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Saggi, Conferenze e Seminari 43. Reproduced with permission of Centro di studi e ricerche di diritto comparator e straniero, diretto da M.J. Bonell

The Common Law in the World:
The Australian Experience

Paul Finn
Roma (February 2000)

The justification I suppose for speaking to you in the middle of a Roman winter about Australia and its legal system is simply to offer you a glimpse of a Southern Hemisphere exotic which you may find to be of some interest in at least some of its details.

Let me begin by talking about Australia generally. White settlement and the consequent shattering of the pre-existing aboriginal society occurred in 1788 with the establishment of convict settlements in eastern Australia. Population growth in Australia was relatively slow until the gold rushes in the 1850s which bought mass migration particularly from California and Europe. The raw conditions of the country and later the patterns of private investment required government to assume responsibilities both for the people of the country and for its development that stood the Australian colonies apart significantly from contemporary European societies. The country had to be surveyed and sold; roads, bridges, ports, railways, etc built; schools and hospitals established; manufacturing and agriculture encouraged; water supplies found and developed; migration programmes developed; etc. I will refer later to this phenomenon of "colonial socialism". Here I would merely observe in passing that it created a quite distinctive citizen-State relationship that required no little modification of the immunities from suit that the State enjoyed in older common law countries such as Britain and the United States.

Initially there were six colonies occupying the Australian continent. In 1901 these federated into present day Australia under a written constitution which was itself a blend of the United States constitution (with its elected House of Representatives and Senate and a constitutionally separated judiciary) and the British parliamentary system. Each state, and the two territories which subsequently came [page 1] into existence, had their own court systems. The Constitution allowed for the creation of the High Court of Australia. It was the ultimate court of appeal from the courts of the states and territories and it was also the constitutional court. A consequence of this arrangement differentiated it somewhat from the Supreme Court of the United States in that the High Court declared what was to be the common law for all of Australia. In the 1970s Federal Courts (also contemplated by the Constitution) were created - first a quite distinctive Family Court and later the Federal Court of Australia, the court to which I belong. While the latter's jurisdiction is statutory in origin, it is able to adjudicate upon a significant number of common law matters provided these are related to a matter in which it has jurisdiction by virtue of federal statute. The availability of the Federal Court in matters in which State Supreme Courts also have jurisdiction produces some level of venue shopping in litigation. So much by way of background.

The American jurist, Oliver Wendell Holmes, made the observation that the common law contains a country's history slow grown. In the case of Australia, this was not to be. The reason for that brings me to the first of the substantive matters upon which I wish to dwell and this was the dependency, first, of the Australian colonies and, then, of the Australian nation, upon Britain. The story I am to tell is as true of Canada and of New Zealand until recent times, as it was of Australia. During the colonial period, the ultimate court of appeal from the colonial Supreme Courts was the Privy Council, a court of English judges sitting in London. After Federation, the Privy Council retained (and in relation to the High Court assumed) that role until the mid-1970s when appeals were severely truncated before being abolished finally in the mid-1980s. For much the greater part of that period our common law was England's, our legal method was English. We were intellectually colonised long after we formally ceased to be a British colony. A consequence of this was that England's circumstances, needs and values, not Australia's, were reflected in the [page 2] common law. The Australian law of trespass, for example, was the English law of trespass, notwithstanding the radical differences in size, population distribution and social practices between the two countries. Likewise the Australian law of contract was English law of contract: it had the same, often museum piece, qualities that English contract law of the 20th century retained.

If such was the situation that obtained as between Australia and Britain until the mid-1970s, from that time significant change began to occur. Notable at the British end was that country's entry into the then European Economic Community. Europe displaced the British Commonwealth as the focal point of attention for Britons and this had a profound effect upon countries such as Australia and Canada. Those effects were felt immediately in trade but ultimately in legal attitudes entertained toward Britain. From the Australian end with the abolition of Privy Council appeals we had to go our own way. To the extent that our law remained judge-made -- as I will point out later, our law now is predominantly statutory in origin -- it was for the judges to determine the directions we would take. Were we still to be guided by England or were we to cast our net more widely?

In the 1980s and early 1990s, the High Court was marked fortuitously by judges of a liberal and outward looking cast of mind. The Chief Justice for much of that period saw the need, as he stated on a number of occasions, to adapt the common law to our own conditions and needs. In that endeavour he openly espoused the view that while English material would be looked to, it would only be persuasive to the extent that it had a capacity to persuade. In this it was to be in no better position than other legal sources from other parts of the world.

I would interpolate in passing that given Australia's population size - we are only 18 million people -- the country necessarily has had to be outward looking in some degree in developing its law. There [page 3] simply were not, and are not, the volume and range of internally generated disputes requiring court resolution to build up a national corpus which is purely Australian in character. Obviously, for the reasons I have already given, the British influence was and remains significant. But so also is that of the United States and Canada both being settler societies and federations governed under written constitutions. United States' law for example, is evident not merely in the common law generally but in subjects of a statutory origin such as antitrust as also in constitutional law. Reflecting a larger trend, our law is increasingly influenced by international law, but particularly by treaties and covenants dealing with refugees, human rights, the environment and so on. These are being incorporated into domestic law and are interpreted according to international law principles. Even when not so incorporated, they can have an osmotic effect on legal development.

There is, of course, a particular problem which arises from the extent to which we are reliant upon foreign materials. There is, as a former Chief Justice of California Chief Justice Traynor noted, the need to subject foreign law to inspection at the border to be sure it can be adapted to local conditions. Not all imports into Australia have been beneficial ones. There have even in the law been "rabbit" imports.

Paralleling the judicial reorientation I have noted has been a revolution in Australian legal scholarship. If for most of our history the standard English textbook was the favoured (and usually only available) tool of the Australian lawyer, from the 1970s, at first haltingly and now in full flood, Australian authored texts have come into their own. With the advent of specialist law journals as well, the scholarship of the Australian academy has at last secured its proper influence in Australian legal development.

Having briefly noted the process of Australianisation of our law [page 4] I should note that, with significant changes in the personnel of the High Court in the last three years, signs are emerging of a different temper and outlook in the Court. The judges now seem to be concerned more with legal doctrine, less with issues of legal policy. Some commentators have suggested we are experiencing a reaction to the creativity, to the realist mode, I have noted. What does seem clear is that the politics of judicial law making in Australia are being reappraised by the judges of our highest court.

I should also say something in passing of that Court and its personnel. It has seven members, necessarily lawyers, who hold office from their date of appointment until they reach the age of 70. Their positions -- as also those of all federal judges -- are protected by Chapter III of our Constitution. The justices are appointed by the Executive government but the Court itself is quite independent of the Executive. As I noted earlier the Constitution ensures an independent judiciary. The Court hears 60 to 80 cases a year. No one has a right of appeal to the Court, appeals requiring the grant of special leave by it. This ensures that, as a rule, only cases raising issues of importance are entertained by it. Appeals are heard by benches of 5 or, in the more important cases, of 7 judges. Each judge has the right to write his or her own judgment -- a right often availed of -- which adds to the difficulty of ascertaining the actual rationale for some of the Court's decisions. This, on occasion, is a real cause of concern for trial judges especially in common law matters. There is, as yet, no practice of majority and minority judgments as in the Supreme Court of the United States.

Now let me turn to what is the centrepiece of Australian law, as it is I think of most common law countries. That is statute. Both the United Kingdom and continental Europe had layer upon layer of civilisation and of laws built up over many centuries. Australia's history is quite different. We have only had two hundred years of white settlement, and in a harsh country. From the beginning, as I [page 5] earlier noted, governments had to be the provider. From this, there developed a system of state socialism quite foreign to the laissez-faire mould of England. Commentators towards the end of the last century from continental Europe commented upon this. It was even given the title colonial socialism but as a french politician was to note in a book he wrote of his visit to Australia at the end of the nineteenth century it was "socialism without doctrine".

Government was the great provider, not only of infrastructure but of health, education and social welfare; it went into partnerships with the primary sector; it was engaged in shipping; it conducted commercial enterprises; and so on. Much of that governmental activity necessarily could only be conducted under statute. In consequence, we developed a tradition, which is now the common place in most common law countries, that the law which effects the every day life of Australians was, and is, predominantly statute law and not the common law.

Civilian lawyers tend to overlook this. In many areas the common law has been replaced entirely, or for all practical purposes, by statute. Let me give you three examples. Our land law is statutory; we have a large and developed body of administrative law that is statutory in character; and in the commercial arena, let me just quote to you one section (s 52) of the Commonwealth's Trade Practices Act 1974. It provides: "a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive, or is likely to mislead and deceive". That provision could come straight from a code country. New Zealand falls into much the same category as Australia and it has gone so far as to codify much of its contract law.

Mary Glendon, the Harvard professor, noted in a comment in Justice Scalia's book, A Matter of Interpretation, that there was a convergence between the civil and the common law countries in the modern statute phenomenon. That definitely is true in my own [page 6] country. The one thing a common lawyer's training has ill-equipped us to do is to adopt consistent and coherent principles of statutory interpretation. For my own part, I consider the jurisprudence of statutes and of their interpretation the great issue in contemporary Australian law.

Let me say a few words on another topic, that of our indigenous people. For over at least 40,000 years (the time frame keeps being extended), the aborigines lived as hunter-gatherers in our country. Today there are, seemingly, about 300,000 who claim to be aboriginals. Some are urban dwellers totally divorced from their traditional lands and culture. Others still live on the land usually in quite remote areas.

The treatment of these peoples is one of the bleaker parts of white Australian history. They were brought close to extermination. Only now are we beginning to acknowledge the dimensions of settler conflict with the aboriginals in what are being referred to as "the wars of the frontier". Even today the aborigines suffer enormous disadvantage. They have much shorter life expectancy than the general population; they make up a disproportionately large portion of our prison population; their amenities in rural areas are often abysmal. Unsurprisingly, and in common with native groups in North America and New Zealand they are reasserting their indigenous rights. Their claims for self-determination, for land rights and for the recognition of their customary law have posed new challenges for our common law as also for our legislatures.

Up until the early 1990s the prevailing legal doctrine in Australia -- in the face of an obvious historical fact -- was that the country was terra nullius. In a landmark decision in a land rights claim bought by Torres Strait islanders, the High Court rejected the terra nullius theory and recognised the possibility for there to be enduring native title to land. A major issue in my own court is [page 7] working out under recently passed federal statutes whether particular groups of aboriginals can establish native title rights to particular areas of the country. The dislocation and dispersal of aboriginal groups can make this a particularly formidable task, made the more so by aboriginal history and law being based on oral tradition. It will, I venture, be a considerable period of time before acceptable settlements will be reached between the white and black societies of Australia over the many matters the aboriginal peoples raise for recognition.

Finally, let me talk about a private law matter and it is appropriate that it be contract law given my common endeavours with Professor Bonell. As I indicated earlier, we inherited English contract law. Up until twenty years ago, it was unmistakably English. There was no good faith doctrine; there were very limited doctrines governing culpa in contrahendo; and there was insistence on privity of contract, consideration and strict interpretation; and, above all there was the elevation of certainty as a fundamental value. All of this may have been perfectly acceptable for the English. England, so it has been said, depended upon invisibles and upon foreign trade and it has been acknowledged by English contract writers and judges that the contract law of England was constructed in consequence with an eye to international commerce. Why a law so shaped should have been accepted in and for Australia is not at all obvious. Much the most common form of contractual dispute in Australia related to land. And given the size of our country and the use to which land was put, land was seen simply as a commodity. Our contract concerns were some distance from England's trading concerns.

From the early 1980s and in line with the change in the High Court that I mentioned earlier, contract law started to undergo a distinctive reformation. Promissory estoppel doctrines were developed along lines similar to Article 90 of the United States Restatement of Contracts Second: a form of reliance contract theory was embraced. Culpa in contrahendo doctrines were enlarged; the [page 8] law of mistake in contract formation was rejuvenated; doctrines were developed to prevent parties taking undue advantage of another's disadvantage; and distinctly there has been partial acceptance of third party contract enforcement through a contract beneficiary doctrine. In each area we have moved much closer to the United States and to civil law and further away from the British. The process utilised in making these developments drew heavily upon generalisations derived from that distinctive body of law in the common law tradition called equity. What our courts were concerned with was to prevent what they described as "unconscionable conduct", a notion not terribly far removed from bad faith and unfair dealing. The language of fairness and fair dealing, I would add, is now far more prevalent in our case law.

The question is, though, whether this development was actually necessary. I earlier referred to the Trade Practices Act provision concerned with misleading or deceptive conduct. The manner in which that provision has been interpreted by Australian courts has rendered superfluous much of the common law of contract as also a large part of our tort law. Section 52 has become the dominating provision in commercial litigation. It also has had a dramatic effect on remedy because the Trade Practices Act, unlike the common law, provides courts with a significant range of remedies that may be granted.

One particular area of contract law that I mention in passing because of its contemporary importance is government contracting. In common with other western countries, Australia has engaged dramatically in the processes of privatisation of government functions and the outsourcing of government functions. This has brought contract even more so into the public sector domain. Notwithstanding our long history of governmental activity and in particular of governmental contracting, we did not develop a distinctive body of public sector contract law. The emerging issue for us with the [page 9] outsourcing and privatisation phenomenon has been the need to marry public law concepts to what is a private law form. The mere expedient of outsourcing and privatisation should not, it is said, have the effect of immunising what were important governmental activities from traditional forms of public sector oversight - from the scrutiny of an ombudsman, from Freedom of Information legislation, judicial review and so on. We will, I venture, see contract mutating to accommodate the distinctive character of governmental contracting over the next decade or so.

Let me finish with this comment. The story I have told really is one of convergence. The things that made Australia distinctive in the past are receding as we all begin to match and to accommodate each other in an international community. In my own view the inexorable development in our legal systems will be towards harmonisation and synthesising the law of different systems where this can sensibly be done. Imperatives of international trade will I think drive much of that development. But equally international concerns with human rights, environment and so on will continue to have their own coercive force. Much as we each may wish to accentuate our own distinctiveness, the forces at work in the law, in my view, are centripetal not centrifugal. [page 10]

©Pace Law School Institute of International Commercial Law - Last updated December 11, 2009
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