Symposium Paper: The Future of Private International Law in Australia

Article excerpt

Abstract

In a seminar held at the University of Sydney on 16 May 2011, four speakers were invited to consider 'The Future of Private International Law in Australia' from different perspectives--judge, lawyer in government, practitioner and academic. Unsurprisingly, given the breadth of the topic, the subject matter of the presentations varied widely. Justice Paul Le Gay Brereton of the New South Wales Supreme Court addressed the difficulties inherent in the proof of foreign law, and recent developments in New South Wales practice in this area. Thomas John of the Commonwealth Attorney-General's Department considered Australia's approach to the regulation of private international law issues at an international level. Dr Andrew Bell SC of the New South Wales Bar looked at recurring themes and likely future trends in Australian case law in the area. In the final presentation, based on this paper, the author considered two related topics. First, the development and recognition of a unified body of Australian private international law. Second, the case for reform of the currently diverse regimes regulating the personal jurisdiction of courts in Australia. The author argues that the subject has now developed and matured to a point where the label 'Australian private international law' is justified in two of the three key areas: applicable law and the recognition and enforcement of-judgments. He urges reform of federal and state rules governing personal jurisdiction, by a process of harmonisation, in order to complete the last side of the Australian private international law triangle.

Introduction

A lawyer working at a university or other academic institution may contribute in a number of ways to the development of the law. The most important of these roles is that of legal education, encouraging students (among whom will be potential legal practitioners, legislators and judges) to acquire the knowledge and skills they will need in their future careers. In this role, and in undertaking research and writing, academic lawyers enjoy greater flexibility and freedom than their counterparts in legal practice. Whereas the latter, at least in terms of legal principle, must focus on the present, the law teacher may and, indeed, should trace the historical development of the law and suggest its future direction. He or she may also choose, without fear of reproach from the bench, which topics to highlight and which to leave for another day.

Taking full advantage of that liberty, this short paper will consider three topics. First, the teaching of private international law in Australia. Second, the development of a uniform body of 'Australian private international law'. Third, the case for harmonisation of the rules of jurisdiction applied by Australian courts in cases with a foreign connection (that is, a connection to a legal system outside Australia).

The Teaching of Private International Law in Australia

A glance at any reading list for a course on private international law at an Australian university demonstrates that students are required to grapple with a combination of older common law and equitable doctrine, recent judicial innovation, and legislative intervention at federal and state level. In this eclectic mix lies much of the subject's appeal (at least to the author).

There is no doubt that private international in Australia is becoming more and more important over time. As demand for Australia's resources and the skills of the population grow, and as technological innovation facilitates communication and travel between nations, the number of cases brought before Australian courts with an overseas connection (1) has increased significantly in recent years, (2) reflecting an evident global trend. In light of this development, no longer can the study of the ways in which legal systems deal with private law aspects of cross-border transactions and disputes be offered only as a specialist elective in a post-graduate setting. …