floods in Tasmania. As a teenager, I thought it was ironic that my father had to row our dinghy down one of Hobart’s main streets because my brother was marooned at his work. These days, I suspect we are all able to conjure up similar visions from television news, if not firsthand, including people on jet skis, in tinnies and so on, boating in “streets” of water.
I also visited Katherine in the Northern Territory, not long after their big flood, when the motel we had booked was free of water but not ready for occupation. The owners gleefully pointed out the high water mark for us which was above our heads.
This book is a well constructed analysis of a number of issues relating to the propensity for Brisbane to experience flooding. I will only mention some of these in the interests of brevity.
No such study would be complete without looking at the history of why Brisbane was settled where it was.
Then we would wonder about the consequences of that decision.
Anyone affected by flooding would, by now, have had endless correspondence with their household insurers, builders, Councils, their banks and, possibly, experts in flood mitigation for advice as to steps that could reduce their risk in the future.
The buyback scheme has been of immense benefit to some homeowners but not to others. As well, what of those who rebuilt after 2011 only to suffer similar damage within 10 years?
A curious bystander might wonder at the litigation that occurred over the 2011 floods and might ask the question of whether or not it was worth it, when the successful plaintiffs only received a very small sum compared to what they had claimed, and many claimants did not succeed at all.
That same curious bystander might ask about the future. Are there suburbs in Brisbane that will never be suitable for housing, despite the housing shortage? Where are all the much vaunted new houses going to be built?
The by now very curious bystander would be wondering about the significance of the Somerset and Wivenhoe dams and even wondering whether any new dams should be built and, if so, where.
I raise these dot points, so to speak, because the author eloquently considers them and largely allows readers to form their own conclusions.
His book has some excellent illustrations, mostly by photograph. But could I suggest that, in future editions, he uses a footnote immediately beneath these as sometimes finding their relevance is not easy because the explanation is located a page or more away from the photograph, forcing the reader to read backwards and forwards.
Finally, by way of an unintended segue, the reader’s understanding of this book will be greatly enhanced by the many footnotes, which I found particularly helpful.
Reading this book, one will readily appreciate that, for many of us, these floods mean more than just a talking point. They have been and, possibly, still are a cause of great hardship.
We may all wonder at the future. The effects of Climate Change and what, if anything, we in the South of Queensland can do to minimise the risk of future flooding events.
Professionally, I was involved in a number of flood claims and heard the chilling stories of hardship, suicides, feelings of helplessness, etc, felt by people who felt they had no home and no future. If this study can help to identify solutions, as I think it does, then the author has succeeded in his aims.
[1] David is a Queensland barrister and a contributor of book reviews to Hearsay: see https://www.hearsay.org.au/author/david-topp/.
Author: Ron WattsPublisher: MAF Australia, New South Wales (2023)Reviewer: Brian Morgan
Every once in a while, we read a book which has a profound influence on us. That influence will differ from person to person.
Aero Grace could be regarded as an important historical record of the hazards encountered by the pioneers of Outback flying in Australia. But that is only a small part of its appeal. We all know what John Flynn and Alf Traeger did with primitive aircraft and pedal powered radio sets in bringing medical help over the air and, if need be, with aircraft to take a sick or injured person to hospital. But the incentive for assisting the inland, as revealed in Aero Grace, was largely based on religion as I will demonstrate, shortly.
Imagine the days when the most modern car available was a T model Ford. If one wanted to visit remote properties, then car travel was the usual means of transport. Aircraft on the surplus market were mostly ex WW 1 vintage, flimsy and very primitive devices.
1928 seems to have the point at which understanding first emerged that aircraft could reduce travel times and open up inland Australia. And, in this context, one needs to remember that, even after WW2, the most popular and available aircraft was the Tiger Moth, albeit, with a cruising speed between 70 and 80 knots and with an open cockpit so the pilot and passenger, if any, were totally exposed to the elements.
Some ministers of religion were expected to cater for a parish the size of Victoria with limited finances, often, a sceptical superior, particularly, when asked for money to purchase an aircraft or to repair it and, similarly, with cars which were forever breaking down, becoming bogged etc.
One of these pioneers used aerial photographs to sell his story 62 times in 43 churches, 27 schools, and 45 newspaper articles in the hope of raising funds to buy an aircraft. He raised 300 pounds, only. Nowhere near enough with which to buy an aircraft.
Navigation in those days was, at best, carried out with a school atlas. There are many stories told of how a pilot would fly low over a town hoping to see the name on the railway station so as to confirm his position.
And, because these pilots were flying by the seat of their pants, there were incidents where aircraft were damaged or destroyed; and pilots were killed in crash landings. Pilots became hopelessly lost but yet, over time, the available aircraft moved from vintage, worn out machines, to modern (for their time) single and twin engine models and later prop jet aircraft which brought a massive increase in speed, reliability, efficiency and functionality.
Through all of this, it was the incentive of the various religions that drove these pilots, and their fellow workers, to work for next to nothing, take enormous risks, often leave their family for many days or weeks at a time and share in the burdens occasioned by living in the Outback.
The author says, at page 43, “Responding to human need, in all its forms, is a hallmark of the Christian Church”. This is so obvious in Aero Grace where, at times, different religions worked towards a common cause; respect was obvious between ministers of different persuasions; and their ultimate focus allowed them to work in harmony for the betterment of people in the Outback.
Missionary Aviation Fellowship and the Salvation Army seem to me to have been the most forward looking organisations in setting up religious instruction via aircraft.
Whereas, of course, Flynn saw the need for medical services, these religious based organisations saw the need for remote properties to have religious instruction or even just a friendly minister call on them from time to time.
This book has a collection of photos of many of the heroes about which it is written and a great collection of the results of crashes many of which resulted in repairs with fencing wire or anything handy, as transporting a damaged aircraft back to a maintenance base was mostly impractical.
The author speaks from personal experience of working in this field. This is very obvious to the reader from the writing itself which shows empathy and reflects first-hand experience of the hardships that he and his fellow pilots had to endure even in more recent times.
These aircraft were rarely permitted to operate in Charter category so as to take paying passengers, mail etc and, as a result, the success of operations was made possible largely by donations: something which is quite astounding. Aircraft are not cheap to buy, are expensive to maintain and very expensive to repair.
This is one of the most outstanding books that I have read in a long, long time.
As anyone who has flown a Tiger Moth or flown in one will attest, it is quite amazing that so many of the early pilots survived and succeeded as well as they did. This book also manifestly demonstrates that it was not the skin colour that mattered to the missionary pilots. First Nations and white people were all treated equally. Everyone was provided with religious support when and if they wanted it.
Author: Brett MasonPublisher: NewSouth PublishingReviewer: Brian Morgan255 pages
The Heroic Story of the Australian who helped rescue JFK
One could review this book in one sentence, namely, “One of the most interesting, entertaining and well written historical stories of WW2”. I will resist that temptation although the summary is intended to bring you greater awareness of the various topics that are covered in it.
First, and most obvious, is the background to JFK’s service in the PT109 (patrol torpedo boat) and how it was rammed by a Japanese destroyer throwing the crew into the sea.
Second is the coast watcher, Reg Evans, who met Kennedy on the shore of a tiny island and assisted the future President, skipper of the boat, and his crew, sending messages that they were still alive and describing how they could be rescued with minimal danger to the rescuers from the rampant Japanese in the area.
The third is the service provided to the allies by the Coast Watchers (over 100 stations) whose principal task was to gather intelligence mainly by observation of the Japanese and how they lived in isolation, in constant fear of being discovered by the Japanese, or of being betrayed by a local inhabitant, but who managed to send radio messages of inestimable value to the authorities in many cases enabling the allies to turn a prospective defeat into victory.
The fourth, then, is how the lives of Evans, his native helpers and Kennedy came together again in later life.
The fifth is the revelation of the personality of Kennedy, who, after his boat had been rammed, kept his crew together and demonstrated great leadership, both up until their rescue and in his subsequent career, both in politics and otherwise.
There are references throughout the book to Douglas MacArthur, his time in Australia, comparisons between Australian soldiers’ military income and the far more substantial income of the American soldiers, how soldiers on leave, particularly in Brisbane, let off steam, often enough against their opposite numbers and how, whilst on leave, the two sets of soldiers were far from friendly to one another.
The sixth, and to my mind, the most interesting facet of this book is the comparison between the very outgoing Kennedy and the quiet achiever, Evans, who, for many years, allowed stories of the rescue to attribute Kennedy with being saved by a New Zealander with a totally different name (who did not actually exist, in any event).
The author demonstrates that many who have written of the Coast Watchers, in the context of Kennedy, have given little recognition to Evans even after his identity had become well known.
However, Kennedy had not forgotten him and welcomed him to the White House. On a later occasion, Kevu, one of the Melanesian locals involved in the rescue, also attended the White House, having been sponsored to the United States by a television station. It appears that Kennedy was not aware of this visit until he saw him being interviewed on television and invited him to visit the next day. Kevu’s visit caused Menzies to be kept waiting!
There are what to me are new historical incidents littered throughout this book but I will not spoil your fun by reciting any of them.
We see the type of person that Evans was, perhaps, explaining how he survived in enemy occupied territory, and continued his coast watching duties. Finally, this book demonstrates, at least to me, the strong engaging personality of Kennedy and casts light on why he was such a popular President.
I do want to finish this review by complimenting the author. His book is entertaining, enlightening, captivating ( I stayed up late to finish it) and I think, finally, gives proper recognition to the Coast Watchers of the Solomon and the other Pacific islands of the vital and dangerous but highly important role they played in the defeat of the Japanese.
Author: Lucas JordanPublisher: NewSouth PublishingReviewer: Brian Morgan
It seems, these days, that, just when we have our recent history sorted, we find that we are missing some important pieces.
This book reveals one such piece.
Don’t be confused by the name which presents as a teaser to the stories which the book reveals.
Imagine a hill which overlooks the Somme River and has, therefore, great strategic importance in the latter days of World War 1.
Then, overlay several thousand British troops trying, unsuccessfully, to capture it, and suffering frightful losses in the attempt.
Then, along come 6 Australians who might be described by the uninitiated as undisciplined larrikins.
Rather than pursuing the frontal assault which had failed so miserably, these six concentrated on the other three faces of that hill and quickly overwhelmed the German forces with no loss of Australian lives. Six Australians achieved what some thousands of British troops could not.
However their success, one might say, caused great embarrassment to the British. To assuage this, the credit for capturing the hill was given to the British and not to these six soldiers.
But this book goes beyond that battle to follow the lives of the six Australians and, perhaps more importantly, the appalling treatment they suffered on their return home when they sought compensation, medical treatment, etc for injuries caused during their time in Europe.
I suggest that anyone who reads this book may conclude that heroes who volunteered to fight and managed to return home with physical and mental injuries should not have been treated so poorly by the Repatriation authorities.
In one instance, an ongoing chest condition caused by a wounding in France was discounted, despite it having been treated in the United Kingdom and despite it having left physical signs on the body of the soldier. One might easily presume that the authorities would have had the soldier’s complete service history or could have obtained it, but alas, liability was denied for a war pension and health benefits.
None of the six gained financial security even though they were hard workers. Their inability to obtain free medical treatment and associated benefits also, largely, left them unable to obtain appropriate medical care.
Until this book was recently published, there has been complete silence as to what these six young men achieved and no explanation for why the British were applauded for taking the hill when they had nothing to do with it.
You, like me, will probably shake your head again at how poorly these six were treated by their own Country.
But their contribution to Australia extends beyond their War service, per se, as it is likely that they were responsible for commencing the dawn Service on Anzac Day when they happened upon a lady placing flowers on a memorial at dawn and thought that this event should be continued and promoted.
The six individual lives demonstrated their deep commitment to assist fellow returned soldiers as well as to provide ongoing support to the RSL as it is now known.
These six men are indeed true heroes whose success has been obscured by time and small minds.
But I think their story is more than this. It demonstrates, as we have seen in later campaigns, that our society does not sufficiently appreciate the sacrifice made by those who fought to save our Country and that the bureaucrats whose job, surely, extended to ensuring that returned soldiers were cared for, in mind and body, failed miserably so to perform.
It is no wonder that, after all this time, we are having a Royal Commission into Defence and Veteran suicide. The stories told by this book suggest that it is many years overdue.
Editor: by Michelle Arrow,Publisher: NewSouth Publishing (University of NSW Press Ltd)Reviewed by Brian Morgan
Through the experiences and eyes of some 23 well known women who came to prominence about the time of Gough Whitlam’s election in 1972, we gain what I will call a “mosaic”, that is, a composite picture of many of the activities and actions which contributed to legislative reforms enabling us to see how the role of women in Australia, generally, has, hopefully, improved immeasurably for all time.
Reading the various contributions which make up this book, the political leanings of some of the writers were quite evident to the extent that I found some comments distracted one from the interesting material otherwise contained in their papers.
Older lawyers are likely to remember the Matrimonial Causes Act 1959 and how its fault-based regime was replaced by a Whitlam government Act, the Family Law Act 1975 which provided for no fault divorce.
Hopefully, all of us recall how today the plight of deserted wives, single mothers etc is so much more bearable due to their gaining entitlement to benefits in 1973 but there is so much more of which these authors remind us: child care, access to universities for all, encouraging a notion that men and women are equal, appointing females to major positions within the Government, demonstrating the worth of women by actions, not simply words.
All of these changed the lives of all women who, in the early 1970’s, were derided by a newspaper as sheilas: “$2M for the Sheilas- Surprisingly it’s Not a Joke” and worse.
One cannot help but think of our first female Prime Minister Julia Gillard and of how she was so poorly treated by members of Parliament on both sides and trolls, which reminds us that the job started by Whitlam had and still has a long way to go.
The first Chief Judge of the Family Court was a woman, Elizabeth Evatt, whom I have had the pleasure of meeting on several occasions. I never appeared before her but I found her to be very erudite and a lateral thinker in her views on appropriate reforms and her ability to articulate these issues so that they were more readily understood. The paper by her contained in this book is, similarly, readily understood and poignant. I commend her 11 page contribution to you, as remaining highly relevant in 2023. Of course, her appointment as Chief Justice of the new Family Court signalled the opening of opportunities which have now given rise to several Chief Justices, High Court Justices, Federal Court Judges, a Prime Minister and so on.
I don’t think anyone who reads this book would believe that these appointments were likely to occur without our having had a Gough Whitlam as Prime Minister.
The shame of it is that, 50 years later, there is still so much to achieve as demonstrated by a number of the contributors and which, I suggest, is self evident to all of us. And this is not to ignore the issues faced by First Nations women.
And, whilst Whitlam made no secret of his desire to achieve equality between men and women, this book demonstrates how short we, still, are of that mark.
The editor, in her Introduction, explains, “It is the first book about the Whitlam era to focus entirely on the government’s agenda for women: how it was shaped and enacted, what was gained and what remains to be done” (emphasis added).
Referring to this passage, this mosaic does achieve what its editor set out to do and, in so doing, it gives us a much greater insight into the role that activist women played in identifying, developing, encouraging and promoting the many changes in relation to women’s rights that were promoted by Whitlam. One can wonder at how much would have been achieved without their active involvement.
I conclude this review by citing part of the eulogy to Whitlam delivered by Cate Blanchett, (one of the contributors), set out at page 218:
“Women were probably the main beneficiaries of free tertiary education. So here today I may stand as an exemplar, but if you combine the modernising and enabling capacity afforded women by his legislations, you can begin to see that the nation was truly changed by him through the arts and through gender, thereby leading us towards an inclusive, compassionate maturity. So much of this achievement is directly attributable to policy initiatives Gough Whitlam began, with a series of reforms to extend the degree and quality of social opportunities to women in Australia”.
Author: Russell MarksPublisher: La Trobe University Press in conjunction with Black Inc BooksReviewer: Brian Morgan
This recently published book has done what I think all good books should do. It has made me consider or reconsider my position in relation to First Nations people and the way they have been treated by our legal system and how they are still being treated by it.
At the outset, let me say that I disagree with many of the apparent conclusions made by the author. This is not to say that one or other of us is wrong.
Russell Marks provides a great deal of information that is not otherwise readily available concerning various changes wrought by the criminal justice system to affect First Nations people from 1788 onwards. He summarises a large number of detailed examples so that one does not need to rely on his conclusions but can see at second hand that, from the earliest days, First Nations people (a term which I prefer to use to describe those who lived in Australia for many thousands of years) were treated as if the White Man’s law applied to them and that law was applied as if First Nations people understood the colonial concepts of right and wrong and accepted that the White Man’s legal system applied to them.
This was hardly ever likely to be true since the authorities who were running the system of justice had failed to understand that they had, themselves, invaded established civilisations in breach of the laws of those civilisations and purported not even to understand that the land they had stolen by armed force was both populated and ruled by sophisticated laws and customs.
As a result, there was little attempt by Courts and authorities to try to understand the traditional systems for dealing with members of various First Nations who transgressed. Rather, such people were and are, still, imprisoned in large numbers and frequently refused bail for minor offences where, by the time of trial, they may have served more time in prison than if they pleaded guilty at the time of their first appearance in a court. This raises the question, what is the basis for refusing bail to First Nations people when non-First Nations people would be bailed?
Marks makes the point which I have observed, myself, that, frequently, First Nations people will insist on pleading guilty, whether or not they might have a defence, in order to avoid being locked up pending a trial which, almost certainly, will take place months into the future.
(On the subject of the word “pleaded” the author frequently uses the Americanism “pled”. I found this to be most distracting.)
The role of police, from earliest times, in obtaining a written confession in the best Queen’s or, I should now say, King’s English from people who could hardly string half a dozen words of English, together, and Courts accepting these as genuine confessions took me back to my early days as a barrister before we had videoed interrogations when these were commonplace.
The written confession was in my experience, always, suspect. The author summarises many examples where no rational person could think that the words were uttered by the accused. In one such case, my client had not progressed beyond Primary school but was reputed to have said, “I hope the Court will be lenient on me. I am a first offender”. But, time and time again, Courts accepted the reliability of such documents. My jury did not.
The role of White Law in respect to First Nations people has been the subject of many inquiries, a Royal Commission or two and a large number of articles and papers. Many recommendations for change have been made but not implemented.
In 1978, I spent some time in the Northern Territory on one of the large cattle stations. There were many First Nations families living there and most of the men worked for that station. The no doubt well-meaning Government ordered that, instead of the ramshackle accommodation occupied by the workers, new white man style houses were to be built, with toilets, running water and the usual facilities.
Within a short time the roofing iron had been removed and those houses, or what remained of them, were of no use as dwellings. The former inhabitants had used the materials to rebuild the humpies in which they were most at home. One wonders to what extent the First Nations workers for whom the new accommodation was being built were asked about how their living conditions could be improved and, if so, to what extent their answers were heard and acted upon.
If, in the mid 1970s, a government could still not understand that their wishes were different to “the natives”, how much more difficult was it, and is it, to appreciate how the colonial system of law and that of First Nations people are so different?
This book is informative. You might find yourself coming to the conclusion that we, as lawyers, whether prosecutors, defence lawyers, magistrates, judges or academics have yet to produce a satisfactory answer to this publication’s title, Black Lives, White Law: Locked Up and Locked Out in Australia and how the two are to be accommodated.
Not to underestimate the complexity of the task involved where First Nations people and people with diverse other heritage live among and interact with one another, perhaps, the words of the UN Declaration on the Rights of Indigenous Persons, to which Australia is a signatory,provide guidance with their emphasis on phrases such as “self-determination” and “free, prior and informed consent”.
Black Lives do matter as the author reminds us.
Author: Anthony CooperPublisher: NewSouth Publishing (UNSW)Reviewer: Brian Morgan
If you have been to Darwin recently, I hope you managed to visit the Royal Flying Doctor Tourist Facility at Stokes Hill Darwin. This provides an interactive video and audio display of the first Japanese bombing raid on Darwin in February 1942.
I knew, before reading this book, that there had been later “visits” by Japanese fighters and bombers but I knew few of the details. In fact, I knew a number of the pilots who defended Darwin but, as most such people tend to do, these brave people dismissed their participation as being little more than “showing the flag”.
This book demonstrates that they did far more than that!
I don’t know and can’t comprehend how such detail has been captured, by the author, of the pilots’ sorties against Japanese Zeros and bombers during over 70 raids on the Darwin area during 1942-3.
There are a number of ways that one can interpret this book. One could focus on the suitability of the Spitfires for combat in such a tropical locality. Or, one could concentrate on the tactics used by the Australian aircrews, including their continued trust in the Battle of Britain “Big Wing” where fighters massed in a large assembly prior to seeking to engage an approaching enemy.
Or one could question why the Australians continued to employ certain air tactics when they had been shown, time and time again, to be of little use.
We could wonder at how inaccurate the pilots were when shooting their cannon guns or their .303 machine guns.
Or one could query the apparent lack of fighter combat training given, not only to the RAAF pilots but, also, to many of those from the RAF who were sent to assist in the defence of the Northern Territory of Australia.
Or, you, perhaps like me, feel that this book forces us to think about all of these questions.
I won’t spoil your enjoyment by discussing most of these points in this Review.
There is one comment that one of the pilots made to me in the 1970s which I think is self-evident from the book but which, I think, is worth explaining.
Imagine two aircraft approaching each other at a closing speed of 400-500 knots (about 200 metres per second). In order to hit an approaching aircraft an attacker would need to calculate where it would be when the projectiles reach it, as distinct from where it is at the instant that one fires. For, if you simply aim where the other aircraft is, by the time the ammunition reaches that spot, the aircraft is several hundred metres further on.
Furthermore, in such combat, two aircraft will rarely be heading directly for each other. Neither will they both be maintaining the same altitude so the attacker must also take these variables into account.
Anyone who has shot wild animals at a distance will have suffered the embarrassment of missing, due to not laying off to compensate for the wind strength and direction or the movement of the animal in the several seconds it takes for the projectile to reach its intended destination.
But the Spitfires were travelling a lot faster than a wild animal. The consequence of firing their weapons could cause the direction of the attacking aircraft to yaw to one side, particularly, if one or more of the weapons jammed and didn’t fire. One may observe that “dog fighting” is a skill which requires training and practice.
The Australian pilots did improve their gunnery and their tactics with practice and experience as demonstrated by the statistics gathered by the author. Perceived inaccuracy by the defenders of Darwin needs to be recognised in this context.
The author suggests that a comparison with the results from the Battle of Britain shows that the results achieved over Darwin were in the same league.
You don’t need to be a pilot to be fully engaged by this book. There are human interest aspects of it. One can almost feel the uncomfortable conditions that the pilots had to endure both on the ground and, often, a few minutes later, when flying at 30,000 feet where the temperature has dropped from, say, mid 30°C to below 0°C. One can empathise with their experiences, when not flying, of having to exchange their accommodation for safety trenches dug in the ground to avoid the bombs dropping from above. One can particularly feel for the experiences of the pilots from the UK in coping with such a radically different climate to that with which they were familiar, at home.
This book has somehow, as I mentioned earlier, managed to put together an enormous amount of detailed information concerning the tactics used by many of the pilots in the air. I do not doubt the accuracy of these descriptions but I shake my head at the amount of detail the author has been able to obtain. Darwin Spitfires gains much of its impact from its ability to present such detail.
Finally, this is an updated and improved version of an edition that was published about a decade ago.
The book has been described by retired Air Vice Marshall Weston as, “detailed, forensic and expert”. I, wholeheartedly, agree. I would add that it is a book which also enlightens us as to the actions of the RAAF in defending Darwin after that infamous Japanese raid in February 1942.
Author: Tom FramePublisher: NewSouth BooksReviewer: Brian Morgan
How often do we hear that hindsight gives 20/20 vision? Well, by reading this book, it is so easy for us to recognise and become experts on the Afghanistan conflict. I had thought, for some years, that this was a conflict in which Australia could never hope to achieve its objectives and, now that the Taliban have returned to power, I am even more certain that I was correct.
This book does not simply focus on the involvement in Afghanistan of Australian Special Forces. For completeness, it traces the history of our armed forces from the time of Gallipoli, the development of Australia’s Special Forces, the evolution of the Taliban and, if I may use my own term, the role of those Special Forces in Afghanistan.
A book such as this, would not and could not be complete without reference to the Laws of Armed Conflict and the Rules of Engagement. To quote the author from page 210:
“Every Australian officer and soldier deployed to Afghanistan knew that some conduct was prohibited and illegal … civilians were not legitimate targets and could not be attacked under any circumstances … Australians were entitled to engage combatants, including members of insurgent groups, even if they were not in uniform”.
A former client of mine who served in Vietnam told the story of how their group were on RnR in Saigon and were served by a pleasant young man in a restaurant. A week or so later, they saw him but, this time, he was shooting at them.
I repeat this story (whether it is true or apocryphal) because of a major problem that I observed in reading this book, namely, the difficulty of identifying when a person was a “civilian” and when he or she was a combatant. I think this concept is also inferred in the title of the book in the use of the term, “veiled”.
The book examines the “context, explores the operations, and traces the events that led to Australian soldiers being accused of war crimes in Afghanistan”. The author has intentionally avoided discussing the Brereton report findings and ceases his observations the day before its release. Similarly, this book is not an attempt to visit the evidence in the recent long running defamation action by Ben Roberts- Smith.
What it does do is throw more light on why Australia was in Afghanistan in the first place; what its role was intended to be from time to time; and the negative effect of what appears to me to have been sensationalist and salacious journalism with often little to no evidence to support its allegations but which, over time, did uncover and publish apparently damning evidence including helmet camera video.
I do not think that any discussion of the Afghanistan war would be complete without identifying the sort of enemy with which one had to contend, both in the case of the Afghanistan army which, as allies, were, at times, unable to be relied upon, and in the case of the declared enemy, the Taliban, who were often farmers by day and fighters by night.
To give a greater understanding of what confronted soldiers in Afghanistan, the author took a close look at some allegations involving New Zealand elite soldiers and, specifically, looked at the UK matter of Blackman who killed an injured Afghani person but did so as a result of the pressure on him and his colleagues of multiple demands which, almost certainly, caused him to act contrary to his normal self and lose his self-control.
I found this part of the book to be very worrying. It reminded me of soldiers I have known who have been able to handle unreasonable pressure and others who have not been so successful and have suffered a physical or mental breakdown because their superiors refused to recognise their fragile condition.
Blackman spent more time in prison than many of the IRA members convicted of murder. There remained ongoing community concern at the lack of understanding of what drove him to take this action which was demonstrably completely out of character.
The author looks at the Canadian Special Forces who fought in Afghanistan and their political masters who seemed to me to be much more aware of the risks of misconduct arising when troops fight in an unpopular environment with less than adequate support.
By the end of the book, I think that you will, like me, accept that there were acts of misconduct by Special Forces (including Australians) but that these need to be placed in the context of people being sent on numerous tours of duty to a war where they were continually confronted by a hostile populace; given little support by their superiors; and, probably, wore the opprobrium of fighting in a battle in which no one, except their political masters, wanted them to fight.
This is an extremely well-researched and wellprepared book by an author with a deserved international reputation for historical analysis.
It makes for thought provoking reading whether you are or have been involved in the military or whether you simply want to obtain a greater understanding of what was expected, behind the scenes, of our elite soldiers in Afghanistan.
I thought the evidence was such that many of the allegations lacked substance despite being good fodder for journalists. However, as I said earlier, I could not help but accept that some of the allegations of misconduct appeared to be justified.
What conclusions would you draw?
