Table of Contents

Elgar Encyclopedia of Comparative Law, Second Edition

Elgar Encyclopedia of Comparative Law, Second Edition

Elgar original reference

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.

Chapter 8: Australia

Martin Vranken

Subjects: law - academic, comparative law


Australia, officially known as the Commonwealth of Australia, has a legal system that for historical reasons belongs to the family of the common law. In colonial times the application of English law was regarded as selfevident. To this day it is still not unusual for Australian court decisions to contain, at times elaborate, references to English precedent. However, officially English law no longer constitutes a binding source of law. The judicial emancipation of the Australian courts formally became complete with the enactment of the Australia Act 1986 (Cth). That statute abolished a right of appeal in Australian cases to the Privy Council in London. A local version of the common law is gradually developing in contemporary Australia, one that is adapted to that country’s own characteristics and customs of its people. At times this evolution has been a matter of necessity. An example taken from the law of contract concerns disputes about the sale of land: they feature much more prominently in Australian than in English litigation. The peculiar features of Australian society inevitably impact upon its common law, even if the development of an Australian law (of contract) may prove a slow process (Ellinghaus, 1989, p. 53). In other areas of private law Australian courts have displayed somewhat less reluctance to go their own way. Tort law, in particular the tort of negligence, is a case in point (Luntz, 1989, pp. 70–88), even though the quality of the result can be open to debate (Witting, 2002, p. 214).

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