Probity and Managing Procurement: How to Avoid Corrupting the Process – Book Review

Authors: James Box and His Honour Judge Michael Forde Publisher: Butterworths Lexis Nexis Reviewed by Garth McEvoy

This book provides a welcome consolidated resource for professionals working in or with procurement, whether as legal professionals, project managers, or consultants. Little has been written about probity up to now, with this text filling an information and market gap very well. It sets out essential information in a logical way, aimed at assisting our understanding of the statutory, policy and good practice requirements of probity and ethics in both the private and public sectors.

As well as detailing the role of probity consultants, their duties and responsibilities under statute and the common law, this text gives the very important issues of professional privilege and confidentiality a sound, interesting and extensive treatment. Also, and very useful for those involved with international procurement, the book refers to conventions and the obligations placed on buyers of goods and services under those conventions. I found the book’s treatment of probity and ethics in international conventions on contracting and Free Trade Agreements very useful. In terms of ethics, AWB and the Cole Inquiry get a mention, of course.

The excellence of this text derives from its practical approach to probity in procurement which is supported by a number of useful case studies. These case studies help us, whether as novices or practitioners, when taking a long walk on the short jetty of procurement by providing assistance in comprehending the sometimes complex issues surrounding probity and ethics in procurement and projects. The case studies also assist readers to effectively apply their knowledge in order to understand the frequently complex real-life situations that arise in major procurement processes.

Any discussion of ethics and integrity would not be complete without covering the investigative bodies associated with government procurement. The roles of organisations such as the Queensland Integrity Commissioner and ICAC, for example, have been treated in depth. Again, the case studies are instructive.

The authors, Jim Box and Judge Michael Forde, have done a great job with this book and I highly recommend it. Lawyers, project managers and procurement specialists will find this book very readable and useful.

The book is available from Butterworths Lexis Nexis ISBN 9780409324075.

Garth McEvoy Special Counsel Deacons

Australasian Marine Pollution Laws, Second Edition

Author: Michael WD White Publisher: The Federation Press 2007 Reviewed by Michael Campbell

In his Preface to this work Michael White, Adjunct Professor, Centre for Marine Studies, University of Queensland, indicates “This is the second edition of this book and it replaces my earlier book Marine Pollution Laws of the Australasian Region, published by The Federation Press in 1994.  It was, and still is, the only whole book dedicated to Australian and NZ laws on this topic.”1

The aim of the work, the author says, is “to write a book from which any person interested in the topic could gain an overall understanding of the relevant international conventions and laws, and regulatory structures for Australia and New Zealand.”2

It is the type of text book that colleagues will find useful in the event that a brief containing an issue or issues on this topic comes into chambers.  It should be acquired and retained for that future contingency.

The work contains a short form list of chapters followed by a detailed table of contents and then moves into a detailed analysis of a number of major maritime casualties which “gave rise to such a high public outcry that the international and national communities took action.”3

Doctor White details the Torrey Canyon incident in 1967, followed by other well known incidents such as the Exxon Valdez in 1989.  Closer to home, descriptions are given of the Kirki incident off the coast of Western Australia in 1991.

The rest of the introduction sets the scene for the more detailed chapters which follow commencing with chapters on the United Nations Environment Conventions and Agreements and the IMO Conventions – Marine Pollution as well as the IMO Conventions on Liability and Compensation.

Four chapters then follow which specifically deal with the Australian legal position, offshore and from a Commonwealth, State and Territory point of view.

There is an interesting chapter on sensitive Australian marine areas such as the Great Barrier Reef and Torres Strait as well as a chapter on New Zealand Conventions and Laws for our colleagues in the land of the All Blacks and the Haka.

The work concludes with a chapter on the Administrative Machinery for Combating Marine Pollution with particular discussion in relation to the Australian Maritime Safety Authority.

Environmentalists will find that the discussion includes plans for controlling pollution to ease their worried minds.

There is a well compiled index with which Michael White was assisted by law students at the University of Queensland and two Appendices which summarise conventions and detail the status of those conventions.

The text is well footnoted.

Conclusion

Michael White has achieved what he set out to do. As he stated in the Preface, he hoped that this work “may prove helpful to my colleagues in law, shipping, regulation, administration, fisheries, defence, marine science and in the many areas of teaching, learning and marine scholarship.”4

Michael Campbell

Footnotes

1. White MWD, Australasian Marine Pollution Laws 2007, Federation Press, Page xi
2. White MWD, Australasian Marine Pollution Laws 2007, Federation Press, Page xi
3. White MWD, Australasian Marine Pollution Laws 2007, Federation Press, Page 3
4. White MWD, Australasian Marine Pollution Laws 2007, Federation Press, Page xi

Inventing Human Rights

Author: Lynn Hunt1 Publisher: WW Norton and Company 20072 Reviewed by Stephen Keim SC

The factors which characterise the human animal include our ability to empathise with people suffering in Darfur that we have never met; our ability to get on and live our lives notwithstanding that suffering and our empathy with it; and our ability, in the correct circumstances, to kill, in the most horrible way, people we have grown up with and who have done us no harm. Rwanda and the Balkans provide but two recent examples of the third of those characteristics.

Lynn Hunt’s book addresses the way in which our ability to empathise with others expanded in the eighteenth century to make human rights an important focus of political debate and action. Previously, discussions of rights had been more narrowly focussed on the rights of a particular class or group within a nation. As examples of this more narrow focus, Professor Hunt refers to the Petition of Right addressed to King Charles I of England in 1628 and the Bill of Rights presented to and accepted by William of Orange and Mary prior to their being confirmed as monarchs of England in 1689.

The earlier documents spoke about rights under the law and rights as subjects of the monarch of England. The new language of human rights, in the American Declaration of Independence of 1776, spoke of universal rights applying to all men and existing prior to and outside the law as follows:

Thirteen years later, the hard working and newly evolved National Assembly of France took the language of universal rights further in adopting the Declaration of the Rights of Man and Citizen, 1789.3  The French Declaration commences with the following preamble:

Professor Hunt’s psychological history of human rights thinking includes some surprising elements. Her emphasis on the importance of empathy leads to an examination of the early history of the novel. Novels such as Julie or the New Heloise (1761) by Jean Jacques Rousseau and Pamela (1740) and Clarissa (1747-8) by Samuel Richardson created sensation in both England and France. They were remarkable because, in each case, they told the story of a young woman and her life’s struggles. The heroine of the story was not a person of royal blood or from the upper classes but an ordinary person without riches or power. The novels were written in epistolary form consisting of letters from the heroine and another important person in her life. Thus the reader came to experience the joys and sorrows of the heroine through her eyes and to empathise strongly with those emotions and the person who felt them. It is part of Professor Hunt’s thesis that these novels played an important role in educating large sections of the public so that the ability to empathise with others, including people beyond one’s immediate family or social circle, became part of the public psyche. This paved the way for human rights theory to develop in the second half of the eighteenth century.

As part of the changes in public attitudes and consciousness, the growth of opposition to judicially ordered torture is traced by Professor Hunt. The case which provided the focus for a campaign against judicial torture was that of Jean Calas, ordered to be “broken on the wheel” after being convicted of the murder of his son. The case had, as its backdrop, the official intolerance of Protestantism in Catholic France. The young Calas had probably committed suicide. His family, upon finding his body and, in order to allow him to be buried “in hallowed ground”, had suppressed the fact of his suicide, claiming that he had been murdered. As the family’s story fell apart, suspicion of murder fell upon them, the official theory being that the son had been murdered because of his refusal to follow the family’s choice of religion. An appeal court confirmed the conviction of Calas senior, but not those of other members of the family, hoping that the names of accomplices would be provided under the agony of the slow and horrible execution. Jean Calas went to his death, protesting his innocence with his dying words.

Voltaire took up the case by providing support to the remaining members of the Calas family and by writing publicly on the case. Professor Hunt notes that the original essay by Voltaire, in 1762, was directed against the evils of religious intolerance and that it was not until four years later that Voltaire’s focus turned to the cruelty of the criminal law system including its use of torture both in questioning suspects and in executions. The campaign captured the public imagination and, over the next few decades, torture was abolished in most European countries and American States with its full abolition in France occurring in 1789, the year of the Declaration.4

Professor Hunt makes another unexpected connection when discussing the change in public attitudes which led to judicial torture becoming unacceptable. She suggests that, for torture to become unacceptable in the public mind, attitudes to the human body required change. Thus, developments as diverse as restricting human excretion to non-public places5; using a handkerchief rather than one’s hand to blow one’s nose; the enjoyment of music in private; a change of architecture in theatres so as to maintain quiet and attentiveness among audiences; the developing popularity of portraiture painting; and the popularity of the novel discussed previously contributed to a new sense of the separateness and dignity of one’s own body and an appreciation of the same qualities in the bodies of others. This new appreciation combined with the arguments of Voltaire and the young Italian writer, Cesare Beccaria,6 and others to produce dramatic changes to the law within a very short period of time.

Inventing Human Rights is fascinating not only for its surprising contribution to the psychological history of human rights thinking. Professor Hunt also traces the extremely interesting progress of the National Assembly to its passage of the Declaration. She also traces the way in which the logic of the Declaration, despite its level of abstraction, led the Assembly to enact concrete reforms, first, easing the way for Protestants to gain full rights of citizenship, then, adherents of the Jewish faith, followed by free persons of African origin, followed by the abolition of the slave trade and slavery, itself, with the freed slaves attaining full rights. And through all this, despite increased rights to inherit property and to obtain divorce, women were not recognised as possessing any of “the natural inalienable and sacred rights of man”, falling below the level of conceivability despite the many advances in rights thinking.

Inventing Human Rights traces the reaction to the recognition of universal rights through Social Darwinism, Nazism, and other ideologies of unequal humanity. She also traces the modern history of universal human rights thinking with the adoption of the Universal Declaration of Human Rights by the General Assembly of the United Nations in 1948 and the modern development of international human rights law through treaties and conventions intended to fill out and achieve the promise of the Universal Declaration.

Professor Hunt does not ignore the practical failures of human rights thinking and the international documents intended to achieve its fulfilment. She acknowledges the irony of the great failures of empathy in Rwanda and Srebrenitza and the many lesser failures that continue to occur. She acknowledges that even great powers, in the absence of judicially ordained torture, are tempted to still resort to it in unregulated backrooms and through convenient proxy countries.

Professor Hunt’s response is neither despair nor abandonment of the idea of universal human rights. The way ahead is greater dedication to the concept and the structures through which they may be enforced.  She says:

Inventing Human Rights is a very original contribution to the history of human ideas. It leads the reader to a new way of thinking about the way in which ideas have developed. Its discussion of the history of human rights thinking leads to a better understanding of the importance of such thinking in our time.

The book is not only fascinating to read but provides the reader with important insights unlikely to be found elsewhere.7 This reviewer highly recommends Inventing Human Rights.

Stephen Keim SC

Footnotes

1. Lynn Hunt is the Eugen Weber Professor of Modern European History at University Of California Los Angeles and former president of the American Historical Association. Professor Hunt is a specialist on the French Revolution. For a video version of a recent lecture by Professor Hunt go to http://www.uctv.tv/search-details.asp?showID=14182.
2. Norton will be known to many readers through their publication of the Norton Anthologies, many of which still grace our home libraries, being left over from High School of first year university English studies. The Company, established in 1923, is the oldest and largest publishing house owned wholly by its employees. It publishes Stephen Jay Gould, paleontologist and evolutionary theorist; the Richard Feynman, physicist and Jared Diamond’s Guns, Germs and Steel. Its website may be found at http://www.wwnorton.com/.
3. It is remarkable how the National Assembly worked for several years debating and legislating for a new legal system before the period remembered as “the Terror” commenced. The earlier period is, unfortunately, much less well remembered.
4. For other recent discussions of both the history of and the inappropriateness of legalized torture, see Sarah Joseph, Torture: the Fallacy of the Ticking Bomb and Neil James (executive director of the Australia Defence Association and original author of the Australian Defence Force’s interrogation manual), Torture: What is it, Will it work, Can it be Justified? in Andrew Lynch, Edwina MacDonald and George Williams, editors: Law and Liberty in the War on Terror, The Federation Press, 2007.
5. For example, as opposed to urinating in the fire place.
6. The Wikipedia entry for Cesare, Marquis of Beccaria, commences as follows:Cesare, Marquis of Beccaria-Bonesana (March 15, 1738 — November 28, 1794) was an Italian philosopher and politician best known for his treatise On Crimes and Punishments (1764), which condemned torture and the death penalty, and was a founding work in the field of criminology. See http://en.wikipedia.org/wiki/Cesare%2C_Marquis_of_Beccaria. A man who wrote, at the age of 26, an essay which was not only influential in achieving the abolition of torture but was foresighted enough to oppose capital punishment, should be much better known in Australia, a country which connives to have its young people sentenced to death for drug offences which would probably merit less than 20 years imprisonment in this country and whose current and most recent Prime Ministers struggle to find a consistent line in opposition to capital punishment.
7. The online price at Norton is shown as $US14.95, suggesting a price close to $30 in Australian book shops.