In this issue:
Roddy's Folly: R.P. Meagher QC, Damien Freeman, Connor Court Publishing
Michael Kirby: Law, Love and Life, Darryl Dellora, Penguin
review by Robert Richards
Given their timing, Roddy's Folly and Michael Kirby: Law, Love and Life might be seen as complementary publications, as they should.
Roddy Meagher and Michael Kirby share being Sydney barristers, judges, media darlings and, dare one say it, entertainers. Meagher died in July 2011 but Kirby is still very much alive.
Given Meagher's reputation as an arch-conservative and Kirby's as a judicial activist, one might suspect they would be antagonists. But the contrary seems to have been the case. Meagher in his Portraits on Yellow Paper says that Kirby "is a person of great generosity and kindness, and I have benefited from it" while Kirby, in a review of Portraits, describes Meagher as "Brilliant and sensitive. Sharp and witty. Old and wise, but ever the private school boy."
Included in Roddy's Folly are a number of cartoons by Kirby which he admits were drawn in moments of boredom when he sat with Meagher on the Court of Appeal (a somewhat worrying admission). The cartoons are clever, if cheeky - in one, Kirby says in response to a complaint by Meagher that counsel was wasting their time: "If I try to stop him, Mahoney JA will spank me … and I might enjoy it too much." A missed career.
If there is a lesson from both biographies, it is the importance of networking. They share a common cast of supporting actors which moves seamlessly from one book to the other. They both knew everyone that counts - and if you can achieve that all sorts of doors fall open to you.
Meagher had a most enviable life. Intelligent and seemingly wealthy, skilled in law and cultivated in art, a talented wife, residences in Darling Point and Bowral. Though originally from the country, he was very much a representative of the Eastern Suburbs before the Eastern Suburbs implied only wealth. Even now, Roddy's Folly will be most appreciated by those who reside in the Eastern Suburbs, albeit a relatively small part of it.
What I most like about the book is that it is much more than a biography. Much of it involves philosophical discussions about the value of art, the significance of equity law, and the role of universities.
But this also points to a weakness: after finishing reading, while understanding much about his philosophies, I did not feel I knew the 'real' Meagher, except perhaps in his relationship with his artist wife Penny who died in 1995. In Portraits on Yellow Paper, Meagher paints a fond portrait of her and Freeman develops it.
Meagher is said to have been an eccentric. Sure, he was conservative, forthright, cultivated and determined to be politically incorrect. But that does not make him an eccentric, unless having an interest in art rather than sport is seen, as I suspect it is in Australia, to be a mark of eccentricity. I am loathe to think individualism is to be equated with eccentricity.
What was Roddy's folly? On the one hand, it was a sculpture Meagher commissioned to stand atop a hill in a paddock at Bowral. But Freeman also refers to the concept of a folly as "an eccentric demonstration of the builder's high level of playfulness, as the apparent uselessness of the folly is out of all proportion to the cost of its construction". The reference is puzzling. Is Freeman being complimentary or condescending? Might he be implying that Meagher's life was a game, for his delight, and not in the end of real consequence, that Roddy's folly is Meagher himself (though given, in particular, Meagher's contribution to equity law that conclusion must be qualified).
I enjoyed Roddy's Folly and it is certainly a book I will go back to. But I live in the Eastern Suburbs, am a lawyer, and enjoy art. I suspect that many who are not would find it somewhat boring.
Law, Love and Life adopts a different approach. It is a more fluent, traditional biography than the academic and philosophical Meagher work.
Dellora has set himself a hard (one might say impossible) task of trying to compete with all that has already been said about Michael Kirby. Kirby is so well known - at least to lawyers - that one sometimes wonders what more could be said. Most Sydney lawyers must have met him at some stage. He was Australia's celebrity judge. Not only is he exceptionally generous in accepting speaking engagements but he also makes a point of mingling afterwards. Unlike Meagher, Kirby was a public school boy, attending Fort Street High with the late Justice Graham Hill. He received a Bachelor of Arts, Bachelor of Economics, Bachelor of Laws and later a Master of Laws, all from Sydney University. He practised first as a solicitor, then a barrister, before being appointed to the Australian Conciliation and Arbitration Commission, then the Federal Court, then the NSW Court of Appeal and finally the High Court. He became a household name, caused in part by the inexcusable attack made upon him by Heffernan under parliamentary privilege.
Dellora explores in depth Kirby's sexuality and how this shaped him. But I am more interested in why Kirby is both religious and a monarchist. (Meagher was also religious but, given he went to Riverview, and if it is true the Jesuit motto is 'give me the child for seven years and I will give you the man', that is understandable.) It is harder to reconcile Kirby's religious and monarchist beliefs with a career based upon self-effort, determinism and individualism.
Kirby is actually quite conservative. Barwick described himself as a radical Tory. I doubt that. I wonder whether the title is not more apt for Kirby.
The golden age of Sydney celebrities (forgetting sports figures and reality-show transient wonders) seems to be drawing to an end. There was Whitlam and the still-active Keating in politics, and Capon and Olley in art. Of course, there are more, but they are very few. Others, while of great distinction, are lesser celebrities. To lawyers, Meagher and Kirby are the golden celebrities.
Blogging & Tweeting Without Getting Sued, Mark Pearson, Allen & Unwin
review by Peter Fagan
This book provides an excellent guide to laws on online writing. The author's research is commendably vast, covering a range of subjects from libel, copyright, privacy and confidence to secrets, contempt of court and online deception.
Thankfully, there are useful, practical tips throughout on ways to avoid breaching the laws.
With the Facebook wall and live tweeting, the scope for lawsuits has escalated rapidly. In Australia, there have been defamation cases against those tweeting from events over the inaccuracy of their reports.
There are even implications for those that 'like' or forward material to others online, in damages assessment for republication.
What is surprising are the global ramifications of cyberlaw. "Each time you post your latest social media message you may be subject to the laws of more than 600 nations, provinces, states and territories."
However, there is still uncertainty regarding connection to a particular jurisdiction. For instance, the US District Court has dismissed a misuse of image case against Virgin (based in Singapore) for this reason. However, a Californian court ordered Twitter (US-based) to hand over identity records to a UK court.
Conversely, a UK court order expressly confined a publicity ban to those shores because of jurisdictional limits, which Wikipedia in the US openly exploited.
Lawyers and judges are playing catch-up in this expanding field of law.
Arguably the most interesting section of the book has examples of courts balancing hate speech offences with freedom of expression rights.
People have been imprisoned in Vietnam for comments via a blog, criticising the government. In Australia, a person was imprisoned for publishing Holocaust denial material. By comparison, criminal charges for online threats to President Obama via Yahoo were ultimately dismissed on appeal, as they did not pose a "true threat".
Being a guide, there is little in-depth analysis. However, the author provides a comprehensive list of online resources for further reference. Likewise, each of the interesting examples is suitably referenced.
The abiding message is "just hold off pressing that 'send' button on anything too controversial until you've finished reading".
The book will not disappoint those wanting a reader-friendly and detailed guide on cyberlaw. My plan at the outset to highlight only key legal points and interesting extracts soon went awry and resulted in a book littered with fluorescent markings.
Thoroughly recommended for active bloggers and tweeters.
Monsieur Lazhar, writer-director Philippe Falardeau, 94 mins, rating to be confirmed
review by Michèle Asprey
Monsieur Lazhar, a French-Canadian film that won the audience favourite award at the Sydney Film Festival this year, tells the moving story of a class of 11- and 12-year-olds who find themselves (for reasons that should not be revealed) without their beloved teacher, and of the man who tries to fill her shoes. It unfolds over the course of a school year, beginning in wintry Montreal. The new teacher is Bachir Lazhar, a 55-year-old Algerian immigrant.
The screenplay was adapted from a play written by Evelyne de la Chenelière (who appears in a smallish role as the airline-pilot mother of one of the children). The adaption by Québécois writer-director Philippe Falardeau makes its stage origins as a one-man play almost imperceptible.
Director Falardeau began his filmmaking career in 1993 by winning the French-Canadian equivalent of TV show Race Around the World, in which participants travel the world making short films. This early promise is fulfilled in Monsieur Lazhar.
Everything about the film is understated. Despite its almost melodramatic premise, neither it nor its performers overstep the mark. This is a difficult feat to pull off, since the cast includes some of the sweetest, smartest kids you're likely to see on film.
In the title role is French-Algerian actor and political exile Mohamed Fellag. Fellag studied theatre in Algiers, but left in the 1970s to work in France and Canada. He returned to Algeria some years later and acted and directed for the theatre there until, in 1995, a bomb exploded during one of his performances, and he left permanently for Paris.
The authorities warned him not to return, as there was a fatwa against him. In exile in Europe, he became known mostly for his one-man shows.
This knowledge adds poignance to the story of his character, Monsieur Lazhar, as it is slowly revealed. The film runs only 94 minutes, quite short by today's standards, yet its reveal is slow, steady, and beautifully controlled. At first, our focus is on the children and the questions surrounding the loss of their teacher, but then, partly because of the charm and subtlety of Fellag's performance, we become curious to know his story too.
Fellag's realisation of the character is immaculate, and intriguing. Known mainly for his work as a stand-up comedian and raconteur, in this film, he's an actor of impeccable presence and stillness: in short, he's a star. The children offer superb support, all under the steady hand of director Falardeau.
This is one of those films where the less you know about the plot before you see it, the better. It is enough to say that the issues the film raises, with the lightest of touches, include how to explain tragedy to a child, and the difficulty of being a caring and compassionate teacher today when many are paranoid about 'inappropriate touching'. There's also the raft of issues raised by Monsieur Lazhar's personal history. It's amazing all of these questions can be explored in such a short and sweet film.
That's probably the secret of Monsieur Lazhar. It's a wise film that knows that life - even a very young life - can involve facing difficult problems, and we probably can't deal with them all satisfactorily. The film asks the hard questions, then allows us space to consider what the answers might be. But in the end it is content to allow the possibility that some problems have no answers, and the best we can do is just to help each other heal.
Memory and Aging, edited by M. Naveh-Benjamin and N. Ohta, Psychology Press
review by Sue Field
Reading this took me back to my early days of tertiary study and Pirsig's Zen and the Art of Motorcycle Maintenance - "great story about the bike ride, pity about all that philosophy I had to work through!" This book, too, has some great stories, but comprehension of the technical side was at times difficult for this layperson.
However, as the editors state, "the ability to learn new information and retrieve previously learned information is essential for successful aging" and, with an aging population, the research explored here will be of interest to many professionals and others. It will, of course, be invaluable to clinical psychologists.
The editors are to be commended for their choice of researchers and the breadth of material covered. In all, 26 contributors from six countries cover four distinct areas, some more technical than others.
In the first, examining short-term and working memory, Verhaeghen uses everyday examples, such as the process of making a curry with friends, to explain the concepts that underpin working memory, "the workplace of the mind".
In a section addressing the age-related changes that occur in our long-term memory, Darlene and James Howard concentrate on implicit learning, that is, the learning we unconsciously engage in on a daily basis, and conclude that understanding and maximising implicit learning is key in successful aging.
In perhaps the most interesting section, on social, emotional and cultural perspectives of aging on memory, Hess and Emery discuss 'stereotype threat theory' and how negative stereotyping impairs the performance of older adults in tests such as free-recall. In one experiment, prior to taking the free-recall test, some older adults were given an article to read which portrayed a negative view of memory and aging. They recalled fewer words than those given a positive article to read before the test.
The last part, addressing the neuroscientific, biological, epidemiological and health perspectives associated with memory and aging, contains a number of complex diagrams, charts and models which some readers may prefer to skip.
This would have to be one of the most thoroughly researched and grammatically beautiful texts to have come across my desk. Would I recommend this book - yes, with the caveat that the FOG index is somewhat high.
Burdens of Proof, Jean-François Blanchette, MIT Press
review by Andrew Haesler SC
Until reading this book I was unaware of, and unconcerned by, "quadratic residuousity" nor was my performance anxiety ever based on "key size". I am, however, concerned with assessing the veracity, privacy and security of documentary evidence and ensuring the reliability of proof through documents whether they are on paper or taken from a computer's digital memory. After reading Jean-François Blanchette's book on electronic documents, I am better informed but not much wiser.
Blanchette, a French professor working in the US, focuses on documentary security and proof in civil law systems. He analyses, from the perspective of a cryptographer, how in civil code jurisdictions the legal system has dealt with verifying and securing documents sent through cyberspace. There is also the competing concern of state security agencies that are not at all happy with too much security of electronic data. They want to keep their own communications secure but get access to everyone else's.
We all should have faith in the privacy, veracity and security of economic and legal transactions evidenced by electronic data. The big question is, can we? Blanchette points out that the security of electronic documents cannot, as yet, be wholly guaranteed. We do not, and may never have, a digital phenomenon the equivalent of a human signature. Every new attempt at securing electronic documents as between parties or from state surveillance generates a fresh attempt by cryptographers to crack the code.
The challenge for the new century is, how are legal institutions in a computer society to cope with electronic data? There is some cause for optimism. While the law's empire is built on paper, back in the 1550s paper was an emerging technology. Legal systems coped with and - indeed, as we know - thrived on paper.
In civil law jurisdictions, many laws drafted centuries ago simply cannot cope. Even recent changes can be overwhelmed by new technology; sometimes before the laws take effect. Broad definitions, such as Australia's Uniform Evidence Acts where document is defined to mean "record of information", allow for flexibility but do not provide the high level of certainty and specificity demanded by codes.
Codes on the other hand allow little scope for innovation. There is a strong argument for our minimalist approach. Doing nothing allows the law to deal creatively with new technology. It is a better response than trying to pass laws that presume to predict where technology will go.
The book raises some fascinating ideas but it often bogs down in esoteric debate that, while apparently well known in cryptographic circles, is of little interest to the general reader. While it starts and ends with the intriguing tale of Barack Obama's birth certificate, it is too technical and disjointed a work for anyone other than those with cryptographic literacy.
The Wartime Journals, Hugh Trevor-Roper, I.B. Tauris
review by Roy Williams
Hugh Trevor-Roper (1914-2003) was one of the most eminent English scholars of the twentieth century. He wrote several important works of academic history, but his best-known achievements came in the aftermath of World War II. His book The Last Days of Hitler (1947) was a ground-breaking work.
In 1940, Trevor-Roper had been summoned from the ivory towers of Oxford University to work in British Intelligence. In that capacity he served ably and loyally throughout the war, but he kept one thing from his superiors.
British Intelligence operatives were prohibited from keeping any private records touching upon official secrets. Trevor-Roper did so anyway, from 1940 to 1947. His journals were not unearthed until after his death in 2003. Recently, Richard Davenport-Hines, a contemporary English historian, was given permission by Trevor-Roper's estate to edit, footnote and publish them. The finished product is superb.
Among the best sections are those written from mid-1945, following the German surrender. Trevor-Roper was despatched to Berlin to investigate the fate of Hitler. There were rumours circulating that he was somewhere in hiding.
Trevor-Roper interrogated many survivors of the Nazi inner circle. He found Hitler's will and established beyond serious doubt that the Führer was dead - half-mad, he had committed suicide in his underground bunker before the fast-advancing Russians could get hold of him.
But the journals were not exclusively, or even mainly, about the war. In exquisite prose, written in the style of Samuel Butler, Trevor-Roper traversed an astonishing range of subjects. To name but a few: university life, theology, dream-interpretation, Americans, the English landscape (which he adored), Greek and Roman literature, bureaucracy, women (he found "nearly all [of them] unsatisfactory"!), and the benefits of illness.
At one point he wrote (to himself, remember): "I am often astonished by the depth and extent of my learning." Immodest, certainly - but who could argue? I suspect there are few such Renaissance men alive today.
If he had done nothing else, Trevor-Roper might be remembered for his lyrical descriptions of nature. Consider this passage about Iceland: "And then there are those hills, those desolate identical ruined volcanic stacks that rise in forbidding series, one behind the other, all along the river valleys, till the eye loses itself in that crystalline translucent northern air: mountains now fresh and rose-coloured as the sunlight smiles on their bare tufta crests."
In Good Hands, Ian Pfennigwerth, Longueville Books, available at www.nautilushistory.com.au
review by Michael J. Donohoe
This is no ordinary prisoner-of-war story. The author, a historian, has provided an authoritative insight into the contemporary context of the life and times of this extraordinary and dedicated physician with particular reference to his experience as a POW. It is well worth reading for the rare historical analysis of what it meant to be a POW of the Japanese.
At the outbreak of World War II, Stening was establishing himself as a physician with a particular interest in child medicine. He commenced duty as a surgeon lieutenant in the Royal Australian Navy on 14 May 1940. Prior to becoming a POW on the sinking of HMAS Perth on 1 March 1942, he had already been exposed to the horrors of war at sea. On 29 June 1941, his ship HMAS Waterhen had been sunk in the Mediterranean.
Stening, along with other POWs, was destined to spend a miserable and challenging existence as part of a forced labour force for the industrial conglomerates within Japan.
Food supplies in Japan were always fragile, and Japan had never ratified the Geneva Convention, which had a bearing on the treatment of Allied prisoners. The Japanese remained unable to deal with the large and unexpected number of people they had captured.
Once permitted to practise as a doctor, albeit in a limited way, Stening spent his time at a number of 'camps' throughout Japan as doctor and sometimes camp leader. He faced the chronic shortages of food, clothing and basic medical supplies and the arbitrary Japanese punishment meted out to all prisoners.
During 1942 to 1943, the standard of living deteriorated for all mainland Japanese. Some of the horror meted out to POWs was in part a reflection of this. Essentially, Stening and his fellow medical prisoners sought by practical and moral example to maintain, as best they could, the survival of the POWs under their 'care'.
When peace came, Japan was ruined and starving. The Allies had to focus on repatriating thousands of POWs who were underfed, malnourished and disease-ridden. Of the 22,000 POWs estimated by the Allies, 14,000 survived.
With the support of family and medical colleagues, Stening slowly picked up the threads of his life and profession. He retained a strong link with former POWs. Significantly, he was able to pursue and develop his interest and prominence in the newly emerging specialty of paediatrics in Australia.
End This Depression Now, Paul Krugman, W. W. Norton & Company
review by Dwayne Schulz
Paul Krugman, Professor of Economics at Princeton, Nobel laureate and New York Times columnist, offers wise counsel in this small but valuable book. He argues that the US is in the same kind of situation it was in the 1930s - what Keynes called "a colossal muddle" - that won't change if ideological prejudice against "several generations worth of economic analysis" continues dominating public discourse. The prejudice is that austerity solves rather than exacerbates unemployment and stagnation. Krugman argues that the economic hardware (resources, skills, knowledge and technology) is in fine working order, but the software (government policy), which has a disproportionate effect on everything else, needs urgent tweaking to boot the economy back to life.
The main problem for the US is a 'liquidity trap' where the Federal Reserve can't lower interest rates any further (they're already zero) to stimulate demand. The solution is fiscal stimulus, like the kind which brought the decade-long Great Depression to an end in 1941 with a surge in military spending on armaments for Britain and to support millions of new draftees. "And just like that," says Krugman, "the Depression was over."
End This Depression Now succinctly explains the ideas of major economists like Keynes and Minsky, showing their relevance to today's predicament. Minsky, for example, modelled how economies move from low debt/risk to the opposite. In good times, positive attitudes to debt lead "inexorably" to more relaxed lending and regulatory practices that "set the stage for future catastrophe". As memories of the bad old times fade, collective debt and risk ratchet up and up, until a 'Minsky moment' is reached, when, like Wile E. Coyote, society realises it has run past the cliff and is hanging mid-air over the abyss. Krugman traces this dynamic from the deregulation of financial markets in the 90s and the subsequent housing bubble (in the chapter "Bankers Gone Wild") to the final Minsky moment when Lehman Brothers collapsed in 2008. Obama's principally correct, but inadequately small, stimulus bill of 2009, the Euro-crisis and many other subsequent events are also explained.
End This Depression Now is well-written and will help the layperson gain some traction on the complexities of the global crisis, giving a better appreciation of that important but oft-derided subject known as 'the dismal science' - economics. It is well worth the read.
Fact and Fantasy about Leadership, Micha Popper, Edward Elgar Publishing
review by Colin James
Radovan Karadzic, the 'Butcher of Sarajevo', was a poet and a psychiatrist with a special interest in treating depression. He was also a good leader, in the sense of good at leading, one who exhibited many of the traits that researchers have identified in the 'great man' trait model of leadership: charisma, intelligence, drive, vision and flexibility, communication skills and effective use of motivational symbolism.
Karadzic successfully led his troops in individually executing thousands of defenceless Bosnian Muslims and he stands in history alongside other monstrous, though arguably successful, leaders: Pol Pot, Stalin, Hitler and Mao. The dilemma for trait theorists is that similar characteristics can be found in 'good' leaders, such as Lincoln, Churchill, Gandhi and King. And as mere followers, as we all are, how are we to know at any point in history if our leaders are simply good at leading, or leading us to good?
This book helps in part by posing a distinction between rulers (bad) from leaders (good), although it might be simplistic to argue that all the subordinates of Hitler or Stalin, who were rulers in this model, acted only out of fear in committing their atrocities. Trait theory is flawed because there is no consensus on which traits make a leader, or on their relative value, since there are hundreds of traits competing for recognition.
We are left with two cliche questions: are leaders born or made, and is leadership an art or a science? Most would answer both questions glibly with 'both', although the author says the question is important because leaders have an impact on our lives and on the direction society moves. It is no surprise that leadership development is a multi-billion dollar industry, producing around 10,000 research articles up to 2008, and possibly double that number since then.
Overall, this short text of 130 pages is a brave attempt to make sense of it all. Popper's ambition is to clarify the phenomenon of leadership and he does it well enough by emphasising three points.
First is the role of followers, who in most cases decide how much influence a leader shall have. Second is the role of context, including history, culture and organisation or national type. Third is the role of tacit knowledge in good leaders, the 'unknown known' and how to use it.
Here, Popper might be referring to a trait that we surely all want in our leaders, which can't be taught but can be developed by reflecting on experience, which might distinguish rulers from leaders, and which Gandhi had and Karadzic didn't, and that is ... wisdom.