DEC Defending Against Ballistic Missile Attack: ABM Treaty

DEC 19941

Defending Against Ballistic Missile Attack: ABM Treaty Developments in the 1990s

In 1972, the United States and the then Soviet Union signed a treaty in which each State agreed not to deploy anti-ballistic missile (ABM) systems in defence of the territory of its country and not to provide a base for such a defence.' In signing this treaty, commonly referred to as "the ABM Treaty", both the United States and the Soviet Union agreed that they would not defend their respective territories against strategic or inter-continental ballistic missile attack. In 1983, however, President Reagan announced his intention to build a space-based system to defend the United States against such a missile attack. This system appeared to be an anti-ballistic missile system and thus prohibited by the ABM Treaty.

Two years after President Reagan announced his initiative, termed the "Strategic Defense Initiative" (SDI) to intercept and destroy strategic ballistic missiles "before they reach our own [US] soil",2 the Reagan administration announced a novel interpretation of the ABM Treaty which would permit anti-ballistic missile systems and components based on post-1972 technology to be tested and developed, no matter where they were based. This revised interpretation, or re-interpretation, would have allowed the SDI to proceed with unrestricted testing of anti-ballistic missile components, primarily in space. The previous, traditional interpretation of the Treaty held that the development of anti-ballistic missile systems and components could not exceed certain limits. The development and testing of ABM systems and components based on post-1972 technology, or systems and components based on other physical principles, the traditional interpretation held, was permitted only if those systems and components were fixed and land-based.

t Senior Legal Research Officer, The High Court of Australia. His earlier article on the ABM Treaty interpretation debate of the 1980s, 'The Reinterpretation of the ABM Treaty: Policy Versus the Law?' was published in (1991) 21 UWAL Rev 258.

1. A ballistic missile is one that travels, for most of its flight, beyond the atmosphere; as a result, it does not bum fuel for the major part of its journey.

2. R Reagan Ballistic Missile Defense (1993) 25 Survival 129, 130.

286 WESTERN AUSTRALIAN LAW REVIEW [VOL 24

Deployment was pr~hibited.~ The Bush administration supported the revised interpretation put forward by President Reagan.

This Note examines the attitude and policies of the Clinton administration toward the ABM Treaty and missile defences generally. While the administration has clearly repudiated the Strategic Defense Initiative and announced support for the traditional interpretation of the treat^,^ it has also determined to build a missile defence ~ys t em.~ The question is whether this system violates the provisions of the ABM Treaty.

THE ABM TREATY: RELEVANT PROVISIONS

There are five provisions of the ABM Treaty which are of importance in determining questions of Treaty breach or violation. These provisions are Articles I(2), II(l), 111, V(l) and Agreed Statement D.6

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 111 of this treat^".^ Article II(1) defines such an ABM system as "a system to counter strategic ballistic missiles or their elements in flight trajectory...". Article V(l) 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 XI11 and agreement in accordance with Article XIV of the treaty".

3. The traditional interpretation of the Treaty was adhered to by the Soviet Union and, after its collapse, by Russia and the other former Soviet republics. These former Soviet republics are the inheritors of, or the successors to, the ABM Treaty. See generally G Bunn & J B Rhinelander "The Arms Control Obligations of the Former Soviet Union" (1993) 33 Va Journ Int L 323.

4. Editorial "Star Wars is Dead! Long Live BMDO!" International Herald Tribune 22-23 May 1993; D Lockwood "Administration Backs 'Narrow' Interpretation of ABM Treaty" (1993) 23 Arms Control Today 22.

5. S Hersh "Missile Wars" New Yorker 26 Sept 1994. 6. The text of the ABM Treaty and related documents is published by the US Arms Control

and Disarmament Agency Anns Control and Disarmament Agreements (Washington, DC: US Arms Control and Disarmament Agency, 1990) 157-166.

7. Article I11 permits each Party to the Treaty to have no more than two ABM system deployment areas. A 1974 Protocol to the Treaty reduced the number of these deployment areas from two to one.

DEC 19941 NOTES

THE CLINTON ADMINISTRATION

The Clinton administration ostensibly supports the traditional interpretation of the ABM treat^.^ In late November 1993, this administration, in the course of putting a number of proposals dealing with theatre missile defence systems and the ABM Treaty to the Standing Consultative Committee (SCC) of the ABM Treaty in Geneva, announced that it re-affirmed the traditional interpretation of the Treaty and that it retracted the Bush administration's ABM Treaty proposals."hose proposals had included multiple, fixed ground-based ABM defences, the transfer of ABM systems, components and technical information to other states and the elimination of restrictions on both sensors and the development and testing of ABM systems.I0

Although the Clinton administration officially repudiated the revised interpretation of the ABM Treaty and appeared to support the traditional interpretation, the proposals presented to the SCC involved interpreting the ABM Treaty so as to allow development, testing and deployment of the administration's Theater High-Altitude Area-Defense (THAAD) missile program or system.ll The Arms Control Association, calling a press conference a week after the THAAD proposal was announced, stated that this proposal "is so permissive that it would undercut the central objective of the ABM Treaty - to prevent deployment, or the basis for deployment, of a nationwide ballistic missile defence".I2

THE THEATER HIGH-ALTITUDE AREA-DEFENSE SYSTEM

The question, then, is whether the THAAD proposal does "undercut the central objective of the ABM Treaty" and is, as a result, prohibited by that Treaty.

The THAAD proposal is a system designed to defend against tactical - -

(ie, nonstrategic or non-inter-continental) ballistic missile attack. It is aimed,

8. In July 1993, the Acting Director of the Arms Control and Disarmament Agency stated in a letter to the Chairman of the Senate Foreign Relations Committee that "it is the position of the Clinton administration that the ... traditional interpretation of the ABM Treaty is the correct interpretation, and therefore that the ABM Treaty prohibits the development, testing and deployment of sea-based, air-based, space-based and mobile land-based ABM systems and components": Lockwood, supra n 4.

9. Arms Control Association "A New Threat to the ABM Treaty: The Administration's TMD Proposal" (1994) 24 Arms Control Today 11, 12.

10. D Lockwood "US Proposal to Re-tool ABM Treaty Re-opens Debate on Missile Defense" (1994) 24(1) Arms Control Today 24.

11. J Isaacs "The 103rd Congress and Arms Control" (1994) 24(1) Arms Control Today 7,9. 12. Supra n 10.

WESTERN AUSTRALIAN LAW REVIEW [VOL 24

given the collapse of the Soviet Union and the end of the Cold War, at protecting the US and its allies against the current and future short-range ballistic missile threat from the Third World. It incorporates components and technologies from the SDI program and has "significantly increased capabilities against SMBMs [short to medium-range ballistic missile^]".'^ As Flax argues: "Performance parameters of tactical BMD (ballistic missile defense) systems [eg, the THAAD system] push the edges of the envelope and approach minimum levels of intercept capability against strategic-range ballistic missiles. This is because the ways in which a BMD system is improved for defense against advanced theater-level SMBM threats ... inevitably also make the system more capable against less advanced threats coming from longer (strategic) ranges".14

Specifically, although affirming support for the ABM Treaty as traditionally interpreted, the Clinton administration, in order to proceed with the development, testing and deployment of the THAAD system, has sought through the SCC to define a permitted anti-tactical ballistic missile interceptor as one with a demonstrated capability to intercept a target re-entering the atmosphere at a speed of up to five kilometres per second.15 Anti-tactical ballistic missile systems are not limited by the ABM Treaty. The administration's proposal, or "clarification", would allow the US or Russia (or any of the other former Soviet republics) to deploy missile interceptors in any number if they remain "untested" (ie, they have no "demonstrated capability") against missiles with re-entry speeds of more than five kilometres per second, the rationale being that if the interceptors are not tested against missilesL6 travelling at speeds greater than five kilometres per second, they are not capable of intercepting strategic ballistic missiles. The basis of the ABM Treaty would, therefore, be preserved. Strategic ballistic missile defences are covered by the ABM Treaty; tactical missile defences, on the other hand, are not. As the Clinton administration has sought such a permissive criterion for tactical defences - again, an anti-tactical ballistic missile interceptor with a capability to intercept a target re-entering the atmosphere at a speed of up to five kilometres per second - systems with significant capability against strategic ballistic missiles could also be deployed, given that only a missile travelling at less than two kilometres per

13. A Flax "Implications of Defenses Against Tactical Ballistic Missiles" (1994) 24 Arms Control Today 6, 9.

14. Id, 10. 15. J Isaacs, supra n 11. Any introduction of demonstrated capability would require

amendment to Article VI(a) of the Treaty, which provides that parties to the Treaty are not permitted to test a non-ABM system in an ABM mode and are not permitted to give a non-ABM system ABM capability. ABM capability, however, is not defined in the Treaty.

16. Missiles with ranges of approximately 3 000 to 3 500 kilomeues.

DEC 19941 NOTES

second is considered not to be strategic." Thus, systems which clearly violate the object and purpose of the Treaty provisions could be legally deployed in unrestricted numbers if the Clinton administration's "clarification" were to be accepted.

It is submitted that the THAAD program, if developed, tested and deployed, would violate or breach the ABM Treaty as it currently stands because the program would be capable of destroying both short and long- range ballistic missiles. The relevant provisions of the ABM Treaty are clear, the interpretation debate of the 1980s notwithstanding.18 Through Article I(2), the US agrees not to deploy ABM systems in defence of its territory and not to provide a base for such a defence. Through Article II(l), the US agrees that an ABM system is a system to counter strategic ballistic missiles or their elements in flight trajectory. Given the capacity of the THAAD system to destroy long-range as well as short-range ballistic missiles, the THAAD system is an ABM system for the purposes of the Treaty.

Further, as a result of Article V(1), the US undertakes not to develop, test, or deploy ABM systems or components which are sea-based, air-based, space-based or mobile land-based. Thus, the development, testing and deployment of the THAAD system, or any of its components, in anything other than a fixed, land-based mode, is prohibited by the Treaty.

Finally, the US, through Agreed Statement D, agrees that, in the event that ABM systems based on other physical principles (ie, post-1972 technology) and including components capable of substituting for ABM interceptor missiles, launchers and radars are created in the future - as the THAAD system has been - specific limitations on such systems and their components are to be subject to discussion and mutual agreement. Thus, it would appear that the THAAD system can only be implemented through amendment of the Treaty, with the agreement of the other parties. It follows that ABM systems based on post-1972 technology can only be deployed in a fixed, land-based mode, and then only within limits outlined elsewhere in the Treaty (eg, Article 111).

As Article 3 l(1) of the Vienna Convention on the Law of Treaties makes clear: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose".19 The plain, ordinary words of the

17. Supra n 6,96. 18. The Clinton administration, as outlined above, appears to support the traditional

interpretation of the Treaty. 19. For a general discussion of the principles of treaty interpretation, see I Brownlie Principles

of Public International Law 5th edn (Oxford: Clarendon Press, 1990) 626-632 and Lord McNair The Law of Treaties (Oxford: Clarendon Press, 1961) 343-489.


Treaty are clear.20 Further, the object and purpose of the ABM Treaty is to prevent the parties to it - the United States and now the former republics of the Soviet Union - from building a territorial defence against ballistic missile attack. The THAAD system would violate not only the clear, plain terms of the Treaty but also its object and purpose.19

THE FUTURE OF THE ABM TREATY

The future of the ABM Treaty appears to be as uncertain as it was at the height of the ABM interpretation debate in the mid to late 1980s. The Clinton administration could seek to amend the ABM Treaty, in accordance with the relevant Treaty amendment provisions, to exclude theatre or tactical missile defence systems, such as the THAAD system. However, such amendment would involve both ratification hearings by the US Senate - which may or may not approve the amendments - and negotiation with all of the former Soviet r epub l i~s ,~~ which may prove costly or disadvantage- O U S . ~ ~

The Clinton administration could seek "c1arification"of the Treaty, on the terms outlined above. The administration could also unilaterally withdraw from or abrogate the Treaty. Both courses of action, however, taken in order to implement the THAAD system, could result in an increase in offensive strategic ballistic missiles, as countries with nuclear weapons seek to overcome such ballistic missile defences as the THAAD system by building more weapons and more missiles. The purpose of the ABM Treaty, signed with the Interim Agreement on Certain Measures with Respect to the Limitation of Strategic Offens ivehs , is in part to prevent such an outcome. Moreover, it is clear that the ABM Treaty, in its current unamended form, interpreted with regard to the ordinary meaning of its terms, prohibits the deployment of the THAAD system, as noted above. Finally, even if the Clinton administration's proposal for "clarification" of the Treaty were to be accepted, the THAAD system would violate the object and purpose of the ABM Treaty, the most successful and important arms control treaty of the nuclear age.

20. Hodgkinson supra n 1, 270-27 1. 21. Implementation of the THAAD system could also encourage states to build more ballistic

missiles with the aim of overcoming such ballistic missile defences as may exist. The ABM Treaty was concluded, as part of SALT I, with an agreement to limit strategic weapons to guard against such a possibility.

22. Although in practice such negotiations would only take place with those former republics which possess nuclear weapons - Russia, Ukraine, Kazakhstan and Byelorus.

23. Eg one or more of these former republics could demand concessions or simply refuse to accept the US amendments to the Treaty.

DEC 19941 291

BOOK AND VIDEO REVIEWS

Memoirs and Lapses *

By Robert ] Hawke (William Heinemanlz Aust pp 618 $49.951

Bob Hawke is the most celebrated graduate of The University of Western Australia, where he gained a BA and LLB. The most endearing part of his autobiography concerns his years at the university.

I share his memories of John Stone, whom he inherited as Secretary of the Treasury. In 1951 Hawke was defeated for the Rhodes Scholarship from Western Australia by Stone, who was already exhibiting "all the arrogance and cynical contempt for his fellows which were to characterise his distinguished career as a public servant" (p 8). It was altogether appropriate that Stone should end up as the leader of the National Party in the Senate "as the protCgC of a man he despised intensely, Sir Joh Bjelke-Petersen" (ibid). Hawke and I chose better graduates of The University of Western Australia as our economic advisers - Ross Garnaut and Nugget Coombs.

Hawke won the Rhodes Scholarship in 1952. At Oxford he was awarded a B Litt for his thesis on the Australian arbitration system. He gained a great reputation throughout Australia as the ACTU's advocate before the Commonwealth Conciliation and Arbitration Commission. He was elected President of the ACTU in November 1969. His interest in foreign affairs increased when he was a delegate to the International Labour Conference in Geneva in June 1973. From 1975 onwards he made an extended pilgrimage to and back from Geneva every year.

Pre-publication publicity has made Hawke's Memoirs notorious for the author's vendetta against Paul Keating for doing to him what he himself had done to Bill Hayden. My review will compare his version and his performance in some areas for which his law studies in Perth and Oxford should have prepared him.

Arbitration politics It is necessary at the outset to correct Hawke's familiar account of his patronage

by proxy in the arbitration system. I made Clyde Cameron Shadow Minister for Industrial Relations after the October 1969 elections and Minister for Labour after the December 1972 elections. Sir Richard Kirby retired as President of the Arbitration Commission on 30 June 1973. John Moore, who had been acting President since 13 November 1972, succeeded him on 1 July 1973. Hawke says that thereafter "Clyde wasn't sure which of us, Gough or me, he hated more, a dilemma he has been wrestling


with ever since" (p 63). It was a good phrase but, as I shall presently show, it was based on a false premise.

There are many people who can refute Hawke's account of political events after he became a member of the ALP'S new Victorian Executive and Vice-President of its Federal Executive in 1971. I give examples. He had pleaded with Cameron and me to reprieve the old Victorian Executive. At the last Federal Executive meeting before the 1972 elections I was requested, despite Hawkz's objections, to promise that my Government would not increase income taxes. After the elections he told me that the 10-year-old Australian Labor Advisory Council should be disbanded since Ministers could now learn the ACTU's views from him alone, the President. He initially supported the Cabinet's two-to-one decision to cut tariffs by 25 per cent and the Caucus decision to hold a referendum on wages, prices and interest rates; in

~ -

each case, under pressure from some unions and businesses on which he relied, he ran to water.

Any lawyer, by checking Hansard, the legislation, the Gazette and the Commission's annual reports, can refute Hawke's assertion that he persuaded me to override Cameron's intention to appoint John Bernard Sweeney QC as Kirby's successor (p 63). I and Attorney-General Murphy and Cameron all wanted Moore to succeed Kirby. We all wanted Sweeney to be part of the Federal system. He was the leader of the New South Wales industrial bar but, because of an early Communist background, would never have been appointed by either side of politics to the New South Wales Industrial Commission, which is both an arbitration tribunal and a superior court.

Sweeney was not attracted to the Commonwealth Conciliation and Arbitration Commission but to the Commonwealth Industrial Court, which had already reached its quota of "a Chief Judge and not more than seven other Judges". On 12 April 1973, Cameron introduced an amending Conciliation and Arbitration Bill (Cth) to comply with the platform adopted by the ALP Federal Conference in 1971. The Bill proposed that "the Australian Industrial Court shall consist of a Chief Judge and such other Judges as are appointed from time to time". The Senate rejected the whole Bill on 6 June. Sweeney had been winding up his practice and accepted appointment as a Deputy President of the Commission on 14 June. When President Moore presented his commission at a sitting of the Commission in ceremonial session on 6 August, Cameron was the first to welcome him from the bar table.

The House resumed on 21 August. During the recess the Opposition spokesman on industrial affairs, Phillip Lynch, was replaced by Malcolm Fraser. On 30 August, Cameron introduced a modified Bill which repeated the words in the April Bill. During the committee stages in the Senate, J A Little moved that "the Australian Industrial Court shall consist of a Chief Judge and not more than nine other Judges". Cameron had negotiated the Little amendment and the Senate accepted it without division on 25 October. The Bill received assent on 13 November. Sweeney was appointed a judge of the Court on 10 December. It was in this capacity that he made his report on Moore v Doyle' and inquired into the maritime unions.' He died in 1977.

1. (1967) 15 FLR 59. 2. See E G Whitlam The Whitlam Government 1972-1975 (Ringwood: Penguin, 1985) 284,

702.

DEC 19941 BOOK AND VIDEO REVIEWS

Hawke may not be responsible for his index, which gives another reference to "Jack Sweeney" on page 42. This is meant for Charles Augustine Sweeney. He was a Deputy President of the Commission from 1963 to 1969 and a judge of the Court in 1969 and 1970. He survives as the sole remaining judge of the Federal Court of Bankruptcy (now in limbo) and as the senior puisne judge of the Federal Court.

International labour standards Lawyers will have a greater continuing concern with the omissions rather than

the assertions in The Hawke Memoirs. No Australian Prime Minister came to power with Hawke's experience and prestige in industrial affairs in both domestic and international forums. The Memoirs give no explanation why he left office without ensuring that international best practice in industrial affairs applied throughout Australia.

On 14 December 1982, the last day that Malcolm Fraser sat in the Parliament, his Minister for Employment and Industrial Relations, Ian Macphee, tabled six instruments adopted by the International Labour Conference held in Geneva in June 1981. Speaking for the last time in Opposition, Hawke followed Macphee. He pointed out that my Government had ratified nine ILO conventions in three years; in seven years the Eraser Government had ratified one. He spoke with particular passion on Convention No 155 (Occupational Safety and Health):

I believe that this is one of the most important conventions ever passed by a conference of the ILO.. . . On a totally non-partisan basis, I put it to the Government and to the Minister that they really should bring their very best endeavours to bear to try to get the support of the States and give this Convention the support it needs.. . . Frankly, I believe there has not been the application of will on the part of the Federal Government to try, in consultation with the States and with persuasion, to bring about the situation where in this country we would have something which would at least approximate the stated objective of this convention - that is, a coherent national policy on occupational safety, occupational health in the working envir~nment.~

This forthright statement raised great hopes. Six months later, on 10 June 1983, Bob Hawke as Prime Minister told the International Labour Conference that his Government had committed itself to ratifying No 155 as a matter of priority. No 155 has not yet been ratified. The Hawke Government ratified only four I L 0 conventions in nearly nine years.

The failure to ratify No 155 in particular exposes Hawke's own failure as national leader of the ALP. For his first five years as Prime Minister there were Labor Premiers in New South Wales, Victoria, South Australia and Western Australia. When he resigned there were Labor Premiers in Queensland, Western Australia, South Australia and Tasmania. Yet formal agreement to ratify No 155 was not received from Western Australia until August 1989, from South Australia until February 1991, from Queensland until April 1991, from Victoria until July 1992, and from the ACT until September 1992. New South Wales, Tasmania and the Northern Territory have not yet agreed.4

3. Hansard (HR) 14 Dec 1982,3403-3404. 4. Hansard (HR) 20 Oct 1994, 2608 (Question No 1383).


The lack of will which Hawke attributed to the Fraser Government on 14 December 1982 came to haunt his own Government on election night, 5 March 1983. During the campaign he devoted great efforts to the Tasmanian Dam issue. On election night the ALP vote in Tasmania dropped by 3.5 per cent. Hawke came to the melancholy conclusion that "our electoral showing in Tasmania was a reminder that the politics of consensus and of reconciliation didn't end at the ballot box, but began there" (p 139).

Hawke spends two pages of the Memoirs on the campaign in Tasmania but does not mention its triumphant outcome in the High Court. His Government's first legislation was the World Heritage Properties Conservation Act 1983 (Cth). The Act implemented the World Heritage Convention, which the Unesco General Conference adopted on 16 November 1972. Australia deposited the seventh instrument of ratification on 22 August 1974. The Convention entered into force on 17 December 1975. Tasmania challenged the Act in the High Court. Queensland intervened in support of Tasmania, and New South Wales and Victoria in support of the Commonwealth. The Court rejected the challenge on 1 July 1983.5

Hawke should have followed the Court's judgment by introducing legislation to preserve basic ILO conventions which Australia had ratified on the basis of Federal and State industrial awards and agreements. If he had adopted this constructive, consistent and constitutional course in an area where he had great credentials, State Governments, beginning with Victoria in March 1993, could not have suddenly set out to abolish State awards. Nor would the Keating Government, to the surprise of many, have had to legislate to secure and preserve the benefits of four basic ILO conventions throughout Australia. Fifteen separate challenges to the application of the Industrial Relations Legislation Amendment Act (No 2) 1992 (Cth) to State public servants and employees of State authorities were heard together by the High Court on 7-9 June 1994. Victoria was a party in each of the matters. The Federal Attorney-General intervened in all of them, as did the Attorneys-General of the other five States. Further challenges by Victoria, Western Australia and South Australia to the validity of the Industrial Relations Reform Act 1993 (Cth) are to be heard by the High Court on 30 May - 1 June 1995.

Native title Hawke was the first Prime Minister in 40 years to have a Western Australian

background. In Western Australia the politics of consensus and reconciliation never got off the ground during his term.

Brian Burke was first elected Premier two weeks before Hawke was first elected Prime Minister. Throughout their terms of office the ALP was committed to "ensure that Aboriginal and Islander people in each State or Territory have access to land grants held under secure title in accordance with the Woodward principles by seeking complementary State or Territory legislation and where this is not introduced use Commonwealth constitutional powers and legislation."

Early in 1986 Hawke was enjoying, and Burke was seeking, a second term. Burke browbeat Hawke into abandoning his Government's preparations to introduce a national code of Aboriginal land rights. Without consulting his Cabinet or his Caucus, Hawke made a secret pact with Burke that his Government would not exercise

5. Cth v Tasmania (1983) 158 CLR 1 ("the Franklin Dam case").

DEC 19941 BOOK AND VIDEO REVIEWS 295

the jurisdiction and obligation which the Federal Parliament derived from the 1966 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the 1967 referendum.

Hawke does not mention his betrayal in the Memoirs - not even in Appendix 3 (Aboriginal Affairs). He must have known Western Australia's history. Two great Federal Ministers who graduated from The University of Western Australia a generation earlier, Paul Hasluck, MHR for Curtin (1949-1969) and Kim Beazley, MHR for Fremantle (1945-1977), have written and spoken about the British Government's efforts to safeguard the welfare of the Aborigines in Western Australia. For this reason the Colony was denied self-government until 1889 and the State was not allowed to abolish the Aborigines Protection Board until 1906.

If Hawke had stood up to Burke and gone ahead with land rights legislation, less sound and fury would have followed the High Court's judgment in Mabo (No 2) on 3 June 1992.6 The American and Canadian federal systems had made progress on native title while the Australian federal system marked time under Hawke. On 6-9 and 12-15 September 1994 the High Court heard the Western Australian Government's challenge to the Keating Government's Native Title Act 1993 (Cth); the decision is expected in Autumn 1995.

Equal suffrage The Memoirs are also silent on Western Australia's singularly skewed and

slanted electoral laws. The State is divided into a metropolitan and a non-metropolitan zone. In general terms, metropolitan votes for the Legislative Assembly are worth only half and for the Legislative Council only one third as much as non-metropolitan votes. This malapportionment is at the core of the corruption of Western Australian politicians, both Labor and Coalition, in social and economic issues. It goes some way to explain their aggressive attitude to the policies and politicians in other States.

One vote one value in the House of Representatives was achieved in 1974 at the only joint sitting of Federal Parliament. No Labor State Government has had a majority in the Legislative Councils of the four southern States or, except for a few years in the 1960s and 1980s, in the Legislative Council of New South Wales. Dunstan, Wran and Cain succeeded in securing one vote one value in both Houses of their Parliaments. Except in five seats, Goss has secured it in the unicameral Parliament of Queensland. Tasmania has always had one vote one value in its Legislative Assembly but its Labor premiers have failed to secure it for the Legislative Council. Labor premiers in Western Australia have failed to secure it in either the Legislative Assembly or the Legislative Council.

Universal and equal suffrage is ordained by Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which was adopted by the United Nations General Assembly on 19 December 1966 and entered into force on 23 March 1976. Australia ratified the Covenant in 1980 with reservations, many of which were withdrawn in 1984. Under Article 50 the provisions of the Covenant extend to all parts of federal states without any limitations or exceptions.

On 9 October 1985 the Attorney-General, Lionel Bowen, introduced the Australian Bill of Rights Bill (Cth) to implement the ICCPR. It was passed by the House on 14 November by 70 votes to 5 1 and received by the Senate on 2 December.

6 . Mabo v Queensland (No 2) (1992) 175 CLR 1.


Debate proceeded from 14 February 1986 till 28 November 1986. By that time Hawke was yielding to the besetting temptation of members of the industrial relations club to take the short view and the soft option by sewing up a deal which would hold until after the next budget or the next election. Gareth Evans had the Bill discharged from the Senate Notice Paper.

At the time of Hawke's capitulation on land rights, Bowen and the Foreign Minister, Hayden, were preparing an instrument of accession to the Optional Protocol to the ICCPR, which had been adopted and had entered into force on the same dates as the ICCPR itself. By acceding to it Australia would recognise the competence of the Human Rights Committee to receive and consider communications from individuals subject to Australian jurisdiction who claimed to be victims of a violation by Australia of any of the rights set forth in the ICCPR. It was not until 25 September 1991, three months before his demise, that Hawke allowed Michael Duffy, a new Attorney-General, and Evans, a new Foreign Minister, to deposit the instrument of accession. The Optional Protocol entered into force for Australia on Christmas Day.

Tasmanians were quick to approach the Human Rights Committee, which upheld the claim that Tasmania's laws were in breach of Articles 17 (right to privacy) and 26 (right to equal protection of the law). There is no doubt that Western Australians could successfully persuade the Human Rights Committee that the State's electoral laws are in breach of Article 25. So, too, could Tasmanians in respect of the laws under which their Legislative Council is elected.

The Fitzgerald Inquiry in Queensland and the Kennedy Royal Commission into "WA Inc" in Western Australia have confirmed that there cannot be a responsible government unless there is a representative parliament. Western Australia has neither. The Federal and State Governments have taken no steps to remedy the situation. The Western Australian Parliamentary Labor Party has taken proceedings against the State Government in the High Court to achieve basic reform of the State's electoral system. On 23 December 1993 a writ was issued by Carmen Lawrence, Geoff Gallop and Jim McGinty (MLAs) and John Halden (MLC). On 28 March 1994 the plaintiffs were changed to McGinty, Gallop and Halden. It is reassuring to find a graduate in law and a Rhodes Scholar from The University of Western Australia seeking equal suffrage for Western Australians in the State Parliament 20 years after my Government secured it for them in the House of Representatives. The case is listed for hearing by the High Court under a new Chief Justice on 6-8 June 1995.'

World heritage I must revert to the other delinquent State, Tasmania. The provisions of the

World Heritage Convention apply to party States which have a federal system like Australia's. A secret pact to frustrate the operation of the Convention in Tasmania is not revealed in Hawke's autobiography but in Graham Richards~n's.~ Paradoxically, one does not have to rely on the account given by Richardson, who has given Australian politicians the reputation which Epimenides gave to Cretans.'

I confess my own interest and grievance in the matter. Between 1983 and 1989 I attended the meetings of the World Heritage Bureau every June and World Heritage Committee every December. In June 1989, the Bureau noted with

7. McGinty et a1 v Western Australia No P44 of 1993. 8. G Richardson Whatever it Takes (Sydney: Bantam, 1994). 9. St Paul's Letter to Titus 1:12.


satisfaction the proposal to increase the area of the existing Western Tasmanian National Parks World Heritage Site by 34 per cent and concurred with the World Conservation Union's recommendation to expand the nominated area still further. In December, the Committee approved an increase in the area of the property, henceforth to be called "Tasmanian Wilderness", by 78 per cent. It noted that there were some "small enclaves of publicly-owned land with World Heritage values currently excluded from the nomination and expressed the hope that these could be added in the future".

Early in 1994, the World Conservation Union and World Heritage Bureau as well as conservationists in Tasmania were urging Senator Faulkner, the Minister for Environment, Sport and Territories, to safeguard and incorporate the enclaves. On 5 July, Premier Groom brought to the Minister's attention an Agreement of 28 November 1988 between Hawke, Senator Richardson, Minister for the Arts, Sport, the Environment, Tourism and Territories, and Senator Cook, Minister for Resources, on behalf of the Commonwealth, and Robin Gray, Premier, and Ray Groom, Minister for Forests, on behalf of the State. The Premier stressed Clause 12 of the Agreement:

The Commonwealth undertakes not to initiate any further inquiries into forestry in Tasmania or to propose any other areas of Tasmania for World Heritage Listing without the concurrence of the Tasmanian Government.

This secret pact was not brought to the attention of the World Conservation Union, World Heritage Bureau or World Heritage Committee during the following year when I was charged with promoting the expanded nomination. Nor was it brought to the attention of the Federal Cabinet, or Caucus, or Parliament.

It may be smart but it is not very honourable for Richardson to say of the Minister who now holds his old portfolio: "Both hands are tied behind Faulkner's back" . lo

UN and UK

Hawke as Prime Minister thus sought to frustrate, and as author he has ignored, an issue which the High Court determined in his fourth month in office. The other three issues which he shelved as Prime Minister and has ignored as author are the great constitutional issues now before the Court. On all four issues one gets the impression that Western Australia is the State where it is easiest to whip up dissatisfaction with the United Nations and its specialised agencies. Australia is an original member of them all. Lest it be thought that I absolve my own side of politics from such an attitude I invite attention to an answer given by the Attorney-General on 21 February 1994" to a question about the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID). The answer reveals that there has been bipartisan intransigence in the State which has most damaged Australia's reputation among investors around the world. My Government signed the Convention on 24 March 1975. Succeeding Governments persuaded Premiers on both sides of politics in all States except Western Australia to agree to ratification. On 2 May 1991 Australia at last had to ratify in respect of only five of its component States, and only two thirds

10. G Richardson "Between a Rock and a Hard Place" The Bulletin 22 Nov 1994, 15 11. Hansard (HR) 21 Feb 1994,967 (Question No 545).


of its territory. Well over 100 other countries have ratified and have done so in respect of all their territory. Western Australia has been stranded in this continent and in the world.

As a result of its British origins, Australia is also an original member of the Commonwealth, an association of 51 sovereign States. In 16 of them the Queen is acknowledged as Head of State and in six more another monarch is acknowledged as Head of State. The other 29 are republics. In October in odd-numbered years there is a valuable Commonwealth Heads of Government Meeting (CHOGM). Between 1949 and 1972 four Liberal Prime Ministers of Australia condoned the racist policies of the regimes in South Africa and Southern Rhodesia. The four Prime Ministers who followed them have used CHOGM to end those policies, usually against the stubborn opposition of Tory Prime Ministers of Britain. The Memoirs give an entrancing account of Hawke's negotiating skills. Only once was Margaret Thatcher able to frustrate him. It was after he instructed the Australian High Commissioner in London to seek her support for the election of Malcolm Fraser as the new Secretary-General of the Commonwealth instead of Chief Emeka Anyaoku of Nigeria, who had been Deputy Secretary-General since 1977. The message came back: "If I want a pro-African for the position, I will vote for a black one". This episode does not feature in The Hawke Memoirs.

GOUGH WHITLAM AC QC Prime Minister, 5 Dec1972-11 Nov 1975 Attorney-General, 5-19 Nov 1972 Leader, Federal Parliamentary Labor Party, 8 Feb 1967-22 Dec 1977.


1066 And All That! *

By Justin Fleming (Angus O Robertson p p 230 $16.95)

By Arthur R Hogue (Liberty Press p p 271 $18.00)

How many leading playwrights have also been successful practising barristers? John Mortimer, creator of the Rumpole of the Bailey television series, springs to mind. Less well known, but no less noteworthy, is the Australian playwright and author, Justin Fleming.

Fleming has written and produced a number of controversial plays, but perhaps the best known and most highly acclaimed of these is Harold in Italy, which premiered at the Sydney Opera House in 1989.

More recently Fleming has taken the lead role in writing and producing a six part television series dealing with the history of the common law in England and the Commonwealth. That series has yet to be broadcast, but the book which is to accompany it, Barbarism to Verdict: A History of the Common Law, has already been published and is the subject of the first part of this review.

Fleming's book is clearly aimed at the general reader rather than the specialist historian, and its object is to provide an illuminating and entertaining guide to the evolution of the common law rather than an encyclopaedic work of reference suitable for scholars.

Bearing in mind that the book is meant to complement a TV series, it focuses on topics and events which will be easy for the non-specialist reader to understand and which (at the same time) will make good viewing. So the book begins with the famous nineteenth century case of R v Dudley and Stephens (which involved the murder and cannibalism of a 16 year old cabin boy by three shipwrecked mariners), not so much because this decision had any significant impact on the development of the common law, but because it engages the reader's attention and has obvious television potential.

Having made the most of this case, Fleming takes the reader back several centuries to the occupation of England by the Romans, and then by the Angles and Saxons. This is followed by a Cook's tour of the reigns of King Cnut ("whose memory is protected from the catastrophe of a misprint by the more Anglo-sensitive spelling 'Canute"' (p 12)), Edward the Confessor, William the Conqueror, Henry I1 and others. The aim is to show how power devolved from the King first to the


barons and then to the people. The most significant milestones in English legal history - Magna Carta, the

Statute of Westminster 1275 and the Bill of Rights 1689 -are touched on, as is the emergence of an independent judicial system and an organised professional bar. The evolution of equity and its eventual fusion with the common law is also sketched.

Early forms of trial (by ordeal, water, fire, peine forte et dure, etc) are outlined and the process whereby these barbaric rituals came to be supplanted by trial by jury is carefully explained. Jury trial is seen by Fleming as one of the main bulwarks of our present day civil liberties and he clearly hopes that the development of the law will remain in the hands of judges and juries (in the common law tradition) rather than be placed in the hands of professors and so-called experts, as happens in European countries which follow the civil law.

Many of the most famous cases in the development of the common law are dealt with in the book. In addition to R v Dudley and Stephens, Donoghue v Stevenson, Carlill v The Carbolic Smoke Ball Co, R v Penn and Mead, R v Penguin Books (the Lady Chatterley 's Lover case) and Mabo v Queensland are among those featured. Interesting details not revealed in the law reports are included in the book. For example, the discussion of Donoghue v Stevenson concludes by noting that that most famous of Scottish plaintiffs, Mrs May Donoghue, ended her days in poverty in a mental home in Glasgow. How many students of the law of torts get to know that during their undergraduate studies?

Being a playwright and author as well as a barrister, Fleming illustrates his theme by reference to many literary works and poems which touch on the lives and work of lawyers as well as the evolution of our legal system. Quotes from Oliver Twist, The Merchant of Venice, De Profundis and The Ballad of Reading Goal enliven the text. There is also an extended quotation - four pages in length - from the Marx Brothers' A Night at the Opera, though its relevance to the main theme of the book was not obvious to me.

Although the common law has its roots in England, it has subsequently travelled to distant lands. Fleming traces its fortunes in countries as far away from Britain as Australia, Malaysia, Singapore, India, South Africa, Fiji, Canada and the United States. The subversion of the common law's tradition of judicial independence in countries such as Malaysia is discussed, as are the constitutional ramifications of the dismissal of the Whitlam government in this country in 1975.

This is an amusing and well written book which could profitably be read by law students and lawyers, few of whom seem to know anything of the history of the law which governs their lives. One shortcoming of the book, however, is that it makes no mention of the rapid evolution of the doctrine of judicial review of administrative action since 1945: yet judicial review is perhaps the chief mechanism by which the common law has sought to restrain the burgeoning powers of government in the post-war era. It is a surprising omission in an otherwise first rate work.

Arthur Hogue's book, Origins of tlze Common Law, is very different to Justin Fleming's. It is not a new book, but was first published in 1966 by the Indiana University Press. It was subsequently reprinted in the United States by Liberty Press in 1985, but was not widely available in Australia until recently. However it is now being promoted and distributed by a New South Wales company, from whom it can be purchased direct (Commentary Books, PO Box 538, Wahroonga, NSW 2076).

Hogue's book is approximately the same length as Fleming's, but it covers a


much shorter time-span: a mere 153 years from 1154 to 1307. This enables the author to concentrate on the development of the common law during the reigns of five medieval kings - Henry I1 ("Supreme administrator"), Richard I ("Absent king"), John ("Irresponsible absolutist"), Henry I11 ("Dupe of alien counsellors") and Edward I ("Reluctant constitutionalist"). The aim is to produce a short but scholarly account of the medieval common law which may be of interest to lawyers and non-lawyers alike.

The book is divided into four parts. The first traces the political careers of the five kings over the period in question. It sketches their clashes with the Church and the barons. Attempts to raise more and more taxes from the barons to finance wars abroad eventually led to the barons forming a united opposition to the throne which culminated in the "settlement" of Magna Carta in 1215. The accommodation reached between the Church and the King in the wake of Becket's murder in 1170 is also discussed.

The second part of the book deals with the social order of the day. This is perhaps the most valuable part of the work. It explains the relationship of lord and vassal, the difference betweeen free and unfree tenures, and gives a fairly detailed account of the various types of free tenure (sargeanty, socage, burgage and frankalmoign). The means by which socage came to dominate and absorb the other forms of tenure is related.

The third part of the book deals with the emergence of the Royal courts and compares them to the manorial courts which were of equal importance in medieval England, at least until the end of the thirteenth century. It also deals with the importance of the writ system in the development of the law (a point overlooked in Fleming's account) and with the crucial role played by the Chancellor in the common law's development, even before the emergence of equity in the fifteenth century.

The final part of the book looks in detail at the development of the common law in three particular areas: debtor and creditor, estates in land, and the purchase and sale of tenures. But no mention is made of the emergence of the criminal law, though its roots go back to the twelfth century.

Hogue is an historian rather than a lawyer and this enables him to bring a fresh perspective to a subject which is generally treated by lawyers only. His is a careful and incisive account which sets the legal developments of the period in their political and social context.

Hogue's book lacks the racy style of Fleming's, but it complements that book in many ways. Undergraduates interested in finding out about the origins of our legal system could do worse than to spend a day or so reading the two books together.


Invaluable Guide to Trade Practices Law

*

By John Duns b Mark Davison (Butterworths pp 931 $98)

Since its enactment in 1974 the Trade Practices Act (Cth) has not only spawned a welter of case law, but has been the subject of continuing analysis, review and amendment. In addition, ever increasing numbers of students studying the Act in a growing number of courses have necessitated a book of this type even if only to alleviate pressure on overburdened library resources, law reports in particular. But this book is much more than simply a convenient means of accessing cases. Its logical layout and well chosen and formatted contents allow an easy entrCe into a complex and dynamic field.

The book is arranged in chapters corresponding to consecutive provisions of the Act: chapters 2 to 10 deal with the anti-competitive restrictive trade practices provisions of Part IV, chapters 11 to 17 deal with the consumer protection provisions contained in Part V, Part IVA and Part VA (including unconscionability and manufacturers' liability). Penalties, remedies and enforcement are covered in their own chapters. The introductory chapters to the restrictive trade practices and consumer protection Parts (chapters 1 and 11 respectively) provide valuable background material, explaining the objectives of the Act from both an economic and jurisprudential perspective.

Within each chapter of the book there are clear sub-headings which focus on elements of the particular legislative provision. Within these, issues that have received judicial attention are headed and highlighted, followed by illustrative case extracts, including American cases where particularly relevant. Where considered appropriate, excerpts from articles, law reform commission reports, review committee reports and Trade Practices Commission circulars are also included. The authors have clearly set out to make their readers aware of matters of policy as well as legal principle. They also do not restrict themselves to presenting only one point of view (see, eg, chapter 11). A notable omission here is in the area of Product Liability: it would have been helpful had they included some of the discussions on the need or otherwise for the introduction of Part VA (particularly the discussion and recommendations of the Australian Law Reform Commission). At the end of each chapter and often at the end of a section, a series of questions and hypothetical problems is posed. A short reading list is also appended to each chapter.

The authors have extracted the principal trade practices and consumer protection cases and, fulfilling their claim made in the preface,"have kept [them] as comprehensive as possible so as to provide an insight into how trade practices issues


present themselves in commercial situations as well as the legal principles which the cases establish". Although the cases are grouped thematically, some form of headnote or brief description of the importance of individual cases would have added to their utility. Clearly it would have been impossible to provide extracts of all cases relevant to a particular issue, but if would have been helpful and complete had there also been, at the end of each section, at least a list of cases for further reference. Unfortunately, page numbers are omitted within cases, but more seriously they are often missing entirely from other extracted materials.

A minor criticism of the physical form of the case extracts and linking commentary is that there is often insufficient differentiation between the two. Greater clarity would have been achieved had the cases and commentary been more obviously separated than by simply a slight difference in print size. While on the subject of minor criticisms, quite a number of cases - at least 16 -are misspelled in the table of cases, though not in the text. At least two page references in the contents are inaccurate.

In general, coverage of the Act is sufficiently comprehensive, given the constraints on a book of this type. Only a minority of areas receive scant treatment, including section 56 (bait advertising - p 715) and section 73 (linked credit providers - p 804). Reference material could have been suggested here to facilitate individual research. The suggestions for further reading at the end of each chapter could also have been augmented to further this aim: the reading list at the end of chapter 12 on misleading or deceptive conduct is particularly short.

This book is a valuable tool in the study of the Act and could, complemented by a teacher's manual which is apparently also available to lecturers for use with the book, suffice as a student's primary text book. The price of $98 might deter some student buyers, but this problem could be obviated by separating the book into two volumes, giving the purchaser the option of buying one for, presumably, half the price. One volume would deal with restrictive trade practices, the other with consumer protection. Although part of the same Act and having the same general aim of ensuring fair competition, these two areas are qualitatively different and rarely form the basis of a single course of study. Besides, given the burgeoning case law and continuing amendment of the Act, books like these can quickly become out of date and there is an understandable reluctance to make substantial investments in them.

AVIVA FREILICH Lecturer, The University of Western Australia.


Excellent Addition to Antarctic Literature

By Lorraine M Elliott (St Martin's Press pp 336 $89.95)

In the substantial recent research output on Antarctic issues Dr Elliott's book stands out in dealing with Antarctic environmental matters from the viewpoint of the political scientist. The author makes particular use of international relations theory and stresses the importance of non-State actors.

The first chapter is arefreshing change for the reader used to the preponderance of the international law approach in Antarctic analysis. The chapter is devoted to an exposition of international relations theory of special relevance to Antarctica. It is immediately apparent that these theoretical principles are most helpful in understanding the Antarctic System. Cooperation does not imply harmony of interests (p 7). In the long run international environmental issues are unlikely to be managed by coercion (p 8). Bargaining leads to compromise and regime inefficiency (p 10). The scientific community is often overlooked because it is seen as non-political and peripheral (p 17). Non-governmental organisations (NGO) are often leaders in identifying issues thus becoming "agenda-setters" (p 19). NGO personnel inside the diplomatic process have blurred the boundaries between formal and informal actors (p 19). These and other insights in this chapter are of special assistance in a debate dominated by diplomats and international lawyers.

The Treaty System, especially the Treaty itself, is dealt with concisely and with a good analysis of issues in the second chapter. Elliott points out that the Treaty "was intended to manage problems of the past" (p 25) and very little in the Treaty was new (p 35). SCAR, which is often neglected in discussions of the Treaty System, is explained in detail (p 44). The author correctly criticises the ad hoc piecemeal approach of the recommendations made under the Treaty (p 45). Although the slowness of decision-making is generally the case, it must be pointed out that, on the scale of international law, the Consultative Parties have proved that they can, especially on some crucial matters, move fast. A particularly significant example was the negotiation of CCAMLR, basically over a period of less than two years.

The general Antarctic environmental regime is examined in chapter 3. Significant changes took place in the 1980s (p 56). Elliott argues that the scientific community was not in an advocacy position (p 57). However, elsewhere there are indications of scientists arguing for political change. Examples are the SCAR report on SPAS (p 67), French scientists' criticism of the Pointe Geologie airstrip and the problems of China's Great Wall Station (raised by German scientists) (p 70), scientists' advocacy of the Antarctic Convergence as the generalised northern


boundary of CCAMLR (p 92) and leading scientists' published support for comprehensive environmental protection (p 291, fn 27). A particularly significant example is the widespread scientific opposition to CRAMRA, and the support of SCAR executive scientists for the regime (p 183).

In this chapter, and throughout the book, good use is made of NGO materials and the discussion of the work of the NGOs and their influence is excellent throughout (eg pp 59, 74, 99 and 127). The important issue of NGO observer status is raised (p 60) but might have been given a more extended analytic treatment. The Pointe Geologie airstrip dispute is raised ( p 70). This issue is central to the question of the enforcement (or lack of enforcement) of environmental measures and has generated a large amount of documentation. On Pointe Geologie there might have been an examination of the important legal issues raised by the publications of NGOs. It is good to see the use of Greenpeace inspection reports (p 74) but here and elsewhere (p 80) the originals of inspection reports might have been used, where obtainable. It is interesting to note Australia's concern at non-observance of the Code of Practice (p 75) in the light of Australia's large building programme which was not subjected to the full environmental impact process. The numerous breaches of the Code by Consultative Parties in the past could well be examined as a possible indication of practice under the detailed requirements of the Madrid Protocol. Recommendation XIII-6 (close siting of stations) (p 76) is an interesting case study, especially since the Consultative Parties were actually criticising their own actions specifically.

CCAMLR (the Marine Living Resources regime) is dealt with in 14 pages of chapter 4. This is the major Antarctic resource regime. It covers very substantial exploited fish stocks and has been operational for more than a decade with extensive documented practice. Yet CRAMRA, which has been abandoned, is covered in nearly 60 pages. This imbalance is particularly unfortunate in view of the numerous significant environmental issues raised in CCAMLR reports. In this chapter there is a welcome discussion of the Sealing Convention, which is often neglected by other authors. Space could have been devoted to a discussion of specific conservation measures and their effectiveness. The rejection of Greenpeace's application for CCAMLR observer status (p 99) might also in part be attributed to France's opposition.

The minerals negotiations are well covered in chapter 5. Chapter 6 deals with the minerals regime (CRAMRA), emphasising that power-based interests were rejected (p 122). The discussion of technology sharing and mandatory joint ventures (p 124) might have included some parallels with the International Seabed Authority (cf p 284, fn 4). Stress is well placed on the hierarchy of values, with sovereignty and economic issues coming before the environment (p 124). Political theory is especially helpful in discussing the bureaucratic elites who are well socialised in regime norms (p 125). Again, there is a good discussion of the role of NGOs (pp 127-128).

Elliott's view that CRAMRA does not represent a substantive change in the normative framework (p 135) might be disputed. CRAMRA was clearly a major qualitative advance on CCAMLR (eg, environmental principles directly applicable, precautionary principle, regulatory committees). As with the NGOs, the analysis of the position of the NCPs is very good (p 138). "Claimant solidarity" in the regulatory committees is stressed (p 142). On the management scheme (p 144) one might point out that this is essentially a framework, allowing separate and different legal systems


for each Scheme. There is a useful analysis of the complicated problem of adjacent offshore areas (ie, continental shelf) (pp 145-146). The weakness of monitoring and compliance is pointed out (p 154).

Chapter 7 deals with the transition from CRAMRA to the Madrid Protocol. Whilst one can agree with the role of the NGOs in campaigning publicly against CRAMRA (pp 163-165), it may be argued that Australian elections and the search for the green vote were also significant. France's decision is explained in this manner (p 170). It may be noted that France's leadership in pressing for comprehensive environmental protection measures took place whilst the Pointe Geologie airstrip, a major focus for environmental criticism, was being built.

The Madrid Protocol text is dealt with in chapter 8, but is only given nine pages. Prior recommendations on the environment are seen as not legally binding (p 197) , an assertion which can be questioned. Brief comparisons are made between the Annexes and the pre-existing measures (pp 198-199). The negotiation of the lengthy Protocol and Annexes took less than a year. In good part this was due to the wide reliance on existing recommendations. Whether the Protocol marks a qualitative change is not clear. In the 1980s there had been increasing concern with the environment in the form of recommendations, new detailed procedures (eg, environmental impact assessment), inspections stressing environmental matters and the detailed environmental principles of CRAMRA. Perhaps the Protocol was the culmination of a continuing process, rather than a quite different approach overall. The conclusion is a return to theory, in the light of Antarctic environmental rules. It emphasises one of the strong points of the book in placing the issues in a very helpful political framework.

Overall this volume is an excellent addition to the Antarctic literature. Apart from the text, the footnotes are full of interesting facts and views. The bibliography is very good, up to date and, in particular, makes extensive use of Consultative Meeting documents and NGO material. Dr Elliott's study is essential for any library concerned with coverage of Antarctic environmental affairs.

FRANCIS AUBURN Associate Professor, The University of Western Australia.


Succession Law on Video *

By Imagelink (Video Education Australasia 30 mins $150)

Of all technical legal subjects, that of wills and inheritance must rate highly on a scale of popular interest: it is of universal relevance; it appeals to human power and greed; and, as many popular novels testify, it has a romantic element. Having these characteristics, it is an area well-suited to various forms of television presentation. The difficulty is that it also has a large technical content. The consequent danger is for television producers to take a middle course between popular and specialist exposition. In seeking to avoid mere popularisation on the one hand, and undue technicality on the other, the result can be a level of over-simplification that is both dangerous to the lay person and useless to the specialist.

The law of succession, moreover, involving as it does the disposition of, and entitlement to, the whole of a person's assets after death, is also of considerable practical significance. In this respect it is not like some other popular but nevertheless technical subjects suitable for television exposition such as the theory of relativity, say, or of evolution: the law of wills and inheritance is far more important to the average person, simply because of its financial element. In addition, easily acquired wealth has an inherent fascination. These facts bring with them an additional danger to the television producer, namely the temptation to gimmickry. This should be avoided. Rags to riches stories have little place in any serious exposition of a legal subject, whether on television or otherwise.

The foregoing considerations apply to an appraisal of the present thirty minute video tape of the law of wills and inheritance in the state of Victoria, especially given that it is directed partly to students in various categories.

There is no doubt that the video tape is well and professionally produced. It contains useful advice, delivered by experienced solicitors and by the Victorian Registrar of Probate, on the choice of executors and on their powers and duties; the role of trustee companies; the execution of wills; the folly of home-made wills; and the Victorian law of intestate succession and of family provision. It also contains several necessary caveats that the law in other Australian jurisdictions might be different from that of Victoria as to various of these matters.

And herein lies the rub. Notwithstanding recent changes made to Victorian law by the Administration and Probate (Amendment) Act 1994, the general law of succession in that state remains relatively unreformed, especially when compared with the law of Western Australia, Queensland and South Australia.' In these jurisdictions the law as to the various matters dealt with in this video tape is very

1. The Law Reform Committee of the Victorian Parliament issued its Final Report on Reforming the Law of Wills in May, 1994.


different from the law presented therein. These matters include the proof of informally executed, altered, revoked and revived wills; entitlements upon intestacy; family provision after death; the position of de facto spouses; and the procedure for obtaining a grant of representation. These are all important matters, central to the law of succession.

The real point, of course, is not so much that Victorian law on these and other related matters differs from the rest of Australia, but that the rest of Australia differs from itself. There are, in fact, eight separate and differing statutory systems of succession law in force in this country - those of the six states, plus those of the two mainland territories.

If ever an example might serve to illustrate the costs and inefficiencies of some aspects of the modem Australian federation it is this. Nowadays, of course, persons commonly die leaving assets and beneficiaries located in more than one, and often in several, jurisdictions. A grant of representation made by a given Supreme Court has no inherent force outside the jurisdiction of that court. The grant must be re- sealed in any other jurisdiction in which it may need to be produced, a procedure that is costly and time consuming, but which has no good reason (apart from the political reason of "states' rights") to support it. Possibly a liberal interpretation of section 118 of the Commonwealth Constitution by the High Court might have avoided this situation, but such has not been the case.

The result is that a popular presentation of the law of succession in one jurisdiction, as in this video tape, is at best only of limited use anywhere else, and can well be positively misleading. The difficulty is that the lay person to whom the presentation is directed has no means of knowing which parts of it apply to the state or territory in question. Even a Victorian viewer could not be certain, without taking professional advice, about the applicability of parts of the video if an out-of- state element happened to be present in a given case in which he or she were interested.

Legal education by television, whether for a popular or a specialist audience, is a superficially attractive idea: the impact is immediate; inherently boring topics can be presented in interesting ways; the mental effort required of a viewer is less than that required of a reader. But there is one overriding and ever present danger here applicable to both kinds of audiences: over-simplification. It is notoriously difficult to state the law over a complicated area in a nutshell, and technical areas of the law require far more, and far more rigorous, mental discipline than is required to understand a popular television production. This is simply because legal topics such as the present, however generally interesting to lay persons, require knowledge that is both wide and deep; they require nice distinctions, and many qualifications upon general statements. These are of their nature far more suitable for textbook discussion than for television presentation. The fact is that a video tape on a technical legal subject that did not over-simplify would have to be in effect a visually spoken textbook. Whether there exists a use, or a market, for such a type of production in Australia today is, of course, another question. The present video tape is certainly not of this type. It is useful viewing for Victorians contemplating the use of professional services in the area. By others it must be approached with even greater caution.

NEVILLE CRAGO Senior Lecturer, The University of Western Australia.


Courageous and Controversial Judgments

By Nii Lante Wallace-Bruce (Carlton Press p p 255 $37.95)

Recent events have confirmed the dominant role that states play in world affairs. The collapse of the USSR and Yugoslavia has resulted in a considerable increase in their number.

The question of statehood has received relatively sparse treatment by writers on international law. This volume is therefore particularly welcome.

Dr Nii Wallace-Bruce has departed from the traditional approach of studying the general principles of international law relating to states. Rather, his work is based on detailed case studies within the context of the general principles.

The book is an enlargement and update of his Master's thesis, "The South African Bantustans and Statehood in International Law".

In a refreshing re-examination of classical international law, the author also considers the status of indigenous nations. He concludes that because they had essentially similar features to their European counterparts, there was no reason why their legal status should have been treated differently. While recognition, albeit limited, was accorded to the indigenous nations of the United States, Canada and New Zealand, this was denied in Australia. As the author notes, the Australian Government is now grappling with various legal and extra-constitutional problems which have resulted from that denial.

The author's choice of major case studies ranges across the continents of Africa, Europe and Asia. He is not backward in assessing the value of the various claims to statehood. For example, he finds the Tamil Claim for a state of Tamil Nadu persuasive, but concludes that the basis for the Sikh claim to Khalistan "is simply not there". These judgments are courageous and will be controversial. They are, however, at the end of a detailed statement and analysis of each claim which is always fair and objective.

His penultimate chapter sets out some alternatives to statehood. One is home rule or regional autonomy. The case studies chosen are Greenland, the Faroe Islands, the Basque Country (Euskadi) and the proposed status for Hong Kong from 1 July 1997. Under the Joint Declaration on the Question of Hong Kong, signed by the United Kingdom and the People's Republic of China on 26 September 1984 (which came into effect on 27 May 1985), Hong Kong is assured that "it will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People's Government" (Article 3(2)). The structures for this autonomy are to be Hong Kong's "executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged" (Article 3(3)). Since the signing of the Joint Declaration, the two powers seem unable to agree on a smooth transition to


the promised "One Country, Two Systems". Other alternatives to statehood include the granting of limited sovereignty to

indigenous people. The United States, Canadian, New Zealand and Australian experiences in granting (or indeed not granting) limited sovereignty are examined.

Dr Nii Wallace-Bruce is eminently suited through his own experiences to undertake this project. Born in Ghana, and now a resident of Australia, his work as a lawyer for indigenous Australians, and his contributions to scholarship, provide an excellent preparation.

This is a timely and important publication. It is filled with valuable information, analysis, and an honest assessment of claims made to date. It should prove a particularly useful reference in foreign offices, for national liberation movements, and in legal and political libraries whenever claims to statehood are considered or as they are made in the future. In this uncertain world, it seems clear that few borders will be set in concrete and once tranquil states will experience movements for separation, so that this book will be frequently consulted.

DAVID FLINT Dean, Faculty of Law and Legal Practice, University of Technology, Sydney Chair, Press Council of Australia.


Divergent Approaches to Feminism *

By Naomi Wolf (Vintage pp 378 $19.95)

By Katie Roiphe (Hamish Hamilton pp 180 $30.95)

What do Madonna, Princess Diana and Ivana Trump have in common? According to Naomi Wolf, they are all role models for the new wave of "power feminists". "Real change for women", according to Wolf, "depends upon a willingness to engage with power with its seductions and responsibilities, democracy with all its open conflicts, and money with all its pleasures and dangers" (p 58). It is not surprising that Wolf admits that "Mother Teresa's [opinions] are not going to be mine" (p 152).

Following the success of her first book The Beauty Myth Wolf has broadened her aim from providing a critique of the commercialisation of beauty to a critique of what she terms "victim feminism". Fire with Fire is sweeping in its scope and as a consequence can be easily attacked for its generalisations and simplistic solution of basing a female power structure upon the existing male model. However, it does offer a number of interesting insights into why the "f-word" (that is, feminism) is not a label which is commonly accepted by many women.

Fire with Fire is divided into five parts. Part One deals with the "gains" that certain groups of American women have made in the past few decades. Part Two deals with why many women feel alienated from the women's movement. Wolf believes that feminism has become associated with a "rigid code of required attitudes and types of behaviour" (p 66). Part Three examines how feminism has become associated with victimisation. Wolf states that the work of authors like Catharine MacKinnon, Andrea Dworkin and Adrienne Rich is "becoming obsolete" (p154). Part Four deals with the "new psychology of human power". Wolf writes that in "victim feminism's taboos on ego, money, aggression and power, we can see the projection of a blocked set of wishes" (p 191). As a consequence, she devotes two rather unconvincing chapters to explaining why women suffer from a fear of power and making money. She relies on her own conversations with a few young women and girls to show that "they need overt permission to kill the Dragons of Niceness that make success and achievement seem truly 'not worth it"' (p 272). Finally, Wolf offers her own version of "power feminism" which calls upon women to become "resources and repositories of power, just as men are" (p 315).

Wolf writes with a mainstream American audience in mind. She is a strong supporter of women's magazines (p 100) and she writes in the style of many popular


American pseudo-psychological books. For example, she states: "As a writer, I highlight qualities of inner-directedness, mastery and quest because they are essential to my field" (p 303). In fact, the book is so concerned with American social phenomena such as the Clarence Thomas-Anita Hill confrontation, the William Kennedy Smith and Mike Tyson rape trials, and even the rise of American female news readers and female boxers, that it is easy to dismiss Fire with Fire as irrelevant to Australian society. (In her introduction, Wolf refers to the re-election of "socialist Prime Minister Paul Keating" (p xiv). It has certainly been some time since that adjective has been used to describe the Prime Minister.)

Wolf's views sit comfortably within the American liberal feminist tradition. She believes that the highest ambition for men and women is the attainment of a public role in life. Thus, she writes that feminism "is at heart the logical extension of democracy" (p 336) and that "[elven given all of capitalism's injustices, pending 'the revolution', women are better off with the means of production in their own hands" (p 318). Her "solution", therefore, is for women to aspire to those characteristics which liberalism has always held out to men- to become players in the field of public affairs.

While she does not directly address the legal field, it is relatively easy to see how Wolf's views could apply. She would ask women in the legal profession to form networks encouraging and "mentoring" younger women whilst entering their names in the "resource Filofax" (p 313). This may indeed help some women, but it seems an overly simplistic solution to the existing gender imbalance at senior levels of the legal profession.

Wolf writes that women "have been uncomfortable in the 'male' workplace largely because they have not had enough power to re-make the workplace in a way that is more congenial to them. When women have enough power, they will probably reconfigure it somewhat differently or use it to serve agendas different to those of men" (p 287). The fundamental dilemma with this approach, however, is that in order to gain positions of "power" within the legal profession, for example, women have to comply with existing work practices, thereby helping to reproduce them. It therefore seems overly optimistic to think that existing structures can suddenly be changed to respond to the needs of women with family responsibilities if more women find their way into senior positions.

Katie Roiphe, in her book The Morning After shares some of Wolf's concerns with victim feminism, but her canvas is much smaller. She states in the introduction that her work "is not a comprehensive, encyclopaedic, sociological analysis" nor a "political polemic". On the contrary, she has written her "impressions" of campus life at Harvard and at graduate school at Princeton where she studied English literature (p 7). Because Roiphe is writing on her "little piece of ivory", to use Jane Austen's term, one must be careful not to make assumptions about her opinions which are simply not set out in her book. For example, Roiphe is often linked with Camille Paglia by the American media as an out and out critic of feminism. In a recent interview with Erica Jong in the November/December edition of HQ magazine, journalist Amy Virshup summed up the media's approach to the different streams of American feminism as follows: "The ... media have reduced the long-running debate within feminism about women's sexuality to the intellectual equivalent of a tag- team wrestling match, with Andrea Dworkin and Catharine MacKinnon facing off against Roiphe and Paglia, no holds barred. Occasionally, there's a free for all


during which everybody piles on Naomi Wolf" (pp 80-81). This simplication of the nuances of American feminism is a popular one, and

does Roiphe a disservice. Within the boundaries of the narrow focus of The Morning After, she does raise some interesting and challenging observations about the concerns of a small group of educated, privileged feminists. The major problem, of course, is that, taken out of context, Roiphe's views can easily be viewed as part of the "backlash" against modem feminism.

In the first chapter, Roiphe outlines the difficulties faced by female university students who are surrounded by conflicting images of their sexuality. "Warnings about sexual harassment and sexual disease compete with wanton images of sexual freedom" (p 14). Roiphe believes that the pressures on young women in the late 80s and early 90s are different from previous generations. Perhaps the spectre of AIDS has changed the sexual landscape, but the ambivalence she depicts towards youthful sexuality may not be all that different from that experienced by previous generations.

After an excursion into the politics of the "take back the night" rallies, Roiphe examines the obsession on campus with "date rape". This is perhaps the most challenging part of her work. She writes that broadening the legal definition of rape to encompass sexual intercourse brought about by verbal coercion or "manipulation" may only serve to "reinforce traditional views about the fragility of the female body and will" (p 66).

Roiphe does not fully address the argument that the way in which rape has been traditionally defined has reflected common assumptions about heterosexual behaviour. What she is concerned with is that "rape-crisis feminists" are "giving a new political weight to the same old no" which existed when her grandmother was young (p 83). Thus young men are portrayed as waiting to coerce innocent young women into having sex with them and women are urged to avoid excessive use of alcohol and drugs and only to go to public places with acquaintances.

Portrayed like this, it does seem that the American concern with date-rape reinforces stereotypical views of men being active pursuers of passive women. What Roiphe ignores, however, is that reformulating the notion of consent in relation to rape can in fact help lead to an alternative model of sexuality. If it is assumed that a woman consents to sexual intercourse unless she clearly states otherwise, then the activelpassive model of sexuality is reinforced. If, however, consent must be communicated, as is now required (for example) under section 37(a) of the Victorian Crimes Act 1958, then a mutual model of sexuality can be supported.

Roiphe argues further that "[ilf we refer to a spectrum of behaviour from emotional pressure to sexual harassment as rape, then the idea itself gets diluted" (p 8 I ) . There is some merit in this criticism, but Roiphe's "solution" is still problematic. She states that if "we are going to maintain an idea of rape, then we need to reserve it for instances of physical violence or the threat of physical violence" (pp 80-81). The problem with returning to such a limited detinition of rape is that there is a danger that it will simply reinforce the traditional notion that a woman consents to sexual intercourse unless there is clear physical evidence to the contrary such as cuts and bruises.

Roiphe is similarly concerned with where the legal line should be drawn between sexual harassment and unwanted sexual attention. She states that if "you cast the net so wide as to include everyone's everyday experience, identifying sexual harassment becomes a way of interpreting the sexual texture of daily life, instead of


isolating individual events" (p 100). Her "solution" is not to emphasise the "transformation into victimhood as something caused by sexual harassment" (p 11 1) but to concentrate on empowering women so that unwanted sexual attention is dealt with swiftly and finally.

In the chapter "The Mad Hatter's Tea Party", Roiphe rather wickedly describes some of the feminists she encountered at Princeton. This collection of character studies displays Roiphe's writing skills and leaves the expectation that she could be an excellent novelist. In the final chapters, Roiphe deals with the pornography debate and, in particular, with Catharine MacKinnon's views on the subject. Roiphe repeats some of the criticisms that have been made against MacKinnon's views in the past, namely that her work "essentialises" women's experience and allows no avenue for change: "Her political argument is a closed system. There is no way to crack it, no internal contradiction threatening to explode. That's because MacKinnon's is not a political argument, it is a belief system. It is closer to religion that law, and there is no way to sway the true believer" (p 149).

Overall, Roiphe's work is eminently readable because of her literary flair. She offers an impression of campus life which is thoughtful and challenging, but ultin~ately she fails to offer any insights as to how changes to university life - let alone fundamental social changes - should be envisaged.

BERNADE-ITE MCSHERRY Lecturer, Monash University.

INDEX

BOOKS RECEIVED BUT NOT REVIEWED (by Author)

Bennett L Making Labour Law in Australia: Industrial Relations, Politics and Law, 1994

Bevan D A Case to Answer: The Story of Australia S First European War Crimes Prosecution, 1994

Booker K, Glass A & Watt R Federal Constitutional Law: An Introduction, 1994

Castles A C Annotated Bibliography of Printed Materials on Australian Law 1 788-1 900, 1994

Chetwin M Graw S Introduction to the Law of Contract in New Zealand, 1993

Farrar J (ed) Takeovers: Institutional Investors and the Modernisation of Corporate Laws, 1993

Gillies P Criminal Law 3rd edn, 1993

Graw S An Introduction to the Law of Contract 2nd edn, 1993

Griffiths L Corporations Law Workbook 2nd edn, 1994

Hocker P J & Heffey P G Contract: Commentary and Materials 7th edn, 1994

Keyzer P Legal Problem Solving: A Guide for Law Students, 1994

Lane P H An Introduction to the Australian Constitutions, 1994

Mackie K & Burton M Outline of Succession, 1994

McGinley G & Waye V Evidence Handbook, 1994

O'Donovan J The Law of Company Liquidation Student edn, 1994

Robertson G Freedom, the Individual and the Law 7th edn, 1993

Robinson L Handbook for Legal Interpreters, 1994

Rose D Lewis's Australian Bankruptcy Law 10th edn, 1994

Smith M D H, Pose K S & Bryant T Legal Process: Commentary and Materials 6th edn, 1994

Stephenson M A & Turner C Republic or Monarchy: Legal and Constitutional Issues, 1994

INDEX

Stuesser L An Introduction to Advocacy, 1993

Tomasic R Australian Corporate Insolvency Law, 1993

Wilde K C D M (ed) International Transactions: Trade and Investment, Law and Finance, 1993

Winterton G Monarchy to Republic: Australian Republican Government, 1994

Documents

DEC Defending Against Ballistic Missile Attack: ABM Treaty